HKSAR v. Pang Wanhong

DCCC 813/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 813 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of Assisting the passage to Hong Kong of unauthorized entrants, contrary to s.37D(1)(a) of the Immigration Ordinance, Cap.115 and one charge of Endangering the safety of others at sea, contrary to s.72 of the Shipping and Port Control Ordinance, Cap.313.

Facts

2.Marine Police spotted on radar a sampan at around 4:50am on 30^th July 2014 near Nan’ao (outside Hong Kong territory) heading towards Hong Kong. Police officers were alerted and 2 Police vessels were dispatched to the scene.

3.The sampan was sighted by officers on the Police vessels at around 5:45am at about 1 nautical mile off the east shore of Wang Chau, heading towards Wang Chau slowly.

4.The Police vessels signaled for the sampan to stop, but it suddenly turned around and accelerated towards the direction of mainland China. Police vessels gave chase. The defendant was seen at the stern of the sampan controlling the steering bar. 5 passengers sat in the middle of the sampan.

5.The sampan was intercepted about 5 minutes later at 2 nautical miles off the east shore of Wang Chau. Neither the defendant nor the 5 passengers were able to produce any identity or travel documents.

6.The defendant was arrested and said under caution that someone paid him to take the 5 passengers to Wang Chau to catch conches. The 5 passengers were also arrested and said under caution that they came from Nan’ao to catch conches.

7.The sampan was searched and 2 tanks of petroleum, a compass, 13 empty rucksacks, 3 small rucksacks, 3 walkie-talkies, an anchor with rope attached, some perishable food, cooking oil, a bottle of detergent, several pairs of laborer’s gloves and strings were found.

8.At a subsequent video recorded interview under caution, the defendant stated that his boss told him to bring people to Hong Kong to catch conches and that he will be paid RMB200 per day for that. The defendant did not apply for a work visa or travel documents in order to come to Hong Kong, nor did the passengers he took.

9.The defendant further stated that he arrived at a pier in Nan’ao at 5am on 30^th July 2014 and the sampan was already there with tank filled with petroleum. They left Nan’ao and entered Hong Kong territory several minutes later. The defendant was responsible for navigating the sampan and was the only person who navigated it on the day of his arrest. The defendant did note that there were no life-jackets on board and the sampan did not have navigation lights nor any safety equipment. The defendant did not hold the requisite licence for navigating the sampan.

10.The defendant and all 5 of the passengers were all refused permission to land in Hong Kong by the Immigration Department.

11.The sampan was inspected by a ship inspector of the Marine Department and was found that the main hull structure and watertight integrity were apparently in normal condition, but there were no fire fighting appliances nor lifejackets on board. There were also no navigation lights fitted. Although the sampan was seaworthy, it was unsuitable for navigation.

Previous convictions

12.The defendant is of previously clear record.

Mitigation

13.The defendant is 40 years old and a mainland citizen. He is married to his 32 year old wife. They have a 3 year old son who live with his mother in Hunan while the defendant himself lives in Shenzhen. The defendant has a clear record both in Hong Kong and mainland China.

14.The defendant is sole breadwinner of the family, working as a fisherman earning around RMB4,000 per month. Since the defendant has been taken into custody, his family has been in financial difficulty, borrowing money and relying on the charity of other family members and neighbours.

15.Mr. Wong for the defendant pointed out that the defendant was not the mastermind of the enterprise. He was asked by his boss or employer to carry those passengers and was just paid a modest sum of money to do the job.

16.In relation to charge 2, Mr. Wong told the court that according to the witness statement of the Police officers, the sea was calm at the material time and the weather was not bad. The boat itself was seaworthy, just not suitable to be navigated. No one was hurt or drowned in the incident. The chase lasted just a few minutes and not over a long distance when the defendant was intercepted shortly after he began fleeing. The manner of the defendant’s steering of the sampan was not furious, there was no collision with the Police vessel. The boat was not fit for navigation because of lack of navigation lights. The safety of the Police officers was never in jeopardy.

17.Mr. Wong relied on the case of HKSAR v Tang ZhuYan, CACC 223 of 2010 to suggest the appropriate starting points for the two charges.

18.There the Court of Appeal adopted starting point of 5 years’ imprisonment for charge 1, and a starting point of 12 months’ imprisonment for charge 2.

19.Mr. Wong pointed out that the defendant in our case has pleaded guilty and shown his remorse at a timely stage, with no time or resources wasted. Mr. Wong also asked the court to take into account the defendant’s family background and show leniency.

20.In relation to totality, Mr. Wong submitted that both offences arose from the same incident and so at least part of the sentences should run concurrently.

Sentence

Charge 1

21.The maximum sentence for a conviction on indictment of a s.37D(1)(a) assisting passage to Hong Kong offence is that of a fine of $5,000,000 and imprisonment for 14 years.

22.I find the defendant to be the person responsible for the navigation of the sampan as well as the person in charge of the sampan at the material time.

23.I accept HKSAR v Tang ZhuYan as persuasive authority on sentencing in our present case, given that there the applicant faced identical charges with similar facts.

24.I find that, as suggested in paragraph 16 of Tang ZhuYan, referring to the earlier case of HKSAR v Wong Chi Kin, CACC 357 of 2004, the appropriate starting point for sentence after trial for an offence under s.37D(1) of the Immigration Ordinance, where the accused is the captain or the person in charge of the vessel, is 5 years’ imprisonment.

25.Although the defendant did turn the sampan around to flee when told to stop, the facts state that the defendant just steered the sampan back towards the mainland China direction without making any dangerous maneuvers and the chase lasted only a few minutes. I find that none of the aggravating features identified by the Court in Wong Chi Kin at paragraph 12(a) to (e)[1] are present in our case.

26.In relation to the defendant’s family situation, I find that the fact that as a result of his likely imprisonment his wife and young son will have to live on the charity of others “not a basis upon which the court can reduce an otherwise appropriate sentence of imprisonment”.

27.In the case of Tang ZhuYan cited by Mr. Wong for the defendant at paragraph 14, the Court in turn cited HKSAR v Shum Chung Wai [2002] 2 HKLRD 81 where they stated that “family circumstances should be disregarded, particularly when sentences for serious offences are concerned…”

28.I will therefore adopt a starting point of 5 years’ imprisonment in relation to charge 1, granting the defendant the full one-third discount in recognition of his guilty plea and sentence him to 40 months’ imprisonment.

Charge 2

29.The maximum sentence for a conviction on indictment of a s.72 endangering safety of others offence is that of a fine of $200,000 and imprisonment for 4 years.

30.I find that the severity of the sentence should reflect the amount of danger that others had been exposed to because of the state of the vessel, and not the way that the vessel was being navigated. This is apparent from the particulars of the charge as stated on the charge sheet.

31.In our present case, the complaints against the vessel are the lack of fire-fighting equipment, lack of lifejackets and lack of navigation lights. The vessel is however found to be seaworthy, just that it would be unsuitable for navigation. The seriousness of the offence is at the lower end of the scale.

32.I will adopt a starting point of 12 months’ imprisonment, discounted to 8 months upon the defendant’s guilty plea.

Totality

33.On the application of the principle of totality, I would like to refer to the case of HKSAR v Ding QiJing, CACC 75 of 2014 where the Court of Appeal referred to their earlier decision in HKSAR v Sze Yu, CACC 143 of 2003:

“31. The judgment of the court in HKSAR v Sze Yu is not an authority for the proposition that where a charge of an offence contrary to section 72 of the Shipping and Port Control Ordinance is laid against a defendant, together with a charge of an offence contrary to section 37, 38 or 39 of the Ordinance, the court must order that the sentences of imprisonment imposed be served consecutively. Although in HKSAR v Sze Yu this court approved the judge’s order that those sentences be served consecutively, it is to be remembered that the facts of the case are an egregious example of conduct that endangers the safety of others at sea.”

34.In the case of Sze Yu, upon being intercepted by Police vessels, the sampan was “steered at high speed in a zigzag course, making sudden and violent changes in directions. One of the police launches had to change course several times to avoid a collision. The chase lasted about 15 minutes at which point the sampan’s engine caught fire and the sampan capsized. The waves at that time were at grade two to three. The 10 people on board fell into the sea. No life-saving equipment was seen. Police jumped into the sea to rescue the passengers, all of whom had some injuries and four officers received injuries as well. Some passengers were unconscious; three had swallowed sea water and was suffering from “respiratory insufficiency”. One passenger had a first degree burn to the right arm.”

35.In our present case, no such aggravating features are present. The defendant did turn around and sped away but was intecepted just a few minutes later. There is no evidence disclosed in the summary of facts that the sampan had been maneuvered in a reckless or dangerours manner during the short chase.

36.That being the case, and bearing in mind the sentence imposed on the applicant in the case of Tang ZhuYan, I order 2 months of charge 2 to be served consecutively to the sentence in charge 1, the balance to be served concurrently.

37.The total sentence for the 2 charges after plea is therefore 42 months’ imprisonment.