HKSAR v. Lau Ka Chun and Another

DCCC 1169/2021

[2022] HKDC 567

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1169 OF 2021

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REASONS FOR SENTENCE

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1.D1 and D2 jointly face a charge of Assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115.  Particulars are that they, on 4 August 2021, in Hong Kong, assisted the passage within Hong Kong of 4 unauthorized entrants, namely Yang Xiang, Wu Jing, Chang Juan and Ji Tianni.

2.Both D1 and D2 pleaded guilty to the charge before me.

Facts admitted by D1 & D2

3.On 4 August 2021, at about 5:15 am, a speedboat carrying one man and 4 women approached the southwest tip of Chek Lap Kok Island.  After running ashore, the 4 women boarded a silver private vehicle.

4.Soon after, two private vehicles one white (V1)  and one silver (V2)  were seen moving along South Perimeter Road towards the direction of Tung Chung.  V1 sped away.  V2 was intercepted by the police.

5.D2 was the driver of V2 which was carrying the 4 unauthorized entrants named in the charge.  They were unable to produce identity documents. D2 was arrested for aiding and abetting unlawful entry of persons.

6.Meanwhile, at about 5:17 am, police managed to intercept V1 too.  D1 was found to be onboard.  He was arrested also for aiding and abetting unlawful entry of persons.  Under caution, D1 claimed he was taking a pleasure ride when he saw 4 unknown women board a light coloured private vehicle next to his vehicle; then he drove away.

7.CCTV installed on South Perimeter Road captured the following on the subject day:-

(a)  At about 5:10 am, the 4 named women alighted from a speedboat and ran ashore;

(b)  At about 5:13 am, V1 and V2 arrived; the driver of V1 (ie D1)  walked towards V2 and talked to its driver (ie D2); D1 then ran to the shore and passed something to the coxswain of the speedboat; after that, D1 walked back to V2 and assisted the 4 women to put their luggage on V2; and

(c)  At about 5:14 am, D1 boarded V1 while D2 and the 4 women boarded V2; V1 and V2 then drove away.

8.Between 29 July and 4 August 2021 inclusive, 27 phone calls were made between D1 and D2 including 17 phone calls made on 4 August 2021 alone.

Criminal records

9.D1 has one previous dissimilar conviction in 2015.

10.D2 has 5 previous convictions between 2008 and 2015 with none similar.

Antecedents

11.D1 is aged 30 (29 at the time of the offence), completed secondary 5 education, operated a canoe business in a water sports centre.  He is divorced and lived with his parents and his two elder sisters in Sheung Sze Wan.  His three children are living with his ex-wife.

12.D2 is aged 39 now and at the time of the offence, completed secondary 5 education, was a van driver.  He is married and was living with his wife and children in Sai Kung.

Mitigation

13.Mr Freddy Woon of counsel assigned by the Director of Legal Aid mitigated on behalf of D1 and D2.  The following is a summary of the mitigation submissions.

D1

14.D1 operated a canoe shop earning $30,000 to $50,000 a month.  He has to pay a monthly maintenance fee of about $20,000 to his ex-wife for her and the children’s upkeep.  He has also to pay a monthly contribution of $8,000 to parent(s).

15.D1’s business suffered as a result of the ongoing pandemic.  He was invited by one Ah Chu to arrange for transportation to carry unauthorized entrants from Chek Lap Kok Island to Kowloon in the early hours of 4 August 2021 for a financial reward of $1,500.  His role was that of a lookout.

16.D1 pleaded guilty.  He was not the mastermind.  He has not received the promised reward yet.  He has never been to prison before so this conviction will serve as a strong deterrence against his reoffending.  A lenient sentence is asked for.

D2

17.D2’s wife is a housewife.  His two sons are both under 10.  D2 is the sole breadwinner; previously worked as a minibus driver earning about $15,000 a month.  His two parents are in their 70’s.

18.D2’s income dropped significantly as a result of the ongoing pandemic resulting in his inability to make ends meet.  He was approached by one Ah Chu with an offer to make quick money of $1,500.  That was why D2 committed the offence of driving the unauthorized entrants from Chek Lap Kok Island heading for Kowloon.

19.D2 pleaded guilty.  He was not the mastermind.  He played only a minor role of a driver.  He has not received his promised reward yet.  He has never been to prison before so this conviction will serve as a strong deterrence against his reoffending.  A lenient sentence is asked for.

20.Mr Woon submitted 3 mitigation letters on behalf of D2 all written in Chinese (with English translation).  They were written respectively by D2 himself, a District Councilor, and a Chairman of a Rural Committee.  The contents are generally that D2 was the economic pillar of the family, is regretful and remorseful, was helpful to others, promises to reform himself and hopes to turn over a new leaf.  All the letter writers asked for a lenient sentence for D2.

21.D2’s parents and wife are in court to give their support to D2.

For D1 & D2

22.Mr Woon referred to two cases, namely HKSAR v Chan Lai Choi, CACC 166/1997, and HKSAR v Chan Chun Kit (transliteration), DCCC 48/2021 (Chinese Reasons for Sentence).

23.On the topic of joint enterprise, Mr Woon asked the court not to raise the sentence in light of the backgrounds of the defendants.

Sentence

24.I have had regard to the cases referred to by Mr Woon.

25.I have noted the case of HKSAR v Wong Chi Kin, CACC 357/2004, referred to by the prosecution.

26.The maximum penalty for the subject offence is a fine of $5M and 14 years’ imprisonment.

27.In HKSAR v Chan Lai Choi (supra), the Court of Appeal was satisfied that the applicant, who had no part in the bringing of the unlawful entrants from the Mainland into Hong Kong and was not involved in any carriage by sea, was merely playing the role of a taxi driver who transported unauthorized entrants from one part of the territory to another.  The Court was satisfied that his culpability could not be equated with that of a captain of a vessel bringing unlawful entrants into the territory.  In the premises, the Court considered that an appropriate starting point would be three years.

28.The two defendants played a similar role here.  There is of course the aggravating factor of joint enterprise in the present case.  I note D1 was captured by the CCTV to have passed something to the coxswain of the speedboat; but there is no evidence as to what that was.  There is no sufficient evidence to show which, as between the two defendants, was the mastermind of the joint enterprise.

29.Everything considered, I take an initial starting point of 3 years against each defendant.  Because of the aggravating factor aforesaid, I increase it to 3 years and 3 months.

30.Both defendants pleaded guilty in good time and are therefore entitled to the full 1/3 discount on sentence.  There are no other mitigating factors of weight that could earn either of them any further reduction in sentence.

31.I impose the following sentences.

(D1 and D2, please stand)

32.The sentence for D1 is 2 years and 2 months’ imprisonment.

33.The sentence for D2 is 2 years and 2 months’ imprisonment.