HKSAR v. TAM KAM MUN

CACC 327/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 327 OF 2001

(ON APPEAL FROM DCCC 303 OF 2001)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 7 August 2001, the Applicant, aged 35, pleaded guilty in the District Court before Deputy Judge Candy to a single charge of assisting the passage to Hong Kong of a conveyance, namely a motorized sampan, which carried unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. The judge took a starting point of seven years' imprisonment which he reduced by 20 per cent, instead of the usual one-third, to take into account the Applicant's conduct which he considered necessitated a Newton hearing on an issue which was ultimately decided against the Applicant. This hearing had caused the attendance of fourteen prosecution witnesses. In the result, a sentence of five years and seven months' imprisonment was imposed on the Applicant on 8 August 2001 against which he now seeks leave to appeal.

The facts

2. The facts of the case were straightforward as well as tragic. The sampan in which the Applicant travelled to Hong Kong with four other illegal entrants measured 6.7 metres in length. It had an outboard motor. As an attempt was made to land at Cheung Chau, the vessel capsized in rough sea shortly before 7.00 a.m. on 25 February 2001. All the passengers in the boat were thrown into the water. Two of them apparently drowned although it was a week later before a body was found. This was dressed in clothes which matched the description of one of the missing passengers. The other body has never been found and that passenger is presumed to have drowned.

3. The sampan, as the incident leading to the apparent deaths of two of the illegal entrants suggests, was unsuitable for carrying passengers in the open sea. It carried no life jackets or fire-fighting equipment and a glance at the photographs reveals a small, open-topped boat with about ten water compartments apparently designed to keep fish inside. It was hardly the sort of boat which was intended for the open sea.

4. Following his arrest, the Applicant claimed that one of the unlawful entrants on board the boat had steered the vessel and that his role was to act merely as a lookout on the way to Hong Kong to warn of the presence of any police vessels. In return for this service, he said that he had paid a lower fee for his passage to Hong Kong than the other passengers.

Previous conviction

5. Importantly, in the present context, the Applicant had a similar conviction recorded on 30 September 1996, when he gave a wholly different name, Ng Kwan-yiu. On that occasion, he was convicted after trial of being a member of the crew of a ship which, it transpires, was a speedboat which had entered Hong Kong with unauthorized entrants on board. He was also convicted on a second charge of endangering safety at sea where again no life jackets or fire-fighting equipment had been kept on board. In that case, the Applicant had steered the sampan into Hong Kong waters. When called upon to stop by a police launch, the Applicant had steered in such a way as to cause the sampan to collide with the police vessel. This caused all the passengers, including the Applicant, to fall into the water but fortunately everyone was rescued.

Sentencing remarks

6. In passing sentence in the present case, when summarizing the general circumstances, the judge apparently accepted that the Applicant had not been responsible for steering the sampan. He said:

"You say that one of those illegal immigrants steered the vessel while you acted as a lookout on the way to warn of the presence of any Hong Kong Police vessels. The benefit to you was, you say, that you paid a lower fee for the passage than the others in return for your acting as lookout." (Appeal bundle p. 10)

A little later, the judge went on to say:

"The sampan by its very nature and size is unsuitable for carrying passengers in the open sea, even for a voyage as short as the distance between Lingding and Hong Kong waters. You say that the vessel did have life-preservers on board but that none of the passengers wore them. However, none were found on board the vessel and none were found in the sea after the capsize. Nor was any fire-fighting equipment found. The fact that the sampan was unsuitable for the voyage which you undertook and was therefore by that fact unseaworthy, was demonstrated by the fact that it capsized close to shore, throwing all aboard into the water. That the vessel was unseaworthy by the very nature of its size and construction is manifest by the fact that it capsized; the loss of two lives emphasises that fact. This fact, its unseaworthiness, is an aggravating feature of the case.

You have also been previously convicted of a similar offence in 1996 when you were sentenced to 5 years and 11 months' imprisonment. That sentence clearly was not a deterrent for you because you chose to commit the same offence again.

The sentencing guideline for this type of case is given in Ng Kit-yuen [1992] 1 HKCLR 170. More recently, Cr App No. 145 of 1995, Pang Wing, is authority for the proposition that 5 years' imprisonment should be the starting point in the ordinary case of this type. The case that I have quoted, Ng Kit-yuen, also allows for the increase of that sentence of 5 years where there are aggravating features such as the unseaworthy nature of the vessel.

The fact that you are a repeat offender for this type of offence is also significant. There is clear authority that in such a case, a court is entitled to take a higher starting point for sentence....... So in your case I have 7 years' imprisonment as the starting point made up of 5 years basic starting point with an addition of 1 year for the unseaworthy nature of the vessel and an addition of a further 1 year for the fact that you are a repeat offender." (Appeal bundle pp. 11-12)

The application

7. The passages cited from the judge's reasons for sentence were extensively criticised by Mr Wilson Chan, on the Applicant's behalf. It was his contention in his first ground of appeal that as the Applicant's account of being a 'lookout' had apparently been accepted, and as there was no evidence that the Applicant was in charge of the vessel or that he had taken any active part in the organization of the venture, the judge should have taken a basic starting point of four years' imprisonment, rather than five years, in accordance with what is set out in R v Wong Yin-lung [1995] 1 HKCLR 151 at 153. Furthermore, Mr Chan submitted that it was wrong to have increased the starting point by a year on account of the "unseaworthiness" of the vessel when the Applicant's role was limited to that of a 'lookout'.

8. Mr Cheung Wai-sun, on the Respondent's behalf, very properly pointed out that the whole weight of earlier authority, since Wong Yin-lung (above) seems generally to favour four years as a suitable starting point after trial for a mere crew member of a vessel engaged in assisting the passage of unauthorized entrants, with five years reserved as the starting point for the captain or person in charge of a vessel. Whilst the Applicant was not charged with being a crew member under section 37C, it is plain that as a 'lookout', the Applicant's position was analogous to that of a crew member. Furthermore, his offence of assisting the passage of a conveyance carrying unauthorized entrants under section 37D carried precisely the same penalties.

9. The judge in the present case made no direct reference to Wong Yin-hung. He had, however, as we have said already, referred to R v Pang Wing, CACC 145/1995 (unreported), which was concerned, as the instant case is, with a section 37D(1)(a) offence. The applicant in that case was seen steering an unlit sampan. He was taking two unauthorized entrants to Hong Kong. These three men were the only people on board. The judgment of the Court of Appeal made reference to Wong Yin-lung when stating that:

"In approaching the question of sentence, the trial judge thinking that there were no available guidelines for sentence in relation to an offence against section 37D(1)(a), looked at the case of Wong Yin Lung ([1995] 1 HKCLR 151) which lays down guidelines for an offence against section 37C which is concerned with the captain or crew of a vessel bringing unauthorised entrants into Hong Kong waters, and he decided that it would be appropriate to adopt the guidelines there which indicate that the starting point after trial for the captain of a vessel would be five years and for a member of the crew four years. He noted that the maximum sentence provided for both offences is the same and so it would be appropriate in his view to take the same starting points.

The attention of the Court has been directed this morning to a decision of the Court of Appeal this year in the case of Lo Shui Lun Criminal Appeal No. 109 of 1995 (unreported), which does deal with section 37D(1)(a) and refers to an earlier decision in the case of Ng Kit Yuen [1992] 1 HKCLR 170 in which it was said that there was an indication in an earlier case that a five-year starting point would be appropriate. It seems to us that in this case it would have been appropriate to take a starting point of 5 years' imprisonment. However, the learned judge did not select that starting point. He selected a lower starting point of four years to take account of the fact that the offence was not the most serious of its kind............"

10. The reference in Pang Wing to five years as an appropriate starting point seems, although it might perhaps have been more clearly expressed, to refer to the applicant in that case being not only the steersman of the boat but as being in effective charge of the boat. The same situation had also arisen in R v Lo Shui-lun, CACC 109/1995 where the applicant in that case had been steering a motorised sampan with two unauthorised entrants on board. It is also to be observed that in R v Ng Kit-yuen [1992] 1 HKCLR 170, on which the judge in the instant case had apparently relied as "a sentencing guideline for this type of case", the applicant was the captain of a vessel with eight crew members and thirteen illegal immigrants on board.

11. In the present case, there was every indication, as both counsel to these proceedings accepted, that as all the passengers, including the Applicant, on the small boat were apparently intending to land and stay in Hong Kong, the boat, having served its purpose, would probably have been abandoned. However, it remains far from clear who, if anyone, was "in charge" of the boat on which the Applicant had been a lookout. The judge was obviously alive to this issue, and when counsel in the court below suggested at one stage during mitigation that the Applicant was not a permanent lookout, the judge remarked:

"He's admitted assisting in the passage to Hong Kong of unlawful entrants. He's admitted playing an active part in that by being a lookout to warn whoever was in charge of the boat of the presence of Marine Police. How can that be said to be anything other than a permanent lookout?" (Emphasis added) (Appeal bundle p. 27)

12. In all the circumstances, not without considerable hesitation, it has seemed to us that the judge should more properly, in accordance with prior authority, have selected a four-year starting point rather than taking the higher basic starting point of five years reserved for those in charge of the conveyance bringing unlawful entrants into Hong Kong.

13. In the event that we might reach such a conclusion, Mr Cheung conceded that the Applicant, not having been established to be the person in charge, could not be held responsible for the unseaworthy state of the boat for which the judge had added a further year to the starting point after conducting a Newton hearing into its condition. Such an enquiry was, Mr Cheung rightly also conceded, unnecessary in the circumstances. This concession had, it was accepted, a further consequence, namely that if the Newton enquiry was not necessary, then it would not be right for the Applicant to be penalised by a reduction of the discount he would normally have received for his plea of guilty.

14. We turn lastly to the Applicant's previous conviction which Mr Chan submitted had been wrongly used by the judge to enhance the Applicant's sentence by an additional year.

15. We are bound to say that we consider this to have been a gravely aggravating factor in the circumstances, not merely because the earlier sentence of five years and eleven months which the Applicant had served had plainly had no deterrent effect. It is to be observed that coupled to the sentence for being a crew member, entering Hong Kong waters with unauthorized entrants on board, he had received a concurrent sentence of twelve months for the offence of endangering safety at sea. Perhaps more importantly in the present context, therefore, the Applicant can be taken as someone who was particularly well aware of the dangers of this kind of operation. In the result, one illegal entrant has almost certainly been shown to have drowned and another is missing, presumed drowned.

16. This was a serious case of its kind and we are not inclined to think that the judge erred in any way in his approach to the Applicant's previous history or its effect upon the sentence in the instant case. The Applicant had only been released six months earlier from that sentence and both cases involved very considerable dangers which must have been obvious to the Applicant, regardless of his knowledge of the actual condition of the very small boat in the instant case. In fact, it is perhaps no exaggeration to say that no one could have known better than the Applicant about the perils of such a venture as this. He had not only done this before, he had actually seen the small boat on his earlier unauthorized venture, empty its passengers, including himself, into the sea.

Conclusion

17. Bearing in mind all the circumstances of this case, we have considerable sympathy for the conclusions reached by the judge who had plainly given a great deal of thought to the sentence he should properly impose. However, for the reasons we have given, we consider that the appropriate starting point, on the facts as they were accepted by the judge, was four years' imprisonment enhanced by twelve months, to take into account the aggravation of the offence, for sentencing purposes, of the Applicant's previous record. Furthermore, as it appears that the judge accepted that the Applicant was not "in charge" of the boat, we do not consider that the Applicant should have been held to have had responsibility for its "unseaworthiness" or to have been subject to a lower discount on his plea arising from the Newton hearing. The application of these considerations would leave the Applicant with a sentence of three years and four months to serve.

18. Accordingly, with some reluctance, we will grant leave and treating the hearing as the appeal, we reduce the Applicant's present sentence of five years and seven months to three years and four months.