HKSAR v. So Lau Fat

DCCC 143/2020

[2020] HKDC 650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 143 OF 2020

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REASONS FOR SENTENCE

1.D1 pleads guilty to 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 32 of the Merchant Shipping (Local Vessels) Ordinance[2].

2.Full particulars of the offences are set out in the amended summary of facts admitted by D1 on 7 August 2020. 

3.In summary in the evening of 2 August 2019 PC 19953 was deployed to watch out for suspicious vessels at the breakwater of Shuen Wan Typhoon Shelter in Tai Po.  At 1915 hours PC 19953 saw a local vessel bearing registration number 707513 (“the vessel”) navigating towards Sam Mun Tsai Road. 

4.No particulars of the type of vessel were included in the summary of facts.  In the application for disposal of exhibits the vessel is referred to as a local pleasure vessel.  A photograph of the vessel has been submitted to court[3]. 

5.D1 and a female were on board the vessel[4]. The vessel stopped beside a mariculture raft near the middle of the breakwater.  Another boat stopped near the vessel.  No particulars of this boat or photographs have been supplied to the court.

6.Ten unauthorized entrants from Vietnam got off the boat and boarded the vessel.  D1 then navigated the vessel towards a staircase at the breakwater where the vessel docked.  The ten unauthorized entrants then disembarked from the vessel.

7.After the unauthorized entrants had disembarked D1 navigated the vessel away from the breakwater.   

8.At 1924 hours the unauthorized entrants were seen boarding a taxi and a private car which were parked along Sam Mun Tsai Road and driving off in the direction of Yu On Street. 

9.At 2005 hours the police arrested D1 and the female near Lam Tsuen River in Tai Po.  The police found the vessel docked at Lam Tsuen River underneath the flyover of Nam Wan Road. 

10.D1 was found in possession of HK$69,896.50, CNY 4,309 and some licence and insurance documents relating to the vessel. 

11.In a video recorded interview when asked about what happened that night and the money found in his possession D1 refused to answer any questions.

12.In a later video recorded interview, D1, inter alia, stated that he used the vessel for fishing; that several days before he had left the vessel in Nan’ao in Mainland China for repair and that he had picked up the vessel together with his girlfriend from Nan’ao at around 5 p.m. on 2 August 2019. 

13.Upon inspection the vessel was found not suitable for operation having a fire extinguisher which was expired; only four life jackets when there should have been ten and insufficient navigation lights for night operation.  The vessel was however found to be seaworthy. 

14.PC 19953 identified D1 in an identification parade held on 27 September 2019 as the coxswain of the vessel on 2 August 2019.  

Mitigation

15.In passing sentence, I have carefully considered the oral and written submissions of Mr Kwong.

16.I take into account that D1 has no similar previous convictions.  D1 cannot be given credit for a clear record having previous convictions dating back to 1989 for which he has received probation, community service and short terms of imprisonment.  D1 last appeared in court in 2016 when he was sentenced to 3 months’ imprisonment for exporting unmanifested cargo.    

Charge 1

17.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 a sentence of 5 years’ imprisonment is appropriate[5]. 

18.D1 was in charge of the vessel being the coxswain who navigated the vessel. 

19.Mr Kwong submitted that a lower starting point was appropriate by reason of the fact that the unauthorized entrants had already entered Hong Kong when they boarded the vessel; the vessel only transported the unauthorized entrants a very short distance, about five vessel lengths or about 36 meters, to the staircase of the breakwater; and the passage being within the breakwater near a typhoon shelter, the sea was calm and the water shallow, the risk to the unauthorized entrants was minimal[6].

20.No photographs of the scene were submitted to court by the prosecution.  Mr Kwong submitted a map of the area[7]. At the request of the court Mr Kwong marked on a copy of the map where the defence say the mariculture raft was and where the staircase was[8]. 

21.The prosecution accepted that the map showed the scene and the accuracy of the markings made by Mr Kwong.  The prosecution did not dispute the matters put forward by Mr Kwong with regard to the passage from the mariculture raft to the staircase. 

22.In support of a lower starting point Mr Kwong refers the court to HKSAR v Chan Lai Choi where the Court of Appeal held that a distinction should be drawn between offences involving the carriage of unlawful entrants from another country into Hong Kong and offences where the assistance is provided to unauthorized entrants who have already entered Hong Kong[9].

23.In Chan Lai Choi the applicant, a taxi driver, had transported unauthorized entrants in his taxi from Wong Shek Pier.  The Court of Appeal in considering that a starting point of 3 years’ imprisonment was appropriate emphasised that the applicant had no part in the bringing of the unauthorized entrants from China into Hong Kong and was not involved in any carriage by sea and therefore his culpability could not be equated with that of a captain of a vessel bringing unlawful entrants into Hong Kong. 

24.Whilst suspicion attaches from the fact that D1 had picked up the vessel from Mainland China that very evening and was found in possession of a substantial amount of cash, there is no direct evidence that D1 was involved in the arrangement to bring the unauthorized entrants into Hong Kong.

25.D1 is to be sentenced on his role in transporting the unauthorized entrants within Hong Kong the short distance from the mariculture raft to the staircase.  I am satisfied in these circumstances a lower starting point is appropriate.

26.The passage was however clearly part of a well-planned operation to bring unauthorized entrants into Hong Kong requiring coordination between the boat, the vessel and the land transport.  As can be seen from the summary of facts the vessel was first seen at 1915 hours and at 1924 hours, nine minutes later, the unauthorized entrants were being driven away in a taxi and a private car. 

27.Albeit the passage was short and posed minimal risk to the unauthorized entrants, the role of D1 was essential.  Clearly the only inference to draw is that the boat was unable to dock by the staircase and therefore the assistance of D1 was required for this part of the sea passage. 

28.Taking into account all the circumstances, including that D1 was the owner of the vessel and navigated the unauthorized entrants to the staircase, I am satisfied the appropriate starting point is 3 years and 6 months’ imprisonment. 

29.Although the absence of fire-fighting appliances and sufficient life-saving equipment can be an aggravating factor, by reason of the short distance the vessel travelled with the unauthorized entrants on board, I do not enhance the starting point.

30.Giving D1 full credit for his plea of guilty he is convicted and sentenced to 2 years and 4 months’ imprisonment.

Charge 2

31.D1 navigated the vessel which was not suitable for operation by reason of an expired fire extinguisher, insufficient life jackets and navigation light for night operation. 

32.Taking into account that the vessel was found seaworthy together with the short distance in calm shallow water, I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving D1 full credit for his plea of guilty he is convicted and sentenced to 6 months’ imprisonment. 

33.Although in many cases a partly consecutive sentence is imposed, I am satisfied in the circumstances of the case, in particular the short distance the vessel travelled with the unauthorized entrants on board, this charge does not add to the culpability of D1. 

34.I order concurrent sentences.  D1 will serve a total sentence of 2 years and 4 months’ imprisonment.