HKSAR v. Yang Yinchun and Others

DCCC 1061/2017

[2018] HKDC 744

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1061 OF 2017

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to Charge 1, that of attempting to the charge of export unmanifested cargo under section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance, Cap. 200.

2.D3 pleads guilty to Charge 2, that of assisting the passage to Hong Kong of unauthorized entrants under section 37D(1)(a) of the Immigration Ordinance, Cap. 115. 

Facts

3.At 5:30pm on 10 July 2017, police had a joint operation with the Customs.  At about 10:19pm, the radar room officer of the police spotted three suspicious vessels gathered 4.5 nautical miles off northeast of Waglan Island.  Three minutes later, all of them left with V1 and V3 steering towards southeast whereas V2 steering towards Lei Yue Mun.  One cargo vessel (V1) and one speedboat (V3) were seen by the police vessels PV26 and PV27 at 2.8 nautical miles away from the boundary of administration of Hong Kong when they were heading towards mainland and were about to leave Hong Kong waters.  PV26 and PV27 were instructed to intercept V1 and V3.

4.When PV26 approached V3, there was only D3 on board.  D1 and D2 were on V1.  V1 was sufficiently illuminated.  D1 and D2 looked nervous and jumped over from the left side of V1 to V3.  D3 then tried to steer away towards the east at high speed. 

5.Police vessels PV26 and PV27 traced and approached them.  D3 accelerated and turned V3 continuously to flee from PVs.  V1 and V3 were intercepted after pursuit.  At V3, D3 was the coxswain while D1 and D2 were at the rear seats.  They were at 8.6 nautical miles off the southeast of East Ninepin Group. 

6.Upon search on V1, nobody was found thereon, 37,374 kg of frozen beef offal in a large number of carton boxes was found on board of V1.  Some of them were found in the cargo hold of V1 while some were placed on the deck underneath the steering house and covered by a green canvas.  The total value of the frozen beef offal was estimated to be HK$747,480.  (Charge 1)

7.D1 and D2 failed to produce any export manifest to cover the export of the frozen beef offal.  D1 to D3 were arrested.

8.Upon enquiry, D3 said that he had not boarded V1; he was only the coxswain of V3 receiving RMB2,000 and some fuel cost to convey D1 and D2 from Mirs Bay to Hong Kong for D1 and D2 to board V1; since they were chased by the police, D1 and D2 jumped to V3 and tried to flee.  (Charge 2)

9.Under caution, D3 said that

(a) he was given RMB2,000 fuel money to convey the two males to the cargo vessel.

(b) D3 did not know what was on the cargo vessel. D3 did not know D1 and D2.

(c) A fisherman friend in China introduced D1 and D2 to him and asked D3 to convey them. D1 and D2 asked D3 to pick them up if they were chased.

(d) D3 picked up D1 and D2 at Mirs Bay, China. It took them 2 hours to reach Hong Kong. D3 received a call from 5167 7732 asking him to gather at a designated point. He put the coordinate provided by that person in the GPS device.

10.In the subsequent video recorded interview, under caution, D3 said that:

(a) D3 was not authorized to enter Hong Kong by the Immigration Department. He had been driving a boat for more than 10 years.

(b) He received a call from a friend M/LAM asking him to bring somebody to a vessel at a location outside Hong Kong for a reward of $2,000. D3 was told to follow the vessel for 30 minutes after D1 and D2 boarded the vessel and then return back to Autau himself alone. He was told that the exact location would be given to him after he had departed. He was also told that if D1 and D2 were chased, D3 had to send them back to China. D3 believed that they were doing something illegal. He would not take up the job if he had known that he needed to enter Hong Kong. D3 knew that V3 cannot enter Hong Kong. D3 did not know D1 and D2.

(c) On 10 July 2017, he picked up D1 and D2 at around 1pm at Autou at Huizhou. D3 did not know what D1 and D2 were going to do in Hong Kong. He was given a coordinate halfway of his journey. He entered the data in the GPS device and sailed along the route shown in the GPS device. He was not aware that he had already entered Hong Kong.

(d) D1 and D2 boarded another vessel upon arrival at the designated location. D3 was told to follow the vessel which was travelling towards China.

(e) When they arrived at the vessel, D3 lost mobile phone network and he was told to follow the big vessel. D3 was told not to leave otherwise he would not be paid.

(f) After D1 and D2 boarded the cargo vessel, D3 rescaled the digital sea chart and knew that he was already in Hong Kong.

(g) He had been to Hong Kong before and had been working on fisherman boats in Hong Kong.

11.Under caution, D1 said that he came fishing; he saw the police and jumped to V3 to escape back to mainland; he did not know what the goods on V1 were; Nor did he know if there was any manifest for the cargoes; both D1 and D2 had steered the cargo vessel; D1 acquainted with D3.

12.Under caution, D2 said he came fishing and he would go back to Daya Bay in the Mainland; it was D3 who asked D1 and D2 to jump onto V3; they were heading towards mainland on V3; D1 had steered the cargo vessel and D2 was standing beside him; he did not know if there was any manifest for the cargoes; D1 had been steering V1 for about 20 to 30 minutes. 

13.At the material time, D1 and D2 attempted to export unmanifested cargo, namely 37,374kg of frozen beef offal.

14.At the material time, D3 assisted the passage to Hong Kong of two unauthorized entrants, namely D1 and D2.

Personal background and mitigation

15.All defendants are fisherman in China.  Each has a clear record in Hong Kong.  Each has a family to feed.  D1 is promised, but not yet given, RMB2,000 to navigate the cargo vessel.  D2 is promised, but not yet given, RMB1,000 to watch over the cargo, and, if necessary, to stand in as a navigator for D1. 

Sentencing considerations

16.Solicitors for D1 and D2 both refer to the case of HKSAR v Lum Shui Kwai HCMA 970/1999 where the defendant imported unmanifested cargo in the form of frozen pigs of 15 tons valued at $300,000 (1^st charge).  This charge is accompanied by a 2^nd charge of importing reserved commodities without a licence and a 3^rd charge of importing game meat without an official licence.  The charges are said to have arisen out of the same incident, despite separate charges being laid.  The overall sentence of 15 months is reduced to 12 months on appeal.  The notional starting point is thus 18 months.   

17.Solicitors for D1 and D2 both ask me to adopt 18 months as the starting point for Charge 1 on the basis that the nature and the value (after 18 years of that judgment) of the cargo are comparable. 

18.A person in charge of the boat assisting the passagefaces a customary starting point of 5 years in the presence of aggravating features (R v Ng Kit Yuen [1992] 1 HKCLR 170; R v Wong Yin Lung [1995] 1 HKCLR 151, at 153; R v Pang Wing [1996] 1 HKC 624, at 626 and 627; HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v. Yeung Wui CACC 415/2004).  Counsel for D3 asks me to adopt not more than 5 years as the starting point.  

Sentencing these defendants

19.Our present case involves 37,374 kg valued at HK$747,480, clearly more than that of 15 tons valued at HK$300,000 in Lum Shui Kwai (above) where a notional starting point of 18 months is adopted.   In this comparison exercise I am aware of the impact of inflation after 18 years.   I now take 21 months as the starting point for Charge 1.  After the one-third discount, the sentence is 14 months for D1 and D2 each. 

20.There is no evidence that D3 precisely knew D1 and D2 were smuggling.  Otherwise D3 would have been charged as their accomplice.  Therefore D3’s sentence shall not be based on smuggling.  I consider whether the usual norm of 5 years for assisting passage shall be taken as the starting point.  I eventually decide to take 4 years 9 months so as to reflect the fact of only 2 unauthorised entrants on board. After the one-third discount, the sentence is 3 years 2 months on Charge 2.