LAM CHAK HING v. R.

1994, No.225
(Ciminal)

H E A D N O T E

Smuggling of unauthorized entrants into Hong Kong. The Court said:

(1) Surrendering to the Police is to be encouraged, while leading them on a high speed sea chase - which is a dangerous thing especially at night - is to be discouraged: and all of that should be reflected in the sentencing approach of the courts.

(2) In dealing with young offenders we must be careful not to facilitate the task of syndicates in recruiting young people to do their dirty work for them. If young people are treated too leniently, that makes it far easier to recruit them. That does not mean that the youth of the offender is to be ignored. It does mean, however, that there has to be a certain measure of caution in giving effect to such youth when imposing sentence. The position has to be monitored constantly; and if an increase in the number of young people being involved in this kind of offence begins to manifest itself, then the sentencing approach will have to be adjusted to meet that development.

 

IN THE COURT OF APPEAL

1994, No. 225
(Criminal)

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J U D G M E N T

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Bokhary J (giving the judgment of the Court):

1. On May 5 this year, before His Honour Judge Caird in the District Court, the applicant, a boy aged 17 and of previous good character, pleaded guilty to one charge of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.

2. What had happened was that on December 27, 1993, a sampan steered by the applicant was intercepted by the Marine Police near Lau Fau Shan; and it was found that there were 13 unauthorized entrants on board.

3. All 13 of them were able-bodied adults; and none of the women among them were pregnant. The vessel was seaworthy. Lifebelts were available; and the vessel had no secret compartment, so that all the unauthorized entrants were on deck. Also, the applicant did not lead the police on a chase, but stopped at once when ordered so to do. Surrendering to the Police is to be encouraged, while leading them on a high speed sea chase - which is a dangerous thing especially at night - is to be discouraged: and all of that should be reflected in the sentencing approach of the courts.

4. The judge thought that he had no choice but to deal with the applicant by sentencing him to 3 1/2 years' imprisonment. The applicant now asks us to reduee his sentence.

5. To his credit, he has never sought to resile from his plea or minimize his role. The judge did not refer to section 109A of the Criminal Procedure Ordinance, Cap. 221. Subsection (1) of that section reads:

"No court shall sentence a person over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information for the court which is relevant to the character of such person and his physical and mental condition."

6. In this connection, we would mention the decision of this Court in Criminal Appeal No. 244 of 1987, The Queen v. Chan Kwok Keung & Kwok Kam Chuen, December 3, 1987 (unreported). Delivering the judgment of the Court in that case, which also concerned smuggling unauthorized entrants into Hong Kong, Silke VP said this at page 2 of the transcript of the judgment:

"The trial judge in his Reasons for Sentence did not state himself to have considered specifically section 109(A) of the Criminal Procedure Ordinance. It is a better practice, where the persons before a judge are between the ages of 16 and 21 - and it is a practice which would be of assistance to the Appellate Court - if a trial judge were to make it clear that he had in mind the provisions of that section before imposing any sentences of imprisonment."

We would reiterate those words.

7. One of the persons in that case was of the same age as this applicant; and that boy also pleaded guilty. Like the present applicant, he received a sentence of 3 1/2 years' imprisonment; and his application for leave to appeal against sentence was dismissed. However, two things can be said for the present applicant. One is this. In the other boy's case, as the Vice President pointed out at page 4 of the transcript of the judgment, some very young children who were put at physical risk by the journey. That is not the position here. Also, since the time of the earlier decision, a more generous discount for a plea of guilty has tended to become the norm. All things considered, we feel able to interfere to some extent.

8. Before we indicate to what extent, we reiterate something said by the Court in the 1987 case which is this. In dealing with young offenders we must be careful not to facilitate the task of syndicates in recruiting young people to do their dirty work for them. If young people are treated too leniently, that makes it far easier to recruit them. That does not mean that the youth of the offender is to be ignored. It does mean, however, that there has to be a certain measure of caution in giving effect to such youth when imposing sentence. The position has to be monitored constantly; and if an increase in the number of young people being involved in this kind of offence begins to manifest itself, then the sentencing approach will have to be adjusted to meet that development.

9. As things stand however, and in all the circumstances of the present case, we will take a chance in this boy's favour. Treating the application for leave to appeal against sentence as the appeal itself, we allow the appeal to the extent of reducing the 3 1/2 years sentence by one year to 2 1/2 year-sentence. To that extent, the appeal is allowed.