HKSAR v. Huang Xiaogui

DCCC 872/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 872 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Assisting the passage to Hong Kong of unauthorized entrants" (Charge 1) and 1 charge of "Endangering the safety of others at sea" (Charge 2).

Summary of Facts

2.About 8:30 pm on 13 August 2015, police officers found a sampan at the shore of Tuen Tsui.  The sampan had 6 males (including the defendant) on board.  None of them had any valid identification or travel documents.  The defendant was sitting at the stern and in control of the sampan's motor. 

3.From the sampan, the Police seized, inter alia, 1 nylon bag containing about 4.00 kg of goose barnacles, 6 nets, 7 nylon bags, 4 dive suits, 1 life jacket, 1 crowbar, 1 gyroscope, 2 pair of gloves and 3 snorkels with masks.

4.In his video recorded interview, the defendant claimed that about 5:30 pm on 13 August 2015, he conveyed the other 5 persons on board from Nan'ao to look for conches.  After 30 to 40 minutes, they reached the location where they were arrested.  They started picking goose barnacles because it was too early in the evening to catch conches.  The dive suits were worn by those who went into the sea; they used the crowbar to pry goose barnacles from the rocks.  The defendant also admitted that he had no licence to operate the sampan.

5.The sampan was inspected by a Senior Ship Inspector of the Marine Department on 27 August 2015.  It was found that no fire-fighting or life-saving appliance was equipped on board; and no navigation light was fitted on board for night operation.  In conclusion, the sampan was seaworthy, but not suitable for operation.

6.The other 5 males on board of the sampan (i.e. the 5 persons named in Charge 1) are all unauthorized entrants.  The Immigration Department has issued refusal notices to them.

Mitigation & Sentence

7.The defendant is now 37 and has a clear record.  Defence lawyer Mr. TO informed me that the defendant is married with 2 children (aged 10 and 5).  He and his wife reside in Shenzhen; whereas their children reside with the defendant's mother in Jiangxi.  The defendant is a delivery worker earning RMB3,000 per month; he operates sampan going back and forth from shore to fishing boats.  His wife is a factory worker earning RMB2,000 per month.

8.In mitigation, Mr. TO submitted that the defendant indeed came to Hong Kong to catch conches.  There were 4 kg of goose barnacles on the sampan.  He was asked by his boss to operate the sampan to come to Hong Kong, for which he was given about RMB200. The defendant cooperated fully with the Police.  He did not know the seriousness of catching conches in Hong Kong waters.  There is no evidence showing that he was to commit any other offences.  The defendant is likely to serve a lengthy sentence.  His wife is unable to support 2 homes alone.

Charge 1

9.In respect of sentencing principles and guidelines, the Court of Appeal's decisions in HKSAR v WONG Chi Kin CACC 357/2004 (dated 2 February 2005), HKSAR v YEUNG Lap CACC 385/2007 and HKSAR v TSE Chi Hei [2010] 5 HKLRD 708 are relevant.

10.Yeung JA (as he then was) in TSE Chi Hei held that the usual starting point for a charge of "Assisting the passage to Hong Kong of unauthorized entrants" is 4 years' imprisonment.  If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the starting point should be one of 5 years.  Where there are other aggravating factors such as hiding the illegal immigrants in places where it would 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.

11.The present case clearly carries a few aggravating features, namely the lack of fire-fighting and life-saving equipment on board of the sampan; and no navigation lights for night operation.  On the other hand, there seems to be evidence suggesting that the defendant conveyed the people on board of the sampan to Hong Kong waters for purposes other than human smuggling.

12.I consider a starting point of 5 years' imprisonment appropriate for this charge.  A one-third discount is given for the guilty plea, reducing the sentence to 40 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence for Charge 1 is therefore 40 months' imprisonment.

Charge 2

13.I have considered a number of cases[1] in relation to the sentencing of this charge.  In the present case, the defendant did not try to escape when intercepted by the Police.  He did not steer the sampan in a dangerous manner either.  No one was injured and no vessel was damaged as a result of the defendant's operation of the sampan.  The basis of prosecution for this charge is the sampan being not suitable for operation.

14.Based on the reasons stated above, the appropriate starting point for this charge is 18 months' imprisonment.  With the guilty plea, the sentence is reduced to 12 months.  I sentence the defendant to 12 months' imprisonment for this charge.

15.Since the basis of prosecution for Charge 2 (i.e. the safety level of the sampan) also constitutes an aggravating factor in Charge 1, the defendant should not be punished twice.  Having considered the overall criminality of the defendant as well as the totality principle, I order the sentence for Charge 2 to run concurrent with Charge 1; thereby arriving at a total prison term of 40 months.