HKSAR v. Luk Fei and Another

DCCC 910/2017

[2018] HKDC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 910 OF 2017

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REASONS FOR SENTENCE

1.The defendants plead guilty to one charge of assisting the passage within Hong Kong of an unauthorized entrant, 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 the facts admitted by the defendants today.  In summary on the morning of 30 May 2017 a sampan was seen on the radar within Hong Kong waters on the east side of Conic Island in Sai Kung.  At the time visibility was good and the waves were about 1-2 meters in height.   

3.Police Vessel 21 which was in the area noticed the sampan.  PV21 switched on the police blue flashing light and issued the ‘International Signal “L” Stop Warning’ by horn and flash lights. 

4.D2 who was sat at the front of the sampan stood up, started screaming and pointed to the east.  D1, the coxswain, who was sat at the back of the sampan and was controlling the engine looked towards PV21.  D1 then switched direction and headed towards mainland China increasing speed in the process. 

5.A high speed chase then ensued during which PV21 continued to issue the stop warning. The sampan did not stop and instead altered course several times.  During the pursuit when PV 21 was alongside the sampan, the sampan hit the right side of PV21.  This caused D2 to fall down.  Police officers also noticed a woman and a baby girl on board crying.

6.The pursuit continued.  After a few minutes D1 jumped off the sampan leaving no one controlling the sampan.  A police officer therefore jumped onto the sampan and switched off the engine. 

7.The police officer then apprehended D2 who was about to jump off the sampan.  Under caution and in a video recorded interview D2 admitted, inter alia, that for a reward of RMB 1000 he joined D1 to go to Hong Kong to pick up some persons and that he was responsible for looking after the passengers.

8.Five passengers, all Vietnamese, were found on the sampan, including the mother and baby seen during the pursuit.  None of the five passengers were wearing life jackets. 

9.One of the passengers Phan Thi Thanh Loan, who was the holder of a Vietnamese passport, had no permission to land in Hong Kong (“the unauthorized entrant”).  The other four passengers were non-refoulement claimants who had been issued recognizance by the Immigration Department.  

10.Meanwhile other police vessels arrived and rescued D1 from the sea.   Under caution and in a video recorded interview D1 admitted, inter alia, that he was instructed to travel from China to pick up four persons in Hong Kong and bring them to China for which he would be paid RMB 1000 per person. 

11.The sampan only had two life jackets and apart from an unused compass no navigation system was installed.  Inspection of the sampan revealed a hole on the top forward bulkhead and two cracks on the bulwark top port side of the sampan. The sampan was unseaworthy by reason of the poor condition of the main hull and not suitable for operation having no fire-fighting appliance; insufficient life jackets and no navigation light for night operation.

Mitigation

12.In passing sentence, I take into account everything said on behalf of the defendants by Mr Lee together with the mitigation letters written by D1’s wife; the rural committee where D1 lives; D2 and D2’s younger sister.  I take into account both defendants have a clear record.  This however carries little weight where the defendant is not a Hong Kong resident.

Sentence

13.The correct starting point after trial for assisting in the passage within Hong Kong where the defendant is a crew member is 4 years imprisonment and 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[3]. 

14.D1 was in charge of the sampan being the coxswain.  I am satisfied a starting point of 5 years’imprisonment is appropriate for D1.  I accept that D2’s role was that of a crew member assisting D1 by keeping a lookout and looking after the passengers.  I am satisfied a starting point of 4 years is appropriate for D2.

15.The absence of sufficient life-saving equipment and fire-fighting appliances is an aggravating factor for which I am satisfied the starting points are to be increased by 3 months to 5 years and 3 months for D1 and to 4 years and 3 months for D2[4]. I do not increase the starting point for the lack of navigation light for night navigation as the passage was in the morning. 

16.The starting point should also be increased where the vessel is unseaworthy. Although photographs of the sampan have been submitted, no photographs show the hole or cracks in the hull.  The court is unable therefore to properly assess how poor the condition of the sampan was.  In the circumstances I do not enhance the starting point by reason of the condition of the sampan. 

17.Giving the defendants full credit for their pleas of guilty D1 is convicted and sentenced to 3 years and 6 months’ imprisonment and D2 is convicted and sentenced to 2 years and 10 months’ imprisonment.

Charge 2

18.D1 navigated the sampan which was not suitable for operation by reason of the poor condition of the hull and the absence of safety equipment.  When trying to escape from the police D1 steered the sampan in a dangerous manner which put all passengers at greater risk including a baby.  In the course of a high speed chase the sampan kept changing direction and at one stage collided with PV21.

19.I accept the submission of Mr Lee that D1 did not intentionally collide with PV21 and that when he jumped in the water this was as a result of him losing balance.  I also accept the sampan would then reduce speed, however with no one controlling the sampan the risk of more people falling overboard was increased. 

20.In all the circumstances I am satisfied a starting point of 18 months’ imprisonment is appropriate.  Giving D1 full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment.  Having taken into account the absence of safety equipment on charge 1, I order 6 months consecutive and 6 months concurrent to charge 1.

21.This makes a total sentence to be served by D1 of 4 years’ imprisonment.  I am satisfied a total sentence of 4 years imprisonment takes into account the seriousness of the offences; the personal circumstances of D1 and properly reflects D1’s overall criminal culpability on the two charges[5].  

22.D2’s role being to assist D1 in the navigation of the sampan, I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 6 months’ imprisonment.  Having taken into account the absence of safety equipment on charge 1, I am satisfied in D2’s case a wholly concurrent sentence is appropriate.  D2 goes to prison for 2 years and 10 months.