HKSAR v. Li Sheng and Others

DCCC949/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 949 OF 2011

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Reasons for Sentence

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1.D1, you have pleaded guilty to two offences of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115, and to one offence of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.D2, D3 and D4, you have pleaded guilty to a joint offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210, and to a single offence each of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115.

3.Briefly the facts were as follows.

4.At about 5.52 am on 21 June last, Marine Police on board a vessel saw a motorized sampan sail to Lo Kei Wan, Lantau, at high speed at about 25 nautical miles per hour, pick up three persons and then sail southeast. They gave chase, sounding the siren and ordering it to stop, but it speeded up. 

5.After a short pursuit, they intercepted it and found D1 steering with D2, D3 and D4 on board.  The latter three were carrying Mainland identity cards.  D3, you had in your possession a rucksack weighing about 2.5 kilograms.  They also found a nylon bag containing three saws on board.

6.Under caution, you, D1, denied knowing D2 to D4.  You said you were employed by one Ah Kwan to take them from Wailingding Dao to Hong Kong the day before to work.  You received a total of $300 for that.   That morning on 21 June, Ah Kwan called you again, asking you to take D2 to D4 back to Wailingding Dao for another $300. 

7.Under caution, you, D2, said you were employed by Ah Kwan.  At 6 am the previous day you were instructed by Ah Kwan to go to Hong Kong by boat where you were to cut wood from trees according to samples of wood given by Ah Kwan.  You, D2 to D4, went up the hill after landing.  After cutting wood, you, D4, phoned Ah Kwan who arranged for you, D1, to collect them.  You, D3 and D4, both confirmed this under caution.  You were each to receive $300. 

8.At the police station, you, D1 to D4, were interviewed.  You, D1, said that Ah Kwan told you to convey D2 to D4 to work at a rocky beach on Lantau at 11 am on 20 June.  They went ashore whilst you returned to Wailingding Dao.  D1 said he thought you were gathering snails.  At about 5 am on 21 June, Ah Kwan called him again and told him to collect them. 

9.The sampan belonged to Ah Kwan.  You sailed from Wailingding Dao to Lantau.  You picked up D2 to D4 and then you were arrested. The wood and the saws were taken on board by D2 to D4, who gave similar versions.

10.Subsequent tests showed the wood to be Aquilaria sinensis, which is Incense Tree, weighing 2.42 kilograms.  Dr Pang spoke of the damage done to the trees by cutting the wood illegally and the damage to the ecology.  

11.The sampan was examined by a ship inspector of the Marine Department, who opined that the vessel was unseaworthy: 

(a) the hull was in poor condition;

(b) there was no fire fighting appliance;

(c) there was no life saving appliance; and

(d) there was no navigation lighting.

12.Police statistics showed there was an uprising trend in this sort of case in the last fours years with 20 cases in 2008, namely 1 trunk and 28 kilograms of Aquilaria sinensis seized, 15 cases in 2009 (5 trunks and 1.959 kilograms of Aquilaria sinensis seized), 19 cases in 2010 (7 trunks and 14.265 kilograms of Aquilaria sinensis seized), and 30 cases in 2011 (124 trunks and 56.357 kilograms of Aquilaria sinensis seized).  Thus the police statistics showed a rising trend in the stealing of this wood.

13.Following from this, an application was made under the Organized and Serious Crimes Ordinance, Cap.455, pursuant to section 27(2), for enhancement of sentence.  This was based on the prevalence of thefts of this type, and the nature and extent of any harm or the direct or indirect costs to the community by recent occurrences  of the specified offence.  Mr Leung indicated that there is no opposition by D2, D3 or D4 to this application.  For my part, I was satisfied with this information and that an enhanced sentence should be imposed.

14.To assist me with the sentencing, Miss Go referred me to three sentencing authorities:  HKSAR v Tsui Kwong Ming, CACC247/2004, which deals with the offence of assisting the passage to Hong Kong of an unauthorized entrant; HKSAR v Wong Chi Kin, CACC357/2004, which was heard along with HKSAR v Ko King Hung, CACC410/2004; and HKSAR v Xie Jinbin, CACC195/2010, the latter case dealt with wood. 

15.Mr Leung entered mitigation on behalf of all four of you defendants. 

16.Dealing first of all with D1, he said you were charged with three offences and had pleaded guilty, you are 31 years of age, single and living with your aged and ailing father.  By occupation, you were a fisherman earning ¥700 Renminbi per month, and the sole breadwinner.  He told me you had been asked by one Ah Kwan to transport three persons to Hong Kong for $600, and you were unaware of the purpose of their coming.  He referred me to a letter that you have written wherein you express your remorse. 

17.D2, you have pleaded guilty to two charges.  You met Ah Kwan in the People’s Republic of China.  You were to receive $300 a day for two days’ work, cutting wood from hilltop on an island.  He claims you did not appreciate the nature of the wood, nor that you were coming to Hong Kong.  You have a clear record, 18 years of age, single, and reside with your mother and younger brother.  Your father passed away some time ago, and you are the sole breadwinner of the family.  You too had written to court expressing your remorse. 

18.D3, you have pleaded guilty to two offences.  You are married with two children, both young.  You are a farmer earning ¥800 Renminbi per month.  You did not appreciate the nature of the wood.  You were very cooperative from the time of your arrest, and letters were provided by yourself.

19.D4, you met Ah Kwan in China.  You were employed to cut wood from a hillside on an island.  You too had no idea of its value nor its nature.  You are 42 years of age, married with two sons and a mother.  You care for a younger brother who suffers from severe mental problems. In fact, your younger brother’s medical expenses have placed a great burden on the family.  You too produced letters and receipts.

20.In addition to the personalised mitigation, there was some common mitigation.  You were all poor, the money was to be used for ordinary living expenses, not luxuries, the amount of wood taken was small, and in your native village in the Mainland it is not illegal to cut wild trees. Again, in respect of D2, D3 and D4, there was no opposition to enhancement.

21.I turn now to the sentences. 

22.These are serious offences, there is no doubt about that.  In arriving at my sentence, I have taken into account the facts of the cases, the mitigation advanced including the letters that you have written, and the sentencing authorities produced to me.  You are all of clear record and appear to have been fully cooperative from the point of arrest. 

23.I deal now with D1.  There are two offences of assisting the passage to Hong Kong of a conveyance carrying unauthorized entrants, but in fact it seems to me to be one action.  What you did was you brought your passengers and then you took them away again.  In that case, I take as a starting point 4½ years’ imprisonment.  That is reduced to 3 years for your plea of guilty, that is 3 years concurrent on each of the two offences.  In respect of the unseaworthy craft, I take a starting point of 18 months, reduced to 1 year for your plea of guilty, but that will be served consecutively.  That is a total of 4 years’ imprisonment.

24.D2, D3 and D4, I intend to deal with all of you in exactly the same way.  I can see no grounds to differentiate.  Charge 4 is one for which there has been an application for enhancement.  I find the grounds made out in that and I find it necessary to enhance.  I therefore take as a starting point 3 years’ imprisonment, reduced to 2 for your plea of guilty, enhanced by 25 per cent to give 2½ years’ imprisonment each. 

25.In respect of Charges 5, 6 and 7, I take as a starting point 18 months, reduced to 12 months on each.  These will be served consecutively, so you will each go to prison for 3½ years. 

26.Finally, I thank Miss Go and Mr Leung for their assistance.