Hon Leong JA (giving the judgment of the Court):
上訴法庭法官梁紹中宣讀上訴法庭判案書:

The applicant for leave to appeal admitted that at about 11:15 on 27 May 1999 he steered a sampan into Hong Kong waters.  Apart from the applicant, there were 11 people, both male and female, on board the sampan.  These people were unauthorized entrants.  The applicant admitted that he conveyed these people to Hong Kong from Shanwei area.  Subsequently, he pleaded guilty in the District Court to a charge of being a member of the crew of a ship which carried unauthorized entrants into Hong Kong, and was sentenced by Deputy Judge Li to imprisonment for 4 years and 8 months.
上訴申請人承認他於1999年5月27日11時15分左右，駕駛一艘舢舨，進入香港海域，除申請人自己外舢舨上載有11名男女。但該批男女並未獲授權進入香港境內。他承認該批男女是他從汕尾一帶運送到香港的。其後，他在區域法院承認一項身為載有未獲授權進境者進入香港的船隻的船員，被區域法院李瀚良暫委法官判入獄4年8個月。

According to the facts admitted by the applicant and the report of the ship surveyor, at the material time there was no fire prevention, life saving or navigation equipment on the sampan.  The hull was not in good condition and the boat was not suitable for carrying passengers on a long voyage.  The Judge took the view that the applicant was in flagrant disregard of human safety.  The relevant authorities show that the usual starting point for this type of offence is 5 years.  In the present case, the Judge adopted 7 years as the starting point and, giving one-third discount for the applicant’s guilty plea, imposed a sentence of 4 years and 8 months.
根據他承認的案情及驗船官的報告，當時該舢舨沒有防 火、救生及導航設備，船身狀況亦非良好，不適合運載乘客遠道航行。李法官認為申請人罔顧人命安全。按照此類案件的案例，判刑一般是以5年作為起點。於本案，李法官採納7年為起點，扣除三分之一因申請人承認控罪獲得的減刑後，判刑4年8個月。

The applicant has set out in detail the grounds of appeal in the Notice of Appeal and has today provided us with his final written submission.  In his submission he puts forward 6 grounds, but these are merely mitigating factors.  In essence, the applicant complains that the sentence is excessive.
上訴理由申請人已在上訴通知書詳述，而且今日申請人再提交最後書面陳詞。他在陳詞舉出六點理由，但這都是一些求情理由。其中最主要的是他認為刑罰太重。

On the authority of The Queen v Wong Yin-lung [1995] 1 HKCLR 151, in cases of this nature, where the defendant was a captain or a person in charge of a vessel, 5 years is the correct starting point.  If he was not a person in charge or was simply a crew member who carried out orders, 4 years is the appropriate starting point.  Having said that, the judge is entitled to increase the sentence.
根據女皇訴黃燕濃（譯音）一案（1），如果此類案的被告人是船長或船上的負責人員，5年是正確的刑期起點。如果他是其他非負責人員或只是奉命令行事的船員，則4年是適當的刑期起點。但法官有權加重刑罰。

The sentence can be increased in the following two situations:
法官可以在以下兩種情況加重刑罰：

where the passengers conveyed were made to hide in a concealed compartment, thereby making it difficult for them to escape in cases of danger; and
由於運載乘客匿藏於暗格，以致有逃生困難的危險性；及

where, due to age or for want of maintenance, the vessel was not seaworthy, but the offender took the risk to set sail, thereby gravely endangering the safety and lives of the illegal entrants.
由於船隻的年齡或保養問題，船隻不適宜航行，而犯案者冒險航行，可能嚴重危害非法入境者的生命安全的危險性。

These can be regarded as extremely serious offences.  Where both of the above circumstances existed, the court in Wong Yin-lung considered a starting point of 9 years appropriate.
此類活動，是可以作為極為嚴重的罪行。如果上述兩種情況都存在，該案例認為以9年作為起點，亦是適合的。

In the present case, the Judge had already carefully considered the mitigating factors put forward by the applicant and the grounds set out in his written submission and had, correctly in our view, refused to accept those factors as valid mitigating factors.  Having regard to the seriousness of the circumstances of the case, the fact that the applicant had to raise money to repay his debt and the one who operated illegal immigration activity dunned him for compensation can neither constitute a mitigating factor nor reduce the seriousness of the offence. We can therefore see nothing improper in the sentence imposed by the Judge, and the application for leave to appeal against sentence is dismissed accordingly.
李法官對申請人所提出的各種減刑因素及他在書面陳詞所列出的各點，已作出詳細考慮，李法官認為這些都不能作為本案的減刑因素。本庭同意李法官的結論。以本案的嚴重性，申請人因為要籌錢還債及被蛇頭追收賠償，並不能作為減刑因素之一，也不能減輕該罪行的嚴重性。因此，本庭認為法官判刑並無不恰當之處。所以拒絕上訴許可要求減刑，撤銷申請。

Mr. R Lee, Senior Assistant Director of Public Prosecutions and Mr. P Ho, Senior Government Counsel, for the respondent.
答辯人：由李紹强高級助理刑事檢控專員及何詠光高級政府律師代表

The applicant for leave to appeal in person.
上訴許可申請人：黃城輝，無律師代表