HKSAR v. XIE RUJIAN

DCCC 746/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 746 OF 2013

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Reasons for Sentence

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1.  The defendant is charged for :-

(i) Attempting to land in Hong Kong without permission, contrary to section 38(1)(a) of the Immigration Ordinance, Cap.115, section 159G of the Crimes Ordinance, Cap.200 and section 89 of the Criminal Procedure Ordinance, Cap.221.

(ii) Endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.  The defendant pleaded to the charges and admitted the facts, he is convicted accordingly. 

The Facts

3.  At about 2:24a.m. on 11 June 2013, the defendant, a Mainland resident, used an unlit motorized sampan to convey 4 Pakistani males to Hong Kong.  The defendant was aware of the illegal status of his passengers.  Near southeast of “B” Beacon Pole, the Police intercepted him.  The defendant was arrested for the offences charged, under caution, the defendant admitted the offences.

4.  In a subsequent video-recorded interview, the defendant stated that on 10 June 2013, he was offered ¥2,000 to convey persons to Hong Kong by vessel, and at around 2:00a.m. on 11 June he picked up the 4 Pakistani males at Shenzhen Bay by wooden sampan, and was intercepted by police about half an hour later.  He knew that there were no life jackets or navigation lights on board, he did not hold any licence for navigating vessels but he knew how to navigate vessels because he was an employed fisherman.  He did not possess any valid documents for entering Hong Kong.

5.  The 4 Pakistani males on board the sampan were all confirmed to be illegal immigrants and were handed over to the Immigration Department on 12 June 2013 for repatriation.

6.  The main hull structure and watertight integrity of the sampan were found in poor condition, there were no fire-fighting appliances equipped on board, there were only two life jackets on board, no navigation light was fitted on board for night navigation, and no buoyancy chambers constructed on board, so that it was unseaworthy.

Mitigation

7.  The defendant aged 39, a Mainland resident.  He lives with his aged parents and elder brother, and he used to be a fisherman and qualified to navigate vessels.  The defendant has two previous convictions in Hong Kong, and was last released on 12 January 2012, since his last remand in jail, he has got rid of drugs.

8.  There were two life jackets found on board, but the defendant told the Police during interview that there was no life jacket, as to whether he was aware of the existence of the life jackets, the defendant told me he just forgot the matter during the interview, I gave the benefit of doubt to the defendant on this matter.

9.  It is submitted on his behalf that he pleaded guilty at the earliest opportunity, and he made no attempt to escape at the material time, all illegal immigrants were adult, no one were injured, the weather was clam, though the sampan was unseaworthy it was not depleted as shown in the photos.  He is unemployed and the aged parents are depending on him, he is yet to receive the ¥2,000 offered to him.  The defence urged the court to make the sentence of both charges to run concurrently.

Sentencing

10.  Charge 1 carries a maximum sentence of 3 years’ imprisonment and Charge 2 a maximum sentence of 4 years’ imprisonment.  The defendant was first convicted for illegal remaining in August 1991 and sentenced for 12 months when he was 18 years old; he was convicted again in November 2009 for assisting the passage to/within Hong Kong of unauthorized entrants contrary to section 37D(1)(a) of Cap.115 and sentenced for 44 months.  These are similar offences, the section 37D concerned with illegal immigrant with Chinese and Vietnamese nationality and attracts a much higher sentence.

11.  The prosecution and the defence referred to a number of authority related to charge one (HKSAR v TSE Chi Hei CACC 393/2009; The Queen v SO Man King & Others HCMA 408/1988; AG v NG Kin Hung & Others [1991] 1 HKLR 81), the prosecution submitted that starting point of 27 months has been approved by the Court of Appeal, while the defence submitted that all depend on the circumstances and urged the court to consider a starting point between 15 months to 27 months.

12.  Illegal remaining is taken serious in Hong Kong, for those who convicted upon plea for illegal remaining would be facing a sentence of 15 months imprisonment, in the present case the defendant aided and abetted 4 illegal immigrants to attempt to land in Hong Kong without permission, and this is the second time he committed a similar offence I consider the appropriate starting point for charge 1 would be one of 27 months.  I give full credit for his plea and reduce the term to 18 months’ imprisonment.

13.  For charge 2 both parties refer me to Tang Zhuyan CACC 223/2010, in that case the Court of Appeal in considering the endangering the safety of others at sea, referring to the particular of the charge faced by the appellant, being, the vessel was not seaworthy, it carried no fire-fighting appliances and navigation lights and it carried insufficient life saving appliance; stated that in the absence of aggravating features of danger, either deliberately caused by the coxswain of the escaping sampan or as a consequence of the state of the sea, the overloading of the vessel and its condition, regarded the starting point of 18 months’ imprisonment adopted by the judge below as manifestly excessive and substituted it with a starting point of 12 months’ imprisonment.     I consider the facts of the present case is similar to that of Tang Zhuyan, and adopt 12 months’ imprisonment as the starting point, again I give full credit for his plea and reduce the term to 8 months’ imprisonment. 

14.  I do not consider there to be any mitigating factor that call for further deduction.  The defence urged me to consider a concurrent sentence.  However, although the two charges are part and partial of the same incident, they are of different nature; after considering the totality principle, I order 4 months of charge 2 to run consecutively to that of charge 1 making a total of 22 months’ imprisonment.

Order

15.  Charge 1 – sentencedto 18 months’ imprisonment.

16.  Charge 2 – sentencedto 8 months’ imprisonment, 4 months of which to run consecutively to charge 1, making a total of 22 months’ imprisonment.