HKSAR v. LAIJIUFANG

DCCC 182/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 182 OF 2013

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Reasons for Sentence

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Charges

1. The defendant pleads guilty to the 1^st Charge, that of assisting the passage within Hong Kong of 4 unauthorized entrants (“Assisting Passage”) and the 2^nd Charge, that of endangering the safety of 5 passengers at sea (“Endangering Safety”). 

Facts

2. At 5:54 a.m. on 23 November 2012, the police officers on duty on police vessel PV32 heard some engine starting sound near Po Chu Tam in Tai O, Lantau Island.  They then saw a sampan (“Sampan”) steered by the defendant with no lighting going away from the coast.  The police signaled it to stop.  It did not stop but kept changing directions to avoid police interception.  After a chase for several minutes, the Sampan was stopped by PV32.  Two other police vessels came in aid.  On board were 4 unauthorised entrants and 1 overstayer. 

3. Upon enquiry, he said:

(1) He had tuberculosis and did not have money;

(2) The boss would give him RMB¥500 for conveying those passengers from Hong Kong to Zhuhai;

(3) He had come from Zhuhai on the Sampan to the location where he picked up the passengers from the coast at about 5:45 a.m.

4. The ship inspector’s examination found:

(1) The main hull structure was in poor condition;

(2) There was no fire-fighting equipment;

(3) Only 4 life jackets for the 6 people;

(4) No navigation light fitted for night navigation.

5. The prosecution accepts that there was no dangerous manoeuvre in the course of the chase, which lasted about 5 minutes before interception. 

Personal background and mitigation

6. The defendant is aged 40, a resident of the Mainland.  He had not completed Primary 4 education.  He had been a fisherman for some years until he worked as a kitchen worker for 3 years before arrest.  He is the sole breadwinner of his family which comprises his 84-year-old mother and 6-year-old daughter.  He has a clear record in Hong Kong. 

Sentences for Assisting Passage and Endangering Safety

7. A person in charge of the boat 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). 

8. Aggravating features include the lack of appropriate safety equipment, in particular life-jackets, firefighting equipment, and navigation light for night operation (HKSAR v. Zhong Ming Jing CACC 180/2010, at paras 19 – 20; HKSAR v. Tang Zhuyan CACC 223/2010, at paras 16 – 20).  

9. His solicitor refers me to the case of Tang Zhuyan (唐珠炎) (above).  The defendant there was the helmsman and person in charge of a motorized sampan carrying an unauthorized entrant and another passenger at night time.  The sampan was stopped after a chase.  There were no navigation lights, fire-fighting or sufficient life-saving appliances.  There were only 2 life-jackets on board.  The judge adopted a starting point of 6 years and 1 ½ years respectively.  One-third off would be 4 years and 1 year respectively. Recognizing the call for consecutive sentences on one hand and making totality adjustment on the other hand, the judge came to an eventual sentence of 4 years and 2 months, by ordering partly consecutive sentences.

10. The Court of Appeal reduced the starting point for Assisting Passage to 5 years as there was no evidence of the sampan being unseaworthy.  The starting point for Endangering Safety was reduced to 1 year as there were no aggravating features of danger.  After totality adjustment, the final sentence was 3 years and 6 months. 

Sentencing this defendant

11. I sentence him for Assisting Passage on the basis of his being the person-in-charge of the Sampan carrying 4 unauthorised entrants.  I do not yet take in account the safety aspect of the Sampan in this regard.  I take 4 ½ years as the starting point.  One-third off for the plea of guilty, it comes to 3 years. 

12. I sentence him for Endangering Safety on the basis of the Sampan being unseaworthy and unsafe for 5 passengers in the voyage.  I take a starting point of 18 months. One-third off for the plea of guilty, it comes to 1 year. 

13. There are no other mitigating factors.  The sentences shall be consecutive.  The eventual sentence is 4 years.