HKSAR v. Chan Po Keung, Paul

DCCC 360/2021 [2021] HKDC 1294 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 360 OF 2021 ________________________   HKSAR
	v			CHAN Po-keung, Paul

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Before:

H.H. Judge G. Lam

Date:

15 October 2021

Present:

Mr. Franco Kuan, counsel on fiat, for HKSAR.

Mr. Osmond Lam instructed by M/s Jal N. Karbhari & Co. for the defendant.

Offence:

Assisting the passage within Hong Kong of unauthorized entrants（協助未獲授權進境者在香港境內的旅程）

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of "Assisting the passage within Hong Kong of unauthorized entrants[1]".

Summary of Facts

2.About 3:38 a.m. on 1 November 2020, in the vicinity of Tung Chung New Development Pier ("the Pier"), PC 12021 spotted a speedboat with no navigation lights ("the Boat")  travelling from the Hong Kong Zhuhai Macau Bridge crossing facility towards the Pier.  Shortly afterwards, a red private car SK7270 ("the Car")  was heading towards the Pier.  It stopped at Tung Chung Waterfront Road near lamppost FB8386.

3.When the Boat reached the Pier, 3 female passengers (UE1 to UE3, who later confirmed to be mainland residents)  alighted from the Boat and boarded the Car.  PC 12021 alerted his teammates.

4.Police officers intercepted the Car when it was leaving the Pier.  The defendant was found to be the driver with UE1 to UE3 on board.  Police enquiries revealed that UE1 to UE3 all came to Hong Kong from Shenzhen by boat.  They carried no travel documents with them.

5.The defendant was arrested for "Aiding and abetting illegal immigrants".  Under caution, he said "I got a notification from WeChat telling me to pick up 3 girls from Tung Chung to Tin Shui Wai and Sheung Shui for $500 per person.  I guess they are illegal immigrants."  In his video recorded interview, the defendant admitted, inter alia, that the Car was registered under his wife's name.  She allowed him to use the Car.  He possessed the 2 mobile phones which were found on him.

6.The Immigration Department confirmed that there is no exit/entry record of UE1 to UE3 at the time of the offence. 

Mitigation & Sentence

7.The defendant will soon be 58 and has a clear record.  Defence counsel Mr. Lam informed me that the defendant is married with a daughter (aged 22), who is a full-time student.  The defendant works as a computer engineer earning $20,000 to $30,000 per month. He is the sole income source of his family.

8.In mitigation, Mr. Lam submitted that the defendant has been with his current employer for over 11 years.  His employer considers him "a key and vital member" of the company.  An open offer was made to the defendant to re-join the company when he becomes available.  Regarding the present offence, Mr. Lam explained that the defendant was trying to help a friend (by picking up a few persons and giving them a ride)  without thinking too much of the consequences (legal or otherwise)  involved.  Mr. Lam stressed that the defendant's employer is supportive; he even stood as the defendant's surety in his bail application.  A bundle of mitigation documents was placed before me; their contents are duly noted.

9.In respect of sentencing principles and guidelines, Mr. Lam has drawn my attention to HKSAR v Chan Lai-choi CACC 166/1997, in which the Court of Appeal held that for a taxi driver who conveyed 5 unauthorized entrants within Hong Kong after they entered the territory by boat, the appropriate starting point would be 3 years' imprisonment.  Mr. Lam has also referred to the Reasons for Sentence by H.H. Judge A. Kwok in HKSAR v 石數Mandy & another [2020] HKDC 1221 (Chinese judgment).  The learned judge adopted a starting point of 28 months' imprisonment for D3 in that case, a taxi driver who failed to make reasonable efforts in ascertaining the immigration status of 5 suspicious passengers[2].

10.I accept that the defendant has been an upstanding citizen all his life, which is a meaningful mitigation factor for someone of his age.  He is a caring and responsible husband and father at home; a valuable employee at work; and a contributing member in the community.  I do not know why he decided to help his friend (if indeed he was asked by a friend to help)  to pick up some passengers (needless to say unauthorized entrants)  in the small hours at such a remote location.  As confirmed by Mr. Lam, the defendant was not moonlighting as an Uber driver and the sum he could earn was only $1,500.  It was not put forward that he had any financial need to earn some quick money.  It troubles me why the defendant, being such a fine person, would commit the present offence.  For the purpose of sentencing, I accept what he did was a single fall from grace.

11.I have considered the Court of Appeal's decision in Chan Lai-choi. I find the defendant's culpability in the present case less serious, even less serious than D3 in 石數Mandy.  A starting point of 2 years' imprisonment is just and appropriate in the present case.  On the other hand, the offence took place in November 2020, when every reasonable person in Hong Kong would and should appreciate the importance of guarding the city against the COVID-19 virus.  Conveying unauthorized entrants to any part of the city creates a tremendous risk to public health.  I find this to be an aggravating factor.  I would increase the starting point to 27 months.  With the timely guilty plea, the sentence is reduced to 18 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 18 months' imprisonment.

12.It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be. Mr. Lam has said everything he could on behalf of the defendant.  I have attached due weight to every acceptable mitigating factor to arrive at the starting point of 2 years' imprisonment.  It saddens me to put him in prison.

(G. Lam)

District Judge