R. v. SZE YUI

IN THE COURT OF APPEAL

1995, No. 348
(Criminal)

----------------

----------------------

J U D G M E N T

----------------------

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

1. The applicant seeks leave to appeal out of time against the total of seven years' imprisonment imposed upon him for assisting unauthorised entrants to enter Hong Kong and for endangering the safety of others at sea.

2. Her Honour Judge Chua imposed a sentence of four years' imprisonment on the first charge and three years on the second. She ordered that the terms be served consecutively.

3. The applicant applied for leave to appeal against his convictions on these charges. A different division of this court heard the application and dismissed it on 31 October 1995 for the reasons which were given.

4. At the time of that application the applicant did not seek leave to appeal against the sentences which were imposed upon him. In the home-made papers which are before us the applicant claims that he did not know that it was possible to appeal against sentence at the same time as appealing against conviction. This is notwithstanding the fact that his signature is appended to Form XI which contains a statement to the effect that if an appeal against sentence is prosecuted at the same time as an appeal against conviction each application will not have an adverse effect upon the other. It is stated that this had been explained to the applicant.

5. It is evident from her reasons for verdict and for the reasons she gave for imposing the sentences she did that Judge Chua took a very serious view of these offences. The applicant was found guilty of grave misconduct. When he realised 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 7 of whom were females, and 2 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.

6. It was a very bad case indeed and the judge was fully justified in taking the view of the matter that she did.

7. The applicant complains that seven years' imprisonment was excessive. We disagree.

8. There is however one point which has been raised by Mr Pritchard on the applicant's behalf. When the applicant was arrested he was detained by the Immigration Department for 29 days which time is not treated as part of the sentence served by the applicant pursuant to s67A of the Criminal Procedure Ordinance. This was accepted by Mr Cantrill for the Crown. In view of the wording of the proviso to s82(2) of the District Court Ordinance the total terms of imprisonment to be served by the applicant should not exceed the seven years maximum provided for in the section. Technically this has not been breached, but it would appear that the fact that the appellant has been in administrative detention, and not by an order of a court, for 29 days has been overlooked by the judge. The applicant should have the benefit of the doubt in this regard. We consider that leave should be granted to hear this application to appeal against sentence out of time and treating the application as the appeal we reduce the sentence which was imposed by one month. The application is successful to this extent.