Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

On 22 August 2009, a Sergeant on board the Police Launch PL60 found a suspicious fishing vessel entering the waters of Hong Kong and going towards the waters of Tai O. The suspicious fishing vessel was later intercepted by another Police Launch PV80. Apart from the coxswain, the Sergeant found on board the vessel two Chinese males and ten Pakistani males who had no valid travel documents to prove that they had obtained the permission to enter Hong Kong.
2009年8月22日，警輪PL60號上之警長發現一隻可疑漁船駛進香港水域，向大澳水域前進。可疑漁船後來遭另一警輪PV80號截停。警長發現漁船上除了掌舵人外，另有兩名中國籍男子及10名巴基斯坦裔男子，他們全部都沒有有效旅遊證件證明他們獲准入境香港。

The Applicant Tse Chi Hei was the coxswain of the fishing vessel. Under police interrogation, the Applicant admitted that he had arranged those twelve males to enter Hong Kong unlawfully from the Mainland by sea and had received from each of them Renminbi 450 dollars.
申請人謝自喜是漁船的掌舵人。在警員查問下，申請人承認安排上述12名男子經水路由內地非法進入香港，並收取他們每人450元人民幣。

The Applicant later said that he was instructed in Shenzhen to carry the batch of illegal immigrants from Dongguan to Hong Kong by a fishing vessel.
申請人其後指有人在深圳指示他從東莞用漁船運載該批非法入境者到香港。

According to the vessel examination report, the hull of the fishing vessel in question was in poor condition. There was no fire-extinguishing appliance or life-saving apparatus on board. It was not equipped with any navigation light for night-time navigation. Accordingly, it was not seaworthy.
根據驗船報告，涉案漁船的船身結構情況惡劣，船上沒有滅火工具或救生裝置，亦沒有航行燈以供夜間航行，故不適宜作航海用途。

Subsequent to the above incident, the Applicant was charged with one count of “Assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants” and one count of “Aiding and abetting a person to attempt to land in Hong Kong without permission”.
上述事件導致申請人被控第一項協助載有未獲授權進境者的運輸工具前來香港的旅程罪及第二項協助及教唆他人未經准許而企圖在香港入境罪。

The first count was related to the two Chinese males on board the fishing vessel whereas the second count was related to the ten Pakistani males there.
第一項控罪和漁船上的兩名中國籍男子有關，而第二項控罪則和漁船上的10名巴基斯坦裔男子有關。

Admittedly the two counts arose out of the same incident, but technically speaking the ten Pakistani males in question were not unauthorized entrants. As they were different from the two Chinese males, the Prosecution had to lay two charges against the Applicant.
雖然兩項控罪由單一事件引發，但因為涉案的10名巴基斯坦裔男子技術上不屬未獲授權進境者，和涉案的兩名中國籍男子不同，因此控方需要以兩項控罪檢控申請人。

The Applicant pleaded guilty to the two charges before Deputy District Court Judge Johnny Chan who sentenced him to 4 years and 9 months imprisonment.
申請人在區域法院陳仲衡法官席前承認兩項控罪，結果被判入獄共4年9個月。

Deputy Judge Chan took 6 years and 27 months as the sentencing starting points for the two charges, and reduced the sentences to 4 years and 18 months respectively after giving the Applicant one-third discount for his guilty pleas.
陳法官分別以6年及27個月作為兩項控罪的量刑基準，並因申請人認罪而將刑期扣減三分一至4年及18個月。

Deputy Judge Chan said that the involvement with the ten illegal immigrants specified in Charge 2 was not reflected in Charge 1, and the cross-border element of Charge 2 had no connection with Charge 1. Deputy Judge Chan finally ordered 9 months of the sentences for the two charges be served consecutively, resulting in a total sentence of 4 years and 9 months’ imprisonment.
陳法官指出控罪二之10名非法入境者沒有在控罪一反映，而控罪二之跨國成分亦和控罪一無關。陳法官最終下令兩項控罪中的判刑有9個月需要分期執行，而導致4年9個月之總判刑。

Grounds of Appeal
上訴理由

Mr. James Tze, Counsel for the Applicant, agreed to the sentencing starting points adopted by the trial judge for the respective charges, but he emphasized that the two charges arose from the same incident and should not be served consecutively. Mr. Tze also submitted that the total sentence of 4 years and 9 months imprisonment was manifestly excessive.
代表申請人之謝英權大律師認同原審法官就個別控罪所採納之量刑基準，但強調兩項控罪由同一事件引發，故判刑不應分期執行。謝大律師亦指4年9個月之總判刑屬明顯過重。

Discussion
討論

Although the trial judge indicated that he had taken into account at the time of sentencing the respective circumstances of the two charges when determining the starting points of the two charges, it is questionable whether the sentences should be served consecutively given that the two charges arose from the same incident. But at the end the only matter to be decided by this Court is whether the overall sentence is manifestly excessive or not.
雖然原審法官判刑時表示在釐定兩項控罪之量刑基準時，分別考慮兩項控罪之個別情況，但兩項控罪源自同一犯罪行為，判刑是否需要分期執行有值得商榷之處。但最終本庭只需考慮整體判刑是否明顯過重。

The usual sentencing starting point for a charge of “conveying unauthorized entrants to Hong Kong by a vessel for monetary gains” is 4 years imprisonment (see R v Ho Siu-lun [1987] HKLR 1086). If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the sentencing starting point should be one of 5 years (See R v Wong Yin-lung [1995] 1 HKCLR 151 and R v Pang Wing [1996] 1 HKC 624, etc.). Where there are other aggravating factors such as hiding the illegal immigrants in places where it will be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and the lack of life-saving apparatus, risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further.
為獲取金錢利益而用船接載未獲授權進境者進入香港罪，一般量刑基準為4年監禁（見 R v Ho Siu-lun [1987] HKLR 1086案）。假若被告人是有關船隻的掌舵人或是有份參與旅程的組織或安排，則量刑基準應為5年（見R v Wong Yin-lung [1995] 1 HKCLR 151和 R v Pang Wing [1996] 1 HKC 624等案）。若有其他加重罪責因素，包括將非法入境者藏在不容易逃生地方、船隻破舊及沒有救生設備，令船上人士生命安全受威脅、或船上非法入境者數目極大，量刑基準更可以提高。

In the present case, the Applicant was the coxswain of the fishing vessel and the structure of the vessel was in poor condition. There was no life-saving apparatus. The number of illegal immigrants was as many as twelve. Such are aggravating factors by which the sentencing starting point can be increased to one of more than 5 years.
在本案，申請人是漁船的舵手;漁船結構惡劣、沒有救生裝置，和非法入境者數目達12人等等都是加重罪責因素，可令量刑基準提升超過5年。

However this Court is of the view that unless there are extremely unusual reasons, the sentencing starting point for a charge of “conveying unauthorized entrants into Hong Kong by a fishing vessel” should not, even with the abovementioned aggravating factors, be higher than 6 years’ imprisonment.
但本庭認為除非有個別極為特殊因素，以漁隻接載未獲授權進境者進入香港的罪行，即使有上述加重罪責因素，量刑基準不應超越6年。

The present case does not involve particularly elderly, young or disabled illegal immigrants. There is no evidence to show that the twelve illegal immigrants were hidden in a place where it could be difficult for them to escape in case of an emergency. Mr. Raymond Cheng, Senior Public Prosecutor, who appeared on behalf of the Respondent, emphasized that the illegal immigrants would have considerable difficulty if they needed to make escape. But this Court is of the view that such difficulty would be present in every case where illegal immigrants are conveyed by a fishing vessel. Although the fishing vessel was not seaworthy, it was not particularly dilapidated. There is no evidence to show that the fishing vessel ran the risk of sinking in the journey.
本案不涉及特別年長，特別年幼或任何傷殘非法入境者。沒有證據顯示12名非法入境者藏身之處的環境可能令他們遇險時無法逃生。答辯人代表大律師鄭凱聰高級檢控官強調非法入境者逃生時會遇上相當困難，但本庭認為該些困難在所有以漁船接戴非法入境者的案件都必會存在。涉案的漁船雖然不適宜作航海用途，但亦非特別殘破，亦沒有證據顯示在旅程中，漁船會有沉沒的危險。

The Applicant has no previous record of conviction in Hong Kong. This Court considers that in view of the background of the case, even if the aggravating factors are taken into account, a total sentencing starting point of 6 years is adequate. The Applicant’s final sentence of 4 years and 9 months represents a starting point of 7 years and 3 months which is manifestly excessive.
申請人在香港沒有犯罪記錄。本庭認為以本案的背景而言，即使將有關加重罪責因素考慮在內，總量刑基準6年已足夠。申請人最終的4年9個月判刑等同約7年3個月之量刑基準，屬明顯過重。

We allow the Applicant’s application to appeal against sentence. Taking his application as the formal appeal, we allow the Applicant’s appeal. The respective sentences of the two charges are upheld but we order the sentences of the two charges to run concurrently. The 4 years and 9 months sentence of the Applicant is hereby reduced to 4 years.
本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直。本庭維持兩項控罪的個別判刑，但下令兩項控罪的判刑同期執行。申請人的4年9個月判刑減為4年。

James Tze, instructed by the Legal Aid Department, for the Applicant
答辯人：由律政司高級檢控官鄭凱聰代表。

Raymond Cheng, Senior Public Prosecutor of the Department of Justice, for the Respondent
申請人：由法律援助署轉聘謝英權大律師代表。