LI CHIU-CHEN and Others v. R.

IN THE COURT OF APPEAL

1991, No 527
(Criminal)

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J U D G M E N T

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Kempster, JA:

1. This is the judgment of the Court.

2. On 30 October 1991 and 7 January 1992, in the District Court, Li Chiu-chen on his own plea and Ng Leung-po, Ng Kam-wing and others after trial, were convicted by His Honour Judge Tyler on a number of related charges brought under s 37C(1) (a) of the Immigration Ordinance (Cap 115); the validity of which was not then subject to the provisions of the Hong Kong Bill of Rights Ordinance 1991. Li Chiu-chen was convicted of being the master of a ship which had entered Hong Kong waters with unauthorised entrants on board and Ng Leung-po and Ng Kam-wing were convicted of being members of the crew. Both Ng Leung-po and Ng Kam-wing seek leave to appeal against their respective convictions, and as a fall-back, Ng Kam-wing seeks leave to appeal against the sentence of 30 months imprisonment passed upon him on 8 January 1992. Li Chiu-chen seeks leave to appeal against the sentence of 3 1/2 years imprisonment passed upon him on 30 October 1991. We will deal first with the applications for leave to appeal against conviction.

3. During the early hours of 30 July 1991 the Chinese vessel "Luk Fung Kap Chi 110" collided with another vessel in waters to the east of Sai Kung and sank. Master, crew and those of the 11 passengers aboard, would-be illegal immigrants, who were not rescued at sea, managed to reach the shore where the applicants were picked up by marine police officers from the beach at Lo Wan. Each made admissions under caution. The only issue at trial, the burden of proof resting on the applicants pursuant to s 37C(2) (b), was whether or not Ng Leung-po and Ng Kam-wing were aware of or had reason to suspect the purpose of the enterprise, namely to smuggle illegal immigrants into Hong Kong, before the vessel had left China. They had told the court that they were inland farmers whom Li Chiu-chen had recruited at a monthly wage of 300 renminbi to transport cardboard, by sea, to Jiangmen and that immediately after they had boarded the vessel at Nimshan it had set sail whereupon they became sea-sick. The next they knew was that the vessel was involved in a collision and began to sink. They jumped overboard and eventually reached the shore. Prior to that time they had no knowledge of the existence of passengers let alone the object of the voyage. Having seen and heard all the applicants, including Li Chiu-chen, the trial judge was not satisfied, on the balance of probabilities, of the truth of their story. We find no grounds whether in the applicants' letters of 11 August and 7 October, in their Notices of Appeal or in what they have said to us today upon which we could fault the judge's conclusions. It is not our function to retry the applicants on the basis of the judge's notes of evidence. The applications for leave to appeal against conviction are dismissed.

4. As to sentence, the term of 3 1/2 years imprisonment passed on Li Chiu-chen, the master of the vessel, was arrived at by the judge after reference by counsel representing him to his plea of guilty, to his clear record and to the ordeal of shipwreck. The judge himself remarked upon the gravity of the offence and the applicant's family circumstances. He based his calculation on a period of 4 1/2 years discounted by these factors and by the assistance which the applicant had given to the police. It is to be observed that this applicant had said that the would-be illegal immigrants paid 550 to 600 renminbi each for their passages. As to the term of 30 months imprisonment passed on Ng Kam-wing as a member of the crew the judge expressly discounted a period of 4 years by reason of his general ignorance, of the little he looked to earn from the enterprise and of his remorse. Doubtless he also took the trauma of shipwreck into account.

5. The judge's approach was proper for this type of crime and the sentences were lenient. The maximum sentence of imprisonment under s 37C(1) (a) is imprisonment for life. The applications for leave to appeal against sentence are also refused.