Case Detail

R. v. SZE YUI

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3347-EN-1996-04-23

R. v. SZE YUI

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CACC000348/1995

IN THE COURT OF APPEAL

1995, No. 348
(Criminal)

BETWEEN
	THE QUEEN	Respondent

	AND

	SZE YUI	Applicant

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

Coram: Hon Litton, V.-P., Mayo and Ching, JJ.A.

Date of hearing: 23 April 1996

Date of judgment: 23 April 1996

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

J U D G M E N T

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

Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal out of time against the total of seven years' imprisonment imposed upon him for assisting unauthorised entrants to enter Hong Kong and for endangering the safety of others at sea.

2. Her Honour Judge Chua imposed a sentence of four years' imprisonment on the first charge and three years on the second. She ordered that the terms be served consecutively.

3. The applicant applied for leave to appeal against his convictions on these charges. A different division of this court heard the application and dismissed it on 31 October 1995 for the reasons which were given.

4. At the time of that application the applicant did not seek leave to appeal against the sentences which were imposed upon him. In the home-made papers which are before us the applicant claims that he did not know that it was possible to appeal against sentence at the same time as appealing against conviction. This is notwithstanding the fact that his signature is appended to Form XI which contains a statement to the effect that if an appeal against sentence is prosecuted at the same time as an appeal against conviction each application will not have an adverse effect upon the other. It is stated that this had been explained to the applicant.

5. It is evident from her reasons for verdict and for the reasons she gave for imposing the sentences she did that Judge Chua took a very serious view of these offences. The applicant was found guilty of grave misconduct. When he realised that the vessel he was controlling was being approached by a police launch he did everything he possibly could to avoid being apprehended. This was in adverse weather conditions and in the knowledge that he had 10 passengers on board 7 of whom were females, and 2 were heavily pregnant. After a protracted chase the applicant's vessel came into collision with another vessel and sank. Very fortunately all of the persons on the vessel were rescued from the sea.

6. It was a very bad case indeed and the judge was fully justified in taking the view of the matter that she did.

7. The applicant complains that seven years' imprisonment was excessive. We disagree.

8. There is however one point which has been raised by Mr Pritchard on the applicant's behalf. When the applicant was arrested he was detained by the Immigration Department for 29 days which time is not treated as part of the sentence served by the applicant pursuant to s67A of the Criminal Procedure Ordinance. This was accepted by Mr Cantrill for the Crown. In view of the wording of the proviso to s82(2) of the District Court Ordinance the total terms of imprisonment to be served by the applicant should not exceed the seven years maximum provided for in the section. Technically this has not been breached, but it would appear that the fact that the appellant has been in administrative detention, and not by an order of a court, for 29 days has been overlooked by the judge. The applicant should have the benefit of the doubt in this regard. We consider that leave should be granted to hear this application to appeal against sentence out of time and treating the application as the appeal we reduce the sentence which was imposed by one month. The application is successful to this extent.

(Henry Litton)	(Simon Mayo)	(Charles Ching)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr Cantrill, Sr. Crown Counsel (Crown Prosecutor) for Crown/Respondent

Mr Rodney Pritchard (DLA) for Applicant

IN THE COURT OF APPEAL

1995, No.348
(Criminal)

BETWEEN

	THE QUEEN
	and
	SZE YUI

__________________

Coram: Hon. Yang, CJ, Power VP and Stuart-Moore J

Date of Hearing: 31 October 1995

Date of Judgment: 31 October 1995

__________________

JUDGMENT

__________________

Hon Yang, CJ:

1. This is the applicant’s for leave to appeal against his conviction on one charge of assisting the passage within Hong Kong of unauthorized entrants and another charge of endangering the safety of others at sea. He was the 2^nd defendant in the court below. The 1^st defendant was a boy of seventeen years of age called Mok King Ching.

2. In his homemade grounds of appeal, he said that he was not the snakehead, and that a police video tape could prove that fact. Before us today, he repeated what according to him was what had actually transpired.

3. The facts of the case might be briefly stated. At about 6:38 pm on 24 November 1994, officers of the marine police on board a police marine launch off Ping Chau in Mirs Bay saw a vessel which attracted their attention. The police monitored that vessel’s movements and eventually decided to intercept it. It was already dark when the police started to chase after the vessel when, according to the evidence, “that vessel appeared determined to avoid stopping for PV 57”, i.e. the police launch, and it was “making quite sudden and violent changes in direction and speed”.

4. There was at that time a strong wind and the wave was grade 3-4. Visibility was poor. When the police launch got near the vessel, very flares and parachute flares were shot into the sky and the police could see the applicant sitting in the boat with his left hand on the control level thereby controlling the boat’s speed and direction.

5. The police officers identified themselves and ordered the boat in front to stop. That instruction was ignored and the chase continued for another four to five minutes. It was noticed that the boat in front accelerated and changed directions violently, zigzagging away until it suddenly collided with the police launch. That boat sank and the occupants, i.e. seven women and five men, fell into the sea from which they were rescued by the police.

6. The identification evidence was considered carefully by the judge. In the forefront of her mind were the Turnbull guidelines. She noted that the police officer who identified the applicant said that the flares provided brilliant illumination and that he saw the applicant’s face in profile several times. On one occasion, the applicant turned around and he saw the applicant’s face for two seconds at a distance of some ten feet.

7. The police took two cautioned statements from the applicant which were challenged. The admissibility of those statements was tested during a voir dire hearing in which the applicant gave evidence. Having heard the evidence, the trial judge ruled that the statements were voluntary and admitted them into evidence.

8. In the statements, the applicant admitted that he was helping to steer the boat by holding the steering wheel. He said he was not the coxswain but an assistant to Mok King Ching.

9. We have read the learned judge’s Reasons for Verdict and come to the view that she has dealt with the evidence, particularly the evidence of identification, with care. There were ample grounds for her to admit the two cautioned statements.

10. In our judgment, there is nothing which has been said by the applicant either in his homemade grounds of appeal or in his submission to us this morning which leads us to doubt the correctness of the verdict. We find nothing of substance in this application, it is accordingly dismissed.

(TL Yang)
Chief Justice

(NP Power)
Vice President

(Michael Stuart-Moore)
Judge of the High Court

Applicant – in person

Mr F A Veltro of the Attorney General’s Chambers for Crown/Respondent