HKSAR v. ZENG CHAOJUN

DCCC1439/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1439 OF 2009

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Reasons for Sentence

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Charge

1.  The defendant was convicted on his own plea of assisting the passage to Hong Kong of a conveyance which carried unauthorised entrants. Such offence was contrary to section 37D(1)(a) of the Immigration Ordinance, Chapter 115.

Facts

2.  The facts of this case can be summarised as follows. At 6 o’clock in the morning on 14 November 2009, Sergeant 46772 of Police Barge 2 spotted a suspicious vessel at about 0.2 nautical mile off Sha Kiu moving at about 8 knots heading towards Fu Tian of mainland. Police Vessel 102 was vectored to intercept the said vessel which immediately changed course, heading back to Sha Kiu, Hong Kong. Police officers were deployed to ambush at the Sha Kiu coast.

3.  When the suspicious vessel was near the shore, four unauthorised entrants and the defendant jumped overboard and fled ashore, but they were all intercepted by the police. Upon inquiries, it was revealed that the defendant was the coxswain. The defendant was thus arrested and cautioned. Under caution, the defendant admitted steering the vessel and to take the other four people back to Shenzhen for a reward of $1,000. He claimed that halfway through the voyage, he decided to back out and turned the vessel round but was arrested. He said he took up this job for more money since his parents were old and his elder brother took drugs.

4.  The defendant further admitted that on 12 November 2009, a man call Ah Keung asked him to steer a vessel to Hong Kong to take people back to mainland for a reward of about 1,000 yuan. The defendant agreed to the deal.

5.  On 14 November 2009, Ah Keung led the defendant to the vessel and asked him to do the job. Eventually the defendant steered the vessel and arrived at an unknown place in Hong Kong with shallow water. He saw one male and three females walked to his vessel and came on board. As he became afraid, he turned round to convey the people back to the shore, but then he was arrested.

6.  The defendant claimed that this was the second occasion he came to Hong Kong and was the first time he ever assisted Ah Keung in steering a vessel. He did not know if those passengers had travel documents with them. He knew there were no life jacket, no food and no key but only 5 to 6 litres of diesel on board.

Mitigation

7.  The defendant, aged 26, came from China. He was single and lived with his parents. He used to be an electrician earning 1,500 yuan per month. Unfortunately, he had lost his job in November last year. He claimed that he committed such offence out of monetary pressure and financial difficulties. He said he needed to shoulder the financial responsibilities of his family and to take care of his parents. He had not committed any offence in the past. He was co-operative with the Hong Kong Police upon arrest.

Authorities

8.  The Court of Appeal had in CACC357 of 2004 and CACC410/2004, HKSAR v Wong Chi Kin and HKSAR v Ko King Hung, confirmed that the general applicable tariff is a 4-year imprisonment for this type of offence. But 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 would be a 5-year imprisonment.

9.  It was undisputed that the four other arrested persons on board of the defendant’s sampan were unauthorised entrants. The defendant was the coxswain and the person in charge of the sampan. The appropriate starting point is therefore a 5-year imprisonment.

10.  The Court of Appeal had also indicated that should certain aggravating factors be present, 5 years’ starting point would have to be increased. Such factors include unseaworthiness of the vessel by reasons of poor maintenance or age, with the risk of endangering the passengers.

11.  The motorised sampan in question was duly inspected by the senior ship inspector and was found to be very poor and unseaworthy. The wooden hull planking, structural frames and subdivision bulkheads were found deteriorated and rot severely. Cracks, undesired holes and loosen seal compounds were observed on the bulkheads to diminish the degree of watertight integrity as well as buoyancy of the vessel. No bilge system was fitted onboard to pump out any accumulation water. The extreme low freeboard at no load condition rendered the vessel to be flooded easily at moderate sea condition. There was no fire-fighting appliance nor life-saving appliance equipped on board. There was no navigation light fitted onboard for night operation.

12.  Nevertheless, the defendant had chosen to take four passengers in his unseaworthy vessel and had obviously endangered the life of these people. As such, this court considers appropriate to increase the starting point by 3 months to a 63 months’ imprisonment. This court has taken into account of all the mitigating factors put forward by the defence counsel. Upon plea, the defendant is entitled to a one-third discount in sentence. However, there were no other mitigating features which could further reduce the sentence.

13.  Hence, the defendant has to serve a 42 months’ imprisonment.