HKSAR v. KHALID MANSOOR AND OTHERS

DCCC 1084/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1084 OF 2016

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged for one count of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.

2.  D2 pleaded guilty but disputed the facts that he was the central organizer of the offence.  The newton hearing of D2 was heard together with the trial of D1 and D3.  The prosecution has proved his case against all the defendants.  D1 and D3 were convicted after trial while D2 was found to be the leader of the three and in close communication with those who arranged voyage for the UEs to Hong Kong.

FACTS

3.  Some unknown people arranged a number of unauthorized entrant (UEs) sneaked into Hong Kong from Mainland by sea.  On 14 August 2016 at around 3 am, an object carried a number UEs entered the Hong Kong Waters and the UEs on board, including the three UEs mentioned in the charge, landed at Nim Wan.

4.  Later at about 7:55 am the three defendants hailed a taxi at Nai Wai, Tuen Mun and went to Nim Wan Landfill to pick up the three UNs at about 8:22 am, with a view to convey the three UEs to Nai Wai.  The three defendants and the three UEs were apprehended by Police before the taxi pull away.  The mobile phones of the defendants and the UEs were seized.

5.  D2 was in close communication with those arranged the voyage, he was not just concerned his brother Nawaz UE1 but also the other UEs travelling with Nawaz.  This illegal operation was carried by a syndicate to arrange and assist the passage of UEs to Hong Kong, to receive the UEs upon their arrival in Hong Kong and then assist their onwards movement within Hong Kong.  D2 was the leader at the scene.  This was a commercial transaction to the benefit of those involved.    

MITIGATION

D1

6.  The defendant aged 26, a Pakistani, an asylum seeker in Hong Kong.  He has a clear record and was educated up to primary school level in Pakistan.

D2

7.  The defendant aged 29, a Pakistani, an asylum seeker in Hong Kong.  His family is in Pakistan.  He has a clear record and was educated up to primary school level in Pakistan.

D3

8.  The defendant aged 26, a Pakistani, an asylum seeker in Hong Kong.  He has a clear record and was educated up to secondary school level in Pakistan. 

SENTENCE

9.  Section 37D(1) of the Immigration Ordinance Cap 115 provided that on conviction on indictment of an offence under this section one is liable to a fine of $5,000,000 and to imprisonment for 14 years.

10.  There is no sentencing tariff, but there is a parity recognized between passage at sea and on land.  A person in charge of a vessel assisting the passage faces a customary starting point of 5 years in the absence of aggravating features (R v Ng Kit Yuen [1992] 1 HKCLR 170; R v Wong Yin Lung [1995] 1 HKCLR 151, at 153; R v Pang Wing [1996] 1 HKC 624, at 626 and 627; HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v Yeung Wui CACC 415/2004).

11.  The Defence referred me to HKSAR v Chan Lai Choi CACC 166/1997 where the Court of Appeal reduced the starting point to one of 3 years for passage on land and this was adopted in subsequent cases (HKSAR v Chung Kwok Wai & Ors DCCC 1128/2012; HKSAR v Tam Man Biu [2017] CHKEC 920; HKSAR v Cheng Chi Yung & Ors CACC338/2003).

12.  In Chan Lai Choi the applicant was convicted after trial for conveying in his taxi 5 UEs upon their arrival in Hong Kong.  The trial judge adopted a starting point of 5 years and reduced it by 4 months for reason that it was less dangerous for the passengers, and deducted a further 8 months for his clear record.  The sentence was based on a parity with passage at sea.  The Court of Appeal considered the applicant’s role different and less culpable from a captain at sea, thereby reducing the starting point to 3 years.  And the Court stated that “Although not bound to do so, we will, so that no sense of grievance will be engendered in the applicant, follow the approach of the judge and give him credit for his clear record.  We do so by reducing the sentence of three years to one 2.5 years”. 

13.  The 3 defendants in the present case made use of Mr Leung’s taxi to convey 3 UEs upon their arrival in Hong Kong. The scale of operation was bigger than that in the case of Chan Lai Choi.  D2 was in close communication with those arranged the voyage for the UEs, he was to arrange the passage within Hong Kong once the UEs landed and arrived at the meeting point, he was the leader of the group of three at the scene, while the other two were acting according to D2’s instruction.  

14.  Mr McGowan representing D2 submitted that the main “evil” in the like offences have been exposure of the UEs to unseaworthy or overcrowded vessels, often without lifesaving equipment, nor dangerous navigation or driving.  Those referred by Mr McGowan are aggravating features, it should be noted that the customary starting point of 5 years for carriage by sea mentioned above is in the absence of aggravating features.  Although D2 was not the one in actual control of the vessel, he was in close communication with those arranged the voyage for the UEs and was part of the whole arrangement.  

15.  Mr Donald representing D1 submitted that the present case was akin to that of Chan Lai Choi.  Mr Cheung representing D3 submitted that D3 has played an absolutely minor and passive role during the course of the offence and urged me to consider a lower starting point than 3 years. 

16.  I consider in the case of D2 the appropriate starting point is one of 45 months’ imprisonment, while that for D1 and D3 to be one of 33 months’ imprisonment.

AGGRAVATING FEATURE

17.  Prosecution seeks to enhance the sentence because of the immigration status of the defendants.  Mr Polson referred me to the view of the Court of Appeal in HKSAR v Khan CACC 116/2016 that “it was a significant factor in aggravation of the offence that the applicant was a Form 8 recognizance holder and non-refoulment claimant at the time he trafficked in 238.57 grammes of cocaine.”

18.  The fact that a person committed an offence whilst awaiting the processing of his immigration claim would amount to aggravating factor.  In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 the sentence of a clear record defendant was enhanced by 3 months because of his refugee claimant status.  The Court of Appeal before up-holding the enhancement has analysed the reasoning in Sandagdorj Altankhuyag & another [2014] 1 HKC 206 and stated that:-

“Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.”

19.  While acknowledge D3 is a Form 8 holder, Mr Cheung submitted that the present offence did not have “any significant impact on Hong Kong’s reputation and referred me to another paragraph in the same case:-

“We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

20.  With respect I am not with Mr Cheung, it was my finding that D3 was a knowing and willing party to the joint enterprise that assist the passage of the 3 UEs within Hong Kong. This kind of crime does affect the community at large and have significant impact on Hong Kong’s reputation.

21.  Mr McGowan submitted that even if the status of the defendant amounted to an aggravated feature, as a matter of principle, any enhancement must be proportionate.  The defendants committed the offence whilst they were awaiting the processing of the respective immigration claim, I consider this amounts to an aggravating factor and enhanced their sentence by 2 months.  

ENHANCEMENT OF SENTENCE UNDER OSCO

22.  My attention was drawn to section 27(4) and 27(7) of the Ordinance by Mr Polson, that it is a condition precedent that the Court cannot make finding of organized crime until the Defence have been given an opportunity to be heard on the matter and though the notice of request for determination was made well before the trial, the Defence did not address on this point in their respective final submissions. As the Verdict and Reasons are not final until the Order is sealed and filed, Mr Polson suggested to re-open the matter and approach this with a fresh open mind.  The Defence raised no objection to the approach suggested by the Prosecution. 

23.  I accepted I have made a procedural error on this, and I shall re-open my determination on “organized crime” and re-determine the matter after considering the Defence’s submissions specifically on the point.

24.  Section 2 of the Ordinance provided that “organized crime” means a Schedule 1 offence that “(b) is related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization”.

25.  Offence under section 37D(1) of the Immigration Ordinance Cap 115 is an offence under Schedule 1 of the Ordinance Cap 455.  Section 37D(1) provided that:-

“Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong –

(a) Arranges or assists the passage to, or within, Hong Kong;

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Of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence…”

26.  Mr McGowan submitted that the basis of the Prosecution’s case does not allow an “organized crime” finding because D2 was only charged for passage within Hong Kong and the prosecution case alleged against D2’s management position also confined to activities committed within Hong Kong.  Yet it was the prosecution’s case that D2 was in close communication to those who arranged the voyage of UEs into Hong Kong and produced the WhatsApp messages to prove his case.

27.  Mr Polson referred to my findings at para 93 and replied that the parties are now binding by the finding of facts, and it is not necessary to make the subject of two charges (ie brought into Hong Kong and within Hong Kong), but to introduce evidence under one charge of the activities.  The section refers to the activities.  The law allows the laying of one offence which related to two or more persons engaging in two or more activities.  The determination requested by the Prosecution was covered by the court’s findings.

28.  It was my finding after trial that this illegal operation was carried by a syndicate to arrange and assist the passage of UEs to Hong Kong, to receive the UEs upon their arrival in Hong Kong and then assisted their onwards movement within Hong Kong.  It was a commercial transaction to the benefit of those involved. 

29.  As far as D2 concerned, he was the one in close communication with those arranged the UEs to sneak into Hong Kong by sea, he was to arrange the passage within Hong Kong once the UEs landed and arrived at the meeting point.  D2 was the one gave instructions to D1 and D3 and the two acted as instructed.  D1 and D3 were knowing and willing party to the joint enterprise of assisting passage within Hong Kong while D2 was playing a leading role in that group of three.  I am satisfied beyond reasonable doubt that the offence was an organized crime involved substantial planning and organization.  D2 was simply a member of this organized crime.

30.  Mr Donald submitted that there is no evidence, or sufficient evidence that, D1 was involved in the planning of the illegal entry of the unauthorized entrants into Hong Kong.  An enhancement of D1’s sentence on the ground of substantial planning and organization being involved would therefore result in grave injustice.  Mr Cheung also submitted that there is no evidence that D3 had assisted in any way whatsoever for the passage of UEs to Hong Kong.

31.  I agree with Mr Donald and Mr Cheung that in the present case, unlike the case of D2 who was in close communication with those assist the passage to Hong Kong and had full knowledge of the carriage by sea, there is no evidence that D1 and D3 had any knowledge or role in the voyage from Mainland into Hong Kong.  Thus I do not consider that the prosecution has proved the offence was an organized crime in the case of D1 and D3 and I refuse the prosecution’s application in regard to D1 and D3 accordingly.

32.  Section 27(11) of the Ordinance Cap 455 provided that where it is satisfied beyond reasonable doubt that the specified offence was an organized crime, the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.  But the sentence shall not exceed the maximum penalty permitted by law for the offence (Section 27(13)).

33.  In considering the extent of the enhancement in the case of D2, I bear in mind the view of the Court of Appeal on section 27(11) in Kong Wai Chun CACC 252/2009:-

“The provisions of s. 27(11) are specifically designed to add an additional layer of deterrence over and above that normally factored in to an appropriate sentence. In HKSAR v Wong Fung Ming CACC 515/2001 the consequences of this section were considered:-

We think the power given to a judge to add to the sentence he has otherwise considered to be appropriate, which will often already have incorporated an element for deterrence, can only have been intended to spell out to others who might otherwise commit the same type of offence in the future that to do so will entail a particularly severe penalty. Inevitably, it is a power which ought to be utilized sparingly.”

34.  Mr McGowan submitted that if the court is mind to enhanced the sentence under section 27(11), given the severe potential sentence in any event the enhancement should be 10% and no more than 20%.  After considering the whole circumstances of the case, the overall scale of the operation, I consider the basic starting point (45 months) of D2 should be enhanced by 15%.

35.  D1 and D3 were convicted after trial, however, in view of their clear record, I reduce their respective sentences by 3 months and they are sentenced to 32 months’ imprisonment (33 + 2  ̵  3 = 32).

36.  Mr McGowan submitted that D2 has always indicated his plea.  Despite his “defeat” in the Newton, given that the evidence heard (stand fast the WhatsApp, which were admitted by agreement) would have been called against the other two defendants, his discount should be at least 20%.  Taking into account the time spent on the Newton hearing and the clear record of D2, I allow 20 % discount for his plea.

37.  Mr McGowan further submitted that there is humanitarian consideration as UE1 was subject to political persecution and D2 was trying to help his brother, yet UE1 was not the only UE involved, there were two other UEs.  It was my finding that it was a commercial transaction to the benefit of those involved.  I do not consider that one of the UEs was D2’s brother amounts to a mitigating factor.  D2 is sentenced to 43 months’ imprisonment [(45 × 115% + 2) × 80% = 43].

ORDER

38.  D1 is sentenced to 32 months’ imprisonment.

39.  D2 is sentenced to 43 months’ imprisonment.

40.  D3 is sentenced to 32 months’ imprisonment.