HKSAR v. SULEMAN MUHAMMAD

CACC 113/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2017

(ON APPEAL FROM DCCC 717 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with the offences of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115 and endangering the safety of others at sea,contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313. He pleaded not guilty to these charges and was tried in the District Court before District Judge Dufton (“the judge”).

2.  On 5 April 2017 the applicant was convicted as charged of both these offences.  On the same day he was sentenced by the judge to a total period of 5 years and 3 months’ imprisonment.

3.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against both his conviction and his sentence. 

4.  At the hearing of his applications I refused leave in respect of the application for leave to appeal against conviction but granted leave in respect of the application for leave to appeal against sentence. I said I would hand down my reasons for doing so at a later date.  These are my reasons.

The trial 

5.  The prosecution case was that the applicant, together with 24 other persons, all of Pakistani nationality, were unauthorized entrants who were detected and caught whilst trying to unlawfully enter Hong Kong waters.  The applicant was found to be in control of the sampan, steering it towards the direction of the Hong Kong International Airport.  The sampan was intercepted by a police launch and the applicant and all the persons on board were arrested.

6.  The sampan was not equipped with fire-fighting appliances, approved life-saving appliances and navigation lights for night navigation.  These deficiencies were the basis of the 2^nd charge.

7.  The applicant’s case was that he did not assist in the passage of unauthorized entrants and that the prosecution had failed to prove that the other 24 persons were in fact unauthorized entrants.  The applicant did not give evidence at his trial nor did he call any witnesses on his behalf.

8.  In order to advance his defence the applicant relied upon what he said to the police in his cautioned record of interview which was adduced as part of the prosecution case.  The effect of what the applicant said in his record of interview was that he only took control of the sampan after the Mainland coxswain jumped out of it and into the water and returned to his boat.  In these circumstances he was forced by the emergency of the situation to take control of the sampan in order to preserve the safety of himself and the other occupants. 

The judge’s Reasons for Verdict

9.  It is unnecessary to set out in any detail the content of the judge’s Reasons for Verdict.  The judge recognised that the applicant was relying for his defence on what he said in his video record of interview in so far as it revealed the circumstances in which he alleged he came to steer the sampan. 

10.  In respect of the 1^st charge the judge considered the issues of whether or not it had been proven that the occupants of the sampan were unlawful entrants and whether the applicant was assisting their passage within Hong Kong.

11.  After discussing the evidence the judge expressed himself satisfied that the only inference to be drawn from that evidence was that all the persons on the sampan were from Pakistan and were unauthorized entrants. 

12.  On the issue of whether the applicant had assisted the passage of the unauthorized entrants to Hong Kong the judge turned to the credibility of the explanation advanced by the applicant in his video record of interview.  The judge said:

“54. … I do not find credible the defendant’s explanation that he steered the sampan because people were crying after the Chinese man who brought them to the sampan jumped in the sea and swam back to his boat. I find inherently improbable that the person taking them to Hong Kong would at any time jump in the sea and swim back to his boat.

55. I am satisfied no weight is to be attached to the defendant’s explanation that he steered the boat because others were crying after the man who brought them to the sampan jumped in the water and swam back to his boat, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination (see HKSAR v Wong Ka Wah).

56. I am satisfied so I am sure on the evidence the only inference to draw is that arrangements were made for the defendant together with the other twenty-four persons to be taken by boat near to Hong Kong waters where they would be transferred to a sampan which the defendant would steer to Hong Kong.  By steering the sampan in Hong Kong waters in the direction of the airport the defendant was assisting the passage within Hong Kong of the twenty-four persons on the sampan.”

13.  In respect of the 2^nd charge of endangering the safety of others at sea the judge said that he accepted the evidence of the witnesses who testified to this charge and was satisfied that the charge was proven.  He went on to consider whether there was any defence to the charge and concluded that there was:

“… no evidence the defendant acted in the honest belief on reasonable grounds that his conduct was not such as to cause danger to the safety of the others. I am satisfied the defendant had no reasonable excuse for steering the sampan which was unsuitable for sailing thereby endangering the safety of the other persons on the sampan”

The mitigation

14.  Mr A.J. Sherry, who appeared for the applicant at his trial, emphasised that the applicant had not tried to avoid apprehension by the police and had not embarked upon a chase.  He also emphasised the sampan was watertight at the time and was not in the category of those vessels that are described as “floating coffins”.  Furthermore, there were life jackets on board.  In respect of his role in the commission of the offence Mr Sherry asked the court to note that he was not an organizer of the illegal immigration but merely one of the illegal immigrants who had been tasked with the responsibility for driving the boat.  Furthermore, the applicant had not wasted court time in the way in which he had conducted the trial.

15.  Mr Sherry handed a number of authorities to the court relevant to sentencing and invited the judge to adopt a starting point on the 1^st charge of 4 years’ imprisonment.  In particular he relied on a decision of the Court of Appeal in HKSAR v Wong Chi Kin[1] He submitted to the judge that a starting point of 5 years was only relevant for persons such as a captain or person in charge of a vessel and the applicant was not in that category.  Mr Sherry repeated his submission that the applicant was, in effect, in no different position from any of the other unauthorized entrants, he just ended up being the person with his hand on the tiller, steering the boat towards Hong Kong.

16.  In relation to the 2^nd charge Mr Sherry submitted that the starting point is usually 12 months and that only 2 months of that sentence should be ordered to be served consecutively. 

The judge’s Reasons for Sentence

17.  After setting out the circumstances of the offences and the matters advanced by Mr Sherry in mitigation, the judge dealt with a number of issues relevant to sentence.  The first was the correct starting point for the first offence.  He referred to Mr Sherry’s submission that a starting point of 4 years was appropriate for the applicant as he was not the captain or the person in charge or a part of the organization of the unlawful passage. 

18.  The judge said the passage to Hong Kong involved two distinct parts.  The first part was the passage of the Mainland boat to a position close to the waters of Hong Kong and the second part was the transfer of the unauthorised entrants to a sampan for passage within Hong Kong waters.  The judge said of the applicant’s involvement:

“8.   … Whilst the defendant may not have been involved in the arrangements for the first part of the passage, he was the person in charge of the sampan for the passage in Hong Kong waters.  I am satisfied a 5 year starting point is appropriate.”

19.  The judge then went on to consider the question of whether that starting point should be enhanced to allow for the aggravating factor of the absence of safety equipment.  He concluded that it should be enhanced by a period of 3 months and so he went on to impose on the applicant a sentence of 5 years and 3 months’ imprisonment. 

20.  He then turned his attention to the 2^nd charge and determined that the proper sentence was 9 months’ imprisonment.  He ordered that this sentence be served concurrently with the sentence on the 1^st charge.

The grounds of appeal

21.  The applicant is not legally represented and the only materials before the court are the comments he has made in a note attached to his Form XI and in a letter he has written to the court dated 29 September 2017.

22.  In the note to his Form XI the applicant simply asserted that his conviction is unsafe and unsatisfactory and his sentence is totally unreasonable, manifestly excessive and wrong in principle.

23.  In his letter of 29 September 2017 the applicant complained, in respect of his appeal against conviction, that the judge erred in failing to give any weight to what he had said in his record of interview.  In respect of his appeal against sentence he asserted that the sentence was excessive given that he had no association with the other unauthorized entrants, was not the captain of the boat or the coxswain of the sampan and did not take money from any of the other unauthorized entrants.  He repeated what he had said in his police interview about how the coxswain deserted them by suddenly jumping into the sea, forcing him to assume control of the sampan.

24.  At the hearing of his application he stated that he relied on his written submissions.

Discussion

25.  I have considered the complaints of the applicant in respect of his conviction but do not find that any of them provide him with a reasonably arguable ground of appeal.  They complain that the judge was wrong to reject as unbelievable what he said in his cautioned interview as to the circumstances of his assumption of command of the sampan. The judge found this explanation inherently implausible and there is nothing plainly wrong in this finding and in determining what weight to give to it he correctly directed himself that it lacked the weight that a sworn statement, subjected to cross-examination, might attract. 

26.  In respect of his application for leave to appeal his sentence, I am satisfied that he has a reasonably arguable ground of appeal in his complaint that the judge erred in adopting a starting point for him that is appropriate for captains, coxswains and crew members who play an active part in the illegal immigration enterprise.

27.  The leading sentencing decision on section 37D(1) of the Immigration Ordinance, Cap 115 is HKSAR v Wong Chi Kin[2]. In its judgment in this case the Court of Appeal examined the case law and said at paragraph 12:  

“12.   The generally applicable tariff is 4 years’ imprisonment: R v Ho Siu-lun and Ors [1987] HKLR 1086, R v Chan Kwok-keung and Anor [1988] 1 HKLR 279 and R v Lam Kon-man, Crim App No. 329/1990.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment: R v Wong Yin-lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A.”

28.  The court then went on to list a number of aggravating factors which would justify enhancing the 5 years starting point.

29.  In R v Wong Yin Lung[3] the Court of Appeal explained the distinction between an ordinary crew member and one who took an active part in the unlawful passage to Hong Kong.  Although this case involved section 37C(1) of the Immigration Ordinance, the comments seem to me to be equally applicable to the section 37D(1) offence.  At page 153 lines 11‑45 of its judgment the court said:

“… In our view the particulars should, where appropriate, indicate who is the person alleged to be the captain or person in charge.

In Ng Kit-yuen’s case, the court dealing with the person who had been particularized as the captain of the vessel was satisfied that five years after trial was the appropriate starting point and indicated that concealment which endangered the passengers and unseaworthiness of the vessel would each increase the starting point by two years.

The five year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of a vessel. If the persons employed on a vessel are charged with being ‘members of the crew’ but the facts reveal that one is the person in charge, that being admitted, the five year starting point is appropriate for him as are the accretions if applicable. The starting point will apply also to crew members and others who have taken an active part in the organization of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of aggravation. Defendants not infrequently suggest to the court that they are not crew members but are on board only for the purpose of collecting money for the real snake head. Again for such persons five years is the appropriate starting point.

Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organization of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or person in charge. (See R. v. Chan Kwok-keung and Another [1988] 1 HKLR 279). We think it appropriate to add that these figures are guidelines and do not impose a straight-jacket upon a sentencing judge. The facts of a particular case may call for a sentence that falls below or above the guideline e.g. in the case where the vessel is carrying a large number of illegal entrants.

We think it appropriate to refer also to persons who are illegal entrants but who state that they have obtained a free passage or a passage at a reduced fee upon agreeing to act as members of the crew. If such persons have taken no part in the organization other than to agree to act as crew members, they should, as was indicated in R. v. Ho Siu-lun and Others [1987] HKLR 1086, be dealt with as such and a starting point of four years should be taken. If, however, the evidence indicates that they have been taken some active part in the organization of the venture, then the proper starting point should be five years. We again observe that s.37C(1)(a), refers only to ‘crew members’ and that the prosecution should, if the evidence so indicates, state in the particulars who is alleged to have been in charge of the vessel.

In the present case it was not established that the applicant was other than a crew member simpliciter. The proper starting point would have been four years.” (Emphasis added.)

30.  These sentencing cases have continued to be endorsed and applied by the Court of Appeal.  See, for example HKSAR v Tse Chi Hei[4] and HKSAR v Tang Zhuyan[5].

31.  Here, the applicant was not part of the crew or part of the organisation arranging the illegal immigration of these unauthorized entrants.  There was no evidence that he obtained any benefit for steering the sampan.  In my view it is reasonably arguable that the judge erred in employing the 5 year starting point for the applicant and also erred in then enhancing it to allow for the aggravating factors of the absence of safety equipment.

Conclusion

32.  For these reasons I refused the applicant leave to appeal his conviction but granted him leave to appeal his sentence.  In order to enable him to properly argue his appeal against sentence and in order to assist the Court of Appeal on this issue I granted the applicant an appeal aid certificate pursuant to rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D. 

33.  I informed him of his right to renew his application for leave to appeal his conviction to the Court of Appeal and also informed him of that court’s power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 to order that part of the time he has spent in custody pending the determination of his appeal should not count towards his sentence.