THE QUEEN v. PANG WING

1995, No. 145
(Criminal)

H E A D N O T E

Criminal Law and Procedure---sentence---assisting the passage within Hong Kong of unauthorized entrants, contrary to S. 37D(1)(a) of the Immigration Ordinance, Cap. 115---appropriate starting point---absence of previous conviction in Hong Kong of a non-Hong Kong resident.

Held: 1. 5-year starting point would be appropriate (see Lo Shui Lun CA 109 of 1995 and Ng Kit Yuen [1992] 1 HKCLR 170).

2. Following Lo Shui Lun, the judge had been generous in giving a discount for good character where the applicant was not a Hong Kong resident, simply because he had no conviction in Hong Kong and it was not demonstrated that he was a good citizen of China from which country he came. Application for leave against sentence dismissed.

IN THE COURT OF APPEAL

No. 145 of 1995
(Criminal)

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J U D G M E N T

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Leonard, J. (giving the judgment of the Court):

1. The Applicant was convicted after trial in the District Court of an offence contrary to section 37D(1)(a) of the Immigration Ordinance Cap. 115, namely assisting the passage within Hong Kong of unauthorised entrants. For that offence he was sentenced to a term of imprisonment of three years and ten months. He appeals against the conviction and seeks leave to appeal out of time against sentence.

2. The facts of the case were that at about 6:20 on the morning at 28th April 1994 police officers on board a police vessel who were on patrol in Deep Bay saw an unlit vessel moving toward the shore of Ha Pak Nai. They kept the vessel under observation before intercepting it when they saw it approaching the shore. The Defendant was steering the boat on board of which were two males the unauthorised entrants.

3. At the trial the Applicant put forward the story that he was simply bringing the two unauthorised entrants into Hong Kong waters to look for a missing fishing vessel which had disappeared from its moorings in mainland China sometime before.

4. The Judge disbelieved the story but rightly pointed out that it made no difference to the question of guilt or innocence whether it were true or not for the Applicant had clearly committed the offence as charged.

5. The Applicant today complains only that the judge did not believe his story. As I have said it would not have mattered if the judge had believed his story. The Applicant has failed to make out any good ground of appeal against conviction. His application is therefore dismissed.

6. Turning to the application for leave to appeal against sentence out of time, it is noted that the sentence was imposed on the 6th of February 1995 and the notice of appeal against sentence is dated the 2nd of August 1995. The Applicant is well out of time. It is necessary to consider the length of the delay and also the reason advanced for the delay, and the only reason advanced by the Applicant is that he was not aware until the time when he put in his application that he was entitled to appeal against sentence. This is a ground which lacks conviction for on the notice of appeal against conviction, there is reference to appeal against sentence and the Applicant has not said that he did not understand the form which he completed and signed.

7. However, before deciding whether to grant leave to appeal out of time it is necessary to look at the grounds put forward in support of the contemplated appeal so as to ensure that there would not be a grave injustice if leave were refused. The main ground is that the judge erred in concluding that if the unauthorised entrants were not looking for a missing vessel, the object was to land them in Hong Kong. We find that the judge was entitled to draw that inference.

8. Certain matters set out in the notice as mitigating factors merely illustrate the absence of certain aggravating factors. They do not assist the applicant at all.

9. 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 CA 52 of 1994 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.

10. 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. He did also refer to the fact that the Applicant was a man of clear record and had a family including a disabled wife to support. The judge then reduced the sentence of four years to 3 years and 10 months to take account of a period of custody which would not be taken into account for the purpose of calculating the period the Defendant would have to serve in prison. The end result was a sentence of three years and 10 months imprisonment.

11. It has been pointed out by Mr. Bruce for the Crown that in the case of Lo Shui Lun, it was said that the sentencing judge erred on the side of generosity in giving a discount for good character because

"The basis of that good character is the absence of any criminal record in Hong Kong. This Applicant is not a Hong Kong resident and was hardly in a position to put himself before the Court as a good citizen simply by pointing out that he had no previous conviction in Hong Kong. It was not demonstrated that he was a good citizen of China from which country he came"

It does appear that the judge was generous in selecting the starting point of 4 years and we can see no ground advanced in support of the appeal against sentence which would justify the grant of leave to appeal out of time having regard to the period of delay and the absence of any acceptable reason for it. The application for leave to appeal against sentence out of time is therefore refused.