THE QUEEN v. LO SHUI LUN

IN THE COURT OF APPEAL

1995, No.109
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant is now aged 30. He was convicted after trial in the District Court on the single charge which he faced. That charge was one of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.

3. Such an offence carries a maximum penalty of 14 years' imprisonment and a fine of $5 million.

4. On January 19 this year, His Honour Judge Britton convicted the applicant and sentenced him to prison for six years and five months. In imposing that term, His Honour had taken a starting point of seven years' imprisonment. He gave the applicant a reduction of six months for what he described as his previous good character plus a further reduction of one month to take into account the one month which the applicant had spent in custody before being remanded in custody by the court.

5. What had happened was this. In the small hours of the morning of September 15 last year, the applicant was steering a motorized sampan with two unauthorised entrants (both able-bodied adult men) on board when, in Deep Bay, that sampan was intercepted by police officers on board a police vessel. When the sampan was first picked up on the police vessel's radar, it appeared to be travelling at 15-20 knots. But that may not have been the speed at which the sampan had been travelling the whole time. It appears that the sampan was by then fleeing to escape detection by the police; and it may have been going slower before then.

6. In taking a starting point of seven years, the judge had taken into account that the sampan was unseaworthy in the sense that there was no life-saving or fire-fighting appliances on board and that the vessel carried no navigational lights.

7. A useful statement of guidance to sentencing judges in these matters is to be found in decision of this court in the R.v. Ng Kit-yuen [1992] 1 HKCLR 170 at pp. 173 line 46 to p. 174 line 11 where this appears:

"Sentencing courts should, we are satisfied, give weight to the following circumstances which have not, heretofore, played a part in the assessment of sentence:

(i) Were the illegal immigrants concealed in a place from which escape would have been difficult?

(ii) Was the vessel by reason of poor maintenance or age in an unseaworthy condition?

We are satisfied that the sentence of five years after trial indicated in R.v. Lam Kon-man (supra) has no application to cases in which the above considerations play a part. Where there is a grave risk to the lives of illegal immigrants, knowingly undertaken for gain, the offence is one of considerably more gravity. We are satisfied that where both of the circumstances referred to above exist, depending upon the number of immigrants involved and the degree of danger, a starting point as high as nine years would be appropriate."

8. Realistically, this kind of smuggling of human cargo inherently involves some danger to life which is already taken into account by the five-year starting point referred to in that passage.

9. In the present case, the absence of fire-fighting equipment, while it is not to be condoned, was probably of relatively little significance. The same might be said of the absence of navigational lights. After all, even if the sampan had carried such lights, it is unrealistic to think that she would have shown such lights given that she was engaged in a clandestine operation. These are generally operations dependent on the cover of poor visibility: something which the five-year starting point takes into account.

10. The absence of life-saving equipment, however, stands differently. It would not have been in any way unrealistic to expect at least life-belts for the persons on board. So it might be said that there was here some slight increase in the hazard over and above the sort inherent to this kind of activity.

11. But it is necessary to avoid making these things overly sophisticated. Otherwise, sentencing courts will be driven to forever comparing differing degrees of relatively minor danger from one case to another. That is unlikely in the end to lead to greater uniformity or better justice. It is clear from R.v. Ng Kit-yuen (supra) that where you have what are sometimes called "floating coffins" or where you have what are sometimes called "leaky tubs" or where - in a combination of those two evils - you have a "leaky floating coffin" then there is clearly a basis for a considerable increase from five years. Either of the first two can add on two years to make seven years. And the third can add on four years to make nine years.

12. We say "can add on" rather than "will add on". That is because whether as much as two years is added on for either of those two evils or whether as much as four years is added on for both in combination will depend upon, as was said in R.v. Ng Kit-yuen (supra), "the number of immigrants involved and the degree of danger". The degree of danger would involve, among other things, the age and condition of the unauthorized entrants. For the very young, very old and the infirm would naturally be at greater risk in the event of a mishap.

13. Sometimes additional danger results from a high speed sea chase when the "snakehead", as the expression goes, tries to escape from the police. That did not happen here.

14. Now in the present case, if the judge went wrong in selecting too high a starting point, he also erred in one respect on the side of generosity in that he gave the applicant a discount of six months for his previous good character. The basis of that good character is the absence of any criminal record in Hong Kong. This applicant is not a Hong Kong resident and was hardly in a position to put himself before the court as a good citizen simply by pointing out that he had no previous conviction in Hong Kong. It was not demonstrated that he was a good citizen of China from which country he came. The other discount given, the one month discount for the time spent in "immigration" custody, is however correct in principle.

15. Without attempting any excessive refinement in this case, what we think the justice of the case warrants is for us to say that the starting and ending point should be five years. There was some slight danger over and above the usual danger inherent to activities of this kind. Of course, any attempt to be mathematical about it would be counter-productive. However, since it is identifiable although difficult of precise measurement, the right thing to do, we feel, would be to allow the extra danger here to operate so as to cancel the one-month discount for the time spent in immigration custody. That leaves a result of five years' imprisonment.

16. In the result, we treat the application for leave to appeal as the appeal itself and allow the appeal to the extent of reducing the term of six years and five months' imprisonment to a term of five years' imprisonment.