HKSAR v. Lan Zhenwen and Another

DCCC 823/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 823 OF 2015

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to the respective charges as follows:

(1) 1^st Charge, against D1, for being the captain of a ship with persons on board seeking to land unlawfully in Hong Kong, contrary to s. 39 of the Immigration Ordinance (Cap. 115);

(2) 2^nd Charge, against D2, for aiding and abetting D1 the captain of a ship in D1’s commission of the 1^st Charge, contrary to s. 39 of the Immigration Ordinance (Cap. 115) and s. 89 of the Criminal Procedure Ordinance (Cap. 221);

(3) 3^rd Charge, against D1, for endangering the safety of others at sea, contrary to s. 72 of the Shipping and Port Control Ordinance (Cap. 313).

Facts

2.At 0542 h on 16 August 2015, the police stopped an unregistered boat within Hong Kong waters near Lung Kwu Chau.  D1 was the coxswain of the boat and responsible for its control.  D2 and 7 other South Asian males were on board.  The 7 South Asian males were seeking to land in Hong Kong without authorization from the Director of Immigration. 

3.Under caution, D1 said as follows:

(1) He was a fisherman and knew how to control and sail a boat;

(2) He was recruited by a male “Ah Kat” to control the boat;

(3) On the day in question at 0300 h, upon the instructions of Ah Kat, he sailed the boat to Shenzhen;

(4) He controlled the boat and was responsible for conveying the 7 South Asian males to Hong Kong;

(5) It was the first time he worked for Ah Kat;

(6) He would receive RMB1,000 as reward.

4.D2’s role was to bring the 7 South Asian males to board the boat in Shenzhen.  He would act as a look out in the trip to Hong Kong.  Under caution, he said that a boss had recruited him to lead the way to Hong Kong.  In a subsequent video-recorded interview, he added that he would receive RMB1,000 as reward. 

5.A ship inspector inspected the boat and found it unseaworthy due to the following problems:

(1) The main hull structure was in poor condition;

(2) There were no fire fighting appliances;

(3) There were only 5 life-jackets, none in a proper working condition for safety purposes;

(4) There was no navigation light as required for night operation.

Personal background and mitigation

6.D1 is now aged 36, a Mainland China resident.  He was both a farmer and a fisherman.  His family consisted of his mother, his wife and their 4-year-old daughter.  He was the sole breadwinner. His wife suffered from thalassemia whereas he suffered from chronic back pain. These were pre-existing conditions before he committed the present offences. 

7.D2 is now aged 28, a Mainland China resident.  He was a factory worker.  His family consisted of his mother and an older brother. 

Statutory maximum imprisonment

8.For the offence of being, or aiding and abetting, the captain of a ship with persons on board seeking to land unlawfully in Hong Kong, contrary to s. 39 of the Immigration Ordinance (Cap. 115), the maximum sentence is 7 years on conviction on indictment.

9.For the offence of endangering the safety of others at sea, contrary to s. 72 of the Shipping and Port Control Ordinance (Cap. 313), the maximum sentence is 4 years on conviction on indictment.     

Case for comparison

10.Mr. Lo, solicitor for D1, and Mr. Fong, counsel for D2, both refer me to the case of HKSAR v Ding Qijing CACC 75/2014.  The charges and facts pertaining to the boat captain there were on all fours with our present case except that it did not feature anyone aiding and abetting the captain. The defendant pleaded guilty to both charges.  The judge imposed an overall sentence of 44 months.  The Court of Appeal reduced the overall sentence from 44 months to 40 months.  It comprised 38 months for the 1^st charge and 2 months made consecutive between the two charges.  That was achieved by lowering the starting point for the 1^st charge from 5 years 3 months to 4 years 9 months and then factoring in the one-third discount.  

Sentencing D1 and D2

11.D1 was the coxswain cum captain of the boat conveying 7 South Asian males he knew not authorized to land in Hong Kong.  He did so for a reward.  The boat was unseaworthy.  I take a starting point of 4 years 9 months.  A one-third discount is given for his guilty plea.  There are no other mitigating factors.  The sentence is 3 years 2 months for the 1^st Charge.

12.For all the safety problems attending the boat, I take a starting point of 12 months for the 3^rd Charge.   A one-third discount is given for D1’s guilty plea.  There are no other mitigating factors.  The sentence is 8 months. 

13.On account of totality, I order 2 months out of the 8 months for the 3^rd Charge to be consecutive to the 3 years 2 months for the 1^st Charge.  His overall sentence is 3 years 4 months.   

14.There is nothing like the 3^rd Charge brought against D2.  He is not liable for any safety issues attending the boat either.  In the 2^nd Charge, he was an aider and abettor for an equal reward.  The responsibilities he discharged were equally important compared to D1.  He and D1 worked for a boss.  He was equally, if not more, culpable compared to D1.  I likewise take 4 years and 9 months as the starting for the 2^nd Charge.  A one-third discount is given for his guilty plea.  There are no other mitigating factors.  His sentence is 3 years 2 months.