R. v. CHU CHEE KAI

MA No.752 of 1996

H E A D N O T E

Appeal against conviction by magistrate - alleged breaches of Secretary for Security's Rules for the interrogation of suspects - breaches raised for the first time on appeal.

It is not incumbent on a magistrate when complaints are not directed at breach of the Rules, when a defendant is represented, to scour the Rules to ascertain whether there has been such a breach.

Sentence - aiding and abetting illegal immigrant to remain in Hong Kong - alleged personal hardships.

The policy considerations which apply to these offences require an approach to sentencing which is somewhat more rigid than to other offences, and Magistrates are entitled to know the approach which they are expected to adopt, and their task is not assisted if, on appeals, courts buckle to personal circumstances which are not exceptional.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

(MAGISTRACY APPEAL NO.752 OF 1996)

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J U D G M E N T

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Stock, J.:

1. This is an appeal against conviction and sentence. The appellant was arrested on 22nd September 1995 and charged with an offence jointly with another. Particulars of the offence which are set out below, bear repeating in terms for reasons which will become apparent :

"CHAN Wai and CHU Chee-kai, you are charged that between the 19th day of September 1995 and the 22nd day of September, 1995, at Hut No.73, Ah Choy Hang Tsuen, Cape D'Aguilar, Shek O in Hong Kong, you did aid and abet male CHOY Siu-tin who had landed in Hong Kong unlawfully to remain in Hong Kong without the authority of the Director of Immigration."

2. I shall refer to this appellant as he was referred to at trial, namely, the 2nd defendant. The man Chan Wai was the 1st defendant. Both defendants pleaded not guilty. Both were represented at the trial by the duty lawyer. Neither gave evidence. The only evidence in the case came from two police officers.

3. PW1 gave evidence that at about 11 o'clock in the morning on 22nd September, he and other officers were on patrol in Shek O when they came upon a wooden hut. The door was not closed. They entered. There was the 1st defendant cooking. Another man was busy frying something and he ran away. He was pursued and caught. They went back to the hut. There in the hut at that stage was the 2nd defendant, this appellant, who said that he lived there. The officer then gave evidence about his conversations with the 1st defendant. At the end of his evidence-in-chief a man was brought into court. The officers said "This was the illegal immigrant I arrested at the scene. I know his name. His name is Choi Siu-tin." That last piece of evidence was of course inadmissible, insofar as it attempted to show that the man's name was in fact Choi Siu Tin. There was then cross-examination of this witness which was of no relevance to this appeal.

4. PW2 was Police Constable 52912. He saw the illegal immigrant being chased. He then entered the hut and saw the 2nd defendant who was also cooking something. He asked for his identity card, and after that had been shown, the 2nd defendant said that he and another were responsible for the business there. The 2nd defendant was taken to the police station. The officer said that he believed that the 2nd defendant had aided and abetted the illegal immigrant. At the police station, an interview was conducted and a record of it made. Its admissibility was challenged. The grounds of objection to admissibility were then stated by counsel acting for the defendants. They were these :

"PW2 hit the table and said to D2 'Don't play with me'. PW2 asked D2 whether D2 had given food to illegal immigrant and D2 denied. PW2 wrote out statement and asked D2 to sign. D2 did not agree with contents of statement. PW2 said again 'Don't fool around' and told D2 to sign."

5. There was, be it noted, no suggestion that any rules had been breached or if they had been, that they were of any significance. The officer denied the allegations made and said that he did not arrest the 2nd defendant at the scene but that he came willingly to the police station. He described in some detail how the statement was taken and the steps observed to ensure that the defendant knew what it was he was signing.

6. The appellant did not give evidence on the voire dire. It follows that there was not a shred of evidence in support of the appellant's allegations. Yet in the submissions at the end of the voire dire, counsel for the appellant complained of the fact that the defendant had not been arrested as soon as he should have been and was not informed of his rights. It was not suggested, nor would there have been any evidential basis for the suggestion had it been made, that these failures in any way enured to the disadvantage of the 2nd defendant or that they negated the voluntariness of the statement, or that had these steps been followed, the defendant would have acted differently. There was uncontroverted evidence that the defendant was cautioned on a number of occasions, and even so he spoke freely to the officer. Not at all surprisingly in these circumstances, the magistrate admitted these statements into evidence.

7. The record contains a full admission by the appellant to the offence. He said in it that he and the other defendant worked in their business as partners. They had known the man Choi for three days. Choi had worked in their company for that time and had fried vegetables for them and they had provided him with meals. He admitted that he knew the man to be an illegal immigrant. The appellant did not give evidence on the general issue either; neither did the other defendant. Again not surprisingly, the magistrate convicted him.

8. The grounds of appeal against conviction contained the following points.

9. First, that it was not proved that the person identified in the certificate which was produced by the Director of Immigration under s.63A of the Immigration Ordinance, a certificate which said that Choi Siu Tin had not the right to land in Hong Kong and had not been given permission to land was the same man as the one produced in court who had been working in the defendant's hut. Section 63A of the Ordinance provides as follows :

"63A. Evidence by certificate

Where in any proceedings a person is charged with an offence under section 38(4), 38A or 39 or with aiding, abetting, counselling or procuring, or with conspiracy to aid, abet, counsel or procure, the commission by another of an offence under section 38(1), a certificate purporting to be signed by the Director and certifying that that or any other person -

(aa) does not enjoy the right of abode in Hong Kong;

(a) has not the right to land in Hong Kong under section 8(1);

(b) is not a person who, by virtue of section 9(1) or 10(1), may land in Hong Kong without the permission of an immigration officer or immigration assistant; and

(c) has not been given permission to land in Hong Kong under section 11,

shall be admitted in evidence on its production without further proof and -

(i) until the contrary is proved it shall be presumed that the certificate was signed by the Director; and

(ii) the certificate shall be prima facie evidence of the facts contained therein."

10. Now the fact which the certificate alleges is that the person in respect of whom a defendant is charged with aiding and abetting does not have the status or rights to which the certificate refers. That person was produced in court and the evidence established that he was the person arrested at the hut. No other employee of the defendant was arrested. It was crystal clear from the evidence that the person arrested as the illegal immigrant was the person referred to in the charge and therefore in the certificate. In the event, there is, in my judgment, nothing in this point.

11. Mr McGowan complains that the magistrate erroneously found in the Statement of Findings that there were no breaches of the Secretary for Security's Rules and Directions for the Interrogation of Suspects. He relies on the sentence in the Statement of Findings : "Neither did I find that PW2 had infringed rules and directions". There were, says Mr McGowan, such infringements.

12. It is said that there were breaches which the magistrate should have addressed but did not. Be it noted however that there are other indications in the record which clearly suggested the magistrate was saying that he saw no reason to exercise his discretion to exclude the statement. He was specifically addressed about certain suggested breaches and on page 12, he said that there was no valid reason to exclude the record in the exercise of his discretion. That is an odd phrase to use if he merely found that there were no breaches, and again at page 21 of the record, he said :

"I did not see any breaches of the Rules and Directions to warrant me to exercise a discretion to exclude the statement from being admitted in evidence."

Be that as it may and putting all that aside, let us examine the complaints.

13. First, it is said that he was not arrested at the scene, and he should have been, and that the invitation to come to the police station was in the nature of compulsion. I fail to see where compulsion enters the picture. The officer gave evidence, uncontroverted, that the man came willingly to the police station. In any event, the fact that he was not arrested was neither here nor there. Nothing he said which was placed in evidence was said other than under caution, and when he then spoke, it is clear from the record that he had been told that he might be prosecuted. Yet he then voluntarily spoke.

14. Secondly, it is said that the officer should have recorded the question and answer session which took place before the interview was recorded. This was not a point taken at trial, and there was no evidence as to how this might conceivably have been unfair.

15. I simply do not accept that it is incumbent on a magistrate in circumstances such as those in this case, when the defendant was represented by counsel, and complaints were not directed at breaches of the Rules, when the objections to admissibility have nothing to do with breaches of the Rules, and when the appellant has not given evidence which might go to suggest that the breach in the particular case would render unfair the admission of the subsequent statement in evidence - I do not think it then incumbent on the magistrate to pick his way through the Rules to see whether there might have been this particular breach or that; although that is not to say that circumstances can never arise when a material breach presents itself on the evidence which gives cause for concern that the magistrate is to ignore the matter simply because it was not emphasised or fully canvassed.

16. Thirdly, it is said that the appellant was questioned after he was told that he might be prosecuted. The Rules say that the defendant should not, save in exceptional circumstances, be so questioned. This again was not the subject of any complaint at trial. No suggestion was made as to how the use of the evidence then became unfair in the circumstances of the case, where the appellant is nevertheless answering questions voluntarily.

17. Fourthly, it is said that there was no evidence that he had been informed of his rights. But there was no evidence that he had not. The matter was simply not canvassed in evidence, which was not surprising because there had been no complaint about it and the Crown's task was to prove the statement to be voluntary.

18. In my judgment, there arises nothing in the grounds of appeal against conviction which drive me to disrupt the magistrate's findings. Accordingly, the appeal against conviction is dismissed.

Sentence :

19. This matter first came before me on 28th August 1996. On that occasion there was presented to me an appeal against conviction and the offence against which the appeal was lodged, was that this appellant and another aided and abetted an illegal immigrant who had landed unlawfully to remain in Hong Kong. For reasons which I then gave, I dismissed the appeal against conviction.

20. In respect of this matter, the appellant appeals also against sentence. The magistrate sentenced him to 12 months' imprisonment and the co-defendant to 9 months' imprisonment. He commented that the illegal immigrant was not a relative and that the defendants were under no familial obligation to assist him. He said that it was admitted before him that the illegal immigrant had already worked for them for three days. He also said that if the illegal immigrant had not been arrested on that day, one could reasonably envisage that he would have continued to work with them for a while - whether with pay or not.

21. The magistrate saw no reason to depart from the normal sentencing approach for cases of this kind, and he said that cases of this kind were apparently becoming more rampant in coastal villages, but that he had not taken that into account. He discounted three months from the sentence which he said was normal by reason of the age of the 1st defendant, who was 65.

22. There is a tariff or a guideline established for these offences, of course not in the sense that all circumstances peculiar to a particular offence are to be ignored. Mr McGowan, who has done everything he possibly could for this appellant, and had said everything that can possibly be said, has urged upon me the suggestion that there were in this case humanitarian considerations. He has emphasised the fact that this is an appellant aged 57, without previous convictions, and is not, properly so-called, a criminal. I have absolutely no doubt that for somebody like this appellant, and for his wife and his family, his incarceration must be something of a nightmare.

23. Now, in this case and in others, the temptation of the heart may be, especially with someone of his age and with his background, to find some reason or other to release him. But there is something which he should try to understand, though it may not be of any comfort to him in his present predicament. There are policy considerations which apply to these offences in Hong Kong, which require an approach to sentencing which is somewhat more rigid than in offences of a completely different kind. Those policy considerations are too well known to require repeating, and it is expected that save in very exceptional cases, those who provide succour to illegal immigrants should receive sentences - and I quote from a Court of Appeal judgment - "certainly not less than those imposed upon the immigrants themselves". That is what the magistrate did in this case.

24. The fact that the appellant is of previous good character or that other appellants, as more often than not they are, in offences of this kind, are of previous good character, is a factor which has no doubt been built into the sentencing policy which has been embraced by the courts, and in particular by the judgment in R. v. Law Chuen Fook [1989] 1 HKLR 164. Magistrates are entitled to know the approach that they must adopt, and they and the policy to which I have referred are not assisted if, on appeals, courts buckle to personal circumstances which are not truly exceptional. It has also been said by the Court of Appeal very recently that the ill health of an appellant is not a matter which goes to reduction of sentence; it is a matter for the Executive.

25. The only matter of some concern in this case, as originally presented to me, is the disparity in sentence between the 1st defendant and the 2nd defendant. They were both dealt with by the same magistrate. The sentence imposed on the 2nd defendant (this appellant) cannot be said to be wrong in principle or manifestly excessive. Yet a disparity in sentence may yet be objectionable if two sentences are passed by the same tribunal for the same offence and the basis for the disparity is of questionable validity.

26. The magistrate reduced the sentence in respect of the other defendant because of his age - he is aged 65 and this appellant is aged 57. A three months reduction was effected because the other defendant was 65 and the magistrate then noted that although 65, he looked strong and young for his age. That being so, it is a little difficult to understand why the reduction was made; more pertinently, why the disparity in sentence was reached. There is likely to be very little difference between a young 65 and an ordinary 57 year old. There is, I have to say, nothing particularly youthful or robust in the appellant's appearance and I think that he can, with some justification, be somewhat aggrieved by the disparity in sentence.

27. I shall therefore allow the appeal against sentence and impose a 9 month term instead.

28. I had intended to allow the appeal to that extent only. At the first hearing of this appeal, Mr McGowan urged me to go still further and he prayed in aid a number of matters which, on their face, merited further attention. There were suggestions of a potential brain tumor suffered by the wife, and disabilities by the appellant which would render, it was said, incarceration for him a punishment materially more severe than for those without those disabilities. These submissions were quite unsupported by evidence so that I granted an adjournment to enable evidence, if it existed, to be collated.

29. The matter was adjourned to 13th September but reports were presented to me which left a number of questions unanswered. The matter was adjourned, on the appellant's application through his counsel, until today.

30. As far as the wife's condition is concerned, she has an appointment to see somebody on 18th October - I understand for some scan - but there is no information about her condition. This position has been in the arena as it were at the very least since the matter came before me on 28th August. It seems to me unlikely that if her condition were truly critical, there would be a delay of this kind. I note as well that she is in court today. No further adjournment is sought for any further enquiries, but I would say this : that should it transpire that the appellant's wife is indeed critically or very ill, then no doubt he will have heard, as will those representing him, of his right to approach the Executive in order to seek his early release.

31. As for his own disabilities, he has cataract problems, but those are to receive attention. He had some fingers amputated and as a result he has been allocated with what is described by the Medical Officer at the prison in which he is detained, as light work. In fact the doctor who writes the latest report says that he can cope with the prison regime without much difficulty. It is clear from the report that his condition does not render his incarceration materially more harsh than for those without disabilities.

32. I cannot, in the circumstances, find grounds for reducing the sentence further. I note and have taken into account that as a result of the order I shall make, he will be released, in any event, in late November.

33. In the circumstances which I have described, the appeal against sentence is allowed to the extent of substituting for the term of 12 months' imprisonment with one of 9 months' imprisonment.