HKSAR v. DING QIJING

DCCC 1168/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1168 OF 2013

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REASONS FOR SENTENCE

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1. The defendant appeared before me this morning and pleaded guilty to one charge of “Being the captain of a ship with persons on board seeking to land unlawfully in Hong Kong”, contrary to section 39 of the Immigration Ordinance, Cap 115 (Charge 1) and also another charge of “Endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (Charge 3).

2. Charge 1 avers that on 7 November 2013, the defendant, being the captain of a motorised sampan, in Hong Kong had on board the said sampan seven persons seeking to land from the said sampan in contravention of section 38(1)(a) of the Immigration Ordinance, Cap 115.  The seven persons as named in the charge were all Pakistanis with no valid travel documents and they had not obtained permission to enter Hong Kong.

3. Charge 3 avers that the defendant, as the coxswain of the motorised sampan which was underway, without reasonable excuse, endangered or caused to be endangered the safety of other persons conveyed in the said sampan by navigating the said sampan which was unseaworthy in that:-

(i) the main hull structure was found in unacceptable condition due to remove the bottom buoyancy chamber;

(ii) there was no fire-fighting appliance equipped on board;

(iii) there was no life-jacket on board; and

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

The Facts

4. According to the Summary of Facts, at the time of the offence, the defendant, being the coxswain of the motorised sampan, was intercepted by two police vessels, PV 31 and PV 37 at about 0.7 nautical miles off Black Point, Tuen Mun.  While the sampan was underway, there was no illumination or navigation light. 

5. At the time of the interception, the defendant was seen controlling the sampan at the stern.  Seven males as named in Charge 1 were found on board of the sampan. 

6. Police inquiries revealed that the defendant had used the sampan to convey those seven males from Xi-xiang, Shenzhen to Hong Kong.  Under caution, defendant said that he conveyed the seven males to come to Hong Kong to play and that he had not received any money.

7. The sampan was later sent to Marine Department for examination, and according to the ship inspector’s opinion, it was confirmed that the main hull structure was found in an unacceptable condition due to the removal of the bottom buoyancy chamber and there was no fire-fighting appliance equipped on board; there was no life-jacket on board; there was no navigation light fitted on board for night operation.  All in all, the vessel was found to be not seaworthy.

The criminal record and the background of the defendant

8. The defendant is 38 years old.  He is a mainlander and is an odd-job worker.  He is married with two children.

9. His counsel, Mr Chain, told the court that the defendant, his wife and the daughter are found to be HIV‑positive.  The defendant is an AIDS disease carrier since 2007 and because of this, he was unable to find a stable job. 

10. In mitigation, Mr Chain reiterated the fact that the defendant had no record in Hong Kong and he had pleaded guilty in the first opportunity and had made full and frank confession to the police.  Mr Chain also properly pointed out that at the time of the offence, there were no children or old people found on board of the sampan.  All the seven males were grown-up males.  There was no attempt by the defendant to avoid the apprehension and interception by the police.  There was no dangerous manoeuvre on the part of the defendant when the police attempted to stop the defendant’s vessel.  Mr Chain asked the court to be as lenient as possible.

Sentencing consideration

11. In sentencing, I took into account the nature of the offence, the circumstances of the events, the defendant’s personal background, his clear criminal record, his plea of guilty and also the authorities by the Court of Appeal in relation to these charges. 

12. I have much sympathy for the predicament of the defendant, especially the fact that both he and his loved ones, including his wife and his daughter, have contracted AIDS but I am sure he will be properly taken care of by the prison authorities when he serves his time in Hong Kong.

13. The defence has not provided any reason why he had committed an offence like this but in any event, the court cannot accept any reason albeit economic to commit crimes in order to earn his living even though he was unable to gain a gainful employment because of his illness.

14. I note that in Charge 1, the prosecution has seen fit to charge the defendant as the captain of a motorised sampan, under section 39 of the Immigration Ordinance (“the ordinance”).  Section 37 of the ordinance is not applicable as the persons on board of the sampan were people from South Asia and as such, they are therefore not caught within the definition of “illegal entrants” under section 37.

15. Under section 37C or 37D of the ordinance, the prescribed maximum imprisonment is one of 14 years.  I note, however, under section 39 of the same ordinance, the maximum sentence is only one of 7 years.  Previously, in relation to persons on board a motorised vehicle, when they were not illegal entrants as defined in section 37, the prosecution had charged the person in charge of the vessel under section 38 of the ordinance for “Attempting to land in Hong Kong without permission”.  However, it is undesirable as in that particular section under section 38, the maximum sentence is only one of 3 years.

16. In the past, the court had on numerous occasions expressed concern over the fact that different defendants carrying different categories of people were treated differently under different sections of the ordinance albeit that the criminality are basically and generally the same.  The discrepancy of the treatment and as a result the sentences in relation to the defendant in these categories are to a large extent now remedied by the prosecution’s decision to choose instead to charge the defendant under section 39 of the ordinance.

17. It should be noted that in a number of authorities, the Court of Appeal had already decided that an appropriate starting point for an accused who was in charge of a vessel carrying unlawful entrants to Hong Kong is 5 years under section 37C or 37D of the ordinance.  Although as I have pointed out, under section 37 and under 39 there is still a difference between the prescribed maximum imprisonment term, one of 14 and one of 7 years, I judge that the criminality involved in these two sections, being emphasis on the role of the defendant as the person in charge of the vessel, are in fact exactly the same. In the end, I come to the conclusion that I see there is no logic or reason why I shall not follow the Court of Appeal’s usual sentencing guideline or practice insofar as section 37 offence is concerned when I come to deal with a similar section 39 offence.

18. In a more recent case by the Court of Appeal, HKSAR v Tang Zhuyan (唐珠炎) [2011] 1 HKLRD 447, the Court of Appeal has specifically referred to the case of HKSAR v Zhong Ming Jing (鐘明青) CACC 180/2010 and said that public expectation of safety at sea had moved on and expressed disagreement with it’s earlier observation in respect of fire-fighting and life-saving equipment and said that henceforth, those were matters that should be regarded as factors of aggravation. (see paragraph 18)

19. In relation to Charge 3, the Court of Appeal has also said in paragraph 22 of the judgment that after reviewing the facts of that particular case, it came to the conclusion that given that there is absence of aggravating features of danger because there was no collision, no attempt to escape or dangerous manoeuvre, the District judge’s decision to use 18 months’ imprisonment as a starting point is said to be manifestly excessive.  The Court of Appeal considered that in these circumstances, the appropriate starting point for sentence would therefore be 12 months’ imprisonment.

20. Coming back to this case, in Charge 1, as said, I accept that the usual starting point in this case should be one of 5 years.  Because of what the Court of Appeal has said in Zhong Ming Jing as just pointed out, I found that there were some aggravating features in that there was no fire-fighting and life-saving equipment on board of the vessel in the present case.  Because of that, I will add another 3 months to the 5-year starting point.  For Charge 1, therefore the appropriate starting point is 63 months. 

21. In relation to Charge 3, there was no attempt to accelerate or making a sharp turn by the defendant to avoid the police vessel when the police vessel attempted to intercept the sampan.  There was no collision.  Therefore, there were no additional aggravating factor in this charge.  I will therefore just follow what the Court of Appeal had done in the case of Tang Zhuyan and adopt a 12-month starting point.

22. Affording the defendant the discount of one-third from the starting point, which is the only and effective mitigating factor, the appropriate sentences are:-

Charge 1: 42 months’ imprisonment;

Charge 3: 8 months’ imprisonment.

23. Because of the principle of totality, I order that 2 months of the sentence imposed in respect of Charge 3 to run consecutively to the sentence of Charge 1, making the total sentence of the two charges one of 44 months’ imprisonment.