HKSAR v. WU HONGWEN AND ANOTHER

DCCC 161/2024

[2025] HKDC 161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2024

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to Charge 1:-

Assisting the passage to Hong Kong of 6 unauthorized entrants, contrary to s 37D(1)(a)  of the Immigration Ordinance Cap 115.

2.  D1 also pleaded guilty to Charges 2 and 3:-

Charge 2 - Endangering the safety of others at sea, contrary to s 72 of the Shipping and Port Control Ordinance, Cap 313.

Particulars of the offence :-

i. Steered the speed boat in a dangerous manner.

ii. Navigate the speed boat which was not suitable for operation , namely no firefighting appliances, no lifesaving appliances and no navigation fitted on board for night operation.

Charge 3 - Failing to stop, contrary to regulation 20(1)  and (3)  of the Shipping and Port Control Regulations, Cap 313A.

Summary of facts

3.  On 10 November 2023, after 9 minutes of pursuit, D1 as the coxswain of the speedboat was intercepted, while D2 was next to him, 6 other Pakistani / Bangladeshi males were also on board of the speedboat.

4.  During the chase, the Marine Police repeatedly use international stop signal “L” and flashing blue lights to indicate the speed boat to stop, but D1 ignored the signals and continued to flee.

5.  Both D1 and D2 were arrested.  Under caution, they both said that:-

(a)  D1 was a fisherman while D2 was a seaman.

(b)  They had known each other for a long time and were colleagues.

(c)  They were offered RMB$3,000 by a person called “Lao Gao” to convey several persons from ZhuHai to HZMB where someone would pick up those passengers.

(d)  D1 was the coxswain and D2 was responsible for navigation.

(e)  Both defendants did not know who owned the speed boat.

(f)  The trip lasted for about 2 hours before they were intercepted by the police.

6.  As to D1, he further said that:-

(a)  He did not check the fire extinguisher on the speed boat.

(b)  He knew there were lift jackets on the speed boat, but did not count how many of them.

(c)  He did not have any licence and barely knew how to steer a vessel.

Inspection of the speed

7.  The speed boat was found to be seaworthy, but not suitable for operation as there was no firefighting appliances, there were no lifesaving appliances equipped on board, there was no navigation light fitted on board for night operation.  The 9 buoyancy aids found on the speed boat did not comply with safety standard of the Marine Department.

8.  The hull of the speed boat was not marked with any identification number of certificate or ownership number.

Criminal record

9.  Both defendants have a clear record in Hong Kong.

Background

10.  D1 is 41 years old.  His wife left him in 2019.  The 2 sons, aged 7 and 9 respectively are now living with his mother who has severe bronchitis issue and consistently receiving medical treatment at the local hospital.

11.  D1 used to work as a fisherman for about 10 years and earned $4,000 per month.  However, his income dropped to $1,500 due to the impact of COVID-19 and that resulted in a serious financial hardship of his family.

12.  D2 is 38 years, single.  He was a fisherman before his arrest, earned about $1,500 per month.  His mother suffers from hypertension and had a bypass operation in her artery a few years back.  He used to take care of his mother.

13.  Both D1 and D2 committed the present offence was due to the offer of RMB3,000, they did not think seriously about the consequences as the trip to Hong Kong was about 2 hours.

14.  Now in their respective letters to the Court, they are both regretful for what they have done.

Sentence

15.  The maximum sentence for each charge:-

Charge 1 – maximum sentence on conviction on indictment to a fine of 5 million and to imprisonment for 14 years

Charge 2 – maximum sentence on conviction on indictment to a fine of $200,000 and to imprisonment for 4 years

Charge 3 – maximum sentence is liable to a fine at level 2 and to imprisonment for 6 months

16.  In the case of律政司司長 訴 周金娣[1], the court said that:

“一般而言，為了獲取金錢利益而利用船隻協助未獲授權進境者前來香港的旅程罪的量刑基準是4年監禁（見R v Ho Siu Lun and Ors [1987] HKLR 1086，香港特別行政區 訴王治乾CACC 357/2004等案）。如被告人是涉案船隻的掌舵人或有份參與非法入境香港的組織或安排，則量刑基準應為5年監禁（見R v Wong Yin Lung [1995] 1 HKCLR 151和R v Pang Wing [1996] 1 HKC 624等案）。若有其他加重罪責因素，例如將非法入境者藏在不容易逃生的地方、船隻破舊及沒有救生設備、令船上人士生命安全受威脅、或船上的非法入境者數目極大，量刑基準更可以提高。” (para 29)

17.  In the present case, D1 is a coxswain.  He did not have licence to operate the boat.  

18.  As to D2, he was a crew on the boat.  He was responsible for navigation.

19.  The defendants were promised $3,000 to do the job together.

20.  According to The Queen v Wong Yin Lung [1995] 1 HKCLR 151 that:-

“Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organization of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or person in charge.”

21.  There is no evidence to suggest that either D1 or D2 was part of scheme to organize and arrange the trip to bring the 6 illegal immigrate into Hong Kong. Nonetheless, they should have known the purpose was to bring the 6 illegal immigrants to Hong Kong to seek employment.

22.  However, $3,000 as a reward for both of them to work for 2 hours is clearly a lot of money to them as they both only earned $1,500 per month to support their families.

23.  They both took on the job without knowing the consequences if they were caught by the police in Hong Kong.

24.  As such, I take 5 years and 4 years as the starting point for D1 and D2 respectively. Given ¹/₃ discount, it comes down to 40 months and 32 months.

25.  As to Charge 2, when 2 Police vessels instructed D1 to stop by displaying flashing blue lights and by making the international code signal “L” to stop by sounding horns.  D1 simply ignored the signals and tried to avoid the Police vessels.  The pursuit took 9 minutes before it was stopped by the Police vessels.

26.  There were altogether 8 Policemen on board of the 2 vessels.  There was no evidence to suggest any collusion between the speed boat and the Police vessels, as such, there was no one being injured or any damage to the Police vessels.

27.  Most importantly, as said under caution by D1, he did not have licence and barely knew how to steer the speed boat. D1 increased the speed from 10 knots to 40 knots (the maximum horsepower of the speed boat )  , while the Police vessels increased to the speed of 50 knots. D1 should have known by then there was no chance of escape. However, that 9 minutes of pursuit had a potential risk that the speedboat might have capsized.

28.  Although the boat was examined and found to be seaworthy, but it was not suitable for operation as there was no firefighting appliances, no lifesaving appliances, no navigation light, no life jackets on board.  That means if anything happen during the journey or during the pursuit by the police, such as in the event that the speed boat was capsized, all of them did not have any lifejacket on them to save them from drowning in the high sea.  

29.  Against this background, I consider that a starting point of 12 months is appropriate, given ¹/₃ discount, it comes down to 8 months.

30.  Finally, I come to Charge 3, D1 failed to stop when the Marine Police flashed the blue light and by making the international code of “L” to demand the speed boat to stop, but D1 simply ignored all these signals with a view to get away from the Police pursuits and hopefully to avoid the arrest.

31.  I consider that a starting point of 9 weeks is appropriate, given the ¹/₃ discount, the sentence comes down to 6 weeks.

32.  The totality for all the 3 charges against D1:-

(a)  Charge 1 – 40 months

(b)  Charge 2 – 8 months

(c)  Charge 3 – 6 weeks

33.  I order Charge 2 and 3 to run concurrently, that arrives at a total of 8 months.  Out of which, 4 months is ordered to run consecutively to Charge 1.

34.  The total sentence that D1 is to serve is 44 months’ imprisonment.  (40 + 4 months)

35.  D2 is to serve a sentence of 32 months.