HKSAR v. Zhang Jin also known as Chang Hsiao Wei

DCCC 765/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 765 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Assisting the passage to Hong Kong of unauthorized entrants" (Charge 1); a charge of "Endangering the safety of others at sea" (Charge 2); and a charge of "Failing to stop" (Charge 3).

Summary of Facts

2.About 5:45 am on 15 July 2014, police radar detected a sampan ("the Sampan") sailing from Nan Ao, Shenzhen.  It entered Hong Kong waters and headed towards Tuen Tsui.

3.About 6:00 am, 3 police vessels arrived at the scene and located the Sampan[1].  Officers on Police Launch No.6 directed the Sampan to stop by way of International Code Signal "L" with sound and flashing lights.  But it did not stop and fled towards mainland waters.

4.The Sampan sailed in a zigzag manner.  It accelerated and decelerated intermittently in order to avoid interception by the Police.  It also bumped against the port side of Police Launch No.20 several times.  During the pursuit, some passengers on the Sampan lost their balance and fell on the boat.

5.About 6:10 am, the Sampanwas intercepted.  The defendant was found to be the coxswain.  A total of 6 Chinese male illegal immigrants from the mainland were also found on board; their age ranged from 24 to 40.

6.Under caution, the defendant admitted that that he was instructed by his boss to use the Sampan to bring 6 males to go pick sea snails.  He did not comply with the police request to stop because he was afraid that he would be beaten up by policemen if he was intercepted.  He claimed that he did not know he had entered Hong Kong waters.

7.Inspection of the Sampan revealed several major defects.  The main hull structure was in poor condition (with a big crack on the front of the starboard side).  There was no fire-fighting appliance or life jackets on board.  No navigation lights for night-time operation.  The Ship Inspector concluded that the Sampan was unseaworthy.

Mitigation & Sentence

8.The defendant is now 30 and single.  He has 1 conviction record (dated May 2007) involving 2 offences, which are similar to Charges 1 and 3 (he was sentenced to a total of 5 years' imprisonment).

9.Defence lawyer Mr. IU informed me that the defendant is a mainlander from Guizhou Province.  He received only primary education.  He went to Shenzhen to be a casual worker several months prior to the present offences.  In mitigation, Mr. IU submitted that the defendant fully cooperated with the Police after arrest and made frank admissions.  Mr. IU further submitted that no passengers on the Sampan or police officers were injured in the incident.  The purpose of the defendant's trip was to bring people to pick sea snails.  He failed to stop the Sampan owing to a mistaken belief that he would be beaten up by policemen if he was caught.

Charge 1

10.In respect of sentencing principles and guidelines, the Court of Appeal's decisions in HKSAR v WONG Chi Kin CACC 357/2004[2], HKSAR v YEUNG Lap CACC 385/2007 and HKSAR v TSE Chi Hei [2010] 5 HKLRD 708 are relevant.

11.Yeung JA (as he then was) in TSE Chi Hei held that the usual starting point for a charge of "Assisting the passage to Hong Kong of unauthorized entrants" is 4 years' imprisonment.  If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the starting point should be one of 5 years.  Where there are other aggravating factors such as hiding the illegal immigrants in places where it would be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and the lack of life-saving apparatus, risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further.

12.The present case clearly carries a number of aggravating features, namely the cracked hull of the Sampan; lack of fire-fighting and life-saving apparatus; and the defendant's operating the Sampan in a dangerous manner.  Furthermore, Charge 1 is the defendant's 2^nd conviction of a similar offence.  He did not learn his lesson and needs to be deterred.

13.I adopt a starting point of 5.5 years' imprisonment to reflect the seriousness this offence.  A one-third discount is given for the guilty plea, reducing the sentence to 44 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 1 is therefore 44 months' imprisonment.

Charge 2

14.I have considered a number of cases[3] in relation to the sentencing of this charge.

15.I find the facts in the present case comparable to those in The Queen v CHAN Siu Yun CAAR 9/1995, which involves a motorized sampan carrying illegal immigrants in Hong Kong waters and a high speed chase at sea by police vessels.  The late Power Ag. CJ commented at paragraph 14 of the judgment "The respondent put at risk not only himself and his passenger but the police officers who were chasing him and any other persons operating vessels in the vicinity on that night.  It was conduct demanding a sentence of some severity. Persons in charge of vessels in circumstances such as this must be given an indication that such conduct will not be tolerated."  At the end of the day, the Court of Appeal granted the review application of the Attorney General and increased the sentence (after trial) from 18 months to 2.5 years.

16.I accept that in the present case, no one was injured as a result of the defendant's dangerous steering.  The Sampan, however, collided with a police vessel several times; and some passengers on the Sampan lost their balance and fell on the boat.  The defendant has clearly put the safety of his passengers (albeit illegal immigrants) and the police officers in the vicinity at high risk.

17.The appropriate starting point for this charge is 2 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 16 months.  The sentence for Charge 2 is therefore 16 months' imprisonment.

Charge 3

18.The maximum penalty for this offence is a fine of $5,000 and 6 months' imprisonment.   Again, Charge 3 is the defendant's 2^nd conviction of a similar offence.  I adopt of starting of 4.5 months' imprisonment for this offence.  A one-third discount is given for the guilty plea, reducing the sentence to 3 months.  The sentence for Charge 3 is therefore 3 months' imprisonment.

19.Charges 2 and 3 arose from the defendant's attempt to escape.  Their sentences should run concurrently.

20.Had the defendant complied with the police request forthwith to stop the Sampan, Charges 2 and 3 could have been avoided.  In other words, the sentence for Charge 1 should in principle run consecutive to Charges 2 and 3, subject to totality.

21.Having considered the overall criminality of the defendant in this case and the totality principle, I order the sentences to run in the following manner :-

(i) Charges 2 and 3, concurrent; and

(ii) 8 months in Charge 2 consecutive to Charge 1;

Thus, arriving at a total prison term of 52 months[4].