R. v. CHAN SIU YUN

IN THE COURT OF APPEAL

1995, No.9

Application for Review

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This is an application for review brought by the Attorney General. The respondent to the application faced two charges: one of assisting the passage within Hong Kong of unauthorized entrants and the other of endangering the safety of others at sea. The first charge is contrary to the Immigration Ordinance and the second to the Shipping and Port Control Ordinance. He was found guilty after trial and was sentenced to 3½ years on the first charge, 18 months on the second charge and those sentences were ordered to be concurrent.

2. We say at the outset we find it difficult to see how the trial judge, Judge McMahon, could have ordered that the sentences be concurrent. It seems to us clear that this was a case which called for consecutive sentences.

3. The facts as found by the trial judge are unusual. It was the Crown case that at about 8.30pm on 25th October 1994 police officers on board a Patrol Launch PL55 detected a motorised sampan carrying approximately eight persons proceedings towards Tai Long Wan in Hong Kong. The sampan rounded a headland and disappeared. When it was seen again there were only two persons on board. It was the Crown case that one of the two was the respondent and that he was then in charge of the sampan and the other one was an unauthorised entrant.

4. According to the Crown the sampan was signalled to stop when it reappeared but instead of stopping it accelerated with the respondent at the controls.

5. It was the Crown case that a dangerous high speed sea chase then occurred, during which the sampan was chased in Hong Kong waters in Mirs Bay by a number of police crafts until finally there was a collision between the sampan and one of the pursuing police vessels which rendered the sampan's engine inoperable, and allowed the apprehension of the two persons on board.

6. The collision was more particularly described by one witness who said that after the chase had been proceeding for some time the sampan, which was about 20-30 metres away from PL27, suddenly turned and cut across its bows, striking it on the port side.

7. He said that PL27 then reversed. The sampan's engine stopped but unfortunately shortly thereafter another police vessel PL55 collided with the starboard side of PL27. Several of the police officers were, by the force of the collision, thrown to the deck but no one sustained serious injuries.

8. It is to be noted that the police evidence was that one of the two men on the sampan was still endeavouring to start the engine when the police party boarded the vessel.

9. The defendant's version of the incident was that he was an unlawful entrant, and that, when he and the other man were unable to disembark, he took the helm and was steering the vessel when the chase began.

10. The trial judge rejected this evidence. His ruling in that regard was:

"I reject his evidence as to how and why he came to Hong Kong that night and what his role on the sampan was on the journey to Hong Kong."

The judge went said that it was the Crown case:

"That he was the driver of the sampan, unaware of the police presence until that time, and if he had been a mere unauthorised entrant could have got off the sampan with the rest of its passengers had he wished.

At the end of the day I do not think I can draw that inference. There are other inferences, whatever their likelihood, which are reasonable and which are consistent with the defendant not having steered the sampan to Hong Kong."

He went on to say:

"Accordingly all that remains of the Crown case so far as the Defendant having assisted any persons passenger is covered is that portion of the sampans voyage when it was chased by marine police and Tsang was a passenger.

As I have said I accept from the defendants evidence and, independently of the Defendants evidence that he was the helmsman of the sampan at that time."

11. Mr Haynes, who appears for the respondent today, has rightly pointed out that this court must deal with the respondent upon the basis of the judge's finding that he was the helmsman of the sampan with one passenger on board as it rounded the headland. There was no finding that he was a member of the crew that had brought unauthorized entrants to Hong Kong. There was further no finding that he had participated in any profits from any such venture. There is a finding that he was in charge of the vessel with an unlawful entrant upon it as it was leaving the bay but there is no finding as to the destination. However common-sense tells us that he was either taking the vessel back to China or was heading for another landing place in Hong Kong.

12. The trial judge when sentencing on the first charge said that he would take the usual starting point of four years. We are not sure exactly what he meant by this. Four years is the usual starting point for a crew member who offers his services for the whole voyage and who does so with the expectation that he will receive remuneration. The respondent was, on the judge's findings, not proved to be a crew member. What we have to ask ourselves is whether 3½ years was the proper sentence for a person who took the helm to steer the vessel for one or other of the two purposes which we have indicated?

13. We are satisfied that a sentence of imprisonment of three years would have been proper on the first charge. We, therefore, would not have granted the Attorney General's application had it related only to that charge.

14. As to the second charge we are satisfied that it was one of very considerable seriousness. The respondent put at risk not only himself and his passenger but the police officers who were chasing him and any other persons operating vessels in the vicinity on that night. It was conduct demanding a sentence of some severity. Persons in charge of vessels in circumstances such as this must be given an indication that such conduct will not be tolerated. The words used by the judge seem to indicate that he appreciated the gravity of the offence but he failed, we are satisfied, to reflect that appreciation both in the sentence imposed and in the order that it be concurrent. We are satisfied that the sentence should have been consecutive and that a sentence of 2½ years was called for. Having arrived at an overall sentence of 5½ years and must ask ourselves whether, because of youth or any other circumstance, that period should be reduced. We are satisfied that it should not.

15. We grant the application of the Attorney General. We order that the sentence of 3½ years on the first charge be varied to one of three years, that the sentence of 18 months on the second charge be varied to one of 2½ years and that the sentences be consecutive making a total of 5½ years.