THE QUEEN v. CHEUNG SHUI SUM

IN THE COURT OF APPEAL

No 21 of 1988

(Criminal)

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J U D G M E N T

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Hunter, J.A.:

1. On 30th December 1987 the applicant was convicted by H H Judge Chism sitting in the District Court on one charge of assisting the passage to Hong Kong of unauthorised entrants. The judge sentenced him to four years imprisonment. The applicant now seeks leave to appeal against both his conviction and his sentence.

2. The evidence laid before H H Judge Chism came from the two illegal immigrants. Both of them said that they had been brought from Mainland China to Hong Kong in a vessel of which this applicant was alleged to be master. The first prosecution witness described in some detail his journey from the Mainland: how he boarded this vessel "Luk Hong 4122". He described the applicant as the master and said he had paid RHB150 for his passage. He later identified the applicant at an identification parade. The vessel moored at the Yaumatei Typhoon Shelter. It then seems that this witness telephoned his father who is resident in Hong Kong. He then took his father's advice that he should not have come and should now turn himself over to the police. He was accordingly arrested on the quay very close to the vessel. In cross-examination it was suggested to him that, he never travelled on that vessel at all, and that he only heard the applicant's name and his identity because he heard the applicant giving those particulars to the police following his arrest.

3. The second prosecution witness described the same journey, referring to the first witness as his cousin. His evidence of identification and the name of the ship is less impressive. No evidence was however given by the applicant. At the end of the prosecution case, his counsel informed the judge that he had explained to the applicant : "his rights, and he elected not to give evidence. He calls no witness". The matter was apparently then put specifically to the applicant, for he confirmed it to the court through a Haklo interpreter.

4. The first two grounds of appeal which he advanced in writing to this court asserted facts about which he chose to give no evidence in the court before. We can only repeat what this court had said many times, that applicants who choose not to give evidence in the court below cannot expect this court to hear their evidence. The same remark applies to all the new points which were taken in the course of this hearing. They all related to points of evidence which he chose not to give in the court below.

5. The third point that he takes in his written grounds repeated what was put in fact to both witnesses in the court below: that neither of them knew his name and identity and both picked it up by overhearing a conversation between him and a police officer. That was put to those witnesses. It was considered by the trial judge, who having heard the evidence from the two witnesses, was satisfied by the evidence of identification. He can see no grounds for criticising that decision.

6. As to the sentence the judge applied the guidelines suggested in the two decisions of this court to which he referred. The first was R v Law Man^(l) and the second R v Chan Kwok Keung⁽²⁾. Accordingly there is no basis on which that sentence can be criticised.

(1) Cr App No 101 of 1983

(2) Cr App No 244 of 1987