HKSAR v. YANG WENJING

DCCC 545/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 545 OF 2013

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Reasons for Sentence

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Charges

1.  The defendant pleads guilty to the 1^st Charge, assisting the passage within Hong Kong of 2 unauthorized entrants (“Assisting Passage”) and the 2^nd Charge, endangering the safety of them at sea (“Endangering Safety”).  

Facts

2.  In the afternoon on 13 April 2013, the police on radar duty spotted a motorized sampan leaving the southern boundary of Hong Kong waters from Cheung Chau.  Two police vessels were deployed to intercept it.  Despite clear signals to stop, it did not stop until after a chase.  The defendant was the coxswain with 2 female unauthorized entrants aboard. 

3.  The account given to the police by the defendant was that he had been engaged by a boss on 12 April 2013 in the Mainland to steer a sampan to convey 2 passengers from an island (to us apparently Cheung Chau) back to Wai Lingding Dao, which was outside Hong Kong.  He would be rewarded with RMB1,500.  He had no licence as a coxswain although he knew how to operate a vessel from his work experience as a fisherman.  He had no authority to enter Hong Kong. 

4.  The ship inspector of the Marine Department inspected the sampan and found it unseaworthy because:

(1) The general condition was poor;

(2) There were no fire fighting appliances;

(3) There were no life jackets;

(4) There were no navigation lights fitted for night operations.

Personal background and mitigation

5.  He is aged 25, a resident of the Mainland, education up to F. 3 level.  He has a clear record in Hong Kong.  He was born and raised in Guizhou.  His father had died and his mother suffers from tuberculosis, which requires substantial medical fees.  His 2 elder brothers had left home and provided no financial support for his mother.  He has become her sole supporter.  He worked as a construction worker and fisherman in Guangdong before arrest.  He had then learned the skill of steering a boat.  He committed the present offences to earn money to pay for his mother’s medical fees. 

6.  He was to pick up the 2 females in Cheung Chau and conveyed them to Lingding Dao, a location outside Hong Kong.  The prosecution does not dispute that the boat trip would take less than 20 minutes and be completed before dusk fell.  There is no evidence that the chase had involved any dangerous manoeuvring. 

7.  His solicitor asks me to adopt the customary starting point of 5 years for Assisting Passage but seeks a concurrent sentence with Endangering Safety.   

Sentencing considerations

8.  The maximum sentence is 14 years for Assisting Passage and 4 years for Endangering Safety. 

9.  A person in charge of the vessel assisting the passagefaces a customary starting point of 5 years in the absence of aggravating features (R v. Ng Kit Yuen [1992] 1 HKCLR 170; R v. Wong Yin Lung [1995] 1 HKCLR 151, at 153; R v. Pang Wing [1996] 1 HKC 624, at 626 and 627; HKSAR v. Wong Chi Kin CACC 357/2004; HKSAR v. Yeung Wui CACC 415/2004). 

10.  In HKSAR v Lee Chau Sung HCMA 503/2002, a case handed up by the defendant’s solicitor in mitigation, the defendant there was steering a powerfully engine speedboat in the dark without navigation lights.  Ignoring the police’s clear signals to stop, it pursued an erratic course until it was forced to stop after an 8-minute chase.  He was charged with Endangering Safety, failure to stop according to the police signals, possession of unlicensed radio equipment and absence of boat’s number affixed to the vessel.  He was sentenced to 6 months on Endangering Safety and an overall sentence of 8 months based on partly concurrent sentences. 

11.  I have not noticed any other cases on Endangering Safety quite as lenient as this one. 

Concurrent or consecutive sentences

12.  When Assisting Passage comes with Endangering Safety as separate charges, there are cases adopting either wholly consecutive sentences or partly concurrent.  I have not come across wholly concurrent sentences.    

13.  In The Queen v. Chan Siu Yun CAAR 9/1995, the defendant was convicted after trial of the same 2 charges.  The police spotted a motorized sampan with about 8 people on board.  It disappeared for some time but then emerged with defendant taking up the helm with an unauthorised entrant on board.  Upon the police issuing a stop signal, the sampan sped up to leave instead.  A dangerous high speed sea chase by a number of police vessels led to a collision between the sampan and a police vessel.  The impact caused several police officers to be thrown to the deck but no serious injuries.  There was no finding of any reward for his helmsmanship at the particular juncture.  He was sentenced to consecutive sentences of 3 years and 2 ½ years, making it 5 ½ years in total. 

14.  In HKSAR v. Zhong Ming Jing (鍾明青) CACC 180/2010, the defendant was the helmsman of a motorized sampan carrying 8 unauthorised entrants.  There were no navigation lights, fire-fighting equipment, life-jackets or other life-saving equipment on board. He caused much danger to his passengers and the police on board the police vessel during a 4-minute chase preceding the arrest.  The Court of Appeal adjusted the sentences to 3 years and 4 months for Assisting Passage and 1 year for Endangering Safety.  The overall sentence, all consecutive, came to 4 years and 4 months.  

15.  In The Queen v. Mok King Ching CACC 146/1995, the defendant pleaded guilty to the 2 charges.  He was aged 17 at conviction.  He steered a motorized sampan overloaded with many illegal immigrants.  In his most dangerous handling of the sampan in order to escape from the chase by the police in the choppy waters, the sampan collided with the police vessel.  The sampan sank within 3 seconds. All on board were thrown into the sea but rescued by the police.  He himself, his co-helmsman and 2 pregnant women suffered injuries.  The sentences were 4 years for Assisting Passage and 3 years for Endangering Safety.  With 2 years concurrent, the eventual sentence was 5 years.  This partly concurrent sentence was affirmed on appeal. 

Issue of consecutive sentences for overlapping fact for sentencing

16.  Where there is only one charge, no issue of consecutive or concurrent sentences can arise.  An example is The Queen v. Ng Kit Yuen CACC 118A/1991, 18 illegal immigrants were hidden on board a 150-ton vessel with 8 crew members.  The defendant was the captain.  The marine inspector found the general condition of the vessel to be poor and unseaworthy for deep sea voyages.  The hidden compartment put the unauthorized entrants at risk of flooding and fire from open-type cooking overhead.  These hazards were counted as aggravating features as there was only a single charge of Assisting Passage.  With only one charge, there was no cause for double counting aggravating features.

17.  HKSAR v Tam Kam Mun CACC 327/2001, a case handed up by the defendant’s solicitor in mitigation, is another example of a single charge of Assisting Passage in the whole case.  All aggravating factors including dangerous manoeuvring, otherwise more relevant to a charge of Endangering Safety, could be and were lumped up in sentencing on the single charge.

18.  However, where Endangering Safety is the second charge, the issue of overlapping fact for sentencing may arise.  The decided cases fell into 2 groups.   

19.  The first group has no overlapping aggravating fact(s) in the sentences of the 2 charges:

(1) In Chan Siu Yun (above), the Assisting Passage related to the defendant being the helmsman of the sampan carrying an unauthorized entrant. The Endangering Safety related to his dangerous manoeuvre. The Court of Appeal ordered for consecutive sentences.

(2) In Mok King Ching (above), the Assisting Passage related to the defendant being the person in charge of the sampan carrying unauthorized entrants. The Endangering Safety related to his dangerous manoeuvre. The Court of Appeal approved the partly consecutive sentences.

(3) In Tang Zhuyan [2011] 1 HKLRD 447, the Assisting Passage related to the defendant being the helmsman of the sampan carrying an unauthorized entrant and the lack of safety gear etc. The Endangering Safety related to the escape from chase with no aggravating features. The Court of Appeal ordered for consecutive sentences but approved a totality reduction.

20.  The second group has overlapping fact(s) in the sentences (Sze Yu; Zhong Ming Jing (above)).   

(1) In Sze Yu CACC 143/2003, the Assisting Passage charge related to his role as the helmsman of the sampan carrying unauthorized entrants and his dangerous manoeuvre (at para 22) and its being an unseaworthy sampan with no safety gear etc. The Endangering Safety again related to his dangerous manoeuvre. The consecutive sentences were upheld on appeal. The Court of Appeal (at para 33) referred to the case of Chan Siu Yun (above) for the proposition that a consecutive sentence should be imposed where a defendant faced both charges. (Note: Chan Siu Yun had actually no overlapping aggravating facts in the sentencing of the 2 charges.)

(2) In Zhong Ming Jing (鍾明青) (above), the Assisting Passage related to his role as the helmsman and person in charge of the sampan carrying unauthorized entrants and the lack of safety gear etc. on board. The Endangering Safety related to his dangerous manoeuvre and again the lack of safety gear on board (at para 24). Consecutive sentences were ordered.

Approach in our instant case

21.  It is not easy to reconcile these 2 groups of cases.  In Sze Yu or Zhong Ming Jing, the defendant appeared to have been doubly punished by an overlapping aggravating fact.    

Sentencing this defendant

22.  He was the coxswain for reward of a sampan to carry 2 unauthorised entrants.  I take 5 years as the starting point for Assisting Passage.  One-third off for the plea of guilty, it comes to 3 years and 4 months. 

23.  He was not a qualified coxswain.  It is not known how much unofficial training or steering as a fisherman could do to make the trip safe in his case.  I do not find this a point much in his favour.  There were no fire fighting appliances or life jackets.  However, the way to Wai Lingding Dao would not be long and be completed before dusk fell, rendering unlit navigation a technical breach.  The chase did not involve dangerous manoeuvring.  I take 12 months as the starting point.  One-third off for the plea of guilty, it comes to 8 months. 

24.  Seen in the aforesaid light, the 2 offences here did not have overlapping facts for sentencing. Consecutive sentences shall be ordered.  Yet I follow Tang Zhuyan (above) to make a totality adjustment by ordering 4 months of the Endangering Safety charge to be concurrent to the Assisting Passage charge.  The sentence is 3 years and 8 months.