THE QUEEN v. LAU SUNG and Others

IN THE COURT OF APPEAL

1995, No. 170
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. D1 was convicted after trial in the High Court of one count of being a member of a crew of a ship which entered Hong Kong with unauthorized entrants. He was sentenced to imprisonment for seven years. His co-accused, D2, D3 and D4 were convicted on their own pleas of the same count and were each sentenced to imprisonment for four and a half years.

2. D1 now seeks leave to appeal against conviction. D1, D2, D3 and D4 seek leave to appeal against sentence out of time.

3. At about 1:50 am on 12 April 1994, the police on a police launch intercepted a trawler which was registered with the Public Security Bureau of the People's Republic of China. At the time the trawler was travelling at about 13 knots in Hong Kong waters between Lamma Island and Cheung Chau, in the direction of Victoria Harbour.

4. When the police boarded the trawler they found on board a man later identified as Lau Tai and D4 at the wheelhouse. D1, D2 and D3 were found at the stern of the vessel.

5. In addition 21 passengers, 13 Chinese women and eight Chinese men, were found hidden in a secret compartment. The police also found that Lau Tai and each of the four accused had a seagoing person certificate issued by the Public Security Bureau.

6. D2, D3 and D4 were crew members of the trawler. After investigation, it was revealed that the 21 passengers found on the trawler had boarded the vessel at Magong Harbour, Haifeng County, China at about 2:00 pm on 11 April to travel to Hong Kong. The voyage was to take about 10 hours.

7. In the opinion of the Ship Surveyor of Hong Kong Government, the vessel was not seaworthy for the voyage between China and Hong Kong. It lacked navigational equipment except for a compass. It lacked life preserving equipment, having only one lifebuoy on board and there was no fire fighting equipment. The secret compartment wherein the 21 unauthorized entrants were hidden was not suitable to carry passengers or crew. There was no ventilator, no lighting, no moving space, no emergency escape or access ladder.

8. The case for D1 was that when he came aboard the trawler he did not see any unauthorised entrants. On seeing the women on board he refused to have anything to do with the running of the vessel. However in a cautioned statement (Exhibit P4), he said:

"After I cooked the congee, I saw a small boat coming to moor alongside our vessel. Lau Tai pulled the two male and three female persons on board the small boat up to the big vessel. Following that he told me to take that group of people to walk into the cabin for a rest."

He also said:

"I stated clearly to you five days ago my friend Lau Tai came to my home to look for me. He told me to go to work on board his vessel. The work included fishing and conveying people to sneak into Hong Kong. The wage was RMB$300 per month. If the business on each trip turned out to be successful and he could earn more money, he would give me extra pay."

9. The learned trial judge in his summing up to the jury stated that if they accepted that D1 had made the statements quoted above and if they believed that the statements were true, then that would be an admission that he knew that part of his job was to assist in the conveying of people to sneak into Hong Kong and that would tip the balance against the accused having a defence under s.37C(2)(b) of the Immigration Ordinance, Cap.115.

10. S.37C(1)(b) of the Ordinance provides that subject to subsection (2), if a ship enters Hong Kong with an unauthorized entrant on board, each member of the crew commits an offence.

11. S.37C(2)(b) provides:

"A person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subsection (1) if he proves that prior to the commencement of the voyage on which the unauthorized entrant was brought to Hong Kong, he did not know and had no reason to suspect that any unauthorized entrant would be carried on the ship."

12. Mr Dykes, counsel for D1 at the application, was content to rely on his first ground of appeal if he should succeed on that ground. In the end he did so succeed, it was therefore not necessary to pursue his two other grounds of appeal.

13. His first ground of appeal is as follows:

"The trial judge erred when, after directing the jury on the defence available to the defendant under s.37C(2)(b) Immigration Ordinance, Cap.115 to the effect that the defendant could not be convicted of the offence if he showed that he had no knowledge prior to the commencement of the voyage that there were unauthorized entrants on board the ship or that he had no reason to suspect that such persons would be carried on the ship, he further directed them, in response to three questions which they raised, that if the defendant found out about the presence of unauthorized entrants on the ship after the commencement of the voyage he would have no defence because the material time for establishing the statutory defence was prior to the commencement of the voyage. In so directing the jury the learned judge overlooked the fact that, if by their questions the jury may have been minded to find that the defendant only got to know of the presence of unauthorized entrants on the ship after the commencement of the voyage then, on the basis of his earlier direction, the statutory defence would have been made out. This further direction amounted to a misdirection and made the conviction unsafe or unsatisfactory or both."

14. After the summing up, the jury asked two questions:

"(1) We want to clarify when is the commencement of voyage?" and

"(2) if he refused to participate after he knew the activity, should we find him guilty?"

15. That was followed by another note on which was written:

"If he refused to participate after he get on board, should he be responsible for the charge?"

16. In answer to the questions the judge directed the jury in the following terms:

" What I must direct you is this: the time that you must consider when you decide whether the defence has been raised is the time up to the commencement of the voyage, up to the lifting of the anchor. After that point, you need not be concerned. If at the time the anchor was pulled up, you find that on the balance of probabilities he knew that there were unauthorized entrants to be brought to Hong Kong by that vessel or had reason to suspect that unauthorized entrants would be carried on that ship, then he has no defence. If on the balance, you decide that he did not know that there were illegal immigrants on the ship or that he had no reason to suspect that they would be brought on the ship, then you will acquit, because he would have raised the defence.

So to go through that quickly again: you must look at what he knew at the time the anchor was pulled up. If - and remember the test is: is it more probable than not? Did he know that there were illegal immigrants on the ship or did he have reason to suspect that they would be on the ship? If, on balance, you think he did, he has no defence. If, on balance, you think he did not know that they were there or had no reason to suspect that they were there, then you will acquit. If he found out afterwards, it does not provide a defence, because he had to know prior to the commencement on the voyage."

17. From the questions the jury asked, it seems clear that they had probably rejected the prosecution evidence that D1 knew at the time the trawler commenced her voyage that there were unauthorized entrants on board. The judge should therefore be alerted to the possibility that the jury were exercised by the statutory defence.

18. As has been accepted by Mr Dykes, no criticism could be made of the greater part of the judge's answer to the jury's questions, but the last sentence of his long answer reverses the effect of his earlier direction. As Mr Dykes submits, if D1 did not know that there were unauthorized entrants on board at the commencement of the voyage but only found out afterwards then he would have a defence because it means that he did not know about them prior to the commencement of the voyage.

19. Mr Saw for the Crown, in his customary fairness, readily concedes that the judge went into error on this point.

20. We agree with Mr Dykes, the jury's verdict cannot be supported. In our judgment, the proviso could not be applied and the application must be allowed. We therefore treated the hearing of the application as hearing of the appeal and allowed the appeal. The conviction was quashed and the sentence set aside.

21. Having heard our judgment on the other applicants' applications for leave to appeal against sentence, Mr Saw did not ask for a trial de novo in respect of D1.

22. We now come to the applications of D2, D3 and D4 for leave to appeal against sentences.

23. Those applications were out of time but for reasons which will become clear below, we granted an extension of time.

24. In passing sentences, the judge appeared to have taken into consideration the guideline in R. v. Ng Kit Yuen [1992] 1 HKLR 170, which suggested a sentence of five to nine years for persons who were in fact captains of vessels. However, the case of D2 to D4 falls properly within the facts of R. v. Wong Yin Lung, Cr.App.No. 52 of 1994 which was not cited before the judge. In that case four years was held to be the appropriate starting point for a crew member simpliciter.

25. D2, D3 and D4 were mere crew members, but they must have realized the potential danger to the passengers when (as they admitted) they herded them into the secret compartment wherein the passengers were hidden. It must have been clear to them that there was in the secret compartment no ventilator, lighting or moving space. Neither was there an emergency escape or access ladder.

26. In our judgment a starting point of five years after trial was appropriate. Giving a one third discount for their pleas of guilty, we would reduce the sentence from five to three years and four months for each of the three accused.

27. We therefore allowed the applications, treated the hearing of the applications as hearing of the appeals and allowed the appeals to the extent that their sentences of four years were reduced to three years and four months.