TSOI HON TO v. R.

IN THE COURT OF APPEAL

1994, No. 158
(Criminal)

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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 of being a member of the crew of a ship which entered Hong Kong with unauthorized entrants on board. He was sentenced to imprisonment for 4 years and 3 months.

2. The facts revealed that he was in charge of an unlit fishing vessel which, having entered Hong Kong waters, had on board 24 unauthorized entrants.

3. A survey was done upon the vessel after it was apprehended which indicated that the seaworthiness of the vessel was deficient. The report stated that no life jacket or life saving appliances were observed on the vessel; that there was no fire fighting equipment and that there was no navigation equipment for night operation. It was, however, stated in mitigation that the applicant carried his own compass.

4. Judge Caird was satisfied that, although there was a deficiency in seaworthiness, it was not such as to require the additional term indicated as appropriate in R. v. Ng Kit Yuen [1992] 1 HKLR 170. Being satisfied that there was no such aggravating factor, he stated that he would take a starting point of 5 years' imprisonment.

5. This is the starting point which this court has indicated is appropriate when a court is dealing with the person in charge of a vessel carrying unlawful entrants.

6. Before sentencing the applicant to a term of imprisonment for 4 years and 3 months, the judge remarked:

"I also take into account the fact that you were captain of the vessel."

He should not have done so. The starting point of 5 years already allowed for that factor. The applicant was entitled to the discount usually allowed in the District Court. As he spent one month in Immigration custody, his sentence must be reduced by a further month.

7. The application is granted. The appeal is allowed and the sentence is ordered to be varied from 4 years and 3 months to one of 3 years and 5 months.