HKSAR v. CHENG SO KEE

HCMA 212/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 212 OF 2003

(ON APPEAL FROM ESCC 3277/2002)

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J U D G M E N T

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1. The appellant was imprisoned for fifteen months in the magistracy in respect of six offences. He received concurrent fifteen month sentences for two offences of aiding and abetting an illegal immigrant to remain in Hong Kong and concurrent two month sentences for four offences of aiding and abetting a breach of condition of stay.

2. The case arose in this way. The appellant is a fisherman. He has been so all his life. He owns and skippers a Hong Kong fishing boat. The boat fishes in both Mainland and Hong Kong waters. He has a Mainland crew. Mainlanders are permitted to be crew on Hong Kong boats. They have their Mainland Fisherman Deckhand Certificates endorsed by the Hong Kong Immigration Department. Under the endorsements they are only permitted to land in Hong Kong for a limited period and for limited purposes.

3. The appellants family comes from the island of Po Toi. His mother still lives there in the ancestral home. She is elderly and crippled and solely supported by the appellant. In November of last year her home was in need of repair. Water was leaking in due to termite damage.

4. A letter from the village representative of Po Toi asserts that it is not easy to have such repair work done on Po Toi with its population of only thirteen people and the difficulty of travel to the island. He says that due to the specially difficult environment outside workers are unwilling to work there and the residents traditionally renovate their homes themselves. I have no reason to doubt what he says.

5. Accordingly when the appellant's fishing boat called on the 5th November 2002 not only did he come ashore to help his mother, his crew did too. The facts related in the prosecution's case reveal that they were asked by the appellant to help with the mother's house at 11 a.m. that morning. The police arrived at noon and saw them helping in the work and before half past twelve all had been arrested.

6. Of the six crew working there, four had their papers in order with the endorsement I have mentioned. They were prosecuted for being in breach of their conditions of stay, which of course did not permit such work on Po Toi. They were each sentenced to two months imprisonment suspended for two years.

7. The papers of the other two were not in order. One man had previously worked on the appellant's boat for a year with the correct endorsement. He had left the appellant's employment in August 2001 but had been taken on again in October 2002. By this time the endorsement to his deckhand certificate, which he retained, had expired. This made him an illegal immigrant.

8. The other man had been taken on in October 2002. On the 18th of that month the appellant had applied for an increase in his deckhand quota from four to five to the Agriculture and Fisheries Department. On the 25th they approved the application. They told the appellant to proceed to the Immigration Department to apply for "admission of the Mainland Fishing workers to travel to Hong Kong", which I take to mean having their deckhand certificates endorsed with permission and conditions of stay. The appellant had taken on the man in the light of the increased quota but had not by the 5th November applied for the endorsement. That made this man an illegal immigrant in Hong Kong.

9. Whilst these two illegal immigrants were brought to court with the appellant and the other four crew, the prosecution decided not to proceed against them and they were repatriated without penalty.

10. The available mitigation included these matters: that the appellant had pleaded guilty; that at 43 years of age he had never been in trouble before but had led a hard working life being a responsible husband and son; that the village representative, who had known him for thirty years, spoke of his character in terms of being a kind and filial man who had earned the appreciation and commendation of the island's residents; that the offences arose from one isolated and specific circumstance being the urgent need to repair a deserving person's leaking home; that the appellant was under pressure to help and could not find outside contractors to do the job; that this was the first time the crew had been ashore; that their help was limited to an hour's work with some scaffolding; that they were willing to help and there was no question of any exploitation; that they were being paid their usual wages and helped out at a time when they would otherwise have been idle on board; that there was no question of their seeking refuge on Po Toi or in Hong Kong or of having a proper job on land; that when the old lady had been helped they would go back on board; that the gravamen of the conduct on land was thus substantially mitigated; that on board the two illegal immigrants were people who either had been or were going to be there legally and that the real gravamen of this conduct was being at sea in Hong Kong waters with one too many crew, it being the case that his wife took up one of the allotted quota, the quota being fixed by the amount of fish landed. Finally it is said that imprisonment beyond a short term will take away the support of a family and jeopardise a commendable livelihood.

11. The bare relation of all these matters, it seems to me, makes this case unusual. It is quite obviously very different from the usual case where the aider and abettor helps the illegal immigrant to hold down a job in Hong Kong. The fact that the prosecution decided not to prosecute the illegal immigrants, notwithstanding that they were undertaking building work on land when arrested, would alert one to that fact. It must make one at least pause to consider whether a substantial fifteen month sentence is required for aiding and abetting a principal for doing something for which the principal is to go scot free. What is immediately apparent in this case is that these mainlanders were not remaining in Hong Kong to make more money than they usually did and the appellant was not seeking to aid and abet such a thing.

12. I add as an aside that it is clear to me that these two illegal immigrants did fall within the policy that would normally call for their prosecution. I do not criticize but rather commend the decision that was made not to prosecute them. I have enquired today as to the basis of that decision and have received the answer from the respondents that it was considered that the place of arrest, it being Po Toi, may not have been a place of employment. It is apparent to me that the basis of the decision must have been that, whilst they were working, they were not in fact doing much of a job and they were going to end up back on the Mainland eventually by their own design, whatever intermediate fishing journeys took place meanwhile, and accordingly it was not worthwhile prosecuting them as they were never going to make Hong Kong a refuge for work or residence.

13. The leading case is The Queen v Law Chuen Fook [1989] 1 HKLR 164. The Court of Appeal declined to lay down guidelines as the circumstances of the offence of aiding and abetting an illegal immigrant to remain in Hong Kong varied so tremendously. The judgment makes clear that, as the sentences of the principal offenders are designed to deter illegal immigration, the principal attraction of which is the opportunity of higher wages, the man who aids and abets by offering employment must expect no lesser a sentence as he encourages, by his conduct, others to take refuge in Hong Kong and undermines the policy behind the sentences imposed on the principal offenders.

14. Applying the thinking of the leading case to the facts of the aiding and abetting here, it is apparent that the conduct of the appellant was not one that undermined the sentencing policy of illegal immigrants. This is so because these illegal immigrants never intended Hong Kong to be their refuge and they never intended to stay and earn a wage by working in Hong Kong. The mischief which attracts the fifteen month sentence in the usual case is absent.

15. The respondents emphasise the point that it was the appellant who brought the illegal immigrants into Hong Kong, following what the magistrate said in sentencing, namely "This is the most serious type of aiding and abetting. You were literally smuggling them into Hong Kong". This, it seems to me, entirely misses the important point that he was going to take them out again and would ultimately leave them on the mainland. How many smugglers do that?

16. I should add that the idea that the appellant purposely brought along these two illegal immigrants from the Mainland to do the job on land is unworthy of belief. His crew of four, with their legitimate papers, was quite enough help. Whilst he knew the facts that made these two men illegal immigrants I am quite sure he had no idea of the vastly different legal consequences which followed.

17. Leaving aside questions of policy, the facts concerning the incident at Po Toi reveal to me a decent man doing a silly thing for a decent motive without an accurate appreciation of the consequences in a quiet corner of Hong Kong unused to the problems of illegal immigration.

18. Accordingly, I am not going to confirm the order the magistrate made. As regards the aiding and abetting the breaches of a condition of stay, if they stood alone, I would not have imposed an immediate sentence of imprisonment. However, the question of suspension is now entirely academic as the appellant has served the time. It may be that I would have been persuaded to suspend a short sentence of imprisonment for aiding and abetting the illegal immigrants to remain. If the case had lacked the dimension of having one crew member too many then the decision would have been much the easier. However, I am not going to wrestle with this when the fact is that it will make no difference to the appellant due to the fact that he has been in custody for over two months. Accordingly, in respect of the two cases of aiding and abetting the remaining I will impose a sentence of two months imprisonment concurrent to each other and to the sentences concerning the conditions of stay. I do so as in my judgment such sentences adequately reflect the gravity of his conduct. It means that the appellant is free today. It needs no suspended sentence to ensure the lack of any repetition as I am sure the distress and memory of this matter will long live with him.

19. One final matter concerns the fishing boat. It was seized. Forfeiture was contemplated but not pursued. The prosecution invited the Magistrate to make an order returning it to the appellant. The Magistrate did so. I am told today that the boat has still not been returned, as it was the understanding of the police that they should retain it pending the result of this appeal. That was both wrong and regrettable. Mr Lee, counsel for the respondents, accepts that this is so and he undertakes to advise the police in the terms that will prevent any recurrence.