HKSAR v. Lee Wah Chun and Others

DCCC838/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 838 OF 2010

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Reasons for Sentence

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1.D1 to D3 are jointly charged with 2 offences of "Assisting the passage to/within Hong Kong of a conveyance which carried unauthorized entrants" (Charges 1 and 2). They each pleaded guilty to both charges.

Summary of Facts

2.About 11:55 pm on 19 June 2010, police officers on board of Police Vessel PV37 intercepted a motorized wooden sampan ("V1") near Fan Lau Kok (at the west tip of Lantau Island) and found D1 on board.  After inquiry, D1 was arrested for being an illegal immigrant.

3.About 12:10 am on 20 June 2010, police officers on board of Police Vessel PV85 saw a smaller motorized sampan ("V2") moving in a westerly direction from Fan Lau Kok.  PV85 signalled V2 to stop but it did not obey.  Upon approaching shore, D2 and D3 jumped overboard and disappeared.  V2 was intercepted.  The 8 Chinese unauthorized entrants named in Charge 2 (UE4 to UE11) and 7 Chinese overstayers were found on board of V2.  This is Charge 2.

4.Following the interception of V2, the Police searched for illegal immigrants in the vicinity of Shek Lau Po Tsuen (on Lantau Island near Tung Chung).  The 3 Chinese female unauthorized entrants named in Charge 1 (UE1 to UE3) were intercepted at 2:20 am when they were taking a taxi.

5.About 5:00 pm on the same day, police officers arrested D2 and D3 at the beach near Tai Long Wan Tsuen (on Lantau Island near Shek Pik).

6.Subsequently, UE1 to UE11 were found to be "unauthorized entrants" as defined in section 37A of the Immigration Ordinance (Cap.115).

7.D1 admitted under caution that in the evening on 19 June 2010, he and 2 males named "Ah Pang" and "Ah Ping" smuggled 3 females from Zhuhai to Hong Kong using V1 (Charge 1).  They were then supposed to convey another group of people from Hong Kong to Zhuhai (Charge 2).  Ah Ping agreed to pay him RMB500 as a reward.  After V1 had reached Hong Kong waters, Ah Ping asked the 3 females to board V2.  Ah Ping and Ah Pang also boarded V2 to take the females ashore.  D1 was asked to wait on V1 for their return.  He does not have any licence to operate a sampan.

8.D2 admitted under caution that in the evening on 19 June 2010, his boss asked him to smuggle people from the mainland to Hong Kong and then from Hong Kong back to the mainland for a reward of RMB200 per head.  D2 agreed.  D2, D3 and a young man aged about 16 boarded V1 with V2 being towed at V1's rear.  After V1 had reached Hong Kong waters, D2, D3 and 3 females boarded V2 to go ashore whilst the young man waited on V1 (Charge 1).  After the 3 females had landed, 10 odd persons boarded V2.  D2 covered them with a canvas.  After travelling for about 10 minutes, V2 was detected by the Hong Kong Police (Charge 2).  He and D3 jumped into the sea and swam to the shore.  D2 knew that the 3 females and the 10 odd persons were illegal immigrants.  He does not have any licence to operate a sampan.

9.D3 admitted under caution that on 19 June 2010, he, D2 and Ah Wah operated V1 to convey 3 females from Zhuhai to Hong Kong.  After a 3-hour journey, he and D2 took the 3 females to board V2 to go ashore.  He sat at the bow and D2 steered at the stern (Charge 1).  Ah Wah was asked to wait on V1.  After the 3 females had landed, 10 odd persons boarded V2.  D2 asked D3 to cover them with a canvas.  After travelling for about 10 minutes, V2 was detected by the Hong Kong Police (Charge 2).  He and D2 jumped into the sea and swam to the shore.  D3 does not have any licence to operate a sampan.

10.A Senior Ship Inspector examined V1 and V2.  He concluded that both vessels were unseaworthy since the main hull structure was in poor condition; no fire fighting or life saving appliances were equipped on board; and no navigation light was fitted on board.

Mitigation & Sentence

11.D1 to D3 are all mainland residents and each has a clear record in Hong Kong.

12.D1 is now 17.  He was 16 at the time of the offences.  He received education up to Primary 4 and used to be a fisherman together with his father.  Mr. TONG submitted that D1 has not received his reward.  Everyone has arrived at Hong Kong safely in the 1^st journey.  Regarding Charge 2, D1 was merely waiting on V1, the voyage back to the mainland had not yet commenced.  He was cooperative and made frank admissions.  The contents of the 4 mitigation letters are noted.

13.D2 is now 31.  Prior to his arrest, he worked as a construction worker in Zhuhai earning RMB2,000 per month.  Mr. TANG adopted D1's mitigation and added that D2's mother is suffering from lung cancer and cataract.  He needed money to pay for her medical expenses.  D2 was also cooperative and made full and frank admissions.  The contents of D2's mitigation letter are noted.

14.D3 is now 29.  He and D2 came from the same hometown to work as construction workers in Zhuhai, but they are not related.  Mr. WONG submitted that D3 is separated with his wife.  He has 2 sons (aged 5 and 3) living with his mother in Guizhou.  D3 needs to send money home to support them.  He was cooperative and made frank admissions right after his arrest. 

15.In respect of sentencing principles and guidelines, the Court of Appeal's decision in HKSAR v WONG Chi Kin and KO King Hung CACC 357 & 410/2004 is of direct relevance.  Woo V-P reiterated all the previous guideline cases and held that the generally applicable tariff is 4 years imprisonment.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organization of the venture, the appropriate starting point is 5 years imprisonment[1].

16.In determining the roles played by D1 to D3, I bear in mind the comments made by the late Power V-P in The Queen v WONG Yin-lung [1995] 1 HKCLR 151 :

"Normally in charges of this kind the particulars of the offence refer to all those operating the vessel, including the person in charge of the vessel, as crew members. It is only rarely, and then in the case of substantial vessels, that one of them is referred to in the particulars as the captain." (p.153, lines 8 to 10)

His Lordship then elaborated on the applicability of the 5-year and 4-year starting point :

"The five year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of a vessel. If the persons employed on a vessel are charged with being 'members of the crew' but the facts reveal that one is the person in charge, that being admitted, the five year starting point is appropriate for him as are the accretions if applicable. The starting point will apply also to crew members and others who have taken an active part in the organization of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of aggravation. Defendants not infrequently suggest to the court that they are not crew members but are on board only for the purpose of collecting money for the real snake head. Again for such persons five years is the appropriate starting point.

Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organization of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or person in charge. (See The Queen v. Chan Kwok-keung & another[1988] 1 HKLR 279). (p.153, lines 17 to 30)

17I note that the size of V1 and V2 are small. For vessels like V1 and V2 and based on the evidence before me, it would be artificial and arbitrary to determine who the captain or person-in-charge was. Although D2 and D3 were obviously more in command than D1 was throughout the course of the events, for the purpose of sentencing, I will treat them all as crew members.

18On this basis, for each defendant and for each charge, I adopt a starting point of 4 years imprisonment. One-third discount is given for the guilty pleas, reducing the sentence for each charge to 32 months. For D1, I will give a small credit for his young age by further reducing his sentence for each charge by 2 months. For D2 and D3, who have both played a more leading role, I see no other mitigating factors which warrant any further reduction. Thus, for each charge, D1 is sentenced to 2.5 years imprisonment, whereas D2 and D3, 2 years and 8 months.

19.In respect of totality, Charges 1 and 2 clearly involve 2 separate and distinct journeys and 2 different groups of unauthorized entrants. In principle, the sentences for both charges should run consecutive to each other. However, since the journey in Charge 2 has barely commenced, I consider it fair that only a small portion of the sentence for Charge 2 should be served consecutive to Charge 1.

20.Hence, for each defendant, I order 6 months in Charge 2 to run consecutive to Charge 1. In other words, the total prison term for D1 is 3 years, whereas D2 and D3, 3 years and 2 months.