The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:

RE CRIMINAL APPEAL 357 OF 2004 (DEFENDANT 1)

·        It is important to bear in mind the provisions of two quite similar offences under the Immigration Ordinance. Specifically:

- Section 37C(1) provides:

“(1)  Subject to subsection (2), if a ship enters Hong Kong with an unauthorized entrant on board-

(a)   each member of the crew;

(b)   the owner of the ship and his agent; and

(c)   any person who participated in making arrangements to enable the voyage on which the unauthorized entrant boarded the ship or wasbrought to Hong Kong to take place,

commits an offence and is liable-

(i)    on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; and

(ii)   on summary conviction to a fine of $350,000 and to imprisonment for 3 years”.

- Section 37D(1)(a) of the Immigration Ordinance reads as follows:

“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―

(a) arranges or assists the passage to, or within, Hong Kong;

(b) offers to arrange or assist the passage to, or within, Hong Kong; or

(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―

i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)

ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.

·        In light of the above, it is evident that whenever there is an irregular migrant on broad a vessel in Hong Kong waters, the person in charge of the vessel or a crew member who assisted in the passage thereof will be liable to prosecution under either of the two sections. There is no difference in the penalty. The emphasis on Section 37(C)(1) lies on the position of the accused in the vessel whereas the focus of Section 37D(1) is on his or her conduct.

·        The generally applicable sentence is four years’ imprisonment (see R v Ho Siu-lun and Ors [1987], R v Chan Kwok-keung and Anor [1988] and R v Lam Kon-man [1990]). Whereas the accused was the captain of the vessel or the person in charge or assisting in the organisation of the venture, the appropriate starting point is five years’ imprisonment (see R v Wong Yin-lung [1995] and R v Pang Wing [1996]). The following situations will be considered as aggravating factors increasing the sentence beyond the afore-mentioned five years’ imprisonment:

a)    The irregular migrants were concealed in a place in the vessel from which escape would have been difficult (R v Ng Kit-yuen [1992]).

b)    The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers (R v Ng Kit-yuen [1992] and HKSAR v Tsui Kwong Ming [2004]).

c)     The vessel was carrying a large number of irregular migrants (R v Wong Yin-lung [1995]).

d)    Where the vessel was grossly overloaded, creating a gravely hazardous operation (R v Chan Shing Chun [1995]).

e)    The degree of danger that might be involved caused by the age and physical condition of the irregular migrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm (R v Lo Shui Lun [1995] and HKSAR v Tsui Kwong Ming [2004]). In Wong Yin-lung, the Court of Appeal also expressed doubts as to whether any substantial discount should be given in these offences as it may regrettably be seen as an invitation by the organisers to employ young men as crew in these illicit ventures.

·        Accordingly, thesentencing starting point of four years’ imprisonment adopted by the Judge a quo is consistent with the judicial authorities. It can even be deemed too lenient because the defendant was the person in charge of the vessel.

·        Where irregular migrants are illegally brought by an accused into Hong Kong to commit a crime to which the accused is a party, it is not fruitful to discern - for sentencing purposes - whether the migrant smuggling offence or the other crime is more serious or dominant. In the present case, it is not upheld the argument that the offence of assisting the passage within Hong Kong of an unauthorized entrant should be treated as subsumed in, or less serious than, the handling of stolen goods charge. Nor that this latter charge, in the circumstances of this case, should be considered as the major crime. The opposite view could lead to absurd results: “if an accused brings in (irregular) immigrants to commit serious offences like murder or armed robbery in this territory, and taking them back afterwards, is he to be considered less culpable than those who just bring in illegal immigrants who may, apart from being in breach of the immigration laws, live and work peacefully in Hong Kong?”.

·        Section 37D of the Immigration Ordinance regards the bringing in of unauthorised entrants. It does not focus on the purpose of bringing in such migrants. Thus, for the purpose of sentencing, it is of little relevance whether the defendant assisted migrants in entering Hong Kong illegally so that they could stay in irregularly or for the purposes of committing a crime.

·        It is true that most judicial authorities cited above regarded snakehead type criminality. The sentencing principles or guidelines derived therefrom should not be applied to the ‘innocent type’, such as bringing in an irregular migrant merely for looking at the scenery. However, this is not the proper case to enter into such a discussion.

RE CRIMINAL APPEAL 410 OF 2004 (DEFENDANT 2)

·        The Judge a quo adopted a starting point of two years’ imprisonment on the ‘handling of stolen goods’ charge and applied an enhancement of 35%. Conversely, it set the sentencing starting point for the migrant smuggling offence at five years’ imprisonment. It then reduced each sentence by one-third to take into account the guilty plea. It was further ordered that part of the sentence for migrant smuggling run consecutive to the sentence for the handling of stolen goods charge, thus reaching an overall sentence of three years and ten months’ imprisonment.

·        It is worth noting that the starting point for the migrant smuggling offence in the instant case (five years) is longer than the one adopted in CACC 357/2004 above. It does not, however, mean or reflect that the Judge in the instant case imposed an inappropriate sentence. The Judge methodology was in line with the applicable judicial authorities. Furthermore, there is an additional aggravating factor in casu: the vessel appeared to be much more unseaworthy than that in CACC 357/2004.

The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:

RE CRIMINAL APPEAL 357 OF 2004 (DEFENDANT 1)

·        It is important to bear in mind the provisions of two quite similar offences under the Immigration Ordinance. Specifically:

- Section 37C(1) provides:

“(1)  Subject to subsection (2), if a ship enters Hong Kong with an unauthorized entrant on board-

(a)   each member of the crew;

(b)   the owner of the ship and his agent; and

(c)   any person who participated in making arrangements to enable the voyage on which the unauthorized entrant boarded the ship or wasbrought to Hong Kong to take place,

commits an offence and is liable-

(i)    on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; and

(ii)   on summary conviction to a fine of $350,000 and to imprisonment for 3 years”.

- Section 37D(1)(a) of the Immigration Ordinance reads as follows:

“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―

(a) arranges or assists the passage to, or within, Hong Kong;

(b) offers to arrange or assist the passage to, or within, Hong Kong; or

(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―

i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)

ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.

·        In light of the above, it is evident that whenever there is an irregular migrant on broad a vessel in Hong Kong waters, the person in charge of the vessel or a crew member who assisted in the passage thereof will be liable to prosecution under either of the two sections. There is no difference in the penalty. The emphasis on Section 37(C)(1) lies on the position of the accused in the vessel whereas the focus of Section 37D(1) is on his or her conduct.

·        The generally applicable sentence is four years’ imprisonment (see R v Ho Siu-lun and Ors [1987], R v Chan Kwok-keung and Anor [1988] and R v Lam Kon-man [1990]). Whereas the accused was the captain of the vessel or the person in charge or assisting in the organisation of the venture, the appropriate starting point is five years’ imprisonment (see R v Wong Yin-lung [1995] and R v Pang Wing [1996]). The following situations will be considered as aggravating factors increasing the sentence beyond the afore-mentioned five years’ imprisonment:

a)    The irregular migrants were concealed in a place in the vessel from which escape would have been difficult (R v Ng Kit-yuen [1992]).

b)    The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers (R v Ng Kit-yuen [1992] and HKSAR v Tsui Kwong Ming [2004]).

c)     The vessel was carrying a large number of irregular migrants (R v Wong Yin-lung [1995]).

d)    Where the vessel was grossly overloaded, creating a gravely hazardous operation (R v Chan Shing Chun [1995]).

e)    The degree of danger that might be involved caused by the age and physical condition of the irregular migrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm (R v Lo Shui Lun [1995] and HKSAR v Tsui Kwong Ming [2004]). In Wong Yin-lung, the Court of Appeal also expressed doubts as to whether any substantial discount should be given in these offences as it may regrettably be seen as an invitation by the organisers to employ young men as crew in these illicit ventures.

·        Accordingly, thesentencing starting point of four years’ imprisonment adopted by the Judge a quo is consistent with the judicial authorities. It can even be deemed too lenient because the defendant was the person in charge of the vessel.

·        Where irregular migrants are illegally brought by an accused into Hong Kong to commit a crime to which the accused is a party, it is not fruitful to discern - for sentencing purposes - whether the migrant smuggling offence or the other crime is more serious or dominant. In the present case, it is not upheld the argument that the offence of assisting the passage within Hong Kong of an unauthorized entrant should be treated as subsumed in, or less serious than, the handling of stolen goods charge. Nor that this latter charge, in the circumstances of this case, should be considered as the major crime. The opposite view could lead to absurd results: “if an accused brings in (irregular) immigrants to commit serious offences like murder or armed robbery in this territory, and taking them back afterwards, is he to be considered less culpable than those who just bring in illegal immigrants who may, apart from being in breach of the immigration laws, live and work peacefully in Hong Kong?”.

·        Section 37D of the Immigration Ordinance regards the bringing in of unauthorised entrants. It does not focus on the purpose of bringing in such migrants. Thus, for the purpose of sentencing, it is of little relevance whether the defendant assisted migrants in entering Hong Kong illegally so that they could stay in irregularly or for the purposes of committing a crime.

·        It is true that most judicial authorities cited above regarded snakehead type criminality. The sentencing principles or guidelines derived therefrom should not be applied to the ‘innocent type’, such as bringing in an irregular migrant merely for looking at the scenery. However, this is not the proper case to enter into such a discussion.

RE CRIMINAL APPEAL 410 OF 2004 (DEFENDANT 2)

·        The Judge a quo adopted a starting point of two years’ imprisonment on the ‘handling of stolen goods’ charge and applied an enhancement of 35%. Conversely, it set the sentencing starting point for the migrant smuggling offence at five years’ imprisonment. It then reduced each sentence by one-third to take into account the guilty plea. It was further ordered that part of the sentence for migrant smuggling run consecutive to the sentence for the handling of stolen goods charge, thus reaching an overall sentence of three years and ten months’ imprisonment.

·        It is worth noting that the starting point for the migrant smuggling offence in the instant case (five years) is longer than the one adopted in CACC 357/2004 above. It does not, however, mean or reflect that the Judge in the instant case imposed an inappropriate sentence. The Judge methodology was in line with the applicable judicial authorities. Furthermore, there is an additional aggravating factor in casu: the vessel appeared to be much more unseaworthy than that in CACC 357/2004.