HKSAR v. Wu Hanrong and Another

DCCC 777/2021

[2022] HKDC 323

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 777 OF 2021

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Assisting the passage to Hong Kong of unauthorized entrants" (Charge 1). D1 also faces a charge of "Endangering the safety of others at sea" (Charge 2)  and a charge of "Failing to stop[1]" (Charge 3).

2.Both D1 and D2 pleaded guilty to Charge 1; whereas D1 also pleaded guilty to Charge 2.  I granted the prosecution's application to leave Charge 3 against D1 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

3.About 7:00 p.m. on 17 April 2021, police radar detected a vessel ("the Vessel")  entering Hong Kong waters at 1.9 nautical miles west of Hong Kong International Airport and moving eastward at 20 knots.  Police vessels PL305 and PV26 were deployed to intercept the Vessel.

4.About 7:23 p.m. on the same day, the 2 police vessels arrived at Operation Box 1853C.  From a distance of about 10 metres, police officers spotted the Vessel with 2 men (later confirmed to be D1 and D2)  on board.  International stop signal "L" was repeatedly issued to the Vessel by the Police.  Eventually, the Vessel stopped at a breakwater ("the Breakwater")  outside the Airport Fire Contingent West Sea Rescue Berth.  D1 and D2 fled onto the Breakwater.

5.Police officers later intercepted the 3 women named in Charge 2 (collectively "the UEs")  on the Breakwater.  They did not possess any travel documents and claimed to be passengers of the Vessel.  D1 and D2 (who also did not possess any travel documents)  then came out from between the rocks and surrendered to the Police.

6.Under caution, D1 admitted that he was the operator of the Vessel with the UEs and D2 on board.  He would receive RMB2,000 per passenger by transporting the UEs from Shenzhen to Hong Kong.  In his video recorded interview, D1 admitted that the Vessel belongs to him.  He was introduced by a middleman to pick up the UEs in Shenzhen at 6:30 p.m. that day and to transport them to Hong Kong.  He saw the police vessels after dropping off the UEs.  He was afraid and the Vessel crashed onto the Breakwater.  D1 knew what he did was illegal but did so out of greed.

7.D2 also admitted under caution having transported the UEs from Shenzhen to Hong Kong for RMB2,000.  In his video recorded interview, D2 admitted that he was on board of the Vessel to assist D1 and to take care of the UEs.  D1 agreed to pay him RMB2,000.  They picked up the UEs at Zhongshan.  D2 claimed that he initially did not know the destination.  Only until 1 hour after departure, D1 told him that they were heading to Hong Kong.  He and D1 were about to leave after taking the UEs ashore, but were then discovered by the Police.

8.The Vessel was examined by the Marine Department.  It was found that no fire-fighting appliances were equipped on board; insufficient life-saving appliances (only 3 life jackets)  were equipped on board; and no navigation lights were fitted on board for night operation.  In conclusion, the Vessel was seaworthy but not suitable for operation.

Mitigation

D1

9.He is 24 and has a clear record. His counsel Mr. Cheng informed me that D1 comes from Zhongshan. He resides with his girlfriend and they have a son (aged 3.5)  and a daughter (aged 15 months). He used to be a factory worker earning RMB4,000 per month. In mitigation, Mr. Cheng submitted that at the time of the offences, D1 had been unemployed for quite some time owing to the pandemic and was in serious financial difficulty (with debts amounting to over RMB20,000). D1 is truly remorseful and promises not to re-offend.

D2

10.He is 33 and has a clear record. His counsel Mr. Ng informed me that D2 is married with 3 sons (aged 13, 11 and 7). He used to be a chef earning RMB6,000 per month. In mitigation, Mr. Ng submitted that D2 became unemployed in March 2021 due to the pandemic. He took up this "job" because he was in financial difficulty. He surrendered to the Police and has been cooperative all along. Furthermore, D2 made sure that the UEs were each wearing a life jacket during the journey.

Sentence

11.Time after time, the courts in Hong Kong have expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime, needless to say both defendants committed a cross-border crime by bringing illegal immigrants to Hong Kong in a dangerous way.

Charge 1

12.In respect of sentencing principles and guidelines, the Court of Appeal's decisions in HKSAR v Wong Chi Kin CACC 357/2004 (dated 2 February 2005), HKSAR v Yeung Lap CACC 385/2007, HKSAR v Tse Chi Hei [2010] 5 HKLRD 708 and HKSAR v Tang Zhuyan[2011] 1 HKLRD 447 are relevant.

13.Yeung JA (as he then was)  in Tse Chi Hei held that the usual starting point for a charge of "Assisting the passage to Hong Kong of unauthorized entrants" is 4 years' imprisonment. If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the starting point should be one of 5 years. Where there are other aggravating factors such as hiding the illegal immigrants in places where it would be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and the lack of life-saving apparatus, risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further.

14.For D1, I consider a starting point of 5 years' imprisonment appropriate and just. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 40 months' imprisonment.

15.For D2, I adopt a starting point of 4 years' imprisonment. With the timely guilty plea, the sentence is reduced to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 32 months' imprisonment.

Charge 2

16.I have considered a number of cases[2] in relation to the sentencing of this charge. In the present case, I accept that D1 did not try to escape but he disobeyed the stop signals issued by the Police. I also accept that he did not steer the Vessel in a dangerous manner. No one was injured and no other vessels were damaged as a result of D1's operation of the Vessel. The basis of prosecution for this charge is the Vessel being not suitable for operation.

17.Based on the reasons stated above and the Court of Appeal's decision in Tang Zhuyan, the appropriate starting point for this charge is 12 months' imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence D1 to 8 months' imprisonment.

Totality

18.Having considered D1's overall criminality as well as the totality principle, I order 2 months in Charge 2 to run consecutive to the sentence for Charge 1; thereby arriving at a total prison term of 42 months.