HKSAR v. FAN GUOMOU

 DCCC88/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 88 OF 2010

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Reasons for Sentence

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1.  The Defendant pleads guilty to one count of arranging the passage to or within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance.

2.  At about 2030 hours on 20 December 2009, a police officer, who was on duty as a radar man, observed a vessel departing from Shenzhen Bay and headed towards Hong Kong waters. At about 2040 hours, the vessel was observed to have entered into Hong Kong waters approaching Sha Kiu, and three police vessels were deployed to intercept it.

3.  At about 2045 hours, the vessel was intercepted at 500 metres off Sha Kiu, Deep Bay, and it was found to be a motorized Sampan (“the Sampan”). The Defendant was the coxswain of the Sampan, and one male and four female Mainlanders were found on board.

4.  Upon enquiry, the Defendant said all the Mainlanders on board did not have Hong Kong identity cards. He told the police officers that he set off from Shenzhen Bay and he charged Renminbi $700 per passenger. The Defendant was then arrested by the police.

5.  During a subsequent video-recorded interview, the Defendant, under caution, admitted the following:

(a)  he was the coxswain of the Sampan and he had 16 years of navigation experience;

(b)  a ‘boss’ asked him to sail the Sampan from Shenzhen to convey illegal immigrants to Hong Kong;

(c)  the Defendant knew that it was illegal but he accepted the job of steering the motorized Sampan to convey Mainlanders into Hong Kong because he was in need of money;

(d)  at about 1900 hours on 20 December 2009 the Defendant steered the Sampan with a view to sneak four female and one male passengers to Hong Kong;

(e)  the Defendant would receive Renminbi $3,500 as reward upon his return to the Mainland; and

(f)  with no compass, no life jacket, no fire fighting appliances and no navigation light for sailing, the Defendant only used his mobile phone and a torch for navigation.

6.  A senior ship inspector examined the Sampan. The hull structure of the Sampan was found deteriorated and rot severely. There were cracks, undesired holes and loosened seal compounds which diminished the degree of watertight integrity as well as the buoyancy of the Sampan. No bilge system was fitted on board to pump out any accumulation of water. There was no fire fighting appliance, no life saving appliance and no navigation light equipped on board. He was of the view that the Sampan was in a very poor condition and it was unseaworthy.

7.  All the five passengers on board the Sampan were found to be unauthorized entrants, and they were between 17 to 34 years of age.

8.  The Defendant is aged 34. He was born in Yangjiang in Guangdong Province. He has a clear record in Hong Kong. I understand from the Defendant’s solicitor that the Defendant is the sole breadwinner of the family, and his previous employments included chef and fisherman.

9.  Arranging the passage to or within Hong Kong of authorized entrants is a very serious offence. According to the case of R v Ng Kit Yuen [1992] 1 HKCLR 170 and HKSAR v Wong Chi Kin Cr App 357 of 2004, a starting point of 5 years’ imprisonment would be appropriate for an accused who was in charge of a vessel or captain of a vessel carrying unlawful entrants. I would therefore adopt the same starting point.

10.  According to Wong Chi Kin, there are a number of aggravating factors which the court can take into account in increasing further the starting point. My main concern here is the condition of the Sampan which might endanger the life of the passengers on board. As laid down in the case of R v Lo Shui Lun Cr App109/1995, I am not here particularly concerned about the absence of fire fighting equipment or the absence of navigation light, because realistically we do not expect the Defendant sneaking illegal immigrants to Hong Kong would turn on such navigation light in navigating the ship.

11.  In the present case, I am concerned about the physical condition of the Sampan. The hull structure of the Sampan was found deteriorated and rot severely. There were cracks, undesired holes and loosened seal compounds which would certainly diminish the degree of watertight integrity as well as the buoyancy of the Sampan. In such circumstances, I increase the starting point to 6 years’ imprisonment.

12.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 4 years’ imprisonment.