R. v. CHAN SHUN FAT and Others

IN THE COURT OF APPEAL

1994, No. 499
(Criminal)

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J U D G M E N T

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

1. The three applicants were convicted after trial on 22 September 1994 of being members of a crew of a ship which entered Hong Kong with unauthorised entrants on board by Her Honour Judge Chua. The captain of the ship pleaded guilty. After conviction, each of these applicants was sentenced to a period of 4 years and 3 months imprisonment. They now apply leave to appeal against those convictions out of time and we grant them leave.

The facts

2. On 7 May 1994, the applicants were members of a crew of a motorised fishing vessel, the 'Shanwei'. It berthed at the Shum Tseng Ma Wan ferry pier with seven illegal immigrants sitting on the cabin floor. The three applicants were on board as crew members. The police were alerted by a bystander. When the police arrived, those illegal immigrants were disembarking. Four of them managed to board a light bus which was nearby. Three others were captured. The vessel put to sea again with the captain and the three applicants, but it had some engine trouble and had to anchor. The police launch intercepted it. The applicants were arrested. They all had seamen certificates. Apart from the matters to which we have referred, the evidence against them was contained in cautioned statements which each made.

3. The 3rd applicant, Cheuk Wai-tong, challenged the admissibility of the statement he made. The judge admitted it.

4. In the trial, none of the applicants gave evidence. The issue for the judge was whether any of the applicants had established the statutory defence to this charge under s.37C(2)(b) of the Immigration Ordinance, Cap. 115. That reads:

"A person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subsection (1) if he proves that prior to the commencement of the voyage on which the unauthorised entrant was brought to Hong Kong, he did not know and had no reason to suspect that any unauthorised entrant would be carried on the ship."

The burden of establishing that defence on a balance of probability rested upon the applicants. The judge finally came to the conclusion that they had not established the defence and convicted them.

5. The judge considered, as she had to, the only evidence in their favour which was to be found in the cautioned statements. It is not necessary in order to determine this appeal to consider the detail of those statements. For these reasons, in considering the evidence she never considered each applicant's case separately. Mr Dinan has made a number of submissions analysing the judge's reasons for verdict, but in the end those simply support the contention that the judge never gave each applicant's case the necessary separate consideration to which each applicant is entitled.

6. It was also clear that in considering whether or not to accept what the applicants said in their statements on a balance of probability, she took into account irrelevant matters. For example, she took into account that she thought it would have been easy for these applicants to prevail over the captain and make him turn back. As Mr Dinan puts it, the judge thought that it would be easy for them to mutiny. That was not a relevant consideration. The judge ought to have been considering what each applicant knew or suspected at the commencement of the journey.

7. That brings us to the next point. The ship started from Shanwei. According to each applicant, they joined the crew there for a journey from Shanwei to Shekou. That took some 10 hours. At Shekou, frozen fish was unloaded. Then the craft sailed from Shekou to Hong Kong. It would seem that the illegal immigrants joined the ship at Shanwei. There is no doubt that each applicant knew that there were passengers on board between Shanwei and Shekou. The journey which the judge should have identified as relevant was the one from Shekou to Hong Kong and their knowledge or suspicions at the commencement of that journey. This she failed to do.

8. In those circumstances the applicants did not receive a fair trial.

9. We are invited by Mr Kripas, for the Crown, who finds it difficult if not impossible, to support these reasons for verdict to apply the proviso and dismiss each application.

10. There is no question of applying the proviso in respect of the 2nd and the 4th applicants having regard to their cautioned statements. But when one looks at the cautioned statement made by the 3rd applicant, one finds that he said:

"The vessel berthed at a fish raft after reaching Shekou. ... I saw 3 or 4 unknown male and female persons at the bow cabin. I then asked the captain ... who was there. [The captain] said to me that they were sneaking into Hong Kong and he told me not to be so nosy. ... he would be solely responsible for whatever happened."

He went on to say in answer to the question "why did you not leave the vessel when you realised there were illegal immigrants on board?":

"It was because the captain CHIU Kam-shui said he would be solely responsible for those illegal immigrants and if I left at that moment, I would not be given any money as my wage. Furthermore, I did not have any money with me at that time."

In that passage, the 3rd applicant unequivocally admits the offence and destroys any defence under s.37C(2)(b) of the Ordinance.

11. In these circumstances we are driven to the view that inevitably, even if the judge had considered this case properly, the 3rd applicant would have been convicted.

12. In these circumstances, we allow the appeal and quash the convictions of the 2nd applicant and the 4th applicant but we dismiss the appeal against conviction in the case of the 3rd applicant by applying the proviso.

The 3rd applicant's sentence

13. However, that is not the end of the matter for the 3rd applicant. His case is a very unusual one. On his own account - which we are inclined to accept - he started the journey from Shanwei and when he arrived at Shekou he had no money with him. The captain told him that he would not be given any money. If he jumped ship at that time to avoid committing this offence, he would have been left at a place remote from home and without means. In those circumstances, it would have fallen to the judge to take that into account in mitigation. Although the sentence passed was otherwise entirely justified for this offence, the mitigation in the 3rd applicant's case is exceptional. We therefore give him leave to appeal against his sentence out of time. We treat this hearing as the appeal. We allow the appeal. We pass such sentence as will allow his immediate release. We add that he had been in custody since January 1994.