ATTORNEY GENERAL v. LAM SUNG LUNG

IN THE COURT OF APPEAL

Application for Review
1987, No. 8

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JUDGMENT

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Kempster, J.A.:

1. By leave and pursuant to Section 81A of the Criminal Procedure Ordinance the Attorney General seeks a review of the sentence of 21 months' imprisonment, passed on Lam Sung Lung, the Respondent, by Judge Fung in Fanling District Court on the 20th March of this year.

2. The Respondent had been convicted of assisting the unauthorised passage into Hong Kong of three young girls. He was aged 35 years at the time, himself an illegal immigrant and used, though not for reward, to accompany these girls, who were aged 13 and under, in the enterprise. He had been shown the route and effected an entry into the Territory through a. hole in the border wire.

3. This type of offence is regarded by the legislature as one of gravity and carries after conviction on indictment a maximum penalty of imprisonment for life.

4. It is, accordingly, not disputed that the Respondent's conduct warranted an immediate custodial sentence though, certainly, the period of imprisonment should be shorter than that of 3½ years which this Court imposed in a similar case in January of this year: The Queen v. Ho Siu Lun and others[1]. That was a case which involved a considerable degree of organisation by and, by inference, the payment of substantial sums of money to those who organised the carriage of seven illegal immigrants into Hong Kong by sea.

5. By contrast the Respondent assisted the passage of three children into Hong Kong, where they were to be received by their own parents, by land. Having regard to the absence of physical risk we do not understand how the trial judge came to describe his conduct as "trafficking in human life".

6. In the absence of a plea of "guilty" the sentence of 21 months imprisonment may have been lower than one or other of the members of this Court might have awarded. We have, however, to consider whether this sentence was manifestly inadequate:

"The test of manifest inadequacy is no different from the test of manifest excessiveness and that the same test must be applied whether the case happens to be an appeal brought by the appellant or a review at the instance of the Attorney General. Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate." -

per Huggins, V.-P. in A.G. v. Lau Chiu Tak and Another[2].

7. We adopt that approach and, looking at the terms of Section 81B of the Criminal Procedure Ordinance, do not find ourselves satisfied that the sentence of 21 months imprisonment passed on the Respondent was wrong in principle or manifestly inadequate. In the premises and in accordance with the section we refuse to alter that sentence.