THE QUEEN v. HO HON SHUN

BETWEEN

Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against conviction on a charge of assisting the passage to Hong Kong of unauthorised entrants.

2. We are concluding the proceedings with only two judges, Barker, J .A. having been taken ill. However, as counsel for the Crown has conceded that the conviction cannot stand, we are prepared to deliver judgment. Barker, J. A. has indicated his agreement that the appeal should be allowed.

3. The Appellant was arrested in Hong Kong in the company of five small children. They had all entered Hong Kong illegally, but the learned judge appreciated that the issue was whether the Appellant had assisted the entry of these children. Two children gave evidence. It appeared that the five children came from three different families. They had been recruited for entry into Hong Kong by others. Those others conducted both the children and the Appellant from China into Hong Kong. There was no direct evidence that the Appellant did anything towards assisting the snake heads. The Appellant did not give evidence or call any witnesses, but he made two statements, in which his defence clearly appeared - that he was merely an entrant into Hong Kong illegally and that he was forced to adopt this mode of entry because he had lost his identity card and thought he would have difficulty in crossing the border in the legal manner. The judge, simply on reading those two statements, decided that the Appellant was a man whose word could not be trusted and one upon whose statements he was not prepared to place any weight. The judge said "common sense would dictate the need for an adult to have care of five children from, apparently, three different families on that journey". He then pointed out that the snake head had left the children and the Appellant on the Hong Kong side to wait for help. That could affect. the matter only indirectly, because the charge was one of assisting entry into Hong Kong. The judge went on to say that it was beyond belief that the Appellant did not assist the snake head in the entry of the children to Hong Kong and that he must have expected something in return for his "minor role", "perhaps simply a free passage, perhaps more".

4. With respect to the judge we do not think that the inference which he drew was justified. There was no evidence that the Appellant did assist in the entry of the children to Hong Kong and it is questionable whether there was even evidence that he assisted their passage within Hong Kong. The story which he told in his statements was certainly not one which was totally incapable of belief. Accordingly the appeal must be allowed and the sentence quashed.

5. Although it is not now in issue, we feel we ought to draw attention to a note which appears in the judge's record. In passing sentence the learned judge said: "Take into consideration you did not go into the witness box". All we say is that we hope that no judge or magistrate thinks that such is a proper consideration when assessing sentence.

29th September 1983