HKSAR v. Chen Wenge

DCCC21/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 21 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of assisting the passage to Hong Kong of a conveyance which carried six unauthorised entrants, six women.

2.The defendant pleaded not guilty to Charge 2 and that is failing to stop, contrary to regulation 20(1) and (3) of the Shipping and Port Control Regulations made under the Shipping and Port Control Ordinance, Cap. 313, and this charge was left on file and not to be proceeded with without the leave of the court.

Facts of the Prosecution Case

3.At about 1845 on 4 December 2008, PW1 spotted from the radar that an unlit vessel was heading towards the Hong Kong International Airport. The Police Launch PL52 then switched on the flashlight and searchlight and issued the international “L” signal by sound to instruct the vessel to stop.

4.At 1855 the vessel was intercepted. On board the vessel was the defendant, being the coxswain, and six female passengers. None of them could produce any valid proof of identity. All were arrested.

5.Under caution the defendant admitted that he was employed by Ah Cheung to steer the boat with six passengers with a reward of $300.

6.The vessel was found to be unseaworthy by Ship Inspector Lau Kin-wah.

7.The defendant had a clear record.

8.In further admission by the defendant, he said that he came to know Ah Cheung through an advertisement. It was Ah Cheung steered his small boat, the defendant steered the wooden vessel to follow Ah Cheung to come to Hong Kong.

Mitigation

9.In mitigation, I was told that the defendant is now 42 years of age. He was divorced and has to look after his 16-year-old son and old-aged parents. He used to work in Shenzhen as a construction worker. He earned about $1,000 per month and sent home $700 for his family’s living expenses.

10.The defendant expressed remorse in his letter. He wished to return home to be reunited with his family.

11.In May 2009, when the defendant pleaded guilty to the charge, he has already indicated that he would give evidence against Ah Cheung. This morning the prosecution informed me that the defendant had given useful evidence against Ah Cheung and based on the defendant’s evidence, Ah Cheung was convicted. He was a valuable witness to the prosecution. Because Ah Cheung was already serving a term of 14 months’ imprisonment in DCCC1250/2008, the court imposed a term of 4 years in DCCC800/2009 in view of the totality principle.

12.When I pass sentence on the defendant I bear in mind of all the mitigating factors and the fact that the defendant had given evidence against Ah Cheung.

13.In the present case there were six passengers in the wooden vessel. It was not seaworthy and the main hull structure was in poor condition. There was no fire-fighting appliance or lifesaving appliance, or navigating light equipped on board. There is certainly a safety issue by carrying six passengers to travel to Hong Kong.

13.In any event, a sentence of 5 years as a starting point is appropriate for the present offence.  In view of the fact that the defendant had assist the prosecution in giving evidence against the defendant in DCCC800/2009, I shall give a meaningful discount of two-thirds, that means the defendant will serve a sentence of 20 months.