HKSAR v. Yeung Mau Hing and Another

DCCC376/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 376 OF 2010

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Reasons for Sentence

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1.Yeung Mau-hing and Wong Fong, you have each been convicted on your own pleas of one charge of assisting the passage to Hong Kong of a motorised fishing vessel carrying nine unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance (Charge 1) and one charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance.

2.The two charges follow the interception by the Marine Police of a wooden vessel in Hong Kong waters off Tai A Chau in the early evening on 4 March this year. At the time, it was becoming dark. Although it appears that both of you were involved in steering the vessel at different times, you, Yeung Mau-hing, have admitted that you were the coxswain of the vessel and therefore in charge of the vessel. You, Wong Fong, have admitted being a member of the crew.

3.Apart from you, there were nine unauthorised entrants on board. Two of them were men aged 47 and 35; seven of them were women aged between 17 and 40 years of age. It appears from what you later told the Marine Police that the person who arranged this journey was a man called Wong. You had each been promised 100 RMB for conveying people to Hong Kong.

4.The two male unauthorised entrants boarded the vessel in Zhuhai and you picked up the women from a nearby island. The vessel and the engine were in poor condition. The vessel itself was unseaworthy. The ship inspector who inspected the vessel classified the two engines of the vessel as being in very poor condition. He said this about the hull structure:

“The wooden hull planking, structural frames and sub‑division bulkheads were found deteriorated.  Cracks, undesired holes and loosened seal compounds were observed on the bulkheads to diminish the degree of watertight integrity as well as buoyancy of the vessel.  No bilge system was fitted on board to pump out any accumulation of water.  The low freeboard at unload condition rendered the vessel to be flooded easily at moderate sea condition.”

5.He said that the maximum crew allowance of this wooden fishing vessel is eight persons. There were no navigation lights on the vessel, even though it was being navigated at a time when it was getting dark. There were no fire-fighting appliances and there were only five life jackets, when there were 11 people on board.

6.The Hong Kong courts take a very serious view of those who assist in bringing unauthorised entrants into Hong Kong. In this case, nine unauthorised entrants were involved.

7.Insofar as you, Wong Fong, are concerned, on Charge 1, I see no reason not to adopt the usual starting point for members of the crew of a vessel who bring unauthorised entrants into Hong Kong, namely, 4 years’ imprisonment. Insofar as Charge 2 is concerned, I adopt a starting point of 18 months’ imprisonment.

8.I have borne in mind what your solicitor has told me; in particular, that you are a man of previous good character and are the sole breadwinner for your family. Although you have pleaded guilty to the 2nd charge and therefore must, at the very least, have aided and abetted the offence of endangering the safety of others at sea, I am prepared to accept that you were not actively responsible for the dangerous condition of the vessel. In such circumstances, I am prepared to order that the sentence on Count 2 run concurrently with the sentence on Count 1. The only real mitigation in your case is your plea of guilty for which you are entitled to the usual discount of one-third.

9.On Charge 1, I sentence you to 32 months’ imprisonment and on Charge 2, 12 months’ imprisonment to run concurrently with the sentence on the 1st charge. Your total sentence is 2 years, 8 months’ imprisonment.

10.Yeung Mau-hing, as coxswain of this vessel - the person in charge of it - your responsibility is greater. I am adopting a starting point of 5 years’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2. I have borne in mind what Miss Cheong, your solicitor, has said on your behalf and in particular, your previous good character and the fact that you are the sole breadwinner for your family. As is the case with the 2nd defendant, the only real mitigation in your case is your plea of guilty and for that you are entitled to the usual discount of one-third.

11.As the person responsible for this vessel, you were responsible for ensuring that the vessel did not embark on the voyage unless it was seaworthy. The responsibility for ensuring that it was seaworthy, and that adequate safety equipment and navigation lights were carried, was yours. You failed in that responsibility and as a result endangered the safety of everyone on board. The sentence I impose upon you, therefore, in respect of the 2nd charge must run consecutively to the sentence that I pass on you in respect of the 1st charge.

12.On Charge 1, I sentence you to 40 months’ imprisonment. On Charge 2, I sentence you to 12 months’ imprisonment to run consecutively to the sentence on Charge 1. The total sentence I therefore impose upon you is 4 years and 4 months’ imprisonment.