HKSAR v. LEE KWAI WING

CACC 56/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2008

(ON APPEAL FROM DCCC NO.1203 OF 2007)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.  On 4 November 2007 at 0648 hours, the appellant and eight passengers, having alighted from a sinking wooden vessel with an inboard engine about five hours earlier, were arrested near a beach in Tuen Mun. The appellant was the coxswain of the vessel.

2.  The appellant admitted that he boarded the vessel in Shekou with eight passengers, intending to “sneak” into Hong Kong. He said Brother Wing, the “snakehead”, instructed him to steer the vessel to take the eight passengers to Hong Kong, and agreed to charge him RMB 1,000 less for the trip. He said each of the eight passengers paid Brother Wing RMB 2,000 whereas he only had to pay RMB 1,000.

3.  Two of the passengers were unauthorized entrants from the Mainland whereas the other six passengers were illegal immigrants from Pakistan or Bangladesh.

4.  The vessel was not in a safe condition, as there was no fire-fighting appliance, no life saving appliance and no navigation light.

5.  On 25 January 2008, the appellant appeared before District Court Judge Chua on an indictment consisting of the 1^st charge of assisting the passage to Hong Kong of unauthorised entrants, the 2^nd charge of aiding and abetting the landing of illegal immigrants in Hong Kong, and the 3^rd charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed illegally.

6.  The appellant pleaded guilty to all three charges and was sentenced to respective terms of 40 months, 16 months and 15 months’ imprisonment.

7.  The judge ordered the 40 months on the 1^st charge to run concurrently to the 16 months on the 2^nd charge, but consecutively to the 15 months on the 3^rd charge. The total sentence was 55 months’ imprisonment.

8.  The appellant sought leave to appeal against sentence on the basis that the sentence was excessive.

9.  On 14 August 2008, Stuart Moore VP granted leave to the appellant to appeal against sentence, but only in respect of whether the 15-month sentence on the 3^rd charge should be wholly or partly consecutive to the 40-month sentence on the 1^st charge, or whether it should be wholly concurrent.

Grounds of Appeal

10.  Ms Sabrina See, on behalf of the applicant, submits that the offences in question were all immigration related offences and were committed in the same incident, and therefore should attract concurrent sentences. Ms See further argues that the total sentence of 55 months’ imprisonment is manifestly excessive.

The Respondent’s Position

11.  Mr Derek Lai, for the respondent, relying on R v Ho Siu-lun [1987] HKLR 1086 and HKSAR v Wong Chi-kin CACC 357/2004, submits that the 5-year starting point for the 1^st charge was a lenient sentence. Mr Lai emphasizes the aggravating factors that, (1) the vessel was not seaworthy, and (2) the vessel was carrying a large number of illegal entrants.

12.  Mr Lai refers to HKSAR v Tong Fuk-sing [1999] 3 HKC 332 in which the Court of Appeal held that the sentence for unlawful remaining should run consecutively to the sentence for a burglary offence committed by the illegal immigrant. Mr Lai further refers to HKSAR v Cheung Siu-wai CACC 426.2003 (involving an illegal immigrant who committed an offence of robbery during his unlawful stay in Hong Kong), in which Yuen JA commented:

“The sentence for unlawfully remaining in Hong Kong and the principle that the sentence for this charge should be served consecutively to any other sentence for another offence had been set out by the Court of Appeal in the case of HKSAR v Tong Fuk-sing [1993] 3 HKC 332.”

13.  Mr Lai argues that in the absence of any strong humanitarian reason, the judge was right to impose a consecutive sentence on the 3^rd charge.

Discussion

14.  If a defendant, having entered and remained in Hong Kong illegally, commits another offence, the sentence for the “unlawful remaining” charge should run consecutively to the sentence for the other offence. The offences are separate and distinct.

15.  If a defendant, having assisted “illegal immigrants” to come to Hong Kong, chooses to stay on, it may well be fair to impose consecutive sentences on the offences of “aiding and abetting the illegal immigrants” and “unlawful remaining”, as the defendant, having committed the earlier offence, could have left Hong Kong immediately without committing the latter offence.

16.  On the other hand, by assisting the passage to Hong Kong of “unauthorised entrants” and by aiding and abetting the landing of“illegal immigrants” in Hong Kong, the appellant may necessarily himself enter and remain in Hong Kong, albeit for a brief period. The fact that the vessel had sunk meant that the appellant could not have left Hong Kong even if he had wanted to.

17.  It can therefore be argued that when the appellant was arrested for remaining unlawfully in Hong Kong (the conduct complained of in the 3^rd charge), he was still in the process of assisting the “unauthorised entrants” in their passages to Hong Kong (the conduct complained of in the 1^st charges) and aiding and abetting the landing of “illegal immigrants” in Hong Kong (the conduct complained of in the 2^nd charge). That being the case, there could well be no “different conduct” involved in the 1^st, 2^nd and the 3^rd charges.

18.  The conduct constituting the three charges was all part and parcel of the same conduct, despite the appellant’s admission that he had intended to come to Hong Kong himself as an illegal immigrant.

19.  In our view, unless there is a clean break between assisting the “unauthorised entrants” in their passages to Hong Kong and aiding and abetting the landing of “illegal immigrants” in Hong Kong, and “unlawful remaining” in Hong Kong, the sentences for the offences need not be completely consecutive.

20.  We have been told of a prosecution policy of repatriating without prosecution a first offender who contravenes the offence of unlawfully remaining in Hong Kong…after having landed illegally unless, whilst remaining, he commits another offence.

21.  The 1^st and 2^nd charges were committed before the applicant committed the 3^rd charge. Theoretically speaking, the applicant in fact had not committed another offence whilst unlawfully remaining in Hong Kong, and therefore, in terms of the policy, he should not have been prosecuted for the 3^rd charge.

22.  We do not find it necessary to decide if there was a departure from the prosecution policy, and if so, whether such departure justifies a concurrent sentence or a more lenient sentence.

23.  The 5 years adopted by the judge for the 1^st charge is a proper starting point. The judge was right to impose a concurrent sentence of 16 months’ imprisonment on the 2^nd charge.

24.  In the special circumstances of the present case, we are persuaded that the sentence on the 3^rd charge should be partly concurrent to the sentences on the 1^st and 2^nd charge. We are of the view that the 3^rd charge should attract an additional term of 8 months.

25.  We therefore order that, of the 15 months imposed on the 1^st charge, only 8 months needs to be served consecutively to the 40-month sentence on the 1^st and 2^nd charges. The total sentence on the appellant is reduced from 55 months to 48 months.

26.  The appellant’s appeal against sentence is allowed to the extent indicated.