R. v. LAM MO KWONG

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J U D G M E N T

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Kempster, JA:

1. This is the judgment of the Court.

2. On 14 April 1992, in the District Court and on his own plea, Lam Mo-kwong was convicted of being a member of the crew of a vessel which had entered Hong Kong waters with illegal immigrants on board contrary-to s 37C(1) of the Imigration Ordinance (Cap 115). His Honour Judge Evans sentenced him to 3½ years imprisonment. Against that sentence he seeks leave to appeal.

3. The vessel in question, registered in the People's Republic of China, was intercepted by a marine police launch off Green Island at about 8 pm on 19 February 1992. On bead were found six illegal immigrants and three crewmen. The applicant, a fisherman aged 31 years and acting as engineer, was one of them. He admitted that he had been told of the purpose of the voyage that morning when promised a reward of RMB300 if the illegal immigrants were safely put astore in Hong Kong.

4. The judge's Reasons for Sentence dated 28 April state that he took into account the applicant's plea of "guilty", the fact that the vessel was seaworthy and that the enterprise had presented no risk to life or limb. He sentenced another member of the crew to the shorter term of two years imprisonment on account of his youth. That defendant was under 17 years of age. Since he makes no application to us we presume that the requirements of s 109A of the Criminal Procedure Ordinance (Cap 221) were met. On the following day, 15 April, His Honour Judge Tyler sentenced the third member of the crew, who had also pleaded "guilty", was aged 34 years and, effectively, had fulfilled the roles of master or coxswain and sub-organiser, to three years imprisonment.

5. That judge does not appear to us to have appreciated the significance of these considerations, and the sentence he passed was on any view lower than guidelines earlier suggested by this court would indicate. He had been told of the sentences passed on the previous day by Judge Evans.

6. The reason that two members of the crew of the vessel came to be brought before one judge on 14 April and the third before another on the 15th, was that on 3 April the first defendant had said that he would plead "guilty" while the applicant and the very young member of the crew indicated that they would plead "not guilty". Those two changed their pleas when they came before Judge Evans on 14 April. We accept that the applicant may well feel a sense of grievance at the disparity of sentence as between him and the first defendant albeit all three crewmen were looking for the same reward. However, as different judges were involved, he cannot rely upon this disparity in seeking leave from us.

7. Mr Grounds, who has said everything that could be said on behalf of the applicant, has sought to persuade us that the sentence passed on the applicant was too severe. This was an uphill task and we have no doubt that the sentence of 3½ years was well within the appropriate parameters even allowing for the applicant's clear record and plea of "guilty". In the circumstances, and with some regret, we dismiss his application.