HKSAR v. Leung To Tit

DCCC788/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 788 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges, namely :-

(a) charge 1, assisting the passage to Hong Kong of a conveyance which carried unauthorised entrants, contrary to section 37(1)(a) of the Immigration Ordinance, Cap. 115 and this charge involved five unauthorised entrants:

(b) charge 2, aiding and abetting the attempt to land in Hong Kong without permission, and this charge involved one person.

The prosecution case against the defendant

2.At around 0401 hours, Marine Police found a sampan sailing towards the shore at Sha Kiu Tsuen and the sampan was stopped subsequently at 0435 hours. Upon interception, defendant was found to be the coxswain and he was steering the control bar of the sampan’s engine. After removing the green plastic sheet which covered the main deck of the sampan, five Chinese mainlanders and a Nepalese were found crouching at the compartment. All five Chinese mainlanders and the defendant failed to produce any valid travel document. There was no valid visa for travelling to Hong Kong in the Nepalese man’s passport.

3.The defendant was arrested and in the record of interview he admitted that he came to know a person called Ah Chin who asked him to bring mainlanders to Hong Kong for CYN300 per person. In the present case, he received a call from Ah Chin on 20 June 2009 for this job. He started his journey at 2 am on 21 June 2009 together with six persons who were subsequently found on the sampan by the Marine Police. If this journey was successful, he would be rewarded for $1,800.

4.On 22 June 2009 after the inspection of the sampan by PW12, it was found that the main hull structure was found in poor condition, there was no fire-fighting appliances or any life-saving appliances equipped on board. There was no navigation light fitted on board for night operation.

5.The Defendant has a clear record.

6.In mitigation I am told the defendant is 34 years old, single, and lives with his elderly parents in China. He himself is a drug addict. He also has a brother who is also a drug addict. His brother overdosed himself when he took drugs and is now paralysed. The defendant committed the present offence because he needed $3,000 for his father to do an eye operation.

Sentence

7.To start with, financial hardship is not a factor to be considered in sentencing. General sentence guidelines for the 1st charge is 5 years. In passing sentence, I bear in mind that the defendant is a man of clear record and he pleaded guilty to two charges. . All the six persons on the sampan are all able persons but the sampan in question was unseaworthy. I do not see any reason to depart from the general 5 year starting point.

8.In the present circumstances, I adopt 5 years as the starting point for charge 1 and 2 years for charge 2. The sentences are reduced to 40 months and 16 months respectively to reflect the defendant’s guilty pleas and both sentences are to be run concurrently.