HKSAR v. LIN WENJIE

DCCC 1070/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1070 OF 2013

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Reasons for Sentence

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1. The defendant in this case, Mr Lin Wenjie, pleaded guilty before me to two charges:

(1) Charge 1, assisting the passage to Hong Kong of unauthorised entrants; and

(2) Charge 2, endangering the safety of others at sea.

Both offences took place on the 11th day of October 2013.

2. The defendant was the coxswain of a motorised sampan which entered Hong Kong and travelling at a speed of 10 nautical miles.  The motorised sampan was spotted by the Hong Kong Police and the marine police intercepted the motorised sampan when it entered Hong Kong from Sha Kui near Deep Bay.

3. As said, the defendant was the coxswain of the sampan and he was sitting at the rear of the sampan next to the engine when the sampan was intercepted.  There were another eight people on board the sampan.  They were arrested on the sea.

4. Upon his arrest and under caution, the defendant claimed he did not know it was against the law.

5. The eight other persons found on board the vessel were all Vietnamese passport holders.  They all claimed they paid to sneak into Hong Kong from Shenzhen. 

6. A cautioned video recorded interview was conducted on the defendant later on the same day. 

7. Under caution, the defendant admitted that his friend Wong Keung-fai brought him to Shenzhen to work from his hometown Jieyang in the morning of 10 October 2013.  Wong brought him to Shekou at about 6 pm.  At about 9 pm Wong brought eight people to meet him.  Wong told him to bring those people to a place with “red light”. Wong provided him with Exhibit 1 (ie, the motorised sampan).  The defendant would be rewarded with $500 upon returning to Shekou.  He then shipped the eight people on board to “red light” and he was intercepted by the police.  Wong only asked the defendant to bring them to a place with three red lights, which should be a lighthouse.  The defendant spent about two hours on the sea.  He did not have a visa to enter Hong Kong. 

8. A ship inspector of the Marine Department conducted an inspection on the sampan on 30 October 2013.  The motorised sampan was considered to be unseaworthy based on the following observations:

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

(b) there was no fire-fighting appliances equipped (fire extinguishers should be provided for oil or engine fire);

(c) there was no life jacket on board (one life jacket should be provided to each person on board);

(d) there was no navigation lights fitted for night operation.

9. The defendant has a clear record in Hong Kong.  He is now aged 33 and was born in Mainland China. He has received education up to Primary 3 level in China.  He worked as a farmer and lived with his wife, his daughter and two sons in his native place.

10. Mr Chan, in his written mitigation, set out the family background of the defendant.  He submits that the defendant committed the offence because the defendant’s house in China was torn down by a typhoon in September.  As the defendant needed money, he was tempted by his friend Wong Keung-fai to go into the present offence. 

11. Mr Chan submits that at the time of the offence the sea was calm, the wind was mild and visibility was good.  The defendant maintained a steady speed and he did not try to escape before the interception.

12. Mr Chan draws my attention to a number of authorities:  HKSAR v Zhong Ming Jing, HKSAR v Tang Zhuyan, HKSAR v Wong Chi Kin and HKSAR v Yeung Wui. 

13. He submits that the appropriate starting point for sentence after trial for Charge 1, where the accused is the captain or the person in charge of the vessel, is 5 years’ imprisonment and the aggravating factors include factors like “the vessel concerned was unseaworthy by reason of poor maintenance or age with risk of endangering passengers”.  He argues that the vessel in question was not unseaworthy in the sense described in Wong Chi Kin or Lo Shui Lun, where the vessel was described as a “floating coffin” or “leaky tub”.

14. Together with the written mitigation, Mr Chan submits a written mitigating letter written by the defendant.

15. In sentencing the defendant, I have borne in mind the facts of this case and all the matters urged on the defendant’s behalf by Mr Chan today.

16. As the authorities referred to by Mr Chan point out, the person in charge of a vessel in which unauthorised entrants are carried should receive a sentence of 5 years’ imprisonment after trial.  The starting point should be increased if there was evidence of concealment of the unauthorised entrants or if the vessel was unseaworthy.

17. I am aware that there is no evidence of concealment of the unauthorised entrants in the present case, but the motorised vessel, upon examination by ship inspector, was found to be unseaworthy.

18. I appreciate the motorised vessel is not unseaworthy in the sense that it was a “floating coffin” or a “leaky tub”, as envisaged by the Court of Appeal in Wong Chi Kin or Lo Shui Lun, but nevertheless, upon examination by ship inspector, the motorised sampan was considered to be unseaworthy for the following reasons:

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

(b) there was no fire-fighting appliances equipped;

(c) there was no lifejacket on board; and

(d) there was no navigation lights fitted for night operation.

19. I am more concerned with the findings by the ship inspector that the main house structure of the sampan was found to be in poor condition and there was no lifejacket on board the sampan.

20. I am less concerned with the lack of fire-fighting appliances and navigation lights.

21. As the Court of Appeal in R v Lo Shui Lun observed,

“This kind of smuggling of human cargo inherently involves some danger to life, which is already taken into account by the five-year starting point.”

22. The Court of Appeal there considered that the absence of navigation lights and fire-fighting equipment were matters which the 5-year starting point accommodated, given the circumstances which usually surround the commission of this offence.

23. But the problem with the hull structure and the problem with lifejacket are matters which I can properly take into account and consider as aggravating features.

24. On Charge 1, a 5½-year starting point is appropriate, in my judgment.

25. The defendant is entitled to one-third reduction for his guilty plea and clear record, and that would bring the starting point down to 44 months’ imprisonment.

26. Apart from the guilty plea and clear record of the defendant, there is no other mitigating factor.

27. For the reasons given, on Charge 1, I sentence the defendant to 44 months’ imprisonment.

28. On Charge 2, as pointed out by Mr Chan in his written mitigation, at the time of the offence, the sea was calm, the wind was mild and visibility was good.  The defendant maintained a steady speed at 10 knots after he entered Hong Kong waters and there was no dangerous manoeuvre by the defendant.

29. The major complaint of Charge 2 stemmed from the unseaworthiness of the motorised vessel.

30. On the facts before me, a starting point of 12 months’ imprisonment is appropriate and I shall allow the defendant one-third reduction because of his guilty plea and clear record and that brings the sentence down to 8 months’ imprisonment.

31. A total sentence of 44 months’ imprisonment should sufficiently reflect the overall criminality of Charge 1 and Charge 2.

32. Bearing totality in mind, I order the sentences for Charge 1 and 2 to run concurrently with each other.