HKSAR v. LUO QIAN

DCCC 231/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 231 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges today, the first being assisting the passage to Hong Kong of unauthorised entrants, contrary to Section 37D(1)(a) of the Immigration Ordinance, Cap. 115, and the second charge being endangering the safety of others at sea, contrary to Section 72 of the Shipping and Port Control Ordinance, Cap. 313.

2.  The defendant admits he was the coxswain of a sampan and assisted the passage of seven unauthorised entrants into Hong Kong, those being seven Vietnamese adults.  He also agrees that the vessel he was in charge of was not seaworthy, hence Charge 2.

3.  The facts of this case are that on 11 January this year, in the early evening, the defendant’s vessel was spotted on the radar.  The marine police then sent two police vessels to investigate and, if necessary, intercept the vessel.

4.  Not long after, the defendant’s vessel was seen moving near Cheung Chau, without navigational lights.  At all times the defendant was seen driving this vessel.

5.  The first police vessel approached the defendant and the defendant changed directions to evade it.  The second vessel approached from a different direction and again the defendant tried to evade this vessel, but within minutes, the defendant’s vessel was successfully intercepted and stopped.

6.  What officers saw were three Vietnamese adults sitting near the defendant at the control console, whilst another four were discovered inside closed cabins of the sampan.  All seven admit entering Hong Kong in the defendant’s vessel without authority.  They boarded his vessel in the Mainland and headed for Hong Kong.

7.  The defendant and the seven Vietnamese adults were arrested.

8.  The defendant admitted to the police under caution that he had set off from China and had been promised RMB300 to drive this group from Dangan Island to Guishan.

9.  This boat was examined by a ship inspector, who determined it was unseaworthy.  He found the hull was in poor condition, there was no fire-fighting equipment on board, there were no lifejackets and there was no navigational light for night-time driving.  Two adults were, in fact, wearing lifejackets, but they were not deemed to be sufficient under the definition of a “life-saving appliance”.

10.  I have seen photographs of the vessel and I have heard no evidence that, although it was in poor condition and unseaworthy, it was about to sink imminently.

11.  The defendant’s plea today is his best mitigation.

12.  He is a young man of 23 years old, comes originally from Hunan.  In Hong Kong he has a clear record.  He was from a farming background in Hunan, but in September last year his father had an accident, which required hospitalisation.  In order to help with the medical bills, the defendant moved to Guangdong to look for work.  He worked as a transportation worker, but when he was offered this job to drive this vessel for $300 he took the job, hoping to earn extra money.  He committed this offence for financial reasons.

13.  There are guidelines that exist for these offences. 

14.  Where Charge 1 is concerned, I have referred myself to two authorities, in particular, HKSAR v Yeung Wui [2005] 1 HKC 646 and HKSAR v Wong Chi Kin, CACC 357/2004. 

15.  In that authority, a 5-year starting point was deemed appropriate for this offence, in particular, where the defendant was the coxswain. 

16.  The authority goes on to highlight if aggravating factors exist, this starting point should be increased.   The Court of Appeal in Wong Chi Kin set out examples of aggravating factors and the relevant ones to this case is where the vessel is unseaworthy due to age or poor maintenance, therefore creating a risk of endangering passengers.

17.  I take note of the defendant’s age, and youth was referred to in another authority, R v Wong Yin Long [1995] 1 HKCLR 151 and the Court of Appeal was of the view that discounts for youth would not be appropriate, as that would only encourage organisers to employ young men as crew or coxswain.

18.  From his plea to Charge 2, the defendant admits his vessel is unseaworthy by definition, so I cannot ignore this aggravating factor.  In fact, in HKSAR v Zhong Ming Jing, CACC 180/2010, the court made it clear that where there is no fire-fighting equipment and lifesaving equipment, these facts would be considered aggravating and serious.

19.  I will bear in mind, however, that the basis for Charge 2 is that the vessel was unseaworthy, so I will, when considering the totality of the sentence, consider this.  In my view, it would not be fair to punish the defendant twice for the same set of facts or the same particulars.

20.  I have had a letter from the defendant explaining why he committed these offences and asking for leniency.

21.  I have also heard all that can be said on behalf of the defendant by Miss Lai. 

22.  I will take into consideration for Charge 1 the authorities that I have just referred to as well as the mitigation I have heard and the facts of the case.

23.  I will take, as deemed appropriate by the Court of Appeal, a starting point of initially 5 years. 

24.  I will add, for what are aggravating factors, 6 months to this 5 years.

25.  That would be a total starting point for Charge 1 of 5 years and 6 months.

26.  For Charge 2, I take a starting point of 15 months, to reflect the state of the vessel and the lack of equipment that is normally required in case any accident or fire occurs.

27.  Defendant is entitled to a discount of one-third for his plea today.  After that discount, for Charge 1, the defendant is sentenced to 3 years and 8 months’ imprisonment.  For Charge 2, the defendant is sentenced to 10 months’ imprisonment.

28.  I will make both sentences concurrent to reflect the fact that I have taken into account the unseaworthiness of the vessel when I increased the starting point of Charge 1.

29.  Accordingly, the defendant is sentenced to 3 years and 8 months.

COURT: Do you understand that sentence?

DEFENDANT: Understood.