HKSAR v. Zhao Chaoyi and Another

DCCC 898/2021

[2022] HKDC 1502

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 898 OF 2021

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REASONS FOR SENTENCE

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1.D1 and D2 are both convicted of assisting the passage to Hong Kong of an unauthorised entrant, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115 (1^st charge)  on their own pleas and agreement to Summary of Facts.

2.The 2^nd charge against D1 is left on court file and not to be proceeded with without leave of the court.

Facts

3.At about 11:45 pm on 17 May 2021, officers on board police vessel PV33 saw D1 at the helm of a blue-coloured speedboat (“Vessel”)  without navigation lights on.  PV33 was then to the north-west of Hong Kong International Airport and the Vessel was about 8 to 10 metres away from them.  On board the Vessel were D1, D2 and a man called Cheng Yigang (“Cheng”).  They were all mainlanders. 

4.Police signalled the Vessel to stop.  D1 continued to steer his boat towards the north-west of Hong Kong International Airport whilst D2 kept turning his head to look at PV33 which was sailing behind them.  Police gave chase and intercepted the Vessel at 11:51 pm at 1.2 nautical miles off the north-west of Hong Kong International Airport.

5.Upon interception, police requested D1, D2 and Cheng to produce their identity documents.  Both D1 and D2 were unable to produce any documents.  They confirmed they were mainlanders and did not hold any Hong Kong Identity Cards. Cheng produced his PRC identity card to police and he also did not have Hong Kong Identity Card.

6.D1 and D2 were arrested.  Under caution at scene, D1 said that he and D2 gave Cheng a ride from Panyu to Hong Kong.  When Cheng arrived in Hong Kong, he could receive RMB¥2,000 in return.

7.In the video-recorded cautioned interview, D2 said he would be rewarded RMB ¥1,500 for the trip bringing Cheng to Hong Kong. 

8.Police seized the Vessel for examination by a ship inspector.  It was found that the Vessel was in normal condition and seaworthy.  However, the Vessel was not suitable for operation due to insufficient fire-fighting appliances equipped on board.  Besides, it was not equipped with life-saving appliances. The Vessel also had no navigation lights fitted on board for night sailing.

9.D1, D2 and Cheng had no record of officially entering Hong Kong on the offence day.

Criminal Record

10.Both defendants have a clear record in Hong Kong.

Mitigation

D1

11.D1 is aged 34.  He has separated from his wife since the year 2020.  He used to live with his spouse and his 3-year-old baby daughter in Guangxi, Mainland China.  He has received education up to primary school level in Mainland China. Before his arrest, he had been a factory worker on a casual basis (earning about RMB ¥4,000 per month), and sometimes as a taxi driver (earning about RMB ¥5,000 per month), and he would pay RMB ¥3,000 per month to his family as maintenance. D1’s parents are in their 50s and they do not reside with the defendant. 

12.Before this offence, D1 used to have a clear record in Hong Kong. Since his arrest on 21 May 2021, D1 has been remanded.

13.Defence counsel produced to this court mitigation letter from D1 which showed his remorse.  D1 promised to this court not to reoffend, and he asked this court for leniency.

14.Defence counsel submitted further that the D1 has been co-operative with the enforcement agency upon his arrest, and under caution, he has admitted the offence.  The defence counsel conceded that for those who engage in human smuggling by sea, the usual sentence, in the absence of aggravating features, is one of 5 years’ imprisonment if he is the person in charge of the vessel, such as the captain or the coxswain.  Those who are just giving a helping hand, such as the crew members, will attract a lesser term like 4 years’ imprisonment[1].

15.In relation to the D1’s role and the circumstances of the offence, defence counsel invited this court to consider:

(1)  D1 was not an organiser of unauthorised entrance into Hong Kong in this case;

(2)  D1 was not the owner of the material vessel;

(3)  D1’s role was limited to controlling the speedboat as he relied on D2 to give him directions on which way to go;

(4)  nothing suggests that the unauthorised entrant concerned was ever concealed that rendered escape difficult;

(5)  5 life jackets and 3 helmets were found in the material vessel;

(6)  the material vessel was in normal condition and seaworthy;

(7)  the weather was fine with moonlight and the sea traffic was vast with 3 to 4 nautical-mile visibility;

(8)  only one unauthorised entrant was involved in the case;

(9)  nothing suggests that the unauthorised entrant was young or old or infirm; and

(10)  nothing suggests that the D1 has attempted to escape upon police’s interception and therefore did not create further danger.

D2

16.D2 is aged 23.  He is single.  He was born in the Mainland China and is the only child of the family.  He received education up to Form 3 and has worked in electronics factory, earning about RMB ¥4,000 per month.  D2’s parents are farmers and in their 50s.  His father suffered from liver cancer and underwent a not too successful operation in June 2021.

17.Defence counsel produced mitigation letter from D2 which showed his remorse as well as the reason for his commission of the offence, namely, for financial reason due to the medical condition of his father.

18.Defence counsel submitted that in the absence of fire-fighting and life-saving equipment, these aggravating factors should only apply to those who were in charge of the vessel[2]. He submitted that as D2 was not in charge of the vessel and the only passenger on the vessel is not either infirm or elderly or a minor.  There is no aggravating feature as far as the sentencing of D2 is concerned. 

19.Both defence counsel urged this court for one-third sentencing discount by reason of D1 and D2’s guilty plea.

Discussion

20.This court has carefully considered mitigation submissions from defence counsel and authorities referred as well as mitigation letters from both defendants which showed their remorse and their reason for commission of the offence, namely, for monetary gain.

21.As conceded by defence counsel for the defendants, the usual sentencing starting point for conveying unauthorised entrant to Hong Kong by a vessel for monetary gain was 4 years’ imprisonment.  If the defendant was the coxswain of the vessel or has taken part in the organising or planning the journey, the starting point should be 5 years’ imprisonment[3].

22.Accordingly, the sentencing starting point for D1 should be 5 years’ imprisonment as D1 is the coxswain or the captain of the vessel, and 4 years’ imprisonment for D2 who assisted D1.

23.According to the examination report of the ship inspector, the vessel in question was seaworthy but was not suitable for operation due to insufficient fire-fighting apparatus equipped on board nor was it equipped with life-saving appliances or navigation lights for night sailing.  Although defence counsel did say that from the photo album that we have, there were certain life jackets on board of the vessel at the time, but not being an expert, this court is unable to concede that those life jackets were of such quality as to be up to standard and fit for the purpose of life saving.

24.Further, D1 has said under caution that he had no driving licence although he knows how to drive the boat. 

25.The condition of the vessel and the lack of driving licence by D1 therefore exposed the passenger of the vessel to extra and unreasonable risks at sea. The same amounts to an aggravating feature[4]. Having regard to the number of passenger on board at the time, the sentencing starting point for D1 is therefore enhanced by 3 months.

26.Commission of this serious offence for financial gain is not a valid mitigating factor. The fact that the defendants, being mainlander residents, have a clear record do not carry as much weight as a Hong Kong person for obvious reasons.  The most valid mitigating factor in this case is obviously defendants’ guilty plea, for which they are entitled to full one-third sentencing discount. 

27.Accordingly, D1 is sentenced to 42 months’ imprisonment while D2 is sentenced to 32 months’ imprisonment.