HKSAR v. SZE YU

CACC 143/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 143 OF 2003

(ON APPEAL FROM HCCC NO. 19 OF 2003)

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J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

Application for leave to appeal against sentence

1. The applicant pleaded guilty to two charges before Beeson J. First, assisting the passage to Hong Kong of unauthorized entrants, contrary to section 37(D)(1)(a) of the Immigration Ordinance, Cap. 115. Second, endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313.

2. On the first charge, the judge used a starting point of seven years' imprisonment, a one-third discount was given for the guilty plea and the applicant was sentenced to four years and eight months' imprisonment. On the second charge, the judge adopted a starting point of four years' imprisonment. She gave a twelve months' discount for the guilty plea and sentenced the applicant to three years' imprisonment.

3. The judge ordered the sentences to run consecutively, making a total of seven years and eight months' imprisonment.

4. The applicant now applies for leave to appeal against sentence.

The facts

5. The facts revealed that on 6 October 2002, at about 11:15 pm, a team of marine police was on patrol in a police launch about one nautical miles off Conic Island. This is in the Sai Kung area. They saw an unlit motorized sampan heading towards the Hong Kong shore. The police approached the sampan at medium speed but the people in the sampan apparently saw them and they tried to flee.

6. The police chased after the sampan. By then two other police launches had arrived at the scene and assisted in the chase. The police had signalled the sampan to stop by flashing lights, sounding horns and shooting flares into the sky.

7. However, the sampan did not stop but steered at high speed in a zigzag course, making sudden and violent changes in directions. One of the police launches had to change course several times to avoid a collision.

8. The chase lasted about 15 minutes at which point the sampan's engine caught fire and the sampan capsized. The waves at that time were at grade two to three.

9. The 10 people on board fell into the sea. No life-saving equipment was seen. Police jumped into the sea to rescue the passengers, all of whom had some injuries and four officers received injuries as well. Some passengers were unconscious; three had swallowed sea water and was suffering from "respiratory insufficiency". One passenger had a first degree burn to the right arm. All 10 passengers were found to be unauthorized entrants to Hong Kong.

10. The sampan was inspected by the Marine Department and found that there was no life-saving or fire-fighting equipment, and no navigation lights on the sampan. The inspector concluded that the sampan was not appropriately equipped and not suitable for carrying passengers.

11. Under caution, the applicant admitted that he was the helmsman and said that he was carrying the nine passengers from Huidong in the Mainland to Hong Kong for a reward of RMB2,000. He said he knew he was being chased, but he tried to evade arrest. He said he had not inspected the sampan before leaving Huidong and he did not know if it had life-saving equipment.

Previous similar offence of the applicant

12. This is not the first time that the applicant had engaged in the illegal activities of smuggling illegal immigrants to Hong Kong and had done acts which endangered the safety of others at sea. On 8 May 1995 he was charged with the offence of assisting the remaining of illegal immigrants in Hong Kong and the charge of endangering the safety of others at sea. He was sentenced to four years' imprisonment and three years' imprisonment respectively, making a total of seven years' imprisonment. He pleaded not guilty to the two offences but was found guilty after trial.

13. His application for leave to appeal against conviction was dismissed by this Court on 31 October 1995 and his application for leave to appeal against sentence was heard by this Court on 23 April 1996 (CACC No. 348 of 1995). The seven years' imprisonment was reduced by one month to take into account the fact that he was detained by the Immigration Department for 29 days, which according to section 67(A) of the Criminal Procedure Ordinance was not treated as part of the sentence served by the applicant.

14. We described that case as a very bad one. This is what we said :

“ The applicant was found guilty of grave misconduct. When he realized that the vessel he was controlling was being approached by a police launch he did everything he possibly could to avoid being apprehended. This was in adverse weather conditions and in the knowledge that he had 10 passengers on board seven of whom were females, and two were heavily pregnant. After a protracted chase the applicant's vessel came into collision with another vessel and sank. Very fortunately all of the persons on the vessel were rescued from the sea."

15. Prior to these offences in 1995, the applicant was also convicted of the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced on 1 August 1989 to twelve months' imprisonment.

Seven-year imprisonment's starting point

16. The first matter to be considered is whether the seven-year imprisonment's starting point adopted by the judge for the first charge is a correct one. In R. v. Ng Kit Yuen ［1992］1 HKCLR 170, this Court first of all approved of a starting point of five years' imprisonment for this type of offence.

17. We further said that if there are aggravating circumstances such as :

1. The illegal immigrants were concealed in a place from which escape would have been difficult; or

2. The vessel by reason of poor maintenance or age was in an unseaworthy condition,

then a staring point as high as nine years' imprisonment would be appropriate. This period is arrived at by adding two years for each of the aggravating circumstances to the original five years.

18. As explained in R. v. Wong Yin Lung ［1995］1 HKCLR 151, the five years' imprisonment was an appropriate starting point where the defendant was the captain or otherwise in charge of the vessel in question. If he was merely a crew member, four years' imprisonment would be the appropriate starting point.

19. The judge adopted this approach in her sentence. First of all she applied a five-year imprisonment's starting point, then she added two more years by reason of the unseaworthy nature of the sampan.

20. In our view, she could not be faulted in her approach. In this case, the applicant admitted that he was the one who steered the sampan. He admitted bringing the nine passengers to Hong Kong for a reward. In fact, in his original grounds of appeal drafted by him, he described himself as the snakehead. The five-year imprisonment's starting point is applicable.

21. An additional two years' imprisonment is also amply justified. The applicant was in charge of the sampan. It carried a total of ten passengers (including himself) on board with no life-saving equipment. The water was rough with waves of two to three grades. From the photographs we can see that the sampan was a motorized sampan with an outboard engine. It had no cover at all.

22. According to the statement of Mr. Wong Man Wai, a ship inspector of the Marine Department, the overall length of the craft is 6 meter, extreme width is 1.76 meter and the depth is 0.65 meter. It was a glass reinforced plastic sampan. It was clearly dangerous for such a small vessel to carry so many people on board in such a rough sea condition without any safety equipment. Clearly these rendered the sampan unseaworthy and a danger to the passengers. The situation is rendered worse by the dangerous and high speed manoeuvre that the applicant was engaged in before it caught fire and capsized.

R. v. Lo Shui Lun

23. Mr. Yip, counsel for the applicant, relied on the case of R. v. Lo Shui Lun (CACC 109 of 1995) in which this Court reduced a sentence after trial of seven years to five years' imprisonment. Bokhary J.A. (as he then was) stated that realistically this kind of smuggling of human cargo inherently involves some danger to life which is already taking into account by the five-year imprisonment's starting point. He held in that case the absence of fire-fighting equipment was probably of relative little significance. The same might also be said of the absence of navigational lights. He recognized, however, that the absence of life-saving equipment should be treated differently but overall he adopted a five-year imprisonment's starting point.

24. We do not read Bokhary J.A.'s judgment as casting any doubt on the need to impose a higher sentence in addition to the five-year imprisonment's starting point where the vessel was unseaworthiness.

25. Sentences are not applied mechanically. Each case has to be considered on its own facts. In that case, the applicant was carrying two unauthorized entrants on board his sampan. These two persons were described by Bokhary J.A. as "able-bodied adult man". In deciding the degree of danger he stated that this would involve, among other things, the age and condition of the unauthorized entrants. For the very young, very old and infirm would naturally be at greater risk in the event of a mishap. There was also no high speed chase in that case. The five-year imprisonment's sentence was clearly appropriate on its facts.

26. The same cannot be said about this case. The overall condition of the vessel with the number of illegal entrants on board clearly justified a seven-year imprisonment's sentence.

Maximum sentence

27. In respect of the second charge, the maximum sentence imposed by the legislation is four years' imprisonment. The judge adopted the maximum sentence as the starting point. Mr. Yip argued that the maximum sentence should only be reserved for the worst type of cases. This sentencing principle is well-known : see Thomas, Principles of Sentencing 2nd Edn. p. 30-31 and Thomas, Current Sentencing Practice 2002 section A1-4A p. 10103.

28. Mr. Yip argued that the present case is not the worst case of this type which will attract a maximum sentence. We disagree. In our view this is within the range of worst cases. The only explanation for the applicant's high risk manoeuvre was his attempt to avoid being apprehended by the police. In so doing, he had totally ignored the safety of his passengers. The chase lasted about fifteen minutes and only came to a stop because of the sampan's engine had caught fire and the sampan capsized. The ten persons on board fell into the sea and had to be rescued by the police. All of the passengers received some injuries and four of the police officers received injuries as well. While none of the passengers died, in our view, this case is among the worst case of this type which justified the imposition of the maximum sentence.

One-third discount

29. The only thing that can be said about the second sentence is that the judge did not give the full one-third discount for the guilty plea. A full one-third discount would reduce the sentence by sixteen months. In this case, the judge only gave a discount of twelve months.

30. It has been clearly established that a full one-third discount should be given in situations where a defendant pleaded guilty at the first opportunity. This is to give recognition to his guilty plea which shows remorse and to encourage guilty pleas in order to save the court's resources.

31. In the case of Sharley and Daniels （1995）16 Cr. App. R. (S) 257 the English Court of Appeal had held that there may be circumstances in which it may be appropriate to impose the maximum sentence even on a guilty plea. One of such circumstances is where the maximum is demonstrably too low.

32. In this case, the judge commented that the four-year imprisonment maximum sentence imposed by the legislation for the second offence is too low. In the absence of statistics on this type of offence, we are not prepared to hold that the maximum of four years' imprisonment is in fact too low. Very often, the defendant will also be charged with the offence of assisting the passage of illegal immigrants. Obviously, if there are additional aggravating factors, the degree of culpability can be reflected in the sentence of the first charge. In our view the applicant should be given the full one-third discount for the second charge. The sentence for the second charge should be two years and eight months' imprisonment.

Consecutive sentences

33. As pointed out by this Court in AG v. Chan Siu Yun ［1995］2 HKCLR 223 a consecutive sentence should be imposed where a defendant was charged with the additional offence of endangering the safety of others at sea. This was also the approach we adopted in the previous appeal by the applicant.

Totality principle

34. In his previous convictions the applicant was sentenced to a total of seven years' imprisonment. This sentence was imposed after trial whereas in the present case he received seven years and eight months' imprisonment after pleading guilty. Given the full one-third discount for the second charge the total sentence would still be seven years and four months' imprisonment.

35. It must, of course, be remembered that in his previous convictions he was sentenced in the District Court where the court is only authorized to sentence up to a maximum of seven years' imprisonment. Had he been sentenced in the High Court, the sentence might well exceed seven years' imprisonment. In our view, it could well be a nine year's imprisonment.

36. In the present case, he was sentenced in the Court of First Instance of the High Court. His two previous identical offences are clearly aggravating factors because he had chosen to repeat the same offences again despite being punished for what he had done earlier. Again, he adopted the same dangerous manoeuvre in trying to escape. It is only fortuitous that none of the passengers died from the accident.

37. We are of the view that given these aggravating circumstances, a total sentence of seven years and four months' imprisonment, while it may be high, is not manifestly excessive.

Conclusion

38. Accordingly, we will only allow the application for leave to appeal against the second sentence and treat the application as the appeal itself. The sentence for the second charge is reduced to two years and eight months' imprisonment. This will be served consecutively to the first sentence of four years and eight months' imprisonment, making a total sentence of seven years and four months' imprisonment.

39. We would recommend that the police in the three police launches who took part in the rescue operation should be commended for their efforts.