HKSAR v. Chan Chun Yin and Another

DCCC 741/2021

[2022] HKDC 428

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 741 OF 2021

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REASONS FOR SENTENCE

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1.Charge 1: arranging the passage to Hong Kong of unauthorized entrants, contrary to S37D(1)(a)  of the Immigration Ordinance, Cap 115 that D2, between 16 February and 20 February 2021, in Hong Kong, arranged the passage to Hong Kong of 8 unauthorized entrants, namely AP3 to AP10.

2.Charge 2: doing acts preparatory to or for the purpose of assisting the passage of unauthorized entrants within Hong Kong, contrary to S 37D(1)(c)  of the Immigration Ordinance, Cap 115, that D1 and D2 on 20 February 2021 near Kadoorie Pier, Tsing Bik Street, Tuen Mun, New Territories, in Hong Kong, did acts preparatory to or for the purpose of assisting the passage of unauthorized entrants within Hong Kong, namely that D1 and D2 parked their cars near the Pier and picked up 8 unauthorized entrants (AP3 to AP10).

3.D2 pleaded guilty to Charge 1.

4.D1 pleaded guilty to Charge 2.

5.Charge 2 against D2 to be left on court’s file and now order not to be proceeded with without the leave of the court.

Summary of facts

6.At around 6:53 pm, the police saw a speedboat approach Castle Peak Pier, Tuen Mun from River Trade Terminal, Tuen Mun.

7.Around 8 to 10 persons alight from the speedboat and fled toward Tsing Bik Street, Tuen Mun.

8.The police arrived.

9.There were two cars at Tsing Bik Street, the engines and internal lights were also turned on.

10.As to Car 1, D1 was sitting in the driver seat.  Two Mainland Chinese were getting on Car 1 while the other 2 were already at the passenger seats.

11.D2 was standing next to the driver seat of Car 2 with three Mainland Chinese were already at the passenger seats.

12.One Mainland Chinese hid himself underneath a nearby car.

13.All the 8 Mainland Chinese only possessed Mainland identity documents without Hong Kong identity cards.  The immigration department do not have their entry records.

14.Upon enquiry, D1 said that he was the driver, he arrived at the location to pick up some passengers and he would receive $1,500.

15.Under caution, D1 said that he arrived at the arrested location pursuant to a call.

16.D2 told the police that he was the driver and he would receive some money for driving the Mainlander to Wanchai.

17.D2 also had 4 mobile phones with 5 sim cards and 5 brand new sim cards.  He had $57,583 in his possessions.

18.The police examined the phones and obtained the call records:- 

(a)  There were 88 phone calls between D1 and D2 from 14^th to 20^th February 2021

(b)  Two of D2’s sim cards had 81 contacts with Mainland phone numbers between 16^th to 20^th February 2021;

(c)  On 16^th February 2021, there were SMS messages being exchanged from one of D2’s sim card numbers and AP5. The contents of the messages were mainly relating to a location in Mainland China and the time of arrival.

(d)  Two of D2’s sim card numbers also had phone call records with AP5’s number.

Criminal record

19.D1 has a clear criminal record.

20.D2 has 2 previous in 1999 and 2003 for offences of AOABH respectively.

Mitigation

21.D1 is now 23 years old.  His father deserted the family before the defendant was born.  D1 was raised by his grandparents, however, he lost his grandfather during this period of remand and that hurts him deeply as he could not attend his funeral to pay the last respect to him.

22.D1 dropped out from school when he completed his F3 studies.  He took up various types of jobs to ease the financial burden of his mother.  The car in question was for his own transportation as he worked in a construction site in a remote area.  Prior to his arrest, he earned about $17,000 to $18,000 per month.  He passed most of his earnings to his mother for the upkeep of the family.

23.As to the commission of the present offence, it was due to a momentary greed to earn quick money.  He was there in response to a call to pick up some passengers with a reward of $1,500.  He has not yet received the $1,500 as promised.

24.He was aware to pick up unauthorized entrants at the time of arrest.

25.The defence submitted that D1’s role was a driver to take those passengers away from the pier to a place in Wanchai.  D1 acted as a driver, the defence invited this court to take 3 years as a starting point as stated in HKSAR v Chan Lai Choi CACC 166/1997.

26.It is accepted that D2 is his friends.

27.D2 is now 46 years old.  For about 10 years, D2 worked as a restaurant manager and earned about $22,000 per month.  However, in August 2020, D2 lost his job due to the outbreak of the pandemic.  The family thereafter encounters financial difficulties.

28.Two months prior to the arrest, D2 bought the vehicle in question for delivery of goods and also worked as a driver.  However, income still remained unstable.

29.It was in this circumstances, D2 agreed to accept the role as a messenger in passing messages from those directing him to the punter out of Hong Kong and agreed to transport the unauthorized entrants upon arrival in Hong Kong.

30.The contents of the messages were only in relation to the location, time, and place to meet.

31.The defence submitted that there was no evidence from the Prosecution case that D2 was involved in arranging the sea passage from Mainland China to Hong Kong.

32.The defence submitted that D2 played a lesser role and invited the court to consider a starting point of 3 years as stated in the case of HKSAR v Chan Lai Choi CACC 166/1997.

33.Finally, I wish to inform parties that I have read all the mitigating letters from D1 and D2 and their family members.  I know that D1’s mother has worked hard all her life to raise her children single handedly and she has a close relationship with D1.  Today, she still stands by him.

34.As to D2, his wife asked for leniency so that D2 can be released early and be returned to the society to reestablish himself and to contribute back to the society.

Sentence

35.The maximum sentence for S 37D is a fine of $5,000,000 and to imprisonment for 14 years.

Charge 1 (against D2 only)

36.D2 is now facing only one charge of arranging the passage to Hong Kong and the particular of the offence was “in Hong Kong, arranged the passage to Hong Kong” of the 8 illegal immigrants.

37.When D2 was arrested, he had 4 mobile phones containing 5 sim cards.  He also had 5 brand new sim cards in his possession.  One would wonder why D2 required to possess so many sim cards?

38.Out of the 5 sim cards, 3 of them were used actively for commination.  Such as 88 phone calls between D1 and himself from 14 February to the day of arrest.  There were also phone calls between D2 and AP5 on 16 to 18 February 2021.

39.AP5 was one of the 8 unauthorized entrants in the present case, the police found the messages between AP5 and D2 only, at least it showed that AP5 was the contact in Mainland China and D2 was the contact in Hong Kong a few days before these 8 unauthorized entrants embarked their journey to Hong Kong.

40.The 5 new sim cards clearly are pre-paid sim cards that it was difficult for the police to trace the users/callers of those sim cards.

41.It goes to show that the scheme of human trafficking was well-planned and premediated.

42.D1 and D2 were both ready to receive the unauthorized entrants as they parked their cars near to the pier.

43.D2 said that under caution he would drive them to Wanchai for a reward.  In his person, he had $57,583.  Why did he had so much cash with him just for a job to drive the unauthorized entrants to Wanchai bearing in mind he did not have any steady income since August 2020.

44.The defence said that the $57,583 was partly his savings and earnings.  I have great doubt about the defendant’s assertion.

45.Nonetheless, D2 played a role that’s more serious and important than a driver from Castle Peak Pier to Wanchai.  He responsible for liaising with AP5 who was also one of the unauthorized entrances.  The purpose was to arrange passage of the 8 unauthorized entrants to Hong Kong.  His culpability is more serious than the Appellant in Chan Lai Choi.

46.In HKSAR v Yeung Kam Yuen CACC 50/2010 that the Appellant acted as a middle man to summonse two other taxi drivers to transport altogether 15 unauthorized entrances to Kowloon.  The starting point of 4 years for a charge of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants was upheld.

47.The Appellant faced 3 charges, all sentences were ordered to run concurrently.

48.With this information in mind, the appropriate starting point against D2 should be 4 years, be reduced to 32 months imprisonment after 1/3 discount.

49.I now come to D1’ sentence.  D1’s role was a driver to take the unauthorized entrants to Wanchai for $1,500.

50.When I asked for the photos of this case, I found out that there was a receipt of the sales and purchase of the vehicle in question, the purchase was completed 2 days prior to the present offence.  D1 paid $14,000 to buy the vehicle.  The vehicle was registered in his name.

51.From the photos, I can see that both D1 and D2’s vehicles were in the same model from Honda.

52.D1’s monthly earnings were about $17,000 to $18,000.  He gave most of his earnings to his mother, as confirmed from the mitigating letter from his mother, the questions to ask is how much can he save per month?  To buy a vehicle was not for a one off usage, it is for a period of time to use it.  How much does he prepare for the upkeep of the vehicle?  Such as petrol, parking and maintenance fees.

53.It was too much a co-incidence that D1 invested $14,000 to buy a vehicle 2 days prior to the arrest.

54.I simply reject the D1’s claim that he bought the vehicle to facilitate himself to go to work in remote area.  I ruled that the vehicle was bought to participate in the scheme.  Again, it goes to show that the scheme is well planned and premediated.

55.To this end, I adopt a starting point of 3 years, reduce to 2 years because of his guilty plea.

56.I also exercise my discretion to reduce one month on a compassionate ground that he lost his grandfather during this period of remand. His final sentence reaches 1 year 11 months

57.Order:-

D1: Sentenced to imprisonment of 1 year and 11 months for Charge 2

D2: Sentenced to imprisonment of 2 years and 8 months for Charge 1