HKSAR v. Wu Yue-jun and Another

DCCC 469/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 469 OF 2013

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Reasons for Sentence

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1.Defendants, each of you have pleaded guilty to a joint offence of attempting to land in Hong Kong without permission, contrary to section 38(1)(a) of the Immigration Ordinance, Cap.115, section 159G of the Crimes Ordinance, Cap.200, and section 89 of the Criminal Procedure Ordinance, Cap.221. You have also pleaded guilty to one offence, which is a joint offence, of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.You admitted the brief facts and I convicted you

3.The facts were as follows.

4.At about 9 pm on 7 March of this year the marine police saw a suspicious sampan entering Hong Kong waters and heading towards San Shek Wan near Hong Kong International Airport at about 9 knots.  The police chased it, declared their police identity and indicated for it to stop.  The sampan ignored the police and fled towards the direction of the mainland at about 20 knots.  You, D1, were identified as the coxswain.

5.During the pursuit, the sampan made sharp turns and changed its speed suddenly for a number of times so that Police Launch 29 had to decelerate to avoid a collision.  At about 9.25 pm on the same day the sampan made a sharp left turn again and accelerated sharply.  Police Launch 29 tried in vain to avoid the sampan.  The sampan finally crashed into the right front of the police launch.  Sea water went into the sampan and all the people on the sampan fell into the sea.

6.The police then rescued all five people including both of you and the three Pakistani males from the sea.  That is Charge 1.

7.Upon inquiry, you, D1, stated that D2 bought the sampan with you for the purpose of conveying people to Hong Kong.  You, D1, were arrested and cautioned and under caution you remained silent.

8.D2, you stated under inquiry that you bought the sampan with D1 for 5,000 renminbi to convey people.  At about 6 pm on 7 March of this year you and D1 picked up three South-Asian males in the mainland with the sampan and conveyed them to Hong Kong.  D1 was the coxswain.  D2, you were arrested and cautioned and under caution you remained silent.

9.Both of you and the three Pakistani males had no valid travel documents.

10.In a subsequent video recorded interview, D1, you admitted inter alia the following under caution, that you:

(1) were the coxswain of the sampan;

(2) you had paid 5,000 renminbi to buy the sampan;

(3) D2 paid the remaining 5,000 renminbi for the sampan;

(4) at 5 pm on 7 March a friend called you and asked you to convey three people to Hong Kong;

(5) therefore, at 6 pm on the same day you picked up three Pakistani males who had been arrested by the police and conveyed them to Hong Kong;

(6) the sampan had no navigation light or compass;

(7) you had received no training in navigation;

(8) you fled when the police launch chased after you; and

(9) the sampan was not registered.

11.D2, in a subsequent video recorded interview, under caution you admitted the following:

(1) you owned the sampan with D1;

(2) D1 was the coxswain;

(3) at the material time, D1 told you that someone requested you to convey three Pakistani males to Hong Kong; and

(4) you acted as lookout for D1.

12.The sampan was later examined by the Marine Department and was found to be unseaworthy.  The main hull structure was found to be in poor condition.  There were no fire fighting appliances, life saving appliances and navigation lights.  There was also damage to the vehicle which was a result of the accident.

13.At the material time the wind speed was about 9 kilometres per hour and the visibility about 16 kilometres.

14.Each of you are of clear record in Hong Kong. 

15.Prior to Mr Lo entering mitigation on your behalf, Miss Chan put before me two sentencing authorities: HKSAR v Tse Chi Hei, CACC 393/2009.  That related, as I understand it, to the first offence and was authority for a starting point being approved of some 27 months’ imprisonment in similar circumstances where persons were being conveyed.  The second authority was that of HKSAR v Tang Zhuyan, CACC 223/2010, and that was in respect of the second matter.

16.Mr Lo then entered mitigation on your behalves. First of all, dealing with you, D1, he told me that you are 40 years of age, married, with a son of 12, and you have a mother of 76.  You are the sole breadwinner of the family, earning as a fisherman approximately 2,500 renminbi per month.  D2, you are 28, also a fisherman, earning 4,000 renminbi per month. You have to care for your parents and your brother.  He told me that in respect of you, D2, some 10 years or so ago you injured your hand permanently whilst rescuing someone from the water; that neither of you have been able to convey to your family your whereabouts and positions so they must be extremely worried about you. 

17.Both of you have pleaded guilty and are of clear record.  You were genuinely remorseful for the act that endangered the lives of the police officers by fleeing; the offence was committed in the hope of earning quick money.  In respect to that offence, Mr Lo said the boat itself was not entirely dilapidated, there was no one that was extremely elderly nor someone very young involved.  There was also no question of confining people into hiding spaces which were confined.

18.He referred me to three sentencing authorities, perhaps the most relevant being HKSAR v Tseung Yim Kwan, CACC 531/2005.  As I understand it, the Court of Appeal approved of a starting point of 18 months for a similar offence to Charge 1.  However, this did seem to simply involve the applicant himself.  That was not related to the aiding and abetting the entry of others.

19.I turn now to the sentence.

20.These are of course crimes of some seriousness. Both of you I do note are of clear record, both of you have pleaded guilty, and both of you were entirely co-operative with the police upon arrest. 

21.In respect of the second charge, I intend to hold you both jointly responsible and sentence you in the same way even though D1 was the coxswain.  The attempt to flee and the manoeuvres used could have resulted in a tragedy, both for the entrants and for the police.  Both of you and your passengers finished up in the sea and had to be rescued.  It is of some mitigation that the three Pakistanis were not confined in a space where they would have found it difficult to escape from.  I do note that you are men who have family responsibilities. 

22.In short, I have taken into account all the facts and all the mitigation advanced. 

23.Charge 1 is slightly aggravated by the presence of the three extra people.  I therefore take as a starting point 2 years’ imprisonment reduced to 16 months.

24.Charge 2, taking into account all matters, I take a starting point of 12 months reduced to 8 months.

25.These will be served consecutively, making a total of 24 months’ imprisonment.