HKSAR v. LIU JINLUO

DCCC 1016/2017

[2018] HKDC 869

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1016 OF 2017

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REASONS FOR SENTENCE

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1.  In this case, defendant has pleaded guilty to a charge of assisting the passage to Hong Kong of an unauthorised entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115 and a charge of endangering the safety of others at sea, contrary to section 32 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 and was so convicted.

2.  According to the agreed Summary of Facts, in the afternoon of 10 August 2017, the fishing vessel C140130 (vessel) was sailing east to west towards the Shau Kei Wan Typhoon Shelter.

3.  When intercepted by the police, defendant was found to be the coxswain, while Zhang Ziqing and another Hong Kong male Leung were found inside the wheelhouse.  Zhang was an unauthorised entrant from Mainland China. 

4.  Both defendant and Zhang had only Mainland China identity cards and did not have any valid immigration documents or crew permits on them. 

5.  Defendant and Zhang were arrested.  Under caution, defendant said he came to Hong Kong to buy supplies as the vessel was out of fuel. Defendant had three mobile phones and cash of HK$2,616 and  RMB¥639 on him.

6.  The vessel compartments were empty and on board, there were some vessel’s equipment, a GPS device, a radio, two life buoys, eight life-jackets, two oil tanks with no meters installed, one fire pump and two fire buckets with lanyards.

7.  The vessel belonged to a Mr Lam who said that the defendant rented from him in Shenzhen for fishing purpose at HK$5,000 a month.

8.  Marine Department confirmed that the vessel was not suitable for operation as there was no fire fighting equipment on board as fire extinguishers should be provided for oil or engine fire.

9.  In a video-recorded interview, defendant said the following:-

(a) He was the coxswain of the rented vessel; that the same was used for fishing within international waters;

(b) He did not have a coxswain licence even in Mainland China but he knew how to steer the vessel and he has been a fisherman;

(c) He picked up Zhang from Shanwei in the early hours the day before and Leung from Wailingding Island, Zhuhai in the afternoon. After resting some time on the island, three of them planned to sail to Dangan Island in the afternoon the next day, ie 10 August 2017. He then realised he had only half tank of fuel, ie 600 litres, left;

(d) He therefore headed for Yau Tong, Hong Kong to fuel and food. One round trip from Shanwei would require 500 litres of fuel, but he thought that fuel was cheaper in Hong Kong than in Mainland China and therefore he decided to enter Hong Kong to refuel;

(e) There were eight life jackets on the vessel but there were no fire extinguishers, and defendant was aware of it. Defendant said he forgot to buy them;

(f) The vessel was not registered in the Mainland, and there was no crew registration book on board;

(g) None of the three had applied to Immigration Department or Marine Department for entry into Hong Kong; and

(h) Defendant used GPS device on board to identify their location.

10.  Defendant admitted that at the material times, he had assisted in the passage to Hong Kong of an unauthorised entrant, namely, Zhang, and he, without reasonable excuse, endangered or caused to be endangered the safety of both Zhang and Leung, in that being the coxswain of the vessel, he navigated the vessel which was not suitable for operation as there was no fire-fighting appliances equipped on board.

Criminal record

11.  Defendant had 10 previous criminal records in Hong Kong, two of which related to importing and exporting unmanifested cargo and/or dutiable commodity without a licence and two previous convictions relating to underway without a certificated coxswain.

Mitigation

12.  It was said on his behalf that he was born in Mainland and is now aged 41. 

13.  He resides in China with wife and two children and that he had received education up to Primary 6 level.

14.  His last discharge from a Hong Kong prison dated back to 18 January 2012, i.e. five and a half years ago before the commission of the present offence. 

15.  Mr Lee, counsel for the defendant, originally mitigated on his behalf that he came to Hong Kong to refuel, that mitigation was later withdrawn.  In any event, defendant said that he had inadvertently brought Zhang into Hong Kong. 

16.  Mr Lee said according to defendant, both Zhang and Leung were his friends and the three of them used the boat for transferring cargo between the Lema Islands (擔桿島) and Hui Dong (惠東).  He said on the day in question, they were about to fetch fishing equipment from Hui Dong as the fishing moratorium is about to end.  They then decided to go to Hong Kong to get cheaper fuel and were later intercepted by police once they were in Hong Kong waters.  In any event, defendant carelessly forgot that Zhang and himself had no travel documents allowing them to enter Hong Kong.

17.  Mr Lee submitted letters written by defendant and his wife.  They asked for a lenient sentence of this court and said that defendant is the sole breadwinner of the family and that he has to support also his retarded elder brother and elderly mother.  Defendant said that he is deeply remorseful as to what he had done and asked for leniency so that he would start afresh on release from prison.

Discussion

1st Charge

18.  Section 37D(1)(a) of the Immigration Ordinance, Cap 115 reads:-

“Arranging passage to Hong Kong of unauthorised entrants. Subject to subsection (2), any person who, on his behalf or on behalf of any other person, whether or not such person is in Hong Kong, arranges or assists the passage to, or within, Hong Kong of a person who is, or of a conveyance which carries, an unauthorised entrant, commits an offence and is liable on conviction on indictment to a fine of $5 million and to imprisonment of 14 years.”

19.  In this case, the defendant was the coxswain of the vessel which brought Zhang into Hong Kong waters. 

20.  The offence was committed in broad daylight.

21.  The defendant is no stranger to our criminal justice system.  He had previous convictions for importing and exporting unmanifested cargo and dutiable goods.  Our case does not concern import and export of goods but it concerns bringing in unauthorised entrant.

22.  It is also noted that the vessel was not registered in Mainland and there was no crew registration book on board of the vessel.  The defendant did not have a coxswain licence in Mainland.  This court had reservation as to whether defendant was, as he said, most of the time a fisherman.

23.  In the case of HKSAR v Wong Chi Kin , CACC 357/2004, Woo VP said in the judgment that:-

“10. It can therefore be seen that whenever there is an unauthorised entrant on board a vessel in Hong Kong waters, the person in charge of the vessel or a crew member who assisted in the passage will be liable to prosecution under either of the two sections. There is no difference in the penalty. The cases laying down the sentencing guidelines do not make any difference either. The emphasis in the earlier section seems to be on the position of the accused in the vessel whereas the later section lays emphasis on his conduct.”

“11.A number of authorities on sentence has been referred to by both Mr Haynes and Mr David Leung, for the respondent. We will summarise the effect of these authorities, irrespective of whether the accused was convicted of the offence under one or the other of the statutory provisions. All the authorities are decisions of this Court and the sentences are those applicable where an accused is found guilty after trial.”

“12.The generally applicable tariff is 4 years’ imprisonment: R v Ho Siu Lun & Others [1987] HKLR 1086, R v Chan Kwok Keung & Another [1988] 1 HKLR 279, R v Lam Kon Man Crim App No. 329/1990. 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: R v Wong Yin Lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A...”

And later on in the judgment, he also set out a list of aggravating factors which increases the sentence from 5 years’ starting point.

24.  This applicable tariff was applied subsequently in the case of HKSAR v Yeung Wui & Others, CACC 415/2004.(see paragraphs 26 and 27 of the judgment.)

25.  In our case here, the defendant is the coxswain of the vessel.  I see no reason to depart from the tariff guideline and will adopt 5 years as being the sentencing starting point in this case.  In arriving at this starting point, this court has not taken into account the fact that there is an absence of fire-fighting equipment on the vessel which exposes the passengers on board of the vessel to danger while at sea.

26.  While I have considered all that was said on behalf of the defendant and the mitigation letters submitted, I find the only useful mitigating factor is defendant’s timely guilty plea, of which he is entitled to full one-third sentencing discount.  For the 1st charge, defendant is therefore sentenced to 40 months’ imprisonment.

2nd Charge

27.  Section 32 of the Merchant Shipping (Local Vessels) Ordinance reads:-

“Any person (wherever he may be) who by any unlawful act, or in any manner whatsoever without reasonable excuse, endangers or causes to be endangered the safety of any person conveyed in or being in or upon any local vessel or in the sea commits an offence and is liable on conviction on indictment to a fine of $200,000 and to imprisonment of 4 years.”

28.  The vessel in question was held to be unfit for operation for the fact that there was no fire-fighting appliances on board.  This court, however, noted that there was actually the presence of some buckets for fetching water which could possibly be used for fire-fighting.  Section 32 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 is actually identical in wordings to section 72, endangering the safety of others in the Shipping and Port Control Ordinance, Cap 313 of the Laws of Hong Kong.  On conviction on indictment of either of these offence, the penalty is the same, ie subject to a fine of $200,000 and to imprisonment for 4 years. 

29.  Chapter 548 is primarily concerned with the regulation and control of local vessels in Hong Kong or in the waters of Hong Kong and for other matters affecting local vessels, including the navigation and safety at sea, whether within or beyond the waters of Hong Kong whereas Chapter 313 is primarily concerned with the regulation and control of ports and vessels in Hong Kong or in the waters of Hong Kong, including the regulation and control of matters affecting vessels, navigation and the safety of vessels at sea again whether within or beyond the waters of Hong Kong.

30.  In the case of HKSAR v Wan Ruzhong, CACC128/2016 defendant was convicted of section 72 of the Shipping and Port Control Ordinance on his guilty plea together with the offence, contrary to section 39 of the Immigration Ordinance.  In that case, defendant was steering the sampan at the time when he was intercepted by police.  Police found seven illegal immigrants on the deck of the sampan, and there was no life-jacket, compass or navigation light on the sampan.  The sampan was found to be seaworthy but was not fit for operation by reason of the absence of those safety items.  Defendant was sentenced to 12 months’ imprisonment for the charge under that section 72.

31.  The Court of Appeal commented in paragraph 30 of the judgment that:-

“It seems to me that where these two offences are charged together and the particulars of the section 72 offence are aggravating factors for the Immigration Ordinance offence, the simplest way of reaching the appropriate totality is not to enhance the sentence for the section 39 offence but rather to simply punish the section 72 conduct appropriately, including the ordering of wholly or partially consecutive sentences, depending upon the seriousness of the defendant’s conduct. Such an approach has the attraction of simplicity and that it enables an assessment to be readily made as to whether the totality is just in the circumstances. However, more importantly, it prevents any misunderstanding arising, and the sense of grievance which inevitably flows from it, as to whether the defendant has been punished twice for the same conduct.”

32.  In the Wan Ruzhong case, the breach is more serious than the breach in our present case.  In that case, defendant was sentence to 12 months’ imprisonment, of which 2 months is to be served consecutively to the sentence in the 1st charge.  At the same time, the court has enhanced the starting point in sentencing of the 1st charge by 3 months because of the state of affairs in the 2nd charge. 

33.  In our case here, the breach concerns the mere absence of fire-fighting equipment.  After considering authorities HKSAR v Tang Zhuyan [2010] HKCU 2731, HKSAR v Ding Qijing CACC 75 of 2014, Yeung Wui case and the Wong Chi Kin case, this court considers a starting point of 3 months’ imprisonment appropriate for this charge.  Again because of his guilty plea, he is entitled to full one-third discount.  Accordingly, he is sentenced to 2 months’ imprisonment for this charge.

34.  Charge 1 and Charge 2 concern offences of entirely different nature, and therefore consecutive sentence should be imposed.  However, considering the totality principle, having regard to the defendant’s culpability in this case, in order to pass a sentence just and appropriate, taking the offences as a whole, I order that 1 month of the sentence for Charge 2 is to run concurrently to the sentence in Charge 1 and the other one sentence shall run consecutively to the sentencing in Charge 1.

35.  In total, the defendant is therefore sentenced to 41 months’ imprisonment.