HKSAR v. Lin Zhu and Another

DCCC 730/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 730 OF 2008

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Before:  Deputy District Judge Eddie Yip

Date:    2 Jan 2009 at 9:51am

Reasons for Sentence

The charge

1.The 1^st Defendant has been dealt with by another court beforehand.  This court is going to sentence the 2^nd Defendant.  The 2^nd defendant pleads guilty to the charge of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.  The Particulars of Offence averred that he, together with the 1^st Defendant, on 20 July 2008, in Hong Kong, assisted the passage to Hong Kong of a conveyance, namely a motorized sampan which carried seven unauthorized entrants.

The facts

2.On 20 July 2008, marine police were on patrol duty on board 2 police boats near the south side of Ninepin Island, Hong Kong.  At 7.25 p.m. a sampan was seen speeding across the sea near South Ninepin Island, Hong Kong.  They approached the sampan and signaled it to stop.  It stopped near Waglan Island, Hong Kong.  The 1^st and the 2^nd Defendants, together with 7 unauthorized entrants, were on board.  The 1^st Defendant was controlling the steering bar at the stern while the 2^nd Defendant was sitting next to him.   

3.The 2^nd Defendant admitted the following under caution:

(1)   While working in a shop, the 1^st Defendant passed by and asked him to join him (the 1^st Defendant) to go to Hong Kong.

(2)   At 6 p.m. on 20 July 2008 they departed Nana’o.

(3)   Before they departed, those 7 people boarded the sampan.

(4)   He neither knew them nor whether they had any valid travel documents.

(5)   At the time of interruption by police officers the 1^st Defendant told him to admit to be the captain for a reward of $300.   

(6)   He never drove the sampan because he did not know how to do so.

(7)   This was the first time he came to Hong Kong.

4.A ship inspector of the Marine Department inspected the sampan.  He concluded that it was not appropriately equipped for navigation on the following grounds:

(1)   The main hull structure was in poor condition.

(2)   There was no fire fighting appliances, such as fire extinguishers.

(3)   There were not enough life saving appliances, such as a life jacket for each person.

(4)   There was no navigation light fitted on board for night operation.

The 2^nd Defendant’s circumstance

5.As revealed in the Background Report, he was born in 1972.  He was 35 at the time of the offence.  He is now 36 years of age.  He has a clear record.  He is a Mainland citizen.  He has attained P. 4 education.  His wife is a homemaker.  His 4 children, aged between 8 and 15, are students.  He is the sole breadwinner.  He committed the present offence to earn quick money, as proposed by the 1^st Defendant, to better the living condition of his family.   

The principles of sentencing

6.According to Power, V-P in The Queen v Wong Yin-lung [1995] 1 HKCLR 151, 153:

“The five year starting point and the accretions for aggravating circumstances have application to the captain, the person in charge of the vessel, the crew member who has taken an active part in the organization of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of the aggravation.  Defendants not infrequently suggest to the court that they are not crew members but are on board only for the purpose of collecting money for the real snakehead.  Again for such persons five years is the appropriate starting point.

Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organization of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or the person in charge.”  (my emphases)

7.The prosecution have, in my view, rightly accepted that he was “a crew member simpliciter”.  There were rather serious circumstances of aggravation as concluded in the ship inspector’s inspection.  However, as there is no evidence of his being “involved in the circumstances of aggravation”, it follows that it is not necessary for me to deal with the preponderance of cases applicable to aggravated sentences.  

The sentence I pass

8.I take 4 years’ imprisonment as the starting point.  I give him one-third discount for guilty plea and clear record.  There are no other mitigating factors.  The sentence is 2 years and 8 months.