Case Detail

CACC000118/1991

IN THE COURT OF APPEAL

1991, No. 118
(Criminal)

___________

BETWEEN
	THE QUEEN

	and

	NG KIT YUEN

___________

Coram: Hon. Penlington, J.A., Mortimer, J.A. & Sears, J.

Date of hearing: 16 November 1993

Date of delivery of judgment: 16 November 1993

_______________

J U D G M E N T

_______________

Penlington J.A. :

1. This is an application for leave to appeal out of time against a conviction for being the captain of a ship which entered Hong Kong waters on the 9th of November 1990 with unauthorised entrants onboard, contrary to Section 37(c)(1) of the Immigration Ordinance Cap. 115.

2. Pursuant to Section 37L of the Immigration Ordinance the consent of the Attorney General to prosecute the applicant was signed on the 30th November 1990 and the information was laid on the 1st of December. On the 23rd January 1991 the applicant pleaded guilty to the offence in the magistrate's court and he was committed to the High Court for sentence, pursuant to Section 81B of the Criminal Procedure Ordinance. On the 1st of March 1991 the applicant was sentenced to 6 years' imprisonment by Gall J. He applied to leave to appeal against that sentence and was represented at the hearing of the application by counsel. The application was refused. No point was taken as to the validity of the conviction.

3. By a decision dated the 7th of September 1993 this Court in R. v. Hui Lan-chak and anr. Criminal Appeal 538 1992 considered the question of whether the consent of the Governor was required for prosecutions under Section 37C(1) in addition to that of the Attorney General. That was based on the provision in Section 3 of the Territorial Waters Jurisdiction Act 1878, an act which gave jurisdiction in respect of offences committed by foreign nationals in waters "adjacent to the Queens Dominions". There is no dispute that the applicant is a national of the People's Republic of China and the offence was committed at sea. Section 3 of the 1878 Act provides that consent of the Governor is required for the institution of offences which relied on the Act to give the court jurisdiction. Section 4 of that Act however also provides that it should not be necessary to aver in the charge that such consent had been given and it shall be presumed to have been so given unless, at the trial, that is disputed. It is common ground that no such dispute was raised at the trial here, either in the magistracy or before Gall. J.

4. By the Criminal Law (Amendment) Ordinance 1989, which came into force on the 1st of January 1991 the Territorial Waters Jurisdiction Act 1878 ceased to apply to Hong Kong and was replaced by new sections of the Crimes Ordinance, Sections 23A, 23B and 23C. However, again the consent of the Governor was required by Section 23C for the institution of proceedings. There were no transitional provisions in the amendment and also there was no presumption clause as to consent being given corresponding to Section 4 of the 1878 Act.

5. We have had the benefit of very full and careful skeleton arguments from both Mr. Philip Dykes, who appears for the applicant here, and leading counsel for the Crown Mr. Adrian Huggins Q.C. A preliminary point was (question of) whether the court has jurisdiction to hear this application at all. This was considered in the R. v. Lam Shui-kam 1968 HKLR. 250 where, a majority of the Full Court held that it did have such jurisdiction. It is not contended by either side here that we did not also have jurisdiction to hear an appeal where the applicant was committed by a magistrate for sentence to the High Court and we are satisfied we have jurisdiction to hear this application.

6. There were also submissions concerning the question of whether the requirements for consent under Section 3 of the 1878 Act or Section 23C of the Crimes Ordinance were purely procedural on the basis that, if they were, Section 23C of the Crimes Ordinance was the relevant one at the time of sentence in March 1991, or also possibly in January 1991 when the applicant was committed. If such was the case there was no presumption that the Governor's consent had been given, and no such consent having been produced, the conviction was a nullity. Mr. Huggins argued that even if the relevant sections requiring the Governor's consent were procedural and Section 4 of the 1878 Act could not be relied on by the Crown there was still the common low presumption as set out in Price v. Humphries 1858 2QB 353 which is similar to the maxim omnia presummuntur rite esse acta, it should be presumed that consent had been given if it was not challenged at the trial. It was now far too late for the applicant to raise this point.

7. His position originally was that we should not be concerned at all as to whether or not the Governor's consent had been given even though it would be strange that it had been given here but not in the many other cases which have come before this court. However he now finally conceded that we should consider the matter on the basis that here there was no such consent. I consider that to be right; it would be quite extraordinary if consent had been given here when it was strongly argued in the R. v. Hui Lan-chak that, as here, when the Attorney General's consent was given that was enough, he should be deemed to be consenting also as the Crown's Principal Law Officer in Hong Kong and doing so on behalf of the Governor.

8. On the basis that no consent was given it seems to me that the position is then governed by the decision of the Court Appeal in R. v. Angel. 1968. Vol. 52. Crim. App. R. 280 for which I am indebted to Sears J. There a similar situation arose regarding consent by the Director of Public Prosecutions to a charge under the Sexual Offences Act 1967 which requires such consent. It was found that there was no such consent. Lord Parker L.C.J. said :

"In fact it has been ascertained that the consent of the Director of Public Prosecutions was not obtained, and in the result the whole of the trial, including the committal proceedings, has been a complete nullity, having been instituted without that necessary consent. In the result, the Court has no alternative but to quash the conviction on the ground that the trial was a complete nullity, and accordingly will allow the appeal for that purpose."

9. It seems to me therefore that is the position here and I would allow this application for leave to appeal, treat this as the hearing of the appeal which should be allowed and the conviction quashed.

	(R.G. Penlington)
	Justice of Appeal

Mortimer, J.A:

10. I agree and I would also allow this appeal. It seems to me that these proceedings were a nullity. That has been clearly established. The only question is whether after all this time this applicant should have leave to appeal; it is equally clear that this matter was totally overlooked by those who were representing him. He had no idea of the point now taken and justice requires that we should give him leave to appeal out of time as this is an appeal on a question of law. I would also give leave and allow the appeal.

	(J.B. Mortimer)
	Justice of Appeal

Sears, J.

11. For the reason given by both my Lords, I also agree.

	(R.A.W. Sears)
	Judge of the High Court

Representation:

Mr. P.J. Dykes (D.L.A.) for Applicant

Mr Adrian Huggins, Q.C., & Miss Margaret A. Crabtree, SACP for Crown

CACC000118A/1991

IN THE COURT Of APPEAL	No.118 of 1991
	(Criminal)

HEADNOTE

The court confirmed that the sentence of five years after trial was, as indicated in The Queen v.LAM Kon-man (Cr. App. No.329 of 1990), a proper one to impose on the captain of a vessel bringing unauthorized entrants into Hong Kong from China. Court went on to state that where unauthorized entrants were concealed in circumstances such that there was a grave risk to their lives, or the vessel was unseaworthy, a starting point of seven years would be appropriate, and that where both of these factors existed, a starting point of nine years would be appropriate.

IN THE COURT OF APPEAL	No. 118 of 1991
	(Criminal)

THE QUEEN

AND

NG KIT YUEN

-----------------------

Coram: Hon. Power, J.A., Penlington, J.A. and Ryan J.

Date of Hearing: 11 October 1991

Date of Delivery of Judgment: 19 November 1991

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JUDGMENT

----------------

Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge under s.37C(1) of the Immigration Ordinance Cap.115 that he being the captain of a ship entered Hong Kong with unauthorized entrants on board. The particulars of the charge were that on 9th November 1990 in Hong Kong he was the captain of a ship "Wai Loi 678" which entered Hong Kong with 13 unauthorized entrants on board. He pleaded guilty to that charge before Gall J. and was sentenced to imprisonment for six years. He now appeals against that sentence on the ground that the trial judge adopted a wrong starting point and failed to take all of the mitigating factors into consideration.

3. The admitted facts revealed that at 1.15 a.m. on 9th November 1990 Marine Police Officers intercepted the vessel "Wai Loi 678" as it was entering the western entrance to the Aberdeen Typhoon Shelter. The applicant, who was the captain, and 8 crew were found on board but an inspection showed that it was carrying no cargo. A careful search was then made and when the planking underneath a kitchen cupboard was removed 13 illegal immigrants were found concealed in a compartment. There were 4 adults and 9 children ranging from 1 to 14 years. The planking was found to have been firmly fixed in place and the base of the cupboard was nailed down over it. The applicant said that he had been acting at the behest of a Chinese snakehead and was to be rewarded with 300 RMB for each immigrant successfully landed.

4. The Crown called two witnesses, the first to give evidence as to the condition of the vessel and the second to give evidence as to the number of illegal immigrants entering Hong Kong by sea.

5. The first witness was Supt. Roger Tritton, the staff officer in charge of Navigation and Seamanship in the Royal Hong Kong Police. Supt. Tritton said that he had been two years in the police but that, prior thereto, he had been a Captain in the Royal Navy He said that he had inspected the "Wai Loi 678" on 28th February 1991, the day prior to his giving. evidence, but some three and a half months after the commission of the offence, and found it to be an old river trade wooden constructed vessel in the order of 150 tons displacement whose main cargo area was an open hold in the forward deck area. He said that her general condition was very poor and that as she stood at that time she had a consistent leak which required pumping daily to ensure that she remained afloat. He said that she was seaworthy in calm river conditions but not really suitable for deep sea voyages at all. He added that it was not unknown for vessels of this age and type to actually spring their planking whilst in custody and sink very quickly. He said that there was no indication that the planks immediately over the entrance hole were nailed down but that a shelf which was part of the kitchen cupboard which sat on the planking bore nail holes indicating that it had been nailed down at each end. He went on to say:

"I believe there were two hazards here, the first being the risk of danger to people in that compartment in the event of flooding,and I also believe that there would have been a danger to people contained in that compartment had there been an outbreak of fire above their heads. The accommodation area above their head does have cooking facilities. These are of an open fire type,and therefore there would have been, in my opinion, extreme difficulty in vacating that compartment in either case."

He stated that it was his view that younger children would not be able to get out of the hiding place without assistance.

6. The second witness called was Miss Tsang Yuk-ching, a Chief Immigration Officer who furnished the court with statistics which showed that in 1989 about 20% of illegal immigrants arrested in the border areas had come by way of either bay or sea whereas in 1990 about 30% of arrested persons had come by those routes. These figures were tendered to establish that the number coming by bay and sea was on the rise. However Mr. Duckett Q.C., who appeared with 9r. Lo for the Crown, very fairly informed the court that during 1991 there had been some drop off in the percentage coming by bay and sea.

7. The trial judge sentenced upon the basis that the vessel was not suitable for navigation on the open sea in rough weather and that persons confined in the hidden compartment would have been at serious risk in the event of flooding or fire. He accepted that the shelf had been nailed in place over the compartment and that the very small entrance when closed would effectively confine the occupants of the compartment and that exit therefrom by the 13 illegal immigrants would have been very difficult if not impossible in the event of an emergency. The trial judge also accepted that the number of illegal immigrants entering the territory by sea was increasing.

8. The judge added that he gave little weight to the plea of guilty as the accused was caught in the act and the evidence was overwhelming. He referred to The Queen v. Lam Kon Man (Cr.APP. No.329 of 1990) in which the sentence of a captain of a vessel was reduced from five years to four years after plea and in which Sir Derek Cons stated:

".... we feel that the starting point of six years taken by the judge below was out of line with the general run."

He said that he was satisfied that that case was, on its facts, distinguishable from the present case as there was no concealed compartment on the vessel and the illegal immigrant on it were not shown to be at any particular risk. He was satisfied that by reason of its facts this case fell outside the ambit of those which set a tariff on a plea of guilty at four years. He considered that the starting point should be seven years and, taking into account the plea and the age of the applicant, was satisfied that six years was the proper sentence.

9. Mr. Plowman, who appears for the applicant before this court, submitted firstly that the judge was wrong to have been guided by the evidence of Supt. Tritton as to the condition of the vessel as the inspection by the. Superintendent was carried out more. than three and a half, months after the commission of the offence. He submitted that there, should have been evidence of the condition of the vessel as at the date of the offence. We have had the benefit of seein g photographs of the vessel and have considered the evidence of Supt. Tritton in the light of those photograpns. We have no doubt that the vessel must have been in a condition very simlar to that descrbed by the superintendent at the time of the commission of the offence.While it may be that it was not consistently leaking at that time, its overall condition must, as the superintendent said, have been very poor. The judge was, we are satisfied, right to act upon his evidence and in particular upon the evidence that the vessel was "seaworthy in calm river conditions and not really suitable for deep sea voyages at all".

10. Mr. Plowman referred us to a number of cases suggesting that these established a tariff of four years after trial and that there was nothing in the present case which would warrant departure from that tariff. He submitted that concealment was not a new factor as it was inherently likely that, in almost all cases, the illegal immigrants would have been concealed on board the vessel. He submitted further that unseaworthiness was not really a new factor as a number of the cases to which he referred had involved motorized sampans which placed the passengers at considerable risk because of their size and low sea-board.

11. We are satisfied after an examination of the cases cited that they did not take into account as specific elements warranting an increased penalty either the danger that arises by reason of concealment in a closed compartment or that which arises by reason of the unseaworthiness of the vessel. It is true that in The Attorney General v. Chan Kwok Keung & another [1988]1 HKLR 279, the court took into account that the "offences concern some very young children to whom there was a physical risk... ". It is however clear from a reading of the report that the physical risk was occasioned not by the fact that the children were hidden in a concealed compartment but by the fact that they were being carried on a motorized wooden sampan which was crewed by only two persons.

12. The sealed compartment in which the illegal immigrants were hidden would, we are satisfied, in the event of a real emergency, have been a death trap. Sentencing courts should, we are satisfied, give weight to the following circumstances which have . not, heretofore, played a part in the assessment of sentence:

	(i)	were the illegal immigrants concealed in a place from which escape would have been difficult?
	(ii)	was the vessel by reason of poor maintenance or age in an unseaworthy condition?

13. We are satisfied that the sentence of five years after trial indicated in The Queen v. LAM Kon-man (supra) has no application to cases in which the above considerations play a part. Where there is a grave risk to the lives of illegal immigrants, knowingly undertaken for gain, the offence is one of considerably more gravity. We are satisfied that where both of the circumstances referred to above exist, depending upon the nurnber of immigrants involved and the degree of danger, a starting point as high as nine years would be appropriate. This period is arrived at by adding 2 years for each of the aggravating circumstances to the 5 years indicated in The Queen v.LAM Kon-man (supra). The starting point adopted by the trial judge was, therefore, wrong but only insofar as it was too low and, therefore, produced an excessively lenient sentence. We indicate that we do not think it proper to give any weight to the illegal entry statistics as the indication is that they are presently falling.

14. The application for leave to appeal against sentence is, therefore, dismissed.

Representation:

Mr. A.P. Duckett, Q.C. and Mr. Francis Lo (Crown Prosecutor) for the Respondent.

Mr. Gary Plowman (D.L.A.) for the Applicant.

THE QUEEN v. NG KIT YUEN

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