HKSAR v. Chung Kwok Wai and Another

DCCC 1128/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1128 OF 2012

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Reasons for Sentence

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Charge and facts

1.D1 pleads guilty to conspiracy to arrange or assist passage within Hong Kong of 3 unauthorised entrants. 

2.At a late hour of 10 October 2012, Wong King-yee received an order to pick up 4 women in Kowloon by his LGV and drove them to the carpark of Trend Plaza in Tuen Mun accordingly. At an earlier hour of 11 October 2012, they reached the carpark.  A male paid him the fare.  D1 and D2 were in the carpark. 

3.D1 and the 4 women left the carpark and boarded a taxi, ND 9554, driven by Charm Wai-keung.  D1 asked him to drive them to Gate C of CLP Power Station at Lung Kwu Tan (“Power Station C”). There was a police road block ahead.  D1 made a phone call to D2 saying so. When the taxi stopped at the road block, the police made enquiries of the passengers.  Three of the women were found to be illegal immigrants.  After arrest and caution, D1 denied knowing or having assisted them. 

4.Investigation revealed that he had phone contacts with D2 for 7 times in the few hours between 10 and 11 October 2012. 

5.In the morning of 11 October 2012, the police patrolling near Power Station C saw D2 crouching on a grass patch.  D2 claimed to be hiking.  He had 3 mobile phones with him.  After police enquiries he was released. 

6.A few hours later, the police saw D2 walking along near Power Station C ahead of 7 people about 10 metres away.  Police enquiries of them revealed that the 7 people were illegal immigrants.  D2 denied knowing them.   

7.In a subsequent cautioned interview, D1 said D2 had offered him $500 to scout the route for police road block before the illegal immigrants were to be taken onto the boat for the Mainland.     

Personal background and mitigation

8.D1 is 38 years of age. He completed primary education in the Mainland.  His last job was as a marble worker.  He lives with his parents and daughter.  His wife is in the Mainland. He committed the present offence to pay for his father’s medical expenses.  He had 3 previous dissimilar records.      

Sentencing considerations

9.The maximum sentence is 14 years’ imprisonment.  There are no sentencing tariffs.  In HKSAR v. Chan Lai-choi CACC 166/1997, the defendant was sentenced from a starting point of 4 years on the basis that he had conveyed in his taxi 5 unlawful entrants upon their arrival in Hong Kong.  The sentence was based on a parity with passage at sea.  The Court of Appeal considered his role different and less culpable from a captain at sea, thereby reducing the starting point to 3 years.     

10.In HKSAR v. Yeung Kam Yuen (楊錦源) CACC 55/2010, the defendant drove his own taxi and coordinated 2 other taxis to convey unauthorized entrants.  The Court of Appeal reduced the starting point from 4 ½ years to 4 years. 

Sentencing this defendant

11.The role and the culpability of the defendant as a pawn are akin to Chan Lai-choi (above).  I take a starting point of 3 years.  One-third off for his plea of guilty, his sentence is 2 years in the absence of other mitigating factors.