THE QUEEN v. CHAN KWOK KEUNG AND ANOTHER

IN THE COURT OF APPEAL

1987, No.244
(Criminal)

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Dates of Hearing: 21st August, 27th October & 3rd December 1987

Headnote : Sentence : assisting the passage of minor unlawful entrants: youth of the Applicants: tariff in Law Man Criminal Appeal No. 101 of 1983 approved.

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J U D G M E N T

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Silke, V.-P.:

1. Chan Kwok Keung and Kwok Kam Chuen appeared for plea before His Honour Judge Evans in the District Court on a joint charge of assisting, on 16th March 1987, the passage to Hong Kong of unauthorised entrants. Named in the particulars are 17 unlawful entrants and all of these were minors with their ages ranging between 6 and 14 years.

2. The minors had come from Fukien province to Shenzhen and there at the sea side they went on board a motorised wooden sampan which was crewed by the Applicants: Chan was aged 17 and Kwok was aged 19. They were arrested in Hong Kong water by Marine Police.

3. On plea day they both pleaded guilty, this being the first opportunity.

4. In passing the sentences which he did, of 3½ years on each of the Applicants, the judge stated himself to be guided by Law Man[1]. He said that without the plea he would have passed a sentence of 4 years but he discounted that 4 years by six months because of their plea of guilty.

5. They now seek leave to appeal against those sentences.

6. The sentences here were passed on 15th May of this year. When the application first came on on 21st, August, we were persuaded that, as both the Applicants were under 21, Social Welfare background reports should have been - and now should be - called for.

7. The trial judge in his Reasons for Sentence did not state himself to have considered specifically section 109(A) of the Criminal Procedure Ordinance. It is a better practice, where the persons before a judge are between the ages of 16 and 21 - and it is a practice which would be of assistance to the Appellate Court - if a trial judge were to make it clear that he had in mind the provisions of that section before imposing any sentence of imprisonment.

8. To allow those reports to be provided to this Court, and to allow counsel to clarify with the trial judge a suggestion that, in his oral reasons given at the time of sentencing, he had made used of the word "deterrent", we adjourned the application.

9. The next hearing was on 27th October. The Social Welfare reports were then before us but nothing had been done while the judge was in Hong Kong to clarify the "deterrent" point and, by 27th October, he had left on vacation leave.

10. There was a further adjournment.

11. Today the trial judge, having been contacted upon his return, has stated that he did not use the word “deterrent” or “use words to that meaning”.

12. That disposes of that aspect of the application.

13. We have considered the Social Welfare reports which, while they are very comprehensive as we have come to expect, are of little assistance to the Applicants. It would seem that both of the Applicants, who are themselves unlawful entrants., acted as they did for financial reasons - the waiver of debts which they owed by the performance of this service to their creditors.

14. The basic grounds of appeal in both cases are that the sentences are manifestly excessive and that a greater discount should have been given for the early plea and their co-operation with the police. They had, of course, been caught red handed.

15. Mr. Sarony said attractively everything that could be said on behalf of the Applicants. He has come to the basic argument that, while a sentence of imprisonment could well be proper, because of their ages they should have been given greater compassion and have received a shorter sentence: that is a sentence shorter than the general tariff referred to in Law Man¹ which would be one of approximately four years.

16. In Law Man¹, it was said:

“ …… that the bringing of illegal immigrants to Hong Kong affects everyone who lives in (sic) here and is not to be encouraged.”

17. We have considered the arguments advanced to us this morning and have also considered the Social Welfare reports but these particular offences concerned some very young children, there was a physical risk, there were financial rewards – albeit small - and we note that the Legislature has provided that the maximum sentence for this offence is life imprisonment.

18. We do not think that, unless the justice of a particular case so demands ,- this Court should do anything to encourage those who are behind persons such as the Applicants in this class of offence to think that when seeking to employ the young they can indicate to them that, if caught and convicted, their sentences will be less than might be imposed on persons of greater maturity and so gain their co-operation.

19. The applications for leave to appeal against sentence are dismissed.