R. v. MA CHI KEUNG

IN THE COURT OF APPEAL

1994, No. 184
(Criminal)

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court) :

1. This is an application for leave to appeal against a conviction by Deputy Judge Barnes in the District Court on a charge of being a member of the crew of a vessel which on 26th October 1993 entered Hong Kong with unauthorised entrants (illegal immigrants) on board, contrary to s.37C(1)(a) of the Immigration Ordinance, Cap. 115.

Conviction

2. There was undisputed evidence that at about 4:50 a.m. on 26th October 1993, a police party was on surveillance duty in the vicinity of the Chai Wan Typhoon Shelter and they observed a Hong Kong fishing vessel licence no. M60402T entering the shelter. As the vessel passed through the praya, the navigation lights were switched off. The vessel then moored alongside other boats in the shelter. The police officers, being suspicious, then approached the vessel and on board they found in the wheel house one Ma Kau Chai and the applicant. It transpired that Ma Kau Chai was the owner and master of the vessel. Also on the board the police found eight women and two men, being the illegal immigrants named in the charge.

3. Ma Kau Chai and the applicant, who are both Hong Kong residents, were then arrested by the police and the applicant made a statement under caution to one of the police officers. He said that he was employed by Ma Kau Chai as a crew member of the vessel and was paid a salary of $6,000 per month. He went on to say that he had gone with Ma Kau Chai to the port of Hui Dong with the intention of buying fish. However, on 26th October in the small hours, a party of eight women and two men came on board the vessel. The applicant asked Ma Kau Chai why so many females were boarding the vessel and was told that they had seaman cards and he was employing them to work on board the vessel. He added "It's all right. As I won't fear, why should you fear." He said that Ma then took a card from one of the women and showed it to him, but he did not get a very good view of it.

4. The applicant gave evidence and said that he was employed by Ma Kau Chai and had gone to China with him on some 10 to 20 occasions. On these trips, there had never been any transportation of people. They had gone there to buy fish, although on some occasions were not able to purchase any, as indeed was the position on 26th October. He said this was either because the price was not right or no fish were available. He said that he had no suspicions that the persons who came on board the vessel were illegal immigrants because he thought it was perfectly normal for Ma to recruit persons in China who held seaman's cards and could be employed either on M60402T or on other vessels. He agreed that as they had not bought any fish in China there was no work to be done on board the vessel on that occasion. He said the women would be able to "cook meals and do laundry work". While he did not know if Ma himself owned any other vessels, he said, "he has got friends."

5. S.37C(2)(b) of the Immigration Ordinance, Cap. 115 provides that a person who is the member of the crew of a ship, other than the captain, shall not be convicted on an offence under ss.(1) if he proves that prior to the commencement of the voyage on which the unauthorised entrant was brought to Hong Kong, he did not know and had no reason to suspect that any unauthorised entrant would be carried on the ship. It was therefore for the applicant to show, on a balance of probabilities, that immediately prior to the commencement of the voyage from Mainland China with the illegal immigrants on board, he did not know that they were unauthorised entrants and had no reason to so suspect. It is submitted here by Mr. Warwick Haldane, who did not appear below, that the conviction is unsafe and unsatisfactory because the reasons given by the Deputy Judge for not believing the applicant's evidence are flawed or unsupported by the other evidence. These were as follows:

1. The judge found that from photographs which were produced of the illegal immigrants "of the 10 people ... Some of them appear to me to be unlike fisherfolks". It was contended that this was a finding not supported by evidence and was purely a comment made from looking at photographs.

2. Of the 10 people on board, 8 were women, and the judge found that such a proportion was "an unusual occurrence". Again, it was argued that there was no evidence to support this comment and that it is not difficult to imagine women, in the fishing trade, to be at least the equal of men in navigation and seamanship.

3. Of the 2 males on board the vessel, one was 72 years of age. The judge found that it was unlikely for a man of that age to be employed to work on a fishing vessel and that even if the defendant did not know the actual age of this particular man he must have realised from his appearance that he was too old to be employed to work on such a vessel. It was argued there was no evidence that a man of that age could not work on a fishing vessel and indeed, with his long experience, he might well have been a very valuable member of the crew.

4. Clearly it was unlikely that, the vessel having gone to China to buy fish with only a crew of two, it was necessary to employ another ten for the return voyage. There was however the possibility that they were to be employed on other vessels. The applicant said "I don't know how many vessels Ma has."

5. The judge found that the circumstances under which the ten people boarded the vessel was clearly suspicious. It was submitted that there is no evidence to support that finding. In particular it was pointed out that there was no evidence as to whether there were lights on when the persons boarded the vessel or any other circumstances which would arouse suspicion in the mind of the applicant.

6. The judge had rejected without giving any particular reason the explanation given by the defendant as to why there were no fish on board the vessel. It is contended that the applicant was not cross-examined on this aspect by Crown Counsel or by the judge herself. It is not unreasonable that if there were no fish available or if the price was not right that there would be no fish on board when the vessel sailed from China to Hong Kong. It is further pointed out that the judge had said "whether that was indeed the purpose of that trip is, of course, another matter". It was argued by Mr. Haldane that this observation seems to indicate that the judge thought that possibly the applicant was aware, even before the vessel left Hong Kong, that the intention was not to buy fish but to transport illegal immigrants to Hong Kong.

6. The judge's reasons are further attacked in that she found the demeanour of the applicant unconvincing. We were referred to the decisions in R. v. Ng Wing-ming, Crim. App. 240/1994 and R. v. Lee Tak-chung, Crim. App. 389/1992 where the dangers of overly relying on demeanour are pointed out. It is further emphasised that the Deputy Judge had to have regard to the applicant's knowledge prior to the vessel leaving China. It may well be that there were suspicious circumstances occurring during the course of the voyage such as the switching off of the navigation lights when entering the Chai Wan Typhoon Shelter but such evidence was not relevant to the applicant's state of mind prior to the vessel leaving China.

7. Finally it was a ground of appeal that the provision of s.37C(1)(b) is inconsistent with the Bill of Rights in that it places an unreasonable burden upon the applicant. He must show not only that he did not know that the persons on board the vessel were illegal immigrants but that he had no reason to so suspect. Reliance was placed on R. v. Wang Shih-hung, Crim. App. 989/1993 and A.G. v. Fong Chin-yue, Crim. App. 604/1994. Mr. Haldane conceded, however, that if we rejected the other grounds of appeal set out above an argument could not be mounted on the question of incompatibility with the Bill of Rights.

8. We have carefully considered the arguments put forward by Mr. Haldane in his helpful written submissions and in the arguments he has presented to us. We are however satisfied that there was here ample evidence upon which the Deputy Judge was entitled to come to the conclusion that the applicant knew that the persons who came on board the vessel in the early hours of 26th October were illegal immigrants. We accept that, taken individually, each of the factors to which we have referred was incapable of justifying a finding of guilt but, when considered cumulatively, fairly led to the conclusion that it would have been apparent to any reasonable person, and was apparent to the applicant that, the persons boarding the vessel in the early hours of that morning were not fishermen but were in fact illegal immigrants.

9. We do not regard this conviction as unsafe or unsatisfactory and the application for leave to appeal against conviction is refused.

Sentence

10. The applicant also applied for leave to appeal against the sentence passed of 4 years' imprisonment. He was not represented in this application.

11. The applicant says that he really had no alternative but to do what he was told by Ma and to return to Hong Kong with the illegal immigrants. He now appears to admit that he did have suspicions that they were illegal immigrants. It is a matter of regret that he did not take that attitude when he appeared in the lower court. No doubt a more lenient view could then have been taken.

12. We are satisfied that the sentence passed of 4 years' imprisonment is perfectly proper. However, the owner and master of the vessel, on a plea of guilty, received only 3 years' imprisonment. We think that some distinction should be made between culpability of the master of a vessel and that of crew member in offences of this nature. Purely on that ground we allow the application and reduce the sentence from one of 4 years to one of 31/2 years' imprisonment.