HKSAR v. MENG XIAODONG

DCCC643/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 643 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to one offence of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115, and one offence of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.  You admitted the brief facts and I convicted you.

3.  What occurred is this.

4.  Around 8.14 am on 9 June last, police radar captured a suspicious object entering Hong Kong waters and heading towards Cheung Muk Tau at about 18 knots.

5.  Sergeant 33911 (PW1), who was at an observation post at Lo Kei Wan) Beach, saw a sampan steered by you.  He instructed two vessels, namely, PV 15 and PV 16, to intercept you.

6.  At around 8.28 am, he saw it steer towards Lo Kei Wan Beach, where three males boarded it.

7.  At about 8.31 am, the two police vessels arrived.

8.  The officers of the police vessels signalled you to stop.  However, you accelerated to 25 knots and zigzagged away.

9.  A pursuit lasting some nine minutes resulted with the sampan taking in water and sinking north of Tai A Chau.  You and the three males fell into the sea and you were rescued by police.  You were all found to be illegal immigrants.

10.  Upon subsequent investigation, you admitted you picked up the three Mainlanders at a beach of Hong Kong to go to Ling Ding Dao.

11.  You were arrested and cautioned.  You claimed you were to be given half of the sea product as a reward.

12.  In a subsequent video recorded interview, you claimed, under caution, the following:

(1) you came to collect your three friends from a beach in Lantau, where they had gone to collect conch to sell in Ling Ding Dao;

(2) your friends had come to Hong Kong the previous day;

(3) Huang called you that morning and asked that they be collected from Lantau;

(4) you came alone from Ling Ding Dao;

(5) the sampan belonged to your boss;

(6) there was one life jacket, three net strings, one outboard motor and two barrels of fuel on the sampan. There was no life buoyancy, navigation light, fire-fighting equipment or compass;

(7) you did not hold a licence to navigate the vessel;

(8) none of you were authorised to enter Hong Kong.

13.  The sunken sampan was never recovered.

14.  On 10 June, the three IIs were repatriated.

15.  You are of hitherto clear record.

16.  Mitigation was advanced on your behalf by Mr Chu. 

17.  He told me that you are of 20 years of age, educated to primary level, and a fisherman by trade, earning some 1,500 to 2,000 Renminbi per month.

18.  Each month you remit some 500 to 600 Renminbi to your grandfather, who was caring for your younger sister.  Your grandfather is an ex-soldier in his 70s with a pension of

19.  I am also told that your parents are now divorced.  Your mother is remarried and your father is a drunkard who contributes nothing to the family.

20.  Mr Chu read to the court a letter which you had written, explaining the situation and apologising.

21.  Whilst I do not feel the need to repeat what you said, I have noted what was said and taken it into consideration.

22.  Referring to the facts, Mr Chu asked me to consider this to be a somewhat less serious case than many others.

23.  He put forward the following reasons:

(1) the incident took place in bright daylight at about 8.14 am;

(2) the weather was relatively good, there being little wind and a calm sea with good visibility;

(3) also, the four men involved in this are all seamen, so are able to swim and used to the sea;

(4) although in your video recorded interview you had said there was only one lifejacket, there were, in fact, two, found at the scene and I was referred to the statement of Police Sergeant 54633. I shall tell you that I am prepared to accept that was the case;

(5) also, there was no collision during the short pursuit and no one was injured.

24.  Both prosecution and defence referred me to the case of HKSAR v Tang Zhuyan, CACC223/2010.  There, the Court of Appeal laid down a starting point of some 5 years for the 1st defendant and 12 months for the 2nd.  It was also entirely proper to make part of the second sentence concurrent.

25.  I did note that in that case, the situation was somewhat similar but not identical to the present case.

26.  Additionally, Ms Chan referred me to two cases heard together, namely, HKSAR v Wong Chi Kin and HKSAR v Ko King Hung, CACC357/2004.

27.  Whilst I have noted those cases, it is not necessary to recite the facts.

28.  Mr Chu also made the point that the men were here to collect conch and harvest conch, not the more serious matter of stealing Buddhist pines.

29.  He submitted that the taking of conch is not a crime, whereas the taking of Buddhist pines is.

30.  He also made the point that, as the matters proceeded in daylight, the lack of navigation lights was of little significance.

The sentence itself

31.  These charges individually and together are always serious.

32.  I accept that in respect of the 1st charge, the evidence was that the men had not actually taken any conch, or more accurately, I should put it this way, that there is no evidence that they had.

33.  I also note that the purpose of your incursion was to remove the men from Hong Kong, not to bring them here.  They were then to be restored to the Mainland.

34.  I note also that you are a relatively young man of clear record.

35.  Also, it is clear that it is a mitigating circumstance that these offences took place in bright daylight with good weather conditions and good visibility.

36.  It is also extremely significant that all four of you are fisherman, and therefore, men experienced in the ways of the sea, and all able to swim.

37.  The vessel itself was clearly unseaworthy.  I am satisfied it had only two lifejackets for four people; no navigation lights, though I do accept that that is less important in daylight; and no fire-fighting equipment.

38.  Danger was also caused by the fact that you do not hold the correct licence to drive such a vehicle and that you made an attempt to flee.  Zigzagging is extremely dangerous in these conditions.

39.  I accept that there was no collision and no one was actually injured.

40.  I have also taken into account your personal circumstances and the reasons for which the men came to Hong Kong.

41.  I do find that a slightly lesser starting point can be adopted in the circumstances of this case.

42.  Stand up, please.

43.  In respect of the 1st charge, I take as a starting point 4½ years’ imprisonment, reduced to 3; you will go to prison for 3 years.

44.  In respect of the 2nd charge, I take as a starting point 9 months’ imprisonment, reduced to 6 months; you will go to prison for 6 months.

45.  However, applying the principle of totality, 2 months will be consecutive and 4 months will be concurrent.

46.  That is a total of 3 years and 2 months’ - 38 months’ - imprisonment.