HKSAR v. Xiao Zhensheng

CACC 170/2020

[2021] HKCA 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 170 OF 2020

(ON APPEAL FROM DCCC NO 62 OF 2020)

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Before:  Hon Zervos JA in Court

Date of Hearing:  30 July 2021

Date of Judgment:  30 July 2021

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J U D G M E N T

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1.On 17 September 2020, the applicant was convicted on his own plea before District Court Judge K Lo (the judge) of a single charge of arranging the passage to Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115. He was sentenced to 40 months’ imprisonment.

2.The particulars of the charge alleged that the applicant on or about 18 November 2019, in Hong Kong, arranged the passage to Hong Kong of two unauthorized entrants, namely LU Xiuhang and GAO Jianliang.

3.The facts outlined to the judge and agreed to by the applicant were that at about 1:18 am on 18 November 2019, an Immigration officer boarded a vessel at Yau Ma Tei Typhoon Shelter to conduct a check.  The officer found present on the vessel the applicant and the two unauthorized entrants mentioned in the charge, who represented that they were crew members. In response to a request from the officer, the men could only produce their respective Mainland identity cards.  They claimed that they did not have any other proof of identity and a further search failed to find any. 

4.The records of the Immigration Department revealed that the three men had not taken part in any immigration clearance in order to enter Hong Kong. 

5.In a subsequent cautioned interview, the applicant admitted that he was the captain of the vessel.  Under his command, the vessel left Dongguan at about 2:00 pm on 17 November 2019 and arrived at Hong Kong at about 11:00 pm on the same day.  He anchored the vessel at Yau Ma Tei Typhoon Shelter.  He said he came to Hong Kong to get some goods and deliver them back to the Mainland.  He only had his Mainland identity card as he was unaware of the need to go through immigration.  He therefore did not take part in any immigration clearance in entering Hong Kong, nor did he complete any of the relevant documentation.  He also claimed that he was unaware of any requirements for leaving the Mainland.  He confirmed that he came to Hong Kong with two crew members and that they did not have with them any travel documents or seafarer’s passports.  He made the point during the interview that they did not go ashore.[1]

6.In mitigation, it was submitted that the applicant was born in the Mainland and was 35 years of age.  He was educated up to Form 3 and had a clear record in Hong Kong.[2]

7.Since 2008, the applicant had worked as a sailor on fishing vessels.  In the morning of 17 November 2019, the applicant’s boss promoted him to the rank of captain and increased his monthly salary to 12,000 Renminbi.  He also ordered him to take the vessel to Yau Ma Tei Typhoon Shelter in Hong Kong and collect some goods to bring back to the Mainland.  His boss also mentioned that there would be two sailors on board to assist him.

8.It was submitted that the applicant did not know of the immigration procedure and requirements for bringing a vessel into Hong Kong.  Nor did he know that documentation was required to be completed for him and the two crew members to enter Hong Kong waters.

9.In her reasons for sentence, the judge did not accept that the applicant was unaware of the need for clearance of the vessel and the persons on board when entering Hong Kong as the applicant was an experienced sailor.

10.The judge applied the case of HKSAR v Wong Chi Kin, unrep., CACC 357/2004, 2 February 2005, in which it was stated that the generally applicable sentencing guideline for an offence under section 37D(1) of the Immigration Ordinance, is 4 years’ imprisonment and where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organization of the venture, the appropriate starting point is 5 years’ imprisonment.[3]  She also referred to HKSAR v Yeung Wui and Ors, unrep., CACC 415/2004, 18 March 2005, in which it was reiterated that the mischief that section 37D aims at is the bringing into Hong Kong of unauthorised entrants.  She found the applicant was the captain of the vessel and he brought into Hong Kong two unlawful entrants.  She saw no reason to depart from the sentencing guideline and adopted 5 years’ imprisonment as the starting point.  She found that the only meaningful mitigation advanced on the applicant’s behalf was his timely guilty plea, for which she reduced his sentence by one third to 40 months’ imprisonment.

11.It is complained that as there were no other aggravating factors involved in the present case, the judge was wrong to adopt a starting point of 5 years’ imprisonment.  In addition to his written submissions, Mr Chau Hing Ping, for the applicant, makes three points in support of the application.  First, the sentencing guidelines are not a straitjacket.  Secondly, there were no other aggravating factors present in the commission of the offence by the applicant.  Thirdly, the sentence imposed was too severe when compared with the sentence passed in Secretary for Justice v Chow Kam Tai, unrep., CAAR 1/2018, 16 August 2018.

12.Ms Jennifer Fok, for the respondent, disagrees with the applicant’s submissions and contends that the guidelines adopted by the judge apply to a captain of a vessel in the absence of aggravating factors.  She submits that since The Queen v Ng Kit-yuen [1992] 1 HKCLR 170, it has been established that a starting point of 5 years’ imprisonment should be adopted in the circumstances of the present case.  The position was affirmed in the later cases, including The Queen v Wong Yin­lung [1995] 1 HKCLR 151; HKSAR v Wong Chi Kin, unrep., CACC 357/2004, 2 February 2005;  HKSAR v Yeung Wui and Ors, unrep., CACC 415/2004, 18 March 2005; HKSAR v Xu Tao, unrep., CACC 194/2009, 4 February 2010; and HKSAR v Chow Kam Tai, unrep., CAAR 1/2018, 16 August 2018.

13.Ms Fok points out that the applicant as the captain of the vessel brought two unauthorized entrants into Hong Kong for the purpose of bringing back goods to the Mainland.  In other words, the applicant had arranged the two unauthorized entrants to work in Hong Kong, for which they were being remunerated.  She submits that the present case was no different from the usual cases where the accused used a watercraft to assist the passage of unauthorized entrants into Hong Kong, although there were additional factors that made it more serious than CHOW Kam-tai.  This is because the applicant’s intended acts of bringing goods out of Hong Kong without proper clearance would also violate other offences under the laws of Hong Kong.  As confirmed in mitigation, the vessel was a cargo boat of about 50 metres in length, with a cargo tonnage of about 1,300 tons.  She submits that the starting point of 5 years’ imprisonment imposed by the sentencing judge is in line with the existing authorities and cannot be said to be wrong in principle or manifestly excessive.

14.The applicant was a captain of a large cargo vessel that entered Hong Kong waters illegally, bringing with him to unauthorised entrants, who were purportedly two crew members.  The purpose of coming to Hong Kong was to collect goods and return them to the Mainland.  The judge adopted a starting point of 5 years’ imprisonment, which was in accordance with the sentencing guidelines applicable to the captain of a vessel who has offended under this offence provision: Secretary for Justice v Chow Kam Tai, unrep., CAAR 1/2018, 16 August 2018, at [29]; HKSAR v Xu Tao, unrep., CACC 194/2009, 14 February 2010, at [14].

15.I can find no basis on which to interfere with the sentence that was imposed on the applicant and I therefore refuse him leave to appeal against his sentence.

16.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Jennifer Fok, SPP, of the Department of Justice, for the respondent

Mr Chau Hing Pang, instructed by Eli K K Tsui & Co, assigned by the Director of Legal Aid, for the applicant

[1]  Appeal Bundle, 3-5.

[2]  Appeal Bundle, 9-11, 14-21.

[3]  At [12].