HKSAR v. He Youquan

DCCC 1127/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1127 OF 2013

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 55 years), appeared before me this morning and pleaded guilty to one charge of “Being the captain of a ship with persons on board seeking to land unlawfully in Hong Kong”, contrary to section 39 of the Immigration Ordinance, Cap 115 (Charge 1) and also another charge of “Endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313.

2.The particulars of Charge 1 allege that on 13 October 2013 the defendant, being the captain of a motorised sampan, had on board the said sampan nine persons seeking to land from the said sampan in contravention of section 38(1)(a) of the Immigration Ordinance, Cap 115.  The nine persons as named in the first charge were all from Pakistan, India and Somalia respectively.  All of them had no valid travel documents and they had not obtained permission to enter Hong Kong.

3.The particulars of offence of Charge 3 aver that, as the coxswain of the motorised sampan, the defendant had navigated the sampan from the Mainland, from Dongguan, into Tai O, Hong Kong, when (a) the sampan was not suitable for navigation, namely, with no fire-fighting appliance and navigation light on board, and (b) made sudden and dangerous manoeuvres of the sampan to evade interception by the Police Launch 33 and thereby endangering not only the nine persons on board of his own motorised sampan but also the police officers on board Police Launch 33.

The facts

4.The amended summary of facts, which were accepted by the defendant, stated that being the coxswain of the motorised sampan, he sought to escape when approached by a marine police vessel PV33 at about 11 pm on 13 October 2013 at the waters of Hong Kong.

5.At that time, the police had switched on the spotlight and the blue flashlight, indicating the sampan to stop.  The police had also shouted and the sampan and requested it to stop.  However, the sampan ignored all the warnings.  Instead, it accelerated and made sharp turns so that PV33 had to decelerate to avoid a collision.  The ensuing chase lasted until 11.25 pm, when the police managed to intercept the sampan.

6.At that point, the police found that the defendant was the captain of the sampan, whereas there were nine other males on board of the sampan.  All of them were wet and amongst them only the defendant and the two other males wore a life jacket.

7.The defendant was arrested and cautioned, under which he said that a “bald head” gave him HK$3,000 for him to convey the nine males to a ship in Tai O.

8.In a subsequent video recorded interview, he repeated what he said under caution at the scene and he further added that the “bald head” had brought the black-skinned males to the sampan and asked him to convey them from Dongguan in the Mainland to Tai O.  Furthermore, there were no compass and navigation lights on the sampan and only a few life jackets were available.  He had navigated for three hours before he was finally intercepted by the police within Hong Kong waters.

9.The sampan in question was later examined by the Marine Department and was found to be seaworthy, but not suitable for navigation because there are no fire-fighting appliances and no navigation light.

The criminal record and the background of the defendant

10.The defendant is a Mainlander and is a fisherman by occupation.  He is 55 years old and he had no criminal record, both in Hong Kong and in the Mainland.  He is married but had separated with his wife.  They have two children, a son and a daughter.  The children are married and were living apart.

Mitigation

11.Mr James Li, the solicitor representing the defendant, had asked the court to pass a lenient sentence in light of the facts and circumstances of the case.  He stressed the fact that the defendant has no criminal record, both in Hong Kong and in China and also he had pleaded guilty at the very first opportunity and made full and frank confessions to the police.

12.In particular, Mr Li properly pointed out that there were no women pregnant or otherwise small children on board of the sampan and there was no evidence that the nine persons on board were unable to swim.  The nine persons were also not hidden in any concealed compartments which may compromise escape in the event of an accident.

13.Mr Li urged the court to consider passing a concurrent sentence of both charges, as he submitted that the two charges were arising out of the same event or, alternatively, taking into account the totality principle, to at least consider passing a partially consecutive sentence in respect of both charges.

14.In the course of his mitigation, he had helpfully referred the court to two case authorities. 

15.The first one is HKSAR v Li Chih Hui (黎志輝), CACC 189/2008.  The defendant was the coxswain of a boat with three unauthorised Vietnamese entrants.  The boat was not equipped for sea navigation and the Court of Appeal that the starting point for sentence was 5 years.

16.The second case he had referred to is HKSAR v Tse Chi Hei (謝自喜), CACC 393/2009.  There, the defendant was also the coxswain of a fishing boat with 12 unauthorised persons.  The boat was in a poor condition, without lifesaving equipment and apparatus.  The Court of Appeal held that 6 years is the proper starting point for sentencing.

Sentencing considerations

17.In sentencing, I took into account the nature of the offence, the circumstances of the events, the defendant’s personal background, his clear criminal record, his plea of guilty and also the authorities that were in relation to the charges.

18.I note that in relation to Charge 1, this is the first time the prosecution had seen fit to charge a captain of a motorised sampan under section 39 of the Immigration Ordinance, the reason being that as the persons on board of the sampan this time were people from South Asia and from Africa, they are therefore not caught within the definition of “illegal entrants” under section 37 of the same ordinance.

19.Under section 37C or D of the Immigration Ordinance, the prescribed maximum imprisonment is one of 14 years.  However, under section 39 of the same ordinance, the maximum sentence and the prescribed imprisonment is one of 7 years.

20.Previously, in relation to persons on board a motorised vehicle, when they were not “illegal entrants”, the prosecution had charged the person in charge of the vessel under section 38 of the Immigration Ordinance for “Attempting to land in Hong Kong without permission”, whereas in that particular section, the maximum sentence is only one of 3 years. 

21.In the past, the court had on numerous occasions expressed concern over the fact that defendants, when carrying different categories of people, were treated differently, albeit that their criminality is generally the same. 

22.The discrepancy of the treatment and, as a result, the sentences in relation to the defendants in these two categories are, to a large extent, now remedied by the prosecution’s decision to choose instead to charge the present defendant under section 39 of the same ordinance.

23.This is because, in the past, the Court of Appeal had numerous authorities to say that an appropriate starting point for an accused who was in charge of a vessel carrying “unlawful entrants” is 5 years under 37C or 37D of the Immigration Ordinance.

24.Although, as I have observed, under section 37 and under section 39, there is still a difference between the prescribed maximum imprisonment term, one of 14 and one of 7 years, I judge that the criminality involved in these two sections, being emphasised on the role of the defendant as the person in charge of the vessel, are in fact exactly the same.

25.I therefore come to the conclusion that I see there is no logic or reason why I shall not follow the Court of Appeal’s usual sentencing guideline or practice insofar as section 37 is concerned when I come to deal with a similar section 39 offence.

26.I have also considered another case which is of value and it is HKSAR v Tang Zhuyan [2011] 1 HKLRD 447 where the Court of Appeal said:-

“16. As this court noted in HKSAR v Wong Chi Kin, the appropriate starting point for sentence after trial for an offence under section 37D(1) of the Immigration Ordinance, where the accused is the captain or the person in charge of the vessel, is 5 years’ imprisonment. The court went on give a non-definitive list of aggravating factors relevant to sentence. Those factors included the fact that, ‘the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering passengers’.

17. In R v Lo Shui Lun, CACC 109/1995, in a judgment delivered by Bokhary JA, this court said that regard was to be had in sentencing to the aggravating factor of ‘unseaworthiness’ where the vessel was to be described as a ‘floating coffin’ or a ‘leaky tub’. Further, danger to human life was inherent in the smuggling of human cargo. The court went on to say that the absence of fire-fighting equipment and navigation lights was, ‘of relatively little significance’. Although the absence of lifesaving equipment was said to ‘stand differently’, nevertheless it was described as bringing only, ‘some slight increase in the hazard over and above the sort inherent to this kind of activity’.

18. In HKSAR v Zhong Ming Jing, CACC 180/2010, a differently constituted division of this court, noting that public expectations of safety at sea had moved on, expressed disagreement with those observations in respect of fire-fighting and lifesaving equipment and said that henceforth those were matters that should be regarded as factors of aggravation.”

27.In relation to the “Endangering the safety at sea” charge, the Court of Appeal had said in paragraph 22 of the judgment that:-

“22. It is to be noted that many of the judgments of this court, in which the issue of the appropriate sentence for the subject “offence” “of Charge 2 is raised, involve aggravating factors in the commission of the offence absent in the current case. Often, in the attempts to escape the respective defendants deliberately steer their sampans dangerously, significantly increasing the risks to the occupants of both the sampans and the pursuing police vessels. Sometimes, there were collisions between the vessels.”

28.The Court of Appeal, after reviewing the facts of that particular case, came to the conclusion that, given that there is absence of “aggravating features of danger” because there was no collision, the District Judge’s decision to use 18 months’ imprisonment as a starting point is “manifestly excessive”.  The Court of Appeal considered that the appropriate starting point for sentence would, therefore, be 12 months’ imprisonment.

29.Coming back to this case, in Charge 1, I accept that the usual starting point in this case should be one of 5 years, but because of the Court of Appeal’s decision in Zhong Ming Jing (supra), as there was no fire-fighting and lifesaving equipment on board of the vessel in the present case, those are factors of aggravation and, because of that, I will add another 3 months to the 5 years’ starting point.

30.For Charge 1, therefore, the appropriate starting point is 63 months.

31.In relation to Charge 3, although there was no evidence of a collision in this case, but there are some additional factors which are present which are aggravating factors in that when the police vessel approached the sampan, the sampan suddenly turned the direction, it accelerated and made sharp turns so that the police vessel had to decelerate to avoid a collision.

32.Thus, unlike the decision in Tang Zhuyan (supra), I judge that there are some aggravating features in this case and, for these reasons, the appropriate starting point should be one of 15 months’ imprisonment.

33.Affording the defendant the discount of one-third from the starting point, the appropriate sentences are:-

(1) for Charge 1, 42 months’ imprisonment; and

(2) for Charge 3, 10 months’ imprisonment.

34.I order that 2 months of the sentence of Charge 3 to serve consecutively to the sentence of Charge 1, making the total sentences of the two charges 3 years and 8 months.