R. v. CHAN SHING CHOI

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.:

1. The applicant was convicted of his plea of guilty before Her Honour Judge Beeson in the District Court of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board contrary to section 37C(1) of the Immigration Ordinance Chapter 115 and was sentenced to five years' imprisonment. He now seeks leave to appeal against that sentence.

2. The agreed facts were that the applicant was the captain of a vessel found by the Marine Police in Hong Kong waters east of Tung Kwu Chau. On board were four other crew members. A routine search of the vessel yielded no immediate result. However, as there was no cargo on board the police decided to escort the vessel to base so that a more thorough search could be carried out. Eventually they discovered a small compartment situated at the stern of the vessel and concealed by a metal plate. Inside the compartment were fourteen males and two females aged between 14 and 56. They had paid fees ranging from 200 to 800 RMB for their passage. All were illegal immigrants whose purpose was to come to Hong Kong for employment.

3. The applicant admitted that he and a friend in China had arranged to convey the illegal immigrants to Hong Kong and would share the profits from the venture. The vessel, although found to be suffering from neglect, was seaworthy. In mitigation it was urged that the applicant is 58 years of age, has an 85 year old mother and a 3 year old adopted daughter in China and is the sole breadwinner for his family.

4. The judge took into account the fact that the vessel was seaworthy and that no small children had been found on board. However, she expressed the view that the offence was aggravated by the fact that a secret compartment had been used and that this was an organised operation involving a large number of illegal immigrants who were paying commercial fares. She found nothing unusual in the applicant's personal circumstances, and observed that he had been caught red-handed and that since he was a resident of China the fact that he had no record of convictions in Hong Kong was of no real significance.

5. Having commented that this is an offence of increasing prevalence, the judge stated that the starting point for sentence was one of seven years. She stated that she had arrived at this assessment in the light of what Gall J. had said when passing sentence in R. v. Ng Kit Yuen, a case which, at the time Judge Beeson passed sentence, had not come on appeal to this court. Since however she was of the opinion that the present case had fewer aggravating features than those in Ng Kit Yuen she deducted one year on that account. She made a further deduction of one year in view of the applicant's plea of guilty and his personal circumstances.

6. Mr. Adams, who appeared on behalf of the applicant in this court but not in the court below, submitted that the sentence of five years is manifestly excessive, that thejudge was wrong in law to have taken seven years as the starting point, and that. she had given insufficient consideration to the applicant's plea of guilty and to the circumstances of the case.

7. In R. v. No Kit Yuen Cr. App. 118 of 1991 (unreported) this court reviewed previous decisions relating to sentences for offences against 37C(1) of the Ordinance and concluded that a sentence of five years imprisonment after trial would be proper in cases where (a) the illegal immigrants were not concealed in a part of the vessel from which, in the case of an emergency, escape would have been difficult and (b) the vessel was not in an unseaworthy condition by reason of poor maintenance or age. Depending on the number of illegal immigrants being carried and the degree of danger to their lives by reason of the condition of the vessel and the place in which the illegal immigrants were concealed, a starting point as high as nine years could properly be considered.

8. Neither of those aggravating features was present in this case. We are therefore of the view that. the proper sentence on a plea of guilty for the offence committed by the applicant was one of four years' imprisonment. We therefore grant the application and, treating it as the hearing of the appeal, allow the appeal, set aside the sentence and substitute for it one of four years imprisonment.