HKSAR v. Chan Kwok Hing

DCCC148/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 148 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 2 charges, namely "Endangering the safety of others at sea" (Charge 1) and "Aiding and abetting the attempt to land in Hong Kong without permission" (Charge 2). Both charges involve a total of 11 South Asian illegal immigrants.

Summary of Facts

2.At about 11:20 pm on 6 January 2010, Marine Police spotted a suspicious vessel wandering in mainland waters.

3.At about mid-night, the said vessel was travelling at about 10 knots across the boundary into Hong Kong waters, heading towards East Ping Chau. Marine police officers were sent to intercept that vessel. The blue beacon was switched on.

4.At this juncture, the coxswain of the said vessel suddenly steered towards mainland waters in order to escape. The marine police officers displayed the international stopping signal "L", but it was ignored. After a bout of hot pursuit with one round of illumination flare fired, the marine police officers stopped the escaping vessel at 3 cables (0.3 nautical mile) north of East Ping Chau. The vessel was discovered to be a motorized sampan. This is Charge 1.

5.Upon interception, marine police officers found the defendant (who was the coxswain) and 11 South Asians (as named in both charges) on board of the motorized sampan. The defendant admitted that a mainlander hired him at RMB1,000 to convey the 11 South Asians to East Ping Chau. The 11 South Asians are illegal immigrants since they do not possess any valid travel documents to enter Hong Kong. This is Charge 2.

6.In his video-recorded interviews, the defendant admitted under caution that he received RMB1,000 from a mainlander named "Ah Chiu" as a reward for conveying some people to Hong Kong by boat. At about 10:00 pm on 6 January 2010, Ah Chiu phoned him and asked him to go to Chengtou Jiao to board the vessel. An unknown male intermittently brought other persons to the vessel. At about 11:30 pm, the defendant was told to set sail. After about 40 minutes of the journey, he was stopped and arrested in Hong Kong waters. The defendant claimed that the vessel does not belong to him and that he did not know who owns it. He also admitted that he does not have a navigation licence, but he knows how to steer a boat. He did not check whether there was any fire fighting or life saving equipment on board of the vessel. He did not know whether there was any navigation light installed on the vessel either.

7.A Ship Inspector inspected the motorized sampan on 13 January 2010. He concluded that the sampan was not appropriately equipped for navigation at sea since no fire fighting or life saving appliance is equipped on board and there was no navigation light for night navigation either. Furthermore, it was not allowed to carry passengers nor was it permitted to navigate beyond Hong Kong waters.

Mitigation & Sentence

8.The defendant is now 37 years old and has a clear record. He is single and resides in the mainland.

9.In the course of mitigation, defence lawyer Mr. MUI referred to a number of cases regarding the sentence for Charge 1. They include The Queen v CHAN Siu Yun CAAR 9/1995 (unreported), HKSAR v CHOW Tin Shing [2007] 4 HKLRD 991 and The Queen v SZE Yui CACC 348/1995 (on sentence; unreported).

10.Mr. MUI submitted that in the present case, there are no aggravating factors such as adverse weather, long pursuit at sea by the Police, collision of vessels or personal injuries resulted from the defendant's dangerous steering. He also pointed out that according to the witness statements of 2 police officers who were involved in intercepting the defendant, the weather on the night in question was generally good and the sea was relatively calm. No other vessels were in the vicinity. The pursuit of the defendant's vessel only lasted for about 30 seconds. After analyzing the cited decisions, Mr. MUI submitted that the proper starting point for Charge 1 should be in the range of 18 months to 2.5 years imprisonment.

11.I find the facts in the present case comparable to those in CHAN Siu Yun, which also involves a motorized sampan carrying illegal immigrants in Hong Kong waters and a high speed chase at sea by police vessels. The late Power Ag. CJ commented at paragraph 14 of the judgement "The respondent put at risk not only himself and his passenger but the police officers who were chasing him and any other persons operating vessels in the vicinity on that night. It was conduct demanding a sentence of some severity. Persons in charge of vessels in circumstances such as this must be given an indication that such conduct will not be tolerated." At the end of the day, the Court of Appeal granted the review application of the Attorney General in CHAN Siu Yun and increased the sentence of a section 72 offence (after trial) from 18 months to 2.5 years.

12.I accept that in the present case, there was no collision of vessels and no police officers were thrown to the deck by the force of the collision. However, I cannot overlook the fact the defendant has no licence to operate the motorized sampan (whether in Hong Kong or in the mainland). He has clearly put the safety of his passengers (albeit illegal immigrants) and other seafarers in the vicinity at higher risk.

13.After careful consideration, I decided to adopt a starting point of 2 years for Charge 1. One-third discount is given for the guilty plea, reducing the sentence to 16 months imprisonment. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for Charge 1 is therefore 16 months.

14.Regarding Charge 2, the guideline tariff laid down in The Queen v SO Man King & others [1989] 1 HKLR 142 is applicable to this charge, which is 15 months imprisonment after a guilty plea. Hence, I adopt a starting point of 22.5 months for Charge 2. One-third discount is given for the guilty plea, reducing the sentence to 15 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for Charge 2 is therefore 15 months.

15.In respect of totality, although Charges 1 and 2 seem to arise from the same transaction, I take the view that they are separate and distinct. Had the defendant obeyed the "stop" signal and submitted the vessel for police inspection, the attempted escape and pursuit at sea (however short it was) could have been completely avoided, and he would not have had to face Charge 1 at all. On this basis, I consider it just to order the sentence for both charges to run consecutively, subject of course to totality. I order 10 months in Charge 2 to run consecutive to the sentence for Charge 1, thus arriving at a total term of 26 months imprisonment for both charges.