HKSAR v. Chen Hui Yung

DCCC1411/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1411 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to two offences. The first offence is one of endangering the safety of others at sea, contrary to the Shipping and Port Control Ordinance, Cap. 313.

2.The particulars of the offence are that on 31 October 2009, without reasonable excuse, he endangered or caused to be endangered the safety of persons in a motorised wooden boat, those persons being 20 South Asian persons, and the defendant was the coxswain of the boat. The particulars also state that the vessel was considered very poor and unseaworthy for voyage and there was a failure to provide life-saving equipment, fire extinguisher, navigation light and life jacket.

3.The 2nd charge was one of aiding and abetting the attempt to land in Hong Kong without permission of the 20 South Asian persons who were on board the vessel.

4.At 2.24 in the morning of 31 October, officers of the Small Boat Division of the Marine Police observed a suspicious object on a radar moving at a speed of about 5 knots from the coastal area of Shekou of mainland China towards the Black Point Power Station, Tuen Mun. Two police vessels were tasked to investigate, and at 2.39, they discovered the unlit motorised wooden vessel, the subject of the charges, sailing towards Black Point Power Station, and they then gave chase. The vessel was intercepted about 10 minutes later in Hong Kong waters.

5.Upon interception, they discovered 20 non-ethnic Chinese, illegal immigrants, including an Afghanistan family with two children aged 2 and 3, together with a mainland male on board the vessel. The mainland male was the defendant who turned out to be the coxswain who conveyed these 20 non-ethnic Chinese to Hong Kong.

6.The defendant told the police that he was hired by a person called Ah Hung to convey the illegal immigrants to the opposite island for a monetary reward of 1500 Renminbi. He told the police he had only learnt to steer the vessel just a few hours before departing from China and he did not know why the vessel was wobbling at the time of its interception.

7.In a subsequent video-recorded interview, the defendant said he came to know Ah Hung via the introduction of a female mainlander called Madam Lau. He waited for Ah Hung at Shekou station. They met up and went for a meal, and thereafter Ah Hung arranged for the defendant to check into a hotel. The next morning, he followed Ah Hung to the seaside where he learnt to drive the vessel. They waited till nightfall and then the illegal immigrants got on board the vessel, and he was told to drive it across the sea.

8.In a subsequent interview, he said he did not know whether there was any life-saving appliance on the vessel. He did not know if there was any navigation light fitted and the vessel wobbled during the voyage because the defendant did not know how to steer it properly.

9.The vessel was later examined. It was found that the wooden hull planking, structural frames and subdivision bulkheads had deteriorated and were rotting severely. Cracks, holes and loose seal compounds were observed on the bulkheads to diminish the degree of watertight integrity as well as the buoyancy of the vessel. There was no bilge system to pump out any accumulation of water inside the vessel. The extreme low freeboard at no load condition rendered the vessel to be flooded easily at moderate sea conditions. There was no fire fighting appliance equipped on board, no life-saving appliance and no navigation lights.

10.The defendant has a clear record. I am told he is 25 years of age. He was born in China and educated to Primary 3 level. His parents died when he was young, and he lives with his elder brother who unfortunately has broken a leg, so that leaves the defendant as the sole breadwinner for the family. On the mainland, he worked as a painter earning some 1300 Yuan or Renminbi a month.

11.In mitigation, it was urged upon me that the sampan moved slowly. It was moving only at 5 kilometres per hour. The defendant made no attempt to escape. It was not a busy channel. Nobody in fact was harmed although, in my view, that was entirely fortuitous. It was urged upon me that there was no secret compartment. Again, it would seem that with so many on board, it would be very difficult to secrete them anywhere on a vessel. And there is no evidence that the vessel was flooded.

12.The defendant had agreed to carry out this task for 1500 Renminbi and, in fact, he has been paid nothing so far for his involvement in this offence. This was an extremely reckless and foolhardy act by the defendant. The lives of 20 people were in his hands, including two young children aged 2 and 3. The condition of the vessel was very poor. As regards the 1st charge, the maximum sentence, I notice, is four years’ imprisonment.

13.I take the view that a starting point of 27 months is appropriate in this case, and I reduce that by one-third to reflect the guilty plea. So, that will be a sentence of 18 months’ imprisonment.

14.With regards to the 2nd charge, the maximum sentence is three years’ imprisonment. I take the view, looking at similar cases, that an appropriate sentence is 18 months’ imprisonment. In my view, these sentences are wholly inadequate. Had the persons on board the vessel been unauthorised entrants, the prosecution would have been under 37D of the Immigration Ordinance and the usual starting period for sentence would have been a term of five years’ imprisonment. The people on board this vessel do not fall within the definition of “unauthorised entrants” under section 2 of the Immigration Ordinance.

15.I am told that this is a matter that has caused some concern because of the discrepancy in treatment of people bringing unauthorised entrants from the mainland and people who are unauthorised from elsewhere. Under section 37, the maximum sentence is 14 years’ imprisonment as opposed to three under section 38(1). I am advised that this has caused concern and a possible reform of the definition of “unauthorised entrants” in section 2 of the Ordinance is being considered. It seems to me a simple solution might be simply to increase the maximum sentence under section 38.

16.I have considered the question of totality, and I take the view that these sentences should be consecutive. The defendant will therefore go to prison for three years.