R. v. WONG YIN LUNG

1994, No. 52
(Criminal)

Headnote

Sentencing - carrying unauthorised entrants. The Court held that for the captain or person in charge of a vessel carrying unauthorised entrants into Hong Kong the proper starting point was 5 years imprisonment and that this starting point should also apply to others, including crew members, who had taken an active part in the organisation of the venture.

Four years was held to be the appropriate starting point for a crew member simpliciter.

Additional sentences imposed when circumstances of aggravation are shown will only apply to persons other than the captain if they are shown to have been in some way actively involved in these circumstances.

The court observed that the particulars of the offence should specify whether any person is alleged to be the captain or person in charge and that there should be no substantial discount for youth.

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant pleaded guilty to a charge being a member of the crew of a ship which entered Hong Kong with two unauthorized entrants on board. He admitted that he was a member of the crew of a vessel which was stopped by police officers patrolling in Deep Bay at 5:40 a.m. on 13th October 1993, and that he was steering the vessel at the time. Upon searching the vessel the police officers found two female unauthorized entrants inside the cabin. The applicant, who was 15 years of age at the time of the offence, under caution admitted that he had been employed by his boss to convey the unauthorized entrants to Hong Kong and that he had received RMB300, out of which he had used RMB100 to purchase fuel. The other crew member was aged 28. The applicant pleaded guilty.

Deputy Judge O'Donnell when sentencing took into account the youth of the applicant and that only two unauthorized entrants were involved. He also bore in mind the plea and the prevalence of the offence and was satisfied that two years' imprisonment was the appropriate sentence. He stated that it was not uncommon for very young or old persons to be charged with and to plead guilty to this offence. He stated finally:

"The usual starting point of 5 years imprisonment was taken in this case to arrive at the lenient sentence of 2 years imprisonment for this young offender."

It is this final observation which causes us concern. It appears to be based upon the decision in The Queen v. NG Kit-yuen (1992) 1 HKLR 170. In that matter, the applicant was charged under s.37C(1)(a) of the Immigration Ordinance with being a crew member of a ship which entered Hong Kong with unauthorized entrants. The admitted facts established that he was, in fact, the captain of the vessel. The present applicant was charged under the same sub-section. It reads:-

"37C(1) Subject to subsection (2), if a ship enters Hong Kong with an unauthorized entrant on board -

(a) each member of the crew;

(b) the owner of the ship and his agent; and (c) any person who participated in making arrangements to enable the voyage on which the unauthorized entrant boarded the ship or was brought to Hong Kong to take place,

commits an offence and is liable-

(i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; and

(ii) on summary conviction to a fine of $100,000 and to imprisonment for 3 years."

2. As can be seen s.37(C)(1) does not, in terms, refer to the captain. However in s.2, the interpretation section, "crew" is defined in the following way:

"In relation to a ship or air craft, means all persons actually employed in the working or service of the ship or aircraft, including the captain, and 'member of the crew' shall be construed accordingly;"

3. Normally in charges of this kind the particulars of the offence refer to all those operating the vessel, including the person in charge of the vessel, as crew members. It is only rarely, and then in the case of substantial vessels, that one of them is referred to in the particulars as the captain. In our view the particulars should, where appropriate, indicate who is the person alleged to be the captain or person in charge.

4. In NG Kit-yuen's case, the court dealing with the person who had been particularized as the captain of the vessel was satisfied that five years after trial was the appropriate starting point and indicated that concealment which endangered the passengers and unseaworthiness of the vessel would each increase the starting point by two years.

5. The five year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of a vessel. If the persons employed on a vessel are charged with being "members of the crew" but the facts reveal that one is the person in charge, that being admitted, the five year starting point is appropriate for him as are the accretions if applicable. The starting point will apply also to crew members and others who have taken an active part in the organization of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of aggravation. Defendants not infrequently suggest to the court that they are not crew members but are on board only for the purpose of collecting money for the real snake head. Again for such persons five years is the appropriate starting point.

6. Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organization of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or person in charge. (See The Queen v. Chan Kwok-keung & another [1988] 1 HKLR 279). We think it appropriate to add that these figures are guidelines and do not impose a straight-jacket upon a sentencing judge. The facts of a particular case may call for a sentence that falls below or above the guideline e.g. in the case where the vessel is carrying a large number of illegal entrants.

7. We think it appropriate to refer also to persons who are illegal entrants but who state that they have obtained a free passage or a passage at a reduced fee upon agreeing to act as members of the crew. If such persons have taken no part in the organization other than to agree to act as crew members, they should, as was indicated in The Queen v. Ho Siu-lun & others (1987) HKLR 1086, be dealt with as such and a starting point of four years should be taken. If, however, the evidence indicates that they have taken some active part in the organization of the venture, then the proper starting point should be five years. We again observe that s.37C(1)(a), refers only to "crew members" and that the prosecution should, if the evidence so indicates, state in the particulars who is alleged to have been in charge of the vessel.

8. In the present case it was not established that the applicant was other than a crew member simpliciter. The proper starting point would have been four years. The judge, although he noted that very young persons are often used to assist in the carrying out of these offences (see R.v. Chan Kwok- keung and another (1988) 1 HKLR 278), was nonetheless prepared to give the applicant a discount which took into account not only his plea of guilty but also his youth.

9. We are, for the reasons voiced in R. v. Chan Kwok-keung, in some doubt as to whether any substantial discount should be given in offences such as this as it may regrettably be seen as an invitation the organizers to employ young men as crew in these illicit ventures. However, given that the applicant was only 15 we would not be disposed to indicate that the judge was wrong in what he did. He was not, however, correct to take a starting point of 5 years. It should have been 4 years. Honouring the approach of the judge with regard to age we will, on account of plea and youth, reduce the sentence to one of eighteen months. This must be further reduced by the one month that the applicant spent in Immigration. The sentence of two years' imprisonment will, therefore, be varied to one of seventeen months.