HKSAR v. LEUNG YAU WING

CACC 244/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 244 OF 2001

(ON APPEAL FROM DCCC 257 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 28 June 2001, the Applicant (D2), aged 42, pleaded guilty with three others before Judge Wright in the District Court to a charge of assisting the passage to Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. He was sentenced on the same day to three years and four months' imprisonment against which he now seeks leave to appeal.

2. The circumstances in which the offence arose were very straightforward.

3. During the early hours of 18 February 2001, police officers noticed an unlit sampan going from a sand barge towards the shore at Butterfly Bay. When this was further investigated, they found D3 and D4 together with four females on the beach. None of them had any proof of identity. The women, and D3 and D4, were all unauthorized entrants. Police found the small wooden sampan nearby.

4. Later the sand barge was boarded and was searched. D1 and D2 were found on board. When D1 was questioned, he provided information which revealed that there were four further females on board the vessel and he took the police to the hold where they were in hiding. They, too, were people who had no authority to enter Hong Kong.

5. The ages of the eight females ranged from sixteen to nearly sixty.

6. The judge found that D1 and D3 were the organizers who stood to benefit the most in financial terms.

7. The judge said that D2's role was to act as the coxswain of the barge having been promised that he would be paid RMB￥200 for each person brought into Hong Kong illegally. In saying this, the judge had misunderstood the evidence against D2. In fact, as the Summary of Facts shows, the Applicant had been promised a total of RMB￥200 when all the women landed in Hong Kong and not RMB￥200 for each person which was the amount promised to D3.

8. The judge felt able to treat D2 as a person of good character and found that the condition of the sand barge was not such that this aggravated the offence even though its condition was reported as being "very poor" and despite the absence of fire-fighting and lifesaving equipment on board.

9. In regard to D2, the judge said that he was:

"... in a slightly different position to (D1 and D3) in the sense that he was already a member of the crew of the sand barge. He too was to receive a monetary reward for his involvement. He said in his statement that he was concerned for his job and that if he declined to carry out the instructions of D3, that job may be placed in jeopardy. The Court of Appeal recently in Cheung Chun, CACC 539 of 1998, indicated that that is not a mitigating factor." (Tr. p. 10)

10. The judge adopted a six-year starting point for D1 and D3 and five years for D2 which he then reduced by a third to take into account D2's plea.

11. Mr Mackay, on the Applicant's behalf, raised one matter which had not previously been mentioned in his Perfected Grounds of Appeal, namely that the Applicant was harbouring a grievance over the sentence imposed on D4 who was aged seventeen and who had received a lower sentence than D2. This, however, carried this application no further forward so far as we can see as the 17-year-old to whom Mr Mackay was referring played a less important and wholly different role to D2 who was twenty-five years his senior.

12. What Mr Mackay's main ground of appeal did suggest was that the starting point of five years was too high because D2 was an existing crew member and felt under a degree of duress to act in the way that he did. However, Mr Mackay realistically faced the fact that this ground of complaint was very close to a ground which failed in the case to which the judge had referred in his sentencing remarks, namely, HKSAR v Cheung Chun CACC 539/1998. In that case the applicant's grounds were that:

"... he had to act as his boss told him to do or he would lose his job on board the vessel and ..... he would face financial difficulty."

13. In Cheung Chun's case, the court, before ordering three months' loss of time, stated that the fact that the applicant committed the offence in order to keep his job was not to be regarded as a mitigating factor.

14. Mr Mackay recognized, very properly, that he was left, in practical terms, with more or less no arguable basis for the present application about which he had apparently given advice to his client. However, although the same matter has been raised before us today, with the same lack of merit as in Cheung Chun, in view of the small error made in the Reasons for Sentence when the judge was describing the Applicant's promised financial reward as being the same as for D3 who was one of the organizers, we consider that D2 may have laboured under the impression that he had a genuine grievance in maintaining his application despite the responsible advice given to him by Mr Mackay. Accordingly, we shall not order any loss of time.

15. The application is dismissed.