HKSAR v. YAU CHUNG KIN

DCCC1250/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1250 OF 2008

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Reasons for Sentence

1.  The Defendant pleads guilty to one count of assisting the passage to Hong Kong of a conveyance which carried authorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115.

2.  A motorised sampan with the Defendant and three female mainlanders on board was intercepted by the Marine police at about 0620 hours in the morning of 10 December 2008.  By that time, the motorised sampan was driven towards the north of Sha Chau.  After being intercepted, the Defendant and the three mainlanders failed to produce any proof of identity or valid travel documents.  Upon question, the Defendant admitted that he assisted the three mainlanders to come to Hong Kong at a reward of $2,000 Chinese Renminbi, though he later denied that in the subsequent video interview.

3.  According to the three female mainlanders, they intended to sneak to Hong Kong for employment.  Through the arrangement of middle person, they boarded the sampan which was steered by the Defendant in the early hours of 10 December 2008.  They all pointed out that the Defendant was the coxswain who conveyed them into Hong Kong waters.

4.  The motorised sampan was inspected by a ship inspector who noted the following during inspection: 

(l)  the main hull structure was found in poor condition;

(2)  there was no fire-fighting appliances equipped on board;

(3)  there was no lifesaving appliances equipped on board;

(4)  there was no navigation light fitted on board for night operation.

5.  The ship inspector therefore found that the sampan was unseaworthy. 

6.  The three female mainlanders were later confirmed to be unauthorised entrants. 

7.  The Defendant is aged 41.  He has a clear record in Hong Kong. He worked as a fisherman in the Mainland.  He was divorced for 10 years.  He had to take care of two children aged 13 and 12 respectively.  They were now taken care of by his mother.  He is the main breadwinner of the family. 

8.  According to the Defendant’s solicitor, the Defendant is remorseful for the present offence.  He was not the mastermind of the crime and the sampan was provided by his boss.  Further, the unauthorised entrants involved in the present case were not exceptionally young or pregnant. 

9.  According to the established authorities as set out in pages 611 and 613 of Cross and Cheung, Sentencing in Hong Kong, fifth edition, a starting point of 5 years is appropriate for an accused who was in charge or a captain of a vessel carrying unlawful entrants.  I adopt the same starting point.

10.  Despite the submission of the Defendant’s solicitor, I do not find that any of the matters raised by him amounts to valid mitigation factor which justifies a reduction in the sentence.  Further, although the ship inspector concluded that the motorised sampan was unseaworthy, the condition of the vessel was not so poor as to justify a higher starting point. 

11.  Giving the Defendant one-third discount for his plea of guilty, the sentence is now reduced to one of 40 months’ imprisonment, and this is the sentence I impose in the present case.