R. v. WONG PIT LAP

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Reasons for judgment handed down: 19 February 1992

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J U D G M E N T

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Fuad, V.-P. (giving-the judgment of the court):

1. On 10th June 1991 Deputy Judge Eccleton sitting in the District Court sentenced the applicant, Wong Pit Lap, to 4 years imprisonment. He sought leave to appeal against that sentence. On 13th February 1992 we allowed his application, treated it as the hearing of the appeal and allowed the appeal, reducing the sentence imposed on him to one of 2 years' imprisonment We now give our reasons.

2. On 5th February 1991 three men appeared in the District Court before Judge Moylan, each charged in separate charges with being a member of the crew of a ship which entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1) of the Immigration Ordinance, Cap. 115. A man named Chan Ka Man was D1, the applicant was D2 and Wong Lap Fei was D3. On that day, D1 pleaded guilty, and the applicant and D3 pleaded not guilty. Sentence on D1 was postponed and the trial began in relation to the other defendants.

3. An inspector of police began to give evidence, and the record shows that voir dire proceedings in relation to a statement attributed to the applicant began. The grounds for objection to the admissibility of the statement were given by the solicitor acting for him. Shortly afterwards the solicitor was given leave to withdraw from the representation of the applicant.  The applicant told us at the hearing of the appeal that his solicitor had become ill but, according to the record of the proceedings which we have looked at, it appears that there were other reasons. However that may be, the trial of the applicant was adjourned to a date to be fixed and the hearing of the case against D3 continued.

4. On 8th February 1991 D3 was convicted and on that day Judge Moylan sentenced him to 2 1/2 years' imprisonment and D1 to 2 years' imprisonment. From the Reasons for Sentence recorded later in relation to D1 and D3 it appears that Judge Moylan imposed a shorter sentence on D1 because he took his plea of guilty as evidence of remorse.

5. The trial of the applicant began again on 1st May 1991, this time before Deputy Judge Eccleton. The applicant was represented by counsel instructed by the Director of Legal Aid. After evidence had been heard over 3 days, counsel appearing for the prosecution was taken ill and there were adjournments until 3rd June when the trial of the applicant proceeded. It was concluded on the same day. There was then an adjournment for the verdict to 10th June, when the applicant was convicted and sentenced to 4 years' imprisonment.

6. The case for the prosecution, which the judge accepted, was that on 9th November 1990, shortly after midnight, a police launch intercepted a Chinese vessel in Hong Kong waters. Three men were found on deck. They were the crew of the vessel. After a search, another 10 men and 4 women were found hidden inside the cabins. They were all arrested pending enquiries. The evidence showed that these illegal immigrants had each been required to pay between RMB 900 - 2,000 as passage fees.. None of the accused men was the owner of the vessel and each of them had been promised RMB 100 as a reward by the owner.

7. In his Reasons for Sentence, the Deputy Judge said that although this had been denied, he had been satisfied that the applicant had been acting as coxswain of the vessel when it had been intercepted by the police. On the other hand he indicated that he did not consider that this fact made the applicant anything more than an ordinary crew member. He said that the applicant had struck him as being a very simple person and that he had no doubt in his mind that his involvement as a crew member of the vessel had been at the lowest level.

8. The judge also noted that the 14 illegal immigrants on board were found inside ordinary cabins on deck, and there was no suggestion that they had been hidden away in concealed compartments on the vessel, as is all too common. The judge also mentioned the applicant's personal circumstances - that he was a 36 years old married man with 4 children ranging between 12 and 5 years.

9. The judge then said that he had considered a number of cases since The Queen v. Law Man,Criminal Appeal 101 of 1983, in which it had been reaffirmed that the sentence limposed in that case (4 years' imprisonment) was, if anything, lenient. He had noted that in a number of cases a starting point of 5 years' imprisonment had been adopted but those cases usually involved a defendant who had been a master or captain of the vessel, or cases where there were other aggravating factors such as the hiding of illegal immigrants inside concealed compartments. He considered that 4 years' imprisonment was a minimum starting point for this offence even where there were no other aggravating factors.

10. There can be no doubt that on the authorities the sentence imposed on the applicant by the Deputy Judge was entirely appropriate. We would not have interfered were it not for the manner in which Judge Moylan dealt with D1 and D3. It seems that Deputy Judge Eccleton was not informed of the sentences imposed by Judge Moylan. This we regard as a wholly exceptional case, for we consider that it was sheer bad luck that the applicant was not tried and sentenced by Judge Moylan. Had he been, in the light of the fact that the two defendants dealt with by that judge were of similar ages and their degree of culpability was the same, it is unthinkable that he would have imposed so long a sentence as 4 years on the applicant. We felt that in these unusual circumstances the justice of the case demanded our intervention. It was for these reasons and for these reasons alone, that we reduced the sentence as we did.