HKSAR v. Suleman Muhammad

DCCC 717/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 717 OF 2016

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D (1) (a) of the Immigration Ordinance[1]and one charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance[2].

2.Full particulars of the offences are set out in my verdict delivered earlier today. In summary on the morning of 25 May 2016 SPC 51123 detected two vessels on the digital radar security system, four nautical miles south of Neilingding Dao in China.  One of the vessels (V1) remained there while the other vessel (V2) travelled in the direction of the Hong Kong International Airport.  After V2 entered Hong Kong waters SPC 51123 notified Police Launch 5 (“PL5”) to intercept V2.  PL5 intercepted V2, a sampan, which was being steered by the defendant in the direction of the Hong Kong International Airport. 

3.On board the sampan, including the defendant, were twenty-five persons.  All twenty-five persons were holders of Pakistani passports and were unauthorized entrants.  The defendant by steering the sampan within Hong Kong waters assisted the passage within Hong Kong of the unauthorized entrants. 

4.The sampan was unsuitable for sailing at sea because there was no fire extinguishing installation on board; twenty-three life jackets were not of the approved type; and there was no navigation light for night navigation.   By steering the sampan, which was unsuitable for sailing, the defendant endangered or caused to be endangered the safety of the other persons on the sampan.

Mitigation

5.In passing sentence, I take into account everything said on behalf of the defendant by Mr Sherry.  I take into account the defendant has a clear record. This however carries little weight where the defendant is not a Hong Kong resident.

6.Mr Sherry tells the court the defendant came to Hong Kong to avoid political problems in Pakistan.  The defendant says he was shot in the leg which led to him going into hiding in 2011.  When the defendant could no longer safely hide he left Pakistan.  I note however in the video interview the defendant told the police he came to Hong Kong to work[3].

Sentence

7.The correct starting point after trial for assisting in the passage within Hong Kong where the defendant is the captain of the vessel or the person in charge or assisting in the operation or organisation of the passage is 5 years imprisonment[4].  Mr Sherry submits a lower starting point of 4 years is appropriate the defendant not being the captain or the person in charge or part of the organisation of the passage[5]. 

8.The passage to Hong Kong involved two distinct parts.  First the passage close to the waters of Hong Kong and second the transfer to a sampan for the passage within Hong Kong waters.  Whilst the defendant may not have been involved in the arrangements for the first part of the passage, he was the person in charge of the sampan for the passage in Hong Kong waters.  I am satisfied a 5 year starting point is appropriate. 

9.The starting point should be increased in the absence of safety equipment[6].   I am satisfied that the sampan being unsuitable for sailing at sea because there was no fire extinguishing installation on board; and the twenty-three life jackets were not of the approved type, the starting point is to be increased by 3 months[7].  I do not increase the starting point for the lack of navigation light for night navigation as the passage was in the morning.  The defendant is sentenced on charge 1 to 5 years and 3 months imprisonment. 

Charge 2

10.In respect of charge 2 there being no chasing of the sampan; the defendant stopping when signalled by PL5 to stop and that the general condition of the sampan was not said to be unseaworthy, I am satisfied the proper sentence is 9 months imprisonment.  Having taken into account the sampan was unsuitable for sailing on charge 1, I order the sentence on charge 2 to be served concurrently with the sentence on charge 1.