HKSAR v. Wong Tung Yim

DCCC 705/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 705 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, Charge 1, assisting the passage to Hong Kong of an unauthorised entrant and, secondly, endangering the safety of others at sea by navigating an unseaworthy sampan.

2.On 30 June this year, the defendant assisted the passage to Hong Kong of an unauthorised entrant, a Vietnamese man, by sampan at night.

3.He agrees that he endangered life without reasonable excuse because the vessel he was driving was unseaworthy for six reasons.  Those are set out in the particulars of the charge.  I have seen photographs of the sampan as well as had sight of the ship inspector’s report.

Facts

4.The facts are that the marine police were on patrol that evening to the east of Hong Kong, specifically east of Sai Kung. They saw the defendant’s sampan, and at that time the sea was calm, the weather good and the visibility excellent.  

5.The vessel was unlit at the time.  The police asked, by light signal, the defendant to stop and he cut his engine without hesitation.  There was no chase or an attempt to escape the police.  The defendant fully co-operated.  The police found a lone Vietnamese man sat in front of the defendant in the sampan.  There was plenty of petrol on board and one life jacket.  However, it was not a life jacket that could be categorised as of life-saving grade.

6.The defendant said, under caution, that he was asked by his employer to drive the Vietnamese male to Hong Kong, specifically Shek O.  The plan was to pick up the Vietnamese male’s friends.  When the defendant and the male arrived, there was nobody to meet them.  After waiting for a while, they turned back and headed back to Mainland China. It was during this journey home that they were stopped by the marine police. 

Mitigation

7.In mitigation, I have been told the defendant is 32 years old and single, comes from a farming community.  His parents are still farmers.  When he was a baby, he suffered a tragic accident where he was burnt quite severely.  As a result of the physical scars, he has been unable to find work easily since he reached adulthood.  He travelled to Shenzhen to find employment.  He was able to find an employment fishing and taking tourists fishing.  I have been told he now has a licence to drive an outboard engine. 

8.This offence occurred because his employer offered him 2,000 RMB to drive this Vietnamese male to Hong Kong and back again.  He obviously has not received that reward yet, nor is he likely to.  

9.I have received a letter from the defendant.  It explains his physical difficulties as a result of the burns he suffered as a baby.  It explains his family financial difficulties, it also explains that he travelled to Shenzhen to find work to help his family.  He expresses remorse and asks for leniency.  The defendant does not have a clear record in Hong Kong.  He has one previous conviction similar to Charge 1.  He was arrested in 2006 but sentenced in 2007 to 3 years and 4 months’ imprisonment.  That offence was nearly 10 years ago.

10.Before I consider sentence, I took into account the vessel itself.  It has been deemed unseaworthy for several reasons, but having sight of the photographs shows me that the sampan was not in such a dire state that it was in imminent danger of sinking or capsizing.  The inside was dry and the engine good.  Although unseaworthy, it was not a floating coffin or leaking tub.  I also took into account the fact the unauthorised entrant was a single adult middle-aged male.  There were no children, elderly or pregnant women on board.  These above factors I have just referred to are relevant to sentence. 

11.Defence counsel, Mr Chow, has mitigated as best as he can and referred me to an authority, HKSAR v Tang Zhuyan, CACC 223/2010.  The Court of Appeal dealt with the same two charges as in this case with similar facts and referred to appropriate starting points.  That authority also considers other past sentences imposed for similar charges.

12.After considering the defendant’s mitigation, the facts of this case, the physical state of the vessel and other factors that deemed it unseaworthy as well as the authority submitted, I find, for Charge 1, a starting point of 5 years’ imprisonment appropriate.  For Charge 2, I find a starting point of 1 year imprisonment appropriate. 

13.You have pleaded guilty, you are entitled to discount of one-third.  After that discount is applied to Charge 1, you are sentenced to 3 years and 4 months’ imprisonment.  For Charge 2, you are sentenced to 8 months’ imprisonment.  

14.I consider the totality principal.  I will order that 2 months of Charge 2 to be served consecutively to Charge 1 and the balance concurrently.  Therefore, that is a total sentence of 3 years and 6 months’ imprisonment.