HKSAR v. TONG HON HING

DCCC71/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 71 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of assisting the passage to Hong Kong a conveyance which carried unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance.

2.  You have admitted that on 10 December 2009, in Hong Kong, at about 7.30 pm, you drove a motorised sampan carrying two Vietnamese unauthorised entrants into Hong Kong from China.  On that day the police officers on board police launches spotted your unlit motorised sampan in the waters of Sha Kiu, Deep Bay, Tuen Mun.  They switched on a flashlight, launched navigation signals and demanded you stop the sampan.  They then intercepted your sampan and found, lying inside the sampan, two Vietnamese females aged 22 and 25.  They had passports but no valid visas.

3.  As to the condition of the sampan, the main hull structure was found in a very poor condition, there was no fire fighting appliances equipment on board, there was no lifesaving appliances on board and no navigation lights for night operation.

4.  You admitted under caution in a video recorded interview that you had agreed to convey these two women from China to Hong Kong for a reward of RMB400.  You admitted that you were the coxswain of the sampan and did not know how to manoeuvre the vessel. 

5.  Mr Ting has mitigated on your behalf today.  I have taken into account what he has had to say.  You are 35 years of age and are of clear record.  You are divorced and have three children, two daughters and one son, living with your parents.  When you divorced your wife the agreement was that you maintain the three children.  You had worked as a farmer all your life, helping your parents, who live in a clay hut.  As the hut was seriously damaged and you needed money to repair it, you went to find work in Dongguan. However, shortly after finding work you were unemployed and owed a lot of money, and therefore took up this illegal work.   

6.  Your solicitor, Mr Ting, has referred to the case of HKSAR v Wong Chi Kin CACC357/2004 and HKSAR v Ko King Hung CACC410/2004.  He has asked me to distinguish between section 37D and 37C of the Immigration Ordinance.  He says that although you were the captain in charge of the vessel, he asked that I take a 4-year starting point as section 37D deals with conduct while 37C deals with members of the crew.  In my view, the authorities have clearly laid down the difference between crew members, that is distinguishing between the captain of the vessel, crew members and other people on board who may assist in the navigation. 

7.  In paragraph 12 of that judgment the general applicable tariff is 4 years’ imprisonment for section 37C, usually applicable to crew members.  And it goes on to say:

“Where the accused was the captain of the vessel or the person in charge, or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment.”

8.  You fall squarely within the bracket that you were the captain of the vessel or the person in charge of the vessel.  In paragraph 12 the court considered aggravating factors for increasing the sentence from the 5-year starting point in respect of the person in charge of the vessel. 

9.  In this case I do consider there has been an aggravating factor that the vessel concerned was unseaworthy in view of the main hull structure which was found in a very poor condition, as well as, of course, the risk of endangering passengers because it had no fire-fighting appliance or lifesaving equipment, or navigation lights fitted onboard.

10.  In those circumstances I would increase the starting point by 3 months.  In those circumstances the starting point for this offence is 63 months’ imprisonment.  You have pleaded guilty, and I gave you full credit for your plea of guilty.  That term should be reduced to one of 42 months’ imprisonment, and therefore the total term to which you are sentenced is one of 3 years and 6 months’ imprisonment.