HKSAR v. CHENG CHI YUNG & ANOTHER

CACC338/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.338 OF 2003

(ON APPEAL FROM DCCC NO.202 OF 2003)

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REASONS  FOR  JUDGMENT

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Hon Lunn J (giving the reasons of the Court) :

1. These applications are for leave to appeal against convictions and sentences.

2. Pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221 on the application of counsel for the applicants an order was made to admit into evidence the affirmation of Mai Moosdeen Azmat.

CHARGES AND FACTS

3. On their pleas of guilty and their acceptance of the Summary of Facts, the applicants were convicted in the District Court by Deputy Judge Chainrai of two charges each. The 1st charge is a joint charge against both applicants, alleging in the Statement of Offence that they had conspired to assist the passage to Hong Kong of unauthorized entrants but alleging in the Particulars of Offence that the assistance was within Hong Kong, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115 and sections 159A and 159C of the Crimes Ordinance, Cap. 200 in the period in and between December 2001 and April 2002.

4. By the 2nd and 3rd charges, the 2nd and 1st applicants, respectively, were convicted of the substantive offence of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. In the case of the 2nd charge, the 2nd applicant was convicted in respect of assisting the passage of five unauthorized entrants on 1 December 2001, whereas in the 3rd charge, the 1st applicant was convicted of that offence in respect of six unauthorized entrants on 28 April 2002.

5. The 1st charge averred a conspiracy between the 1st and 2nd applicants and a 3rd defendant at trial together with three other named co-conspirators. At an early stage in the conspiracy (PW1) Lee Po Shu ("Lee"), one of the named co-conspirators, divulged the activities of the conspirators to the police with the result that their subsequent activities were monitored by police surveillance. In all, there were ten separate occasions upon which attempts were made to assist the passage within Hong Kong of recently arrived unauthorized entrants. On two of the occasions those attempts were frustrated by bad weather, presumably preventing the arrival in Hong Kong of the anticipated unauthorized entrants.

6. At the outset, the 1st applicant recruited Lee to the conspiracy. Lee was a part-time taxi driver and his role was to act as driver conveying the unauthorized entrants from one place to another in the rural areas so that they could be transported thereafter to the urban areas. On many of these occasions, the 1st applicant lent Lee his taxi to be used in the enterprise. On the first five occasions, the 1st applicant initiated contact with Lee and gave him instructions as to the place where the unauthorized entrants were to be picked up and on some occasions where they were to be deposited. In other cases initial contact having been made by the 1st applicant, other co-conspirators gave directions to Lee. The 1st and 2nd applicants' role was that of lookout, that is to say maintaining a watch for the arrival of police.

7. On the remaining occasions on which Lee embarked upon assisting unauthorized entrants with their passage within Hong Kong, it was another of the named co-conspirators, "Ah Chor", who initiated contact with Lee. However, on one occasion the 1st applicant provided Lee with his taxi to be used to convey girls and he and the 2nd defendant played other related roles to the movements of the unauthorized entrants within Hong Kong.

8. Lee, the 1st and 2nd applicants and other co-conspirators met after the successful completion of the movement of unauthorized entrants within Hong Kong at the Treasure Seafood Restaurant at Ma On Shan where Lee received payments from the named co-conspirator Chan.

9. By their acceptance of the Summary of Facts, each applicant accepted that a total of seventy-six unauthorized entrants were assisted in their movements within Hong Kong by the conspirators.

REASONS FOR SENTENCE

10. Of the roles played by both applicants in the conspiracy, the deputy judge rejected the submission that they had played minor roles and went on to describe their roles as being "...essential cogs in the enterprise of transporting illegal female immigrants after their arrival in Hong Kong to other parts of Hong Kong. They provided the transportation, they acted as lookouts to prevent police detection. They each had a role that they played; each a significant role."

11. In respect of the 1st charge, the deputy judge determined that it was not only a specified offence in Schedule 1, and an organized crime within the meaning of section 2 of the Organized and Serious Crimes Ordinance, Cap. 455 but also an offence that called for an enhancement of sentence

12. Having adverted to the judgment of the Court of Appeal in HKSAR v. Chan Lai Choi, CACC166 of 1997 (unreported), the deputy judge took a starting point of three years' imprisonment for each of the three offences. A discount from that starting point of one-third was made in consequence of the pleas of guilty. In respect of the 1st charge, the deputy judge determined that an enhancement of sentence of 50% was required.

13. In the result, both applicants were sentenced to a total of four years' imprisonment. In respect of the 1st charge, each was sentenced to three years' imprisonment. In respect of the 2nd and 3rd charges, the 2nd and 1st applicants respectively were sentenced to two years' imprisonment, one year of which sentence was ordered to run consecutively to the sentence of three years' imprisonment imposed upon the 1st charge.

PERFECTED GROUNDS OF APPEAL AGAINST CONVICTION

(i) Error in the form of the charge

14. In the course of the hearing Mr MacKenzie-Ross for the applicants sought leave to amend his Perfected Grounds of Appeal to add a ground that the 1st charge was defective because of the conflict between the averment in the Statement of Offence, where the impugned conduct was in respect of assistance in the passage "to" Hong Kong, and the averment in the Particulars of Offence in which the assistance is stipulated to be in respect of passage "within" Hong Kong.

15. At arraignment counsel for the applicants informed the deputy judge that the applicants would plead guilty to an offence of conspiracy to assist the passage of the unauthorized entrants "within" but not "to" Hong Kong. Accordingly, the court entered pleas of not guilty to the 1st charge for both applicants.

16. On the following day, the applicants were re-arraigned and pleaded guilty to the amended 1st charge which contained the conflict between the Statement of Offence and Particulars of Offence described above. Having pleaded guilty to the 1st charge as amended the applicants accepted the Summary of Facts. It is made abundantly clear from that document that the impugned conduct was restricted to assisting the passage of unauthorized entrants "within" Hong Kong only and not "to" Hong Kong.

17. In her Reasons for Sentence the deputy judge states in terms that the culpable conduct of the applicants was for :

"... transporting illegal female immigrants after their arrival in Hong Kong to other parts of Hong Kong."

RESPONDENT'S SUBMISSIONS

18. Counsel for the respondent submitted that the offence creating sub-section, section 37D(1)(a) of the Immigration Ordinance, Cap. 115 encompasses both terms in the phrase "arranges the passage to, or within Hong Kong". If necessary, the court could exercise its powers to substitute a verdict.

CONCLUSION : THE FACTUAL BASIS

19. We are satisfied that the parties and the deputy judge in the District Court all proceeded on the basis that the 1st charge alleged and was restricted to assisting the passage of unauthorized entrants "within" Hong Kong only. It follows that the failure to amend the averment in the Statement of Offence was an error overlooked by the court and counsel.

SUBSTITUTION OF VERDICT OR AMENDMENT OF THE CHARGE

20. We turn now to consider the possibility of substitution of an offence for the offence charged or amendment of the charge. Section 51(2) of the Criminal Procedure Ordinance, Cap. 221 provides that :

"If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

The sub-section applies to the District Court.

21. By virtue of section 83A of the Criminal Procedure Ordinance, Cap. 221 this court has a similar power.

"(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity."

22. Section 83 of the District Court Ordinance, Cap. 336 makes operative sections 80 to 83Y of the Criminal Procedure Ordinance in an appeal to this court from the District Court.

23. On a consideration of whether it is appropriate to exercise the power of substitution we are not satisfied that an averment that an unauthorized assisted entrant was assisted in passage "to" Hong Kong, contrary to section 37D(1)(a) of Cap. 115 necessarily alleges assistance of passage "within" Hong Kong. Assistance of passage to the border of Hong Kong is not assistance of passage within Hong Kong. Accordingly, the power to substitute the verdict does not arise.

AMENDMENT OF THE CHARGE

24. In HKSAR v. Huynh Bat Muoi, CACC28/2000, a differently constituted division of this court decided that this court has the power to amend a charge on an appeal. [See paragraphs 45-50 of that judgment].

25. The power to amend the charge in the District Court lies in section 79(1) and (4) of the District Court Ordinance together with section 23(1) of the Criminal Procedure Ordinance, Cap. 221 which provides :

"(1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

That this court is possessed of those powers is made clear by section 13(4) of the High Court Ordinance, Cap. 4 :

"(4) For the purpose of and incidental to --

(a) the hearing and determination of any appeal to the Court of Appeal; and

(b) ....

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought."

26. Accordingly, we exercise our power to amend the Statement of Offence in the 1st charge to delete "to" and substitute "within" so that it reads :

"Conspiracy to assist the passage within Hong Kong of unauthorized entrants ..."

27. This reflects accurately the basis upon which the two applicants' pleaded guilty, the prosecution accepted those pleas and upon which the deputy judge sentenced them. It follows that the amendment can be made without doing injustice.

THE FAILURE TO INVOKE THE PRACTICE DIRECTION 9.1

28. It is submitted by Mr MacKenzie-Ross that since the 1st charge was a charge of conspiracy, and the 2nd and 3rd charges respectively substantive charges, Practice Direction 9.1 required that "the judge should require the prosecution to justify the joinder, or, failing justification, to elect whether to proceed on the substantive or on the conspiracy counts." It is said that the learned judge erred in failing to require the prosecution to comply with that Practice Direction in consequence of which the convictions "were bad in law and should be set aside."

29. It is submitted, in the alternative, that the prosecution ought not to have been permitted to proceed on the two substantive charges. Further, and in consequence of the failure to comply with the Practice Directions those representing the applicants at arraignment did so incompetently in consequence of which the applicants have suffered "substantial prejudice and unfairness". This court is invited to set aside all the convictions of the applicants entered in the District Court.

THE RESPONDENT'S SUBMISSIONS

30. The respondent submits that as a matter of law, the Practice Direction does not prohibit the joinder of conspiracy and substantive charges. Furthermore, it is submitted that the situation which occurred in this case namely, arraignment and plea of guilty is to be distinguished from the situation where pleas of not guilty are tendered on arraignment, at which time the court is concerned as to the integrity of the prospective trial. It is in prospect of trial that the court must give consideration to the fact that evidence admissible in a conspiracy charge may not be admissible in respect of the substantive charges and must then give consideration to the issue of prejudice arising for the defence. Also, issues of unnecessary complexity arise. It is submitted that in the circumstances of this case, issues of admissibility and complexity do not arise because no trial is took place. Further, it is submitted that the two substantive charges stand separate and distinct from the conspiracy charge, being substantive offences committed separately by the respective applicants outside the conspiratorial agreement. Finally, the respondent submits that the complaints of incompetence levelled against the counsel for the applicants in the District Court is misconceived because the mischief at which the Practice Direction aims does not arise on pleas of guilty at arraignment.

CONCLUSION

31. The respondent is correct to submit that the Practice Direction does not in law prevent the joinder of a count of conspiracy with substantive counts. That much is made plain by the Practice Direction itself. In this case, if the case had proceeded to trial the prosecution would have been required to justify joinder to the satisfaction of the court, failing which the court would have ordered the indictment to be severed. However, in this case there was no question of a trial, the only issue that arose was that of sentencing. In those circumstances, no purpose whatsoever would have been served by having recourse to the Practice Direction, which clearly is aimed at maintaining the integrity of a trial. In any event, the incidents were recited in the agreed facts as evidencing the conspiracy none of which included the incidents to which the 2nd and 3rd charges were directed. There is no merit in this ground of appeal.

32. In the circumstances, the question of competence of counsel in permitting the applicants to plead as they did falls away. We note the Case Report to Legal Aid submitted by counsel for the 1st applicant asserts that the sentence of imprisonment imposed upon the 1st applicant in respect of count 3 ought to have been ordered to be served concurrently, not in part consecutively, with the sentence of three years' imprisonment imposed in respect of the 1st charge. That is the conclusion reached by this court. Counsel erred in taking a contrary position in the affirmation he made for these proceedings.

33. It is to be noted that in the affirmation of counsel for the 2nd applicant it is stated that his instructions in respect of the 2nd charge were that in contrast to the 1st charge.

"... it was a different matter, the other co-conspirators were not involved. He was the only one involved."

There is nothing in the Summary of Facts in respect of the 2nd charge to the contrary. It follows that trial counsel's suggested Ground of Appeal in respect of the sentence imposed in respect of the 2nd charge and related order that, in part, it be served consecutively to the sentence imposed in respect of the 1st charge that the deputy judge erred in so ordering because the 2nd charge occurred within the time period in which the conspiracy is alleged to have been in being is irrelevant and misconceived. The conduct giving rise to the 2nd charge was the conduct of the 2nd applicant alone and did not involve his co-conspirators.

34. Because of the error in the Statement of Offence, leave to appeal was granted but for the reasons provided the appeals of the 1st and 2nd appellants against their convictions were dismissed

PERFECTED GROUNDS OF APPEAL AGAINST SENTENCE

35. It is submitted on behalf of the appellants that the conduct the subject of the 2nd and 3rd charges concerning the 2nd and 1st appellants respectively was conduct that fell within the umbrella of the 1st charge, that of conspiracy. Accordingly, it is submitted that the deputy judge erred in determining in her Reasons for Sentence that they were separate and distinct offences in consequence of which she imposed sentences of imprisonment which were in part consecutive to the sentence of imprisonment imposed in respect of the 1st charge. In support of this submission Mr MacKenzie-Ross pointed to the fact that in the Summary of Facts in respect of the 3rd charge reference is made to the fact that the 1st appellant admitted that he had committed this offence at the request of Chan Shing Chuen, a named co-conspirator in the 1st charge. This, he submitted, was conduct arising out of the conspiracy the subject of the 1st charge. He conceded that there was no such evidence in respect of the 2nd charge. Secondly, it is submitted that the circumstances of the commission of the offence in the 1st charge and, in particular, the minor roles of each appellant were not such to warrant an enhancement of sentence. Finally, that the enhancement of sentence by 50% was manifestly excessive.

THE RESPONDENT'S SUBMISSIONS IN RESPECT OF SENTENCE

(i) Consecutive sentences

36. The respondent submits that the conduct impugned in the 2nd and 3rd charges were separate and distinct from the conduct averred in Count 1. On these two occasions the appellants were acting separately, individually and outside the umbrella of the conspiracy. Accordingly, the deputy judge was entitled to make part, at least, of the sentences consecutive to that imposed in respect of the 1st charge, the conspiracy.

(ii) Enhancement of sentence for the 1st charge

37. The respondent submits that the deputy judge was entitled to find that the offence in the 1st charge was both a specified offence and an organized crime within the meaning of those words in the Organized and Serious Crimes Ordinance, Cap. 455. Further, that having regard to the seriousness of the nature of offence, the extensiveness of planning and organization required, and the number of actual offences having been committed and the essential roles played by the appellants in the carrying out the offences the deputy judge was not wrong in the exercise of her discretion to enhance the sentence and to do so by 50%.

CONCLUSION

(i) Starting point

38. In taking a starting point of three years' imprisonment for all three charges upon which the court passed the sentence the deputy judge indicated that she had regard to the judgment of the Court of Appeal in Chan Lai Choi. In that case, the defendant had assisted the passage of five unauthorized entrants in his New Territories taxi conveying them from one place to another. The Court of Appeal indicated that an appropriate starting point was three years' imprisonment. No issue was taken on behalf of the appellants with the appropriateness of the starting point taken by the deputy judge. The deputy judge went on to discount each sentence by one-third in consequence of the pleas of guilty.

(ii) Enhancement of sentence

39. In determining that an enhancement of sentence in respect of the 1st charge was required and fixing the enhancement at 50% the deputy judge did not articulate specifically her reasons for so doing. Nevertheless, it is readily apparent from the Summary of Facts that not only was the conduct the subject of the 1st charge a serious offence, but also it was conduct which over a number of months was highly successful. A total of seventy-six unauthorized entrants were assisted in their passage within Hong Kong by the conspirators in a period of five months.

40. As is clear from the Summary of Facts, each of the operations in which unauthorized entrants were assisted in their passage within Hong Kong clearly involved a considerable degree of preparation. Liaison was maintained with those bringing the unauthorized entrants to the place at which the conspirators took charge of them. Taxi VHF radios were used for the conspirators to communicate one with the other about the places at which the unauthorized entrants were to be met. The 1st and 2nd appellants and other conspirators also played the role of lookouts. Delivery of the unauthorized entrants was effected to a place at which others could assist them in their onward journey into the urban areas. All of this was done for reward.

41. It is evident that the deputy judge, having placed reliance on the starting point identified as appropriate in Chan Lai Choi, namely three years' imprisonment, did not separately from the process of enhancement of sentence under the Ordinance have regard to the fact that in the circumstances before her, she was dealing with the movement of unauthorized entrants on eight separate days in which a total of seventy-six unauthorized entrants had been assisted in their passage within Hong Kong. In those circumstances, and in light of the other factors adverted to earlier, in our judgment she was entitled to enhance sentence and to do so by 50%.

CONSECUTIVE SENTENCES

42. In making part of the sentence of two years' imprisonment imposed upon the 2nd appellant in respect of the 2nd charge and the 1st appellant in respect of the 3rd charge consecutive to the sentence of three years' imprisonment imposed upon the 1st charge, the deputy judge stated that she did so because she determined that they were "separate and distinct offences". In our judgment the deputy judge was entitled to take that view in respect of the 2nd charge. It is to be noted that the date of the commission of the 2nd charge, 1 December 2001, is a date prior to the date upon which Lee Po Shu was recruited to the conspiracy to act as a driver of the 1st appellant's taxi conveying unauthorized entrants within Hong Kong. However, in respect of the 3rd charge, given the involvement of a co-conspirator from the conspiracy alleged in the 1st charge with the 2nd appellant in the commission of this offence, in our judgment the deputy judge was in error to describe it as a separate and distinct offence.

CONCLUSION

43. Accordingly, the application of the 2nd appellant for leave to appeal against sentence was dismissed. Leave was given to the 1st appellant to appeal against sentence and, treating the hearing as the appeal, the appeal was allowed and we ordered that the order that one year of the sentence of two years' imprisonment imposed in respect of the 3rd charge be served consecutively to the sentence of three years' imprisonment imposed in respect of the 1st charge is quashed and in its place we ordered that the sentence of two years' imprisonment imposed in respect of the 3rd charge be served concurrently with the sentence imposed on the 1st charge.