THE QUEEN v. LAM KON MAN

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JUDGMENT

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Sir Derek Cons, VP, delivered the judgment of the Court:

1. Lam Hon Man was the captain of a vessel the "Toi Shan 23094", which he said he purchased with a loan from a bank of RMB33,000. In the small hours of the 10th of May the vessel, under his command, was intercepted by the Marine Police near Middle Island. Hidden on board were nine illegal immigrants which he said he was bringing into Hong Kong at a charge of RMB200 apiece.

2. On the 19th of June he pleaded guilty before Mr. Anthony To, sitting as a Deputy Judge of the District Court, to a charge of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board, contrary to s. 37C(1) of the Immigration Ordinance, Cap. 115. The maximum sentence for that offence, as Mr. Cross has reminded us, is on indictment life imprisonment with a fine of $5 million. The judge below would, of course, have been limited by the maximum of seven years permitted in the District Court. In the circumstances the judge thought five years to be appropriate and passed that sentence accordingly. In doing so he placed some reliance upon the unreported decision of The Queen. v. Law Man Crim. App. 101 of 1983 where, refusing an application for leave to appeal against the sentence, this Court remarked that:

3. "(Four years) was, if anything, lenient."

4. Captain Lam now applies for leave to appeal against his sentence.  Mr. H.Y. Wong argues on his behalf that it was excessive in comparison with the normal tariff. He has not pursued an alternative ground that insufficient discount was given to the plea of guilty.

5. In addition to the case of Law Man Mr. Wong refers us to four other cases: The Queen v. Ho Siu Lun [1987] HKLR 1086, The Queen v. Chan Kwok Keung [1988] 1 HKLR 279, The Queen v. Ng Chi Mo Crim. App. 440 unreported 16th February 1990 and The Queen v. Tam Wun Wai and another Crim. App. 423 unreported 15th August 1990. We accept that although the circumstances of these cases are basically similar, differences do occur and Mr. Cross for the Crown has observed that Lam Kon Man was the captain of his own ship, whereas in other cases only a steersman was before the court. Even so, we feel that the starting point of six years taken by the judge below was out of line with the general run.

6. For that reason we grant the application, treat the hearing as the appeal, allow the appeal and reduce the sentence to tour years.