HKSAR v. Lo Chun-man a.K.A. Lo Chun and Others

DCCC 953/2021

[2022] HKDC 1527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 953 OF 2021

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Reasons for Sentence

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I. The Charges

1.D1 and D5 were charged with one count of conspiracy to assist the passage to and within Hong Kong of unauthorised entrants, contrary to s.37D(1)(a)  of the Immigration Ordinance, Cap. 115, and s.159A and 159C of the Crimes Ordinance, Cap. 200.  All 7 defendants were charged with one count of conspiracy to assist the passage within Hong Kong of unauthorised entrants. D1 was additionally charged with one count of possession of offensive weapons, contrary to s.17 of the Summary Offences Ordinance, Cap. 228. 

2.They pleaded guilty to the charges and were convicted accordingly.

II. Brief Facts

3.In the early hours of 9 May 2021, the police mounted a joint operation with the Immigration Department in the vicinity of Sham Shui Drive, Tung Chung.

4.At about 2:25 am on the day, a private car with the registration mark PA9697 (V4)  was seen driving into Sham Shui Drive from Cheung Tung Road towards Siu Ho Wan Depot (“the Depot”). At about 2:55 am, 4 more private cars (V1, V2, V3 and V5)  entered Sham Shui Drive towards the Depot.

5.At 2:59 am, a 7-seater private car (believed to be V1)  and a private car (believed to be V4)  parked at the Depot, which is the dead-end of Sham Shui Drive. 

6.At about 3 am, a 30-foot long sampan, without any light, approached the shore outside the Depot. A few people got off V3 and ran towards the shore. Shortly afterwards, a group of about 10 persons ran out from the shore. They boarded V3 and the 7-seater van. At about 3:02 am, the sampan steered off without any light, and V3 and 2 other vehicles also drove off. At about the same time, V5 was seen driving from Sham Shui Drive towards Cheung Tung Road.  V5 stopped at the roadside for a short while. The police took action to intercept V1 to V5.

Interception of V1 and the arrest of D2

7.At about 3:03 am, V1 was intercepted at Sham Shui Drive.  D2 was the driver, with 2 male and 2 female unauthorised entrants as the passengers. Under caution, D2 admitted that he was instructed by one ‘Ah Chung’ to drive some Mainlanders to Cheung Fat Estate for a reward of HK$800 per trip. 

8.Police found one mobile phone, cash in the sum of HK$28,340 and that of RMB675 on D2. 2 more mobile phones and a dashboard camcorder were also seized from V1.

9.In the video-recorded interview, D2 admitted the following:-

i. At about 7 or 8 pm on the day before, he received a phone call from Ah Chung who asked him to pick up some people from Tung Chung and commuted them to Cheung Fat Estate.

ii. Ah Chung told him to wait near a tree, and each of the 4 passengers would pay him HK$200.

Interception of V2 and the arrest of D3

10.At about 3 am on the same day, V2 was intercepted at Sham Shui Drive near the MTR railway emergency gate. D3 was the driver of V2. Two male unauthorised entrants were found sitting at the rear passenger seats.

11.Under caution, D3 admitted that a male had approached him in Mongkok the night before, and asked D3 to drive 2 Mainlanders from Tung Chung to Mongkok for a reward of HK$300.  The police found one iPhone, HK$590 and RMB500 on D3.

12.In the video-recorded interview, D3 admitted the following:-

i. At about 6:30 pm on 8 May 2021, a person named as ‘Zhi Lung’ in a chat group on the app ‘Zello’ asked D3 to pick up some illegal immigrants from Olympian City and from a hotel at Prince Edward Road. He had met Zhi Lung through his friend ‘Ka Sing’ who has the same phone number as D6. D3 had been asked to assist in commuting illegal immigrants in early April 2021.

ii. There were 5 people in the Zello chat group, including Zhi Lung, one ‘Siu Chun’ and a person called ‘Brother Wai’who has the same phone number as D2. The chat group was for discussions on picking up illegal immigrants. D3 also had a WhatsApp chat group with them.

iii. At about 7 pm or 8 pm on 8 May, D3 drove his private car V2 to pick up 2 females from Olympian City and 2 more females from a hotel at Prince Edward Road. He then drove them to Tung Chung while waiting for further instructions.

iv. After the females left D3’s car and walked towards the shore, D3 waited at the scene and soon 2 males boarded his car. D3 would receive HK$200 per passenger from Zhi Lung.

v. D3 understood that there were 3 cars, including his, involved on the day.

Interception of V3 and the arrest of D4

13.At about 3 am on the day, V3 was intercepted at Sham Shui Drive near the Depot. D4 was the driver of V3. Two males and 3 females, all of them are unauthorised entrants, were passengers of V3. Under caution, D4 admitted that one of his friends ‘Ah Ho’ asked him to pick up some illegal immigrants for a reward of HK$2,000. 

14.The police found 2 mobile phones and HK$740 on D4.

15.In the video-recorded interview, D4 admitted the following:-

i. On 8 May 2021, Ah Ho (who is D7 in this case)  contacted him via a WhatsApp chat group and asked D4 to commute some illegal immigrants from China who would come to Hong Kong by boat. D4 would be rewarded for HK$2,000. The WhatsApp chat group included Ah Wai (believed to be D2)  and 2 others (with D3 and D6’s phone numbers respectively).

ii. D4 drove to Tsuen Wan at about 7 pm on the day and waited till 10:50 pm to get further instructions from D7. D4 was told to move around near Chek Lap Kok and eventually was instructed to go to Tung Chung at about 2 am on the following day. D4 followed the other 3 cars. D7 was acting as a lookout at the time while D2 was the driver of another car. D4 said D7 was responsible for arranging all the vehicles.

iii. Later some people ran out from the shore and 5 of them boarded D4’s car, V3. D4 knew that they are illegal immigrants from Mainland. D4 knew that the illegal immigrants would only know their destinations after turning on their respective mobile phones. Soon after, they were intercepted. D4 did not get his reward.

iv. D4 used his black phone to join the WhatsApp chat group. D7 would call D4’s another phone to give instructions. D4 had to wait because the boat could not reach the shore.

v. At about 1:22 am, D7 sent a message to the chat group (with D2, D3, D4, D6 and D7 as members)  and instructed them to collect a total of HK$32,800 from 2 illegal immigrants with the phone number 15202011252 if it happened that these 2 illegal immigrants boarded one of the cars. The drivers were told to make a call to the said phone number to ascertain the location of these 2 illegal immigrants.

Interception of V4 and the arrest of D5 and D7

16.At about 3 am on the day, V4 was also intercepted at Sham Shui Drive near the Depot. D5 was the driver of V4 and D7 was the front passenger. There were no other passengers in the car.

17.D5 admitted that he had done this before and would charge HK$500 each time. D5 was found to have HK$1,790 and 6 mobile phones. The police seized a dashboard camcorder from the car.

18.D7 admitted that D5, also called ‘Uncle Fat’, asked him to drive somebody. D7 possessed 2 mobile phones, HK$5,107 and the ignition key of V5.

19.In the video-recorded interview, D5 admitted the following:-

i. In the afternoon of 8 May 2021, he got a call from a person called ‘Ah Luk’ who asked him to do a job for him. Later, he got a call from another person called ‘Ah Fook’ who asked him to be a lookout in areas in Tung Chung, Sham Tseng and Tsing Lung Tau. D5 did so in his car V4. Ah Fook gave him instructions via WhatsApp.

ii. At about 2.30 am on 9 May 2021, D5 drove to Sham Shui Drive and, as instructed, used his phone’s light device to flash towards the sea three times. He then waited inside V4. Later, D7 boarded his car but soon they were intercepted and arrested.

iii. He acted as a lookout only, and would receive $500 as a reward. He learned from Ah Fook that 11 people would be sneaking into Hong Kong on this occasion.

iv. Ah Fook gave him the silver mobile phone saying that he would call D5 if there was any job for D5.

20.D7, in the video-recorded interview, made the following admissions:-

i. On 8 May 2021, his uncle D5 gave him a call asking for help to commute some illegal immigrants. D7 was asked to wait at Man Tung Road Park at about 8 pm that day.

ii. At about 8 to 9 pm, D5 picked him up, and drove around Tung Chung and Tuen Mun areas to check for police presence. Later, they reached Sham Shui Drive, and D7 alighted from V4. D7 saw around 10 illegal immigrants coming out from the shore and boarded 2 to 3 private cars. D7 returned to V4 and got arrested soon after.

Interception of V5 and the arrest of D6

21.At about 3 am on the same day, police officers pursued V5 from Cheung Tung Road to Tsing Yi North Coastal Road whereby V5 was finally intercepted. D6 was the driver and there was no passenger.

22.Under caution, D6 admitted that he acted as a lookout.  The police found 2 phones and $18,838.9 on D6. The dashboard camcorder of the car was seized. D7’s passport and some other documents relating to D7 were found. D7’s father was the registered owner of V5.

23.In the video-recorded interview, D6 admitted the following:-

i. At about 5 pm on 8 May 2021, D7 called him and later drove V5 to pick D6 up at about 7 pm. D7 told D6 that some Mainlanders would be smuggled to Hong Kong and invited D6 to act as a lookout.

ii. They went to Tsing Yi area to check for police presence. D7 told D6 to drive the car. D6 drove D7 to Sham Shui Drive at about 2 am. D7 got off the car saying that he would look around and help those illegal immigrants.

iii. D7 told D6 to continue driving around and alert him if he saw any police officers. D6 drove around Tsing Yi without D7. D6 was intercepted by police later.

The arrest of D1

24.At about 3:10 am on the same day, police officers raided D1’s residence at Tin Yuet Estate in Tin Shui Wai. The police had to break into the flat, and D1 was found in his bedroom. Under caution, D1 admitted that he was responsible for arranging 4 females to sneak into Hong Kong from China that night.

25.Upon house search, police found 2 beef knives (each of 44 cm long), 4 extendable batons (each of 65 cm long)  and 4 mobile phones.  Under caution, D1 admitted that the batons and beef knives were for self-defence. D1 confirmed that he owned the batons and knives in the video-recorded interview. D1 was also found to have $200 and one iPhone.

Chat Records on WhatsApp and Zello

26.WhatsApp exchanges between D1 and D5 on 8 to 9 May 2021 revealed that they discussed about transporting some females. D5 gave frequent updates to D1 starting from the evening of 8 May until D5’s arrest. D5 told D1 about the police presence and said the situation in Tung Chung was bad. D1 suggested to check the position in Tuen Mun, Sham Tseng and Tsing Lung Tau but D5 said there were police presence too. D1 asked D5 to collect money from 2 females. Later, D5 told D1 that he had picked up ‘the goods’ at about 3 am.

27.There were WhatsApp communications at the material time between D5 and a person called ‘Ah Fook’. They discussed about the landing points, and D5 told Ah Fook that there were police presence everywhere. At about 1 am on 9 May, D5 indicated his position in Sham Tseng, and told him that their cars had arrived. Ah Fook told D5 that he would get there in about 15 to 20 minutes. About 45 minutes later, D5 told Ah Fook that there were many people, and their cars had arrived. D5 told Ah Fook that he would ask drivers to hide their cars. At about 2:23 am, Ah Fook told D5 to go to the Depot. Later Ah Fook told D5 to get a car to block the small path and find someone to act as a lookout at and near the shore. He told D5 to walk to the shore and flash lights thrice when he saw a boat approaching. At about 3 am, D5 said the ‘trade’ was complete, and Ah Fook told D5 to leave the spot.

28.In addition, there were also WhatsApp exchanges amongst D5, D6 and D7 in the chat group called ‘Company’ from 7 to 9 May 2021.

29.D5 told the group they had to work the next day. In the evening of 8 May 2021, D5 gave instructions to D6 and D7 relating to the landing point. Police presence in the area was reported.  At about 11 pm on 8 May, D6 told them to tell others to hide somewhere in Sham Tseng, and not to have 3 cars gathered together. D5 sent many messages to tell the recipients that he failed to find a good spot. At one point, D5 said he had found a construction site with a private pier but later learnt that boats cannot stop there. At about 1:14 am on 9 May, D5 told D7 to drive to Sham Tseng, and that each car should pick up 4 people. D5 would position himself at the pier. D5 told members of the group to decide where to alight the 11 girls. D5 also told D7 to collect $32,800 from 2 people. At about 2:37 am, D5 indicated the location near Sham Shui Drive and told D6 and D7 to go there.

30.The Zello conversations amongst D2, D3, D4, D6 and D7 in the chat group were found in D3, D6 and D7’s phones.  Although the relevant conversations could not be found in D2 and D4’s phones, their phones were all logged into the relevant Zello accounts and had joined the chat group. It is believed that certain relevant messages were deleted. The following messages were found in the chat group:-

i. Throughout the evening of 8 May, D2, D3, D4, D6 and D7 kept updating each other about police presence. D7 kept asking the others for an update.

ii. At about 10:46 pm on 8 May, D6 told them to drive to Sham Tseng and hide somewhere. They were reminded to drive slowly and separately.

iii. At about 1:05 am on 9 May, D7 said he would lead the way and the cars were to stop at a bus stop opposite to a toilet. D7 said that each car should take 4 passengers and they should collect $32,800 from 2 of the 12 passengers.

iv. At about 1:39 am, D7 told others that ‘the sea was dirty’, and that at about 2 am, D7 gave them directions to go to Tung Chung and told them to park somewhere with the cars’ lights off.

v. At about 2:54 am, D7 told them to drive directly to ‘Cheung Fat’ once they unloaded the ‘goods’. He also asked D3 to pick up 3 passengers in his car while the other 2 cars would pick up 4 passengers. He asked them to inform him once the ‘goods’ were loaded.

vi. At about 3 am, D7 kept repeating that the ‘goods’ were being delivered. A minute later, D2 said he was being intercepted. D7 told them to disperse.

Dashboard camcorders of V1, V4 and V5

31.The camcorders of these vehicles were seized. The various screenshots were marked as MFI-2 to 4 and the disc as MFI-5. At the material time, V1 was driven by D2, V4 by D5 and V5 by D6.  The camcorder in V4 has audio-recording function and it captured D5 and D7’s voice messages on the WhatsApp and Zello.

III. Mitigation

(1)  D1’s mitigation

32.Defence counsel prepared a 12-page mitigation submission, together with 4 authorities. It was submitted that D1 was aged 23 at the time of the offence, and had been cooperative with the police. D1 pleaded guilty at the first opportunity. It was submitted that the 2 conspiracy charges can be grouped into one as a global conspiracy.

33.The Defence accepted that the defendants had been in communication with each other via the chat groups. 

34.There is no sentencing guideline for this kind of offence, but D1’s counsel listed out a few authorities to suggest the range of sentence from 5 years to 3 years. It was submitted that it is appropriate to take 4 years as the starting point for Charge 1 and 3 years for Charge 2 (D1’s mitigation submission, para. 28).

35.For Charge 3, it was urged that a starting point of 3 months is appropriate as the weapons were found at D1’s house.

(2)  D2’s mitigation

36.D2 faced one count of conspiracy to assist passage within Hong Kong of unauthorised entrants. 

37.D2 is aged 41 and was born in Hong Kong. He is married with one son. D2 is an experienced mechanic in motor repair, and is the breadwinner of the family. It was submitted that D2 is a responsible son, a giving husband and a caring father. D2 has been taking part in various community services. D2 had a clear record.

38.Because of the financial difficulty, D2 agreed to be a driver in the present case for a meagre reward of $800. It was said there was no premeditation on the part of D2. It was a one-off incident and D2 is truly remorseful.

39.It was submitted that D2 was only responsible for transporting the unauthorised entrants on land upon the latter’s arrival in Hong Kong. D2 had no role to play in bringing the unauthorised entrants from Mainland China to Hong Kong. D2 was not involved in the sea journey of those unauthorised entrants. D2 had a minor and passive role in this case. The Defence said the offence was committed out of character and under severe financial pressure.  As such, this is a proper case for the Court to show mercy (para. 26 of the mitigation submission).

40.The Defence submitted several mitigation letters written by D2, D2’s wife, D2’s son and D2’s mother, etc.

(3)  D3’s mitigation

41.D3 is aged 44 and has 2 kids. He studied up to Form 3 and has been working as a delivery driver for over 3 to 4 years. He got divorced in 2020. D3 pleaded guilty timely and is remorseful. D3 had a clear record.

42.The Defence submitted the mitigation letters prepared by D3, D3’s parents, and D3’s former employer.

(4)  D4’s mitigation

43.D4 is aged 40. He studied up to Form 3 level, and worked as a garage worker. His parents divorced when D4 was 2 years old. D4 was raised by his aunt and his grandmother. His grandmother passed away lately. D4 had a clear record.

44.The Defence submitted that D4 was only the “small fish in the front scene” and he did not involve in any planning and the coordination of the whole operation. He was only responsible for driving and commuting the unauthorised entrants once they landed.  D4 was offered $2,000 to do this job, but he did not receive any reward upon his arrest. D4 only gave a ride to 5 passengers and the passengers were not placed in any danger.

45.D4 regretted what he did and asked for a lenient sentence. The Defence wished the court will give D4 a sentence of less than 3 years. A total of 9 mitigation letters were tendered, including one written by D4.

(5)  D5’s mitigation

46.D5 pleaded to 2 conspiracy charges. D5 was born in Hong Kong and is aged 52. He received education up to Form 5. He became a sole proprietor of a company with business in transportation of import and export of goods. At one stage, D5 owned 4 goods vans.

47.D5 had 2 criminal records and the last one was back in 2006. D5 was married and has one son, but got divorced in 2008.  He was re-married in 2012. D5 is enthusiastic in lion dancing and has helped building up a lion dance squad on a voluntary basis. 

48.Because of the pandemic, D5’s business collapsed and he worked as a part-time taxi driver. In early 2021, he came to know a person called Ah Fook who eventually asked D5 to be a lookout when some people from Mainland China were being commuted. The reward was $500.

49.D5 is remorseful. The Defence tendered a few mitigation letters, including those written by D5, D5’s wife, D5’s son and D5’s brother. The Defence accepted that D5 was clearly a helping hand, being a lookout, and a starting point of 4 years is appropriate (para. 19 of D5’s mitigation submission).

(6)  D6’s mitigation

50.He faced one count of conspiracy charge. D6 is aged 44 and had a clear record. Before his arrest, he operated a fruit stall in Yuen Long. It was submitted that D6 played a relatively minor role in this case. He was the driver of V5 (FL130)  and acted as a lookout as arranged by D7. When V5 was intercepted, there was no passenger on board. The Defence tendered 3 mitigation letters, including one written by D6.

(7)  D7’s mitigation

51.He was charged with one count of conspiracy. He was aged 22 at the time of the offence. He finished his secondary education in 2019, and then worked as a fruit merchandiser and from 2021, also as a tyre repairer. D7 had a clear record.

52.It was submitted that D7’s role was to assist those unauthorised entrants already entered Hong Kong to go to the urban area. From the WhatsApp messages, the Defence submitted that D5 was the one who gave instructions to D6 and D7. The chat group of Zello revealed the conversations amongst D2, D3, D4, D6 and D7 relating to the updates of police presence. The Defence submitted that D7 committed the present offence under the influence of D5, one of his family friends. D7 respected D5 and acted as a lookout.  It was further submitted that, ‘Although the Prosecution case may indicate that D7 did play a leading role in the offence, D7 was in fact only ensuring D5’s instructions are conveyed to others.’ (para. 28 of the mitigation submission). The Defence said ‘actually D5, but not D7, was the organiser and initiator of the venture.’ (para. 32 of the mitigation submission). D7 should be considered as an assistant to D5. 

53.The Defence tendered 2 mitigation letters, including one written by D7.

IV. Sentence

54.It is trite law that the admission of one defendant cannot be used to incriminate the other co-defendants. It is also settled that for a conspiracy charge, the co-defendants can join the criminal agreement at different stages. As such, I can understand the rationale of D1’s counsel that it suffices to lay one global conspiracy against all defendants. That said, I can also understand that the Prosecution was being cautious and tried to avoid the existence of sub-conspiracy. Hence, two conspiracy charges were laid. I cannot say the Prosecution was wrong to take such course of action. But, ultimately, it is the sentence in total that matters.

55.In HKSAR v Chan Lai-choi CACC 166/1997, the Court of Appeal distinguished offences involving the carriage of unauthorised entrants into Hong Kong from cases of assisting the passage of unauthorised entrants who have already entered Hong Kong.

56.In the present case, there were about 11 unauthorised entrants, including females, and 5 vehicles were involved. 

57.Without doubt, this was a well-planned and organised criminal activity whereby a chat group was formed partly for the purpose of smuggling unauthorised entrants from Mainland China into Hong Kong. Some defendants were rewarded with a lump sum while some charged $200 for each passenger. D5 occupied a more significant role in this incident. As accepted by D7’s counsel, D7 did assist D5 in conveying instructions to other culprits. Although some defendants were not involved in the sneaking in of the unauthorised entrants into Hong Kong, it is obvious that there was a syndicate behind the whole operation. Transportation and various arrangements were made in advance. 

58.I will not reiterate the contents of all mitigation letters. Suffice for me to outline certain mitigation letters written by the respective defendants.

(1)  D1’s sentence

59.D1 is aged 24. Since June 2013, D1 had 7 convictions with the latest in May 2020 when he was convicted of 5 counts of theft and one count of possession of offensive weapon in a public place. For the latter offence, D1 was sentenced to 2 months’ imprisonment, concurrent with other sentences. 

60.There is no mitigation letter tendered on behalf of D1. D1 was not arrested at the scene but was arrested in his residence at about 3 am on 9 May 2021. He made certain admissions and claimed that he arranged for 4 females to sneak into Hong Kong. That indicated that D1 was involved in the passage of unauthorised entrants to and within Hong Kong.  

61.The main mitigation for D1 is his timely guilty plea for which he will get one-third discount. For Charge 1, I will adopt a starting point of 4 years and, with his plea, the sentence is reduced to 32 months. For Charge 2, D1 was not one of the drivers and the charge specified that the unauthorised entrants were already in Hong Kong. As such, I would adopt a starting point of 3 years, and with discount, it is reduced to 2 years. I will order that these two sentences be served concurrently.

62.As regards to Charge 3, it was laid under the Summary Offences Ordinance, not the Public Order Ordinance. The weapons include 2 long beef knives, were found in D1’s residence. The weapons were hidden. I would take 6 months as the starting point, and reduce it to 4 months. As the nature of the offence is different from the two conspiracy charges, I order that 2 months of the third sentence is to be served consecutively with the other sentences.

63.As such, I sentence D1 to 34 months’ imprisonment.

(2)  D2’s Sentence

64.D2 is now aged 42 and had a clear record. 

65.D2 in his mitigation letter said that he committed the present offence because of financial pressure and debts. He felt sorry for his wife and son. With the counselling and assistance from officers of CSD, he could now face the hardship. He is truly remorseful and will act as a good husband and a good father when discharged.

66.When D2 was intercepted, he was the driver of V1 with 4 unauthorised entrants on board. He would be rewarded for $800 per trip. D2 was one of the members of the Zello chat group.

67.I have considered those authorities tendered by the defence. I will adopt a starting point of 3 years. It is a wise move for D2 to plead guilty to the charge, hence he can get one-third discount. I will sentence D2 to 2 years’ imprisonment.

(3)  D3’s sentence

68.D3 is now aged 44 and had a clear record. He has a son who is being taken care of by his former wife. In his mitigation letter, D3 said he has to take care of his parents and his brother who is a mentally handicapped person. His former employer agreed to hire D3 again upon his discharge from prison. He urges the court to pass a lenient sentence so that he can reintegrate into society and look after his family.

69.At the time D3 was arrested, he was the driver of V2 and 2 male unauthorised entrants were sitting at the rear passenger seats.  He would be rewarded $300. D3 admitted that he had picked up 2 female illegal immigrants from Olympian City and 2 females from a hotel on Prince Edward Road. D3 drove them to Tung Chung and they alighted the car and walked towards the shore. D3 was offered to receive $200 per passenger. 

70.In this regard, D3’s culpability is a bit different from others as he managed to commute 2 groups of people on 8 and 9 May.

71.I would adopt a starting point of 3½ years, and with his guilty plea, the sentence is reduced to 28 months.

(4)  D4’s Sentence

72.The 40-year-old D4 did not have a happy childhood as his parents got divorced when D4 was aged 2. He had a clear record and worked as a garage worker. The Defence said D4 was just a ‘small fish’ in the front scene, but in my view, without ‘small fish’ working, the syndicate could not operate effectively, just like big drug traffickers need small fish to sell small packets of drugs to those customers. D4 would be rewarded $2,000 for this operation.

73.In his mitigation letter, D4 said that he was a man of good character and conduct before this incident. He deeply regretted that he committed this crime. He blamed his friend on whom he had placed his trust. He was exploited by his friend.

74.At the material time, D4 was the driver of V3. The police found 5 unauthorised entrants in the car. He would be paid $2,000 for picking up these illegal immigrants.

75.Taking all factors into account, I adopt a starting point of 3 years, and with his guilty plea, the sentence is reduced to 2 years.

(5)  D5’s Sentence

76.D5 is now aged 52, just past his birthday. He operated a firm to do transportation of goods.  He was married with a son, but now divorced. In May 2021, he was contacted to act as a lookout and to commute those unauthorised entrants with a reward of $500.  D5 is remorseful and he cooperated with the police upon arrest. 

77.In his mitigation letter, D5 said he committed the crime because of the financial pressure. He is remorseful and hopes the court can pass a lenient sentence.

78.D5 faces 2 conspiracy charges, and was the driver of V4 when he was intercepted. D7 was sitting at the front passenger seat. There was no other passenger. Apparently, D5’s role was heavier than others and he gave instructions to others including his cousin D7. He also liaised with Ah Fook in advance.

79.I do not accept that D5 was only acting as a lookout at the time. He knew that there would be 11 unauthorised entrants sneaking into Hong Kong on this occasion. D5 had 2 convictions since May 2000, and the latest one in 2006 was one of AOABH whereby he was fined $5,000.

80.Taking all factors into account, for both charges (Charges 1 and 2), I would adopt a starting point of 4 years, and with his plea, the sentence is reduced to 32 months, to be served concurrently.

(6)  D6’s Sentence

81.D6 is aged 44 and operated a fruit shop in Yuen Long. D6 said that he acted as a lookout and was to update police presence in the area. 

82.In his mitigation letter, D6 confessed that he was stupid to commit the present crime. During his remand, his fruit shop had to be assigned to others. He got support from his mother and fiancée. He pleads for leniency and promises to be a law-abiding citizen upon discharge from prison.

83.D6 was the driver of V5 when intercepted. There was no passenger in the car. D6 claimed that he got instructions from his friend, D7.  D7’s father was the registered owner of V5. 

84.I accept that D6 occupied a relatively minor role in this operation, but he was still one of the members of the gang and did what he was told. Taking all factors into account, I adopt a starting point of 3 years and, with his guilty plea, the sentence is reduced to 2 years.

(7)  D7’s Sentence

85.D7 is aged 23 and is the cousin of D5. He had completed the DSE course in 2019. D7 had no criminal record. D7 acted as a lookout and assisted D5 in this operation.

86.In his mitigation letter, D7 said he was remorseful and felt sad to see his parents coming to visit him at the remand centre. He promised to turn a new leaf upon discharge.

87.At the material time, D7 was the front seat passenger in V4 while D5 was the driver. D7 assisted D5 and saw at least 10 unauthorised entrants leaving the shore and boarding 2 to 3 private cars. 

88.From the Zello conversations, D7 also assumed a relatively leading role in giving or passing instructions to others (re para. 32 of the Summary of Facts).

89.Taking all factors into consideration, I would adopt a starting point of 3½ years, and with his guilty plea, the sentence is reduced to 28 months.

V. Conclusion

90.In gist, I sentence the 7 defendants to the following imprisonment terms respectively:-

– D1 to 34 months;

– D2 to 24 months;

– D3 to 28 months;

– D4 to 24 months;

– D5 to 32 months;

– D6 to 24 months;

– D7 to 28 months.