NGAN SAI FAI and Another v. R.

IN THE COURT OF APPEAL

1993, No. 453
(CRIMINAL)

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J U D G M E N T

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Hon. Yang, CJ

1. This is an application for leave to appeal against sentence. The applicants pleaded guilty to being members of the crew of a ship carrying unauthorised entrants outside the waters of Hong Kong and were sentenced by Mr Justice Saied to five years' imprisonment each.

2. The facts are relatively straight-forward. At about 10:50 p.m. on the 2nd of February 1993, the Marine Police spotted a sampan which appeared to be in difficulty. The Marine Police drew alongside and discovered on board the sampan twenty-one men including the two applicants; none of them had any formal proof of identity and all were unauthorised entrants. It would appear that the two applicants were in charge of the sampan. In the course of argument this morning, Mr Macrae, on behalf of the second applicant, sought to distinguish the roles played by the applicants. Our attention was drawn to authorities which discuss the difference between the roles played by a captain and a crew. In the particular circumstances of the case, this being a small sampan, we do not think it is realistic to categorise the applicants as either captains or crew. Suffice it to say these two men were operating this sampan in order to bring the illegal immigrants into the waters of Hong Kong. The applicants admitted to the police that they had set out from Guishan, China, with nineteen other men on board with a view to entering Hong Kong. They claimed that they were employed by a Mainlander who was the owner of the sampan, and they were each to have received a payment for their efforts.

3. There was before the trial judge the evidence of a marine surveyor which showed that the sampan was not seaworthy for the voyage between China and Hong Kong. There was also before the trial judge the fact that the boat was found being tossed about in a one metre high swell and was overloaded with a total of twenty-one men on board. The judge in following the case of Ng Kit-yuen [1992] 1 HKLR 170 adopted a starting point of seven years' imprisonment.

4. Having regard to the unseaworthiness of the sampan, and having heard counsel's submissions, we are of the view that the starting point of five years without the element of the unseaworthiness of the sampan was appropriate. However, in the circumstances of the case, we are of the view that an addition of two years for unseaworthiness was excessive. We would have added one year on to the five years. We are also of the view that the discount of two years given by the trial judge is insufficient. Having regard to the ready pleas of guilty and the applicants' relative youth i.e. twenty and twenty-two at the time of the offence, and also the peculiar personal circumstances of the applicants which we do not propose to go into here, a reduction of three years would be appropriate. In the result, we allow the application, treat the application as hearing of the appeal and allow the appeal. We set aside the sentence of five years' imprisonment on each of the applicant and impose a sentence of three years' imprisonment on each of the applicant.