HKSAR v. ZHONG MING JING

CACC180/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2009

(ON APPEAL FROM DCCC 259 OF 2008)

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court):

1.  The applicant, a 19-year-old male resident of the Mainland, seeks leave to appeal against sentences, to a total of five years’ imprisonment, imposed upon him on 14 May 2010 by Judge Longley in the District Court following his pleas of guilty to three charges.

THE CHARGES

2.  The three charges arose out of the arrest of the applicant on 18 January 2010 at night in Mirs Bay on a motorised sampan, of which he was coxswain and on which were being carried to Hong Kong eight male unauthorized entrants and from his attempts to escape after having been intercepted in those waters by a police vessel.

3.  Charge 1 alleged that he had assisted the passage to Hong Kong of those eight unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. Charge 2 alleged that he had endangered the safety of others at sea, namely the passengers on his sampan and police officers on a police vessel, by steering the motorised sampan of which he was coxswain in a dangerous manner whilst being pursued by that police vessel, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313.  Charge 3 alleged that, being the person in charge of a motorised sampan which was under way, he had failed to stop as required by the light signal displayed by the police vessel, contrary to regulation 20(1) and (3) of the Shipping and Port Control Regulations, made under the Shipping and Port Control Ordinance, Cap. 313.

THE FACTS

4.  In addition to the Summary of Facts accepted by the applicant following his pleas of guilty to the three charges, the judge conducted a “Newton” hearing and received oral evidence from two police officers in respect of the circumstances of the commission of the offence.

5.  The applicant was the coxswain of an unlit open blue coloured sampan powered by a single outboard engine on which there were eight male unauthorized entrants.  No dimensions of the sampan are referred to in the Summary of Facts or in the judge’s Reasons for Sentence.  However, it is apparent from photographs that it is of the kind commonly seen in the waters in and around Hong Kong.  The sampan was observed on radar by a police officer entering Hong Kong waters at about 18:45 hours travelling from the North at 13 knots towards Crescent Island, which island is the easternmost island of the ring of islands around Double Haven in the northern waters of Mirs Bay.  A police vessel stationed in the vicinity of Crescent Island was alerted to the sampan’s impending arrival.

6.  At about 7 p.m. the police vessel moved at speeds in the range of 25 to 30 knots to intercept the sampan.  As it approached the sampan it displayed a flashing blue light to identify it as a police vessel.  However, the applicant’s response was to accelerate steering the sampan away from the police vessel and to continue to do so, notwithstanding the fact that the police vessel illuminated the sampan with a searchlight and gave the light signal “L” requiring the sampan to stop.  At times the two vessels travelled on parallel courses no more than 2 to 3 metres apart, with the sampan slightly ahead, at speeds of at least 20 knots.  On more than 10 occasions the applicant changed the course of the sampan, so that it was manoeuvred directly in front of the course of the police vessel, causing the latter to take avoiding action by decelerating and changing course sharply.  On occasions, those manoeuvres caused the police vessel to heel over as much as 45°.  Eventually, the outboard motor on the sampan failed and, the vessel having come to a halt, the applicant and the eight unauthorized entrants were detained.

7.  The sampan was found to have no navigation lights, firefighting equipment, lifejackets or other life-saving equipment on board.  At the time that the applicant was pursued by the police vessel the waves were 0.5 to 1 metres in height with winds of 2 to 3 knots.

8.  In a video-recorded interview, the applicant accepted that he was neither trained nor licensed to operate a motorised sampan.  He said that the eight male unauthorized entrants had boarded the sampan at Nanao on the Mainland side of Mirs Bay.

REASONS FOR SENTENCE

9.  In sentencing the applicant, the judge stated that he noted that the offence of assisting the passage to Hong Kong of unauthorized entrants (Charge 1) was regarded as a very serious offence.  He found that the commission of the offence was aggravated by the fact that the sampan was carrying eight passengers at night, although it had no lights, lifejackets or firefighting equipment.  The judge determined that the danger caused by the manoeuvring of the sampan by the applicant (Charge 2), whilst it was being pursued by the police vessel lay not so much in the speed of the sampan but in the manner in which the applicant had manoeuvred the sampan into what would have been the path of the police vessel.  He noted that the risk caused thereby was not only of a collision between the two vessels but also that one or more of the passengers on the sampan would fall overboard.

10.  In the result, the judge stipulated that he took a starting point of six years’ imprisonment in respect of Charge 1, 18 months’ imprisonment in respect of Charge 2 and three months’ imprisonment in respect of Charge 3.  Having afforded the applicant a discount from that taken as the starting point of one third for his pleas of guilty, the judge imposed sentences of four years’ imprisonment in respect of Charge 1, 12 months’ imprisonment in respect of Charge 2 and two months’ imprisonment in respect of Charge 3.  He ordered the sentences imposed in respect of Charges 2 and 3 to be served consecutively to that imposed in respect of Charge 1.  Accordingly, the total sentence of imprisonment imposed was five years.

GROUNDS OF APPEAL AGAINST SENTENCE

Ground 1

11.  By Ground 1 of the Grounds of Appeal against Sentence, Mr Andrews, who did not appear in the lower court, submitted that the judge had erred in taking a starting point of six years’ imprisonment in respect of Charge 1.  In particular, the judge erred in determining that the absence of navigation lights, firefighting equipment and lifejackets were factors of aggravation in the commission of the offence.

Ground 2

12.  By Ground 2 it was submitted that the judge had erred in taking a starting point of 18 months’ imprisonment in respect of Charge 2 and three months’ imprisonment in respect of Charge 3. The starting point stipulated in respect of Charge 2 was unwarranted, given the circumstances of the commission of the offence, namely that the pursuit of the sampan by the police vessel was for four minutes only; there was no collision between the vessels; there was no evidence of the passengers on the sampan being thrown off balance and thereby being placed in peril of falling overboard.  The starting point stipulated in respect of Charge 3 was unwarranted, in that the aggravating features of the commission of the offence were encompassed within the conduct taken into account in respect of the circumstances of the commission of Charge 2.

Ground 3

13.  By Ground 3, it was submitted that, although it was accepted that it was appropriate that part of the sentence imposed in respect of Charge 2 be ordered to be served consecutively to that imposed in respect of Charge 1, having regard to the principle of totality, the judge erred in ordering all of that sentence of 12 months’ imprisonment to be served consecutively to that imposed in respect of Charge 1.

A CONSIDERATION OF THE SUBMISSIONS

14.  Although challenge is made before this Court in respect of the judge’s determination that a sentence of six years’ imprisonment was the appropriate starting point for sentence in respect of Charge 1, it is to be noted, as Mr Andrews has conceded this morning that, that was the very starting point identified as appropriate by counsel representing the applicant in the lower court in his detailed closing written submissions.  Moreover, counsel invited the judge to take a starting point of between 18 months and 2½ years’ imprisonment in respect of Charge 2 and a starting point of three months imprisonment in respect of Charge 3.  By contrast, having regard to the totality principle, the lower court was invited to order that all or at least part of the sentence imposed in respect of Charge 2 be ordered to be served concurrently with that imposed in respect of Charge 1.

Charge 1

15.  Clearly, the factors relevant to a consideration of the culpability of the applicant in respect of Charge 1 are : that he was the person in charge of the sampan, that it was carrying no less than eight unauthorised entrants and that it carried no appropriate safety equipment, in particular no lifejackets or life-saving devices and no firefighting equipment.  In such circumstances, this Court has indicated that an appropriate starting point for sentence is five years’ imprisonment (see R v Lo Shui Lun (unreported) CACC109/1995; HKSAR v Yeung Wui (unreported) CACC450/2004).  The presence of factors of aggravation in the commission of the offence calls for an enhancement of the starting point (see HKSAR v Tsui Kwong Ming (unreported) CACC247/2004 at paragraphs 17 and 18; HKSAR v Wong Chi Kin (unreported) CACC357/2004 at paragraph 12 and HKSAR v Ho Koon Hung (unreported) CACC86/2008 at paragraphs 16-19).

16.  Insofar as Wong Chi Kin and Lo Shui Lun touched upon the aggravating factors, we have a number of comments.

17.  Whilst, no doubt, the aggravating factors enumerated in the judgment of this Court, differently constituted, in Lo Shui Lun are those which will most often present themselves, it should not be assumed that that is an exhaustive list.  Obviously, there may be others which might occasionally present themselves.

18.  In Lo Shui Lun it was recognised that the absence of life-saving equipment stood differently from the absence of navigation lights since, in relation to the latter, covert operations by their nature often depend upon the cover of poor visibility, a factor which the five-year starting point took into account.  The comment was made, that :

“It would not have been in any way unrealistic to expect at least lifebelts for the persons on board. So it might be said that there was here some slight increase in the hazard over and above the sort of inherent to this kind of activity.”

The Court went on to say that it was necessary to avoid making things overly sophisticated so the courts will not be driven “to forever comparing different degrees of relatively minor danger from one place to another” (emphasis added), for which reason the absence of safety and fire-fighting equipment was not taken as one in aggravation of the five-year starting point.

19.  We respectfully differ from the suggestion that the increase in hazard occasioned by the absence of safety equipment is only slight; to those who cannot swim and to those who can swim but find themselves overboard far from shore, the increase in hazard is dramatic.  In any event, time has moved on, and so have public expectations of safety at sea.  We take the same view in relation to the suggestion made in the case that the absence of fire-fighting equipment was “probably of relatively little significance”.  Fire on a vessel at sea is a great danger to those on board.  It is invariably the case that the fuel used in outboard motors is petrol.  A petrol fire, if not extinguished quickly, may lead to an explosion of the petrol.  Although the vessel may be surrounded by the sea, attempts to dowse a petrol fire with water, or indeed any oil fire, usually succeed only in spreading the fire rather than extinguishing it.  It is for that very good reason that marine craft of that type usually carry “dry powder” or “gas” fire extinguishers.

20.  Accordingly, henceforth the courts should regard the absence of life-saving equipment and of fire-fighting equipment as aggravating factors.  In relation to the present case, however, we will proceed on the basis that the judge was bound by the previous practice in this regard.

21.  It may be that, in stipulating a starting point of six years’ imprisonment for Charge 1, the judge was misled by the submissions made to him on behalf of the applicant at trial, namely :

“In the circumstances, thus following the position in Tsui Kwong Ming, R v Ng Kit Yuen CACC118/1991 and the more recent Court of Appeal decision in HKSAR v Ho Koon Hung CACC86/2008, the proper starting point of sentence may be one of six years.”

22.  In all those cases, there were present aggravating factors that called for an enhancement of sentence.  In Ng Kit Yuen, the thirteen unauthorized entrants, nine of whom were children between one and fourteen years of age, were enclosed in a hidden compartment from which escape would be difficult.  The vessel was not only leaking but also in a very poor condition, such that it was unseaworthy.  Similarly, in Ho Koon Hung, the unauthorized entrants were concealed in a compartment from which escape would have been difficult, thereby increasing the risk to their safety.  In Tsui Kwong Ming, the unauthorized entrant was a woman who was nine-month pregnant and at an obviously greater risk were the vessel to founder.

23.  We are satisfied that in this case, on the authorities that then governed offences of this kind, there was no justification for enhancement of the starting point of five years’ imprisonment.

Charge 2

24.  The most important aggravating feature in the commission of the offence the subject of Charge 2, as the judge determined, was the manner in which the sampan was steered by the applicant during its flight from the pursuing police vessel.  In particular, that on numerous occasions the applicant deliberately altered the course of the sampan to put it directly in the path of the police vessel, thereby causing the police vessel to alter course and decelerate sharply.  Given that both vessels were travelling at speeds of at least 20 knots, life and limb of all those on board of vessels was put at risk by the conduct of the applicant.  The fact that there was not a collision is, no doubt, due in part to the competence of the coxswain of the police vessel in taking evading action and in no small part to luck.  Notwithstanding the fact that there was no collision, the risk to the unauthorized entrants on the open sampan was that they might be thrown into the sea.  There, they would have been exposed to the risk not only of drowning but also of being hit by either of those vessels.  The risk of drowning was all the greater given the absence of any lifejackets or life-saving equipment on the sampan.  The fact that the pursuit lasted only four minutes was due to the failure of the engine on the sampan, and not to any conduct on the part of the applicant.  On the other hand, it is relevant to note that the sea state was slight and the wind light.

25.  Section 72 of the Shipping and Port Control Ordinance creates the offence of endangering the safety of a person on a vessel at sea and provides for a maximum penalty on conviction on indictment of four years’ imprisonment and a fine of $200,000.  Obviously, the offence may be committed in a wide range of circumstances.  In HKSAR v Sze Yu (unreported) CACC143/2003 this Court did not criticise a starting point taken by the trial judge of four years’ imprisonment, in circumstances in which the defendant at trial had tried to escape, in rough sea conditions, for some 15 minutes from police vessels in the sampan on which he was carrying 10 unauthorised entrants within Hong Kong.  The sampan carried no safety equipment.  The pursuit came to an end only when the sampan’s engine caught fire and the sampan capsized, throwing the occupants into the sea from which they were rescued by the police officers.  All the unauthorized entrants and four police officers received injuries.  In the Attorney General v Chan Siu Yan [1995] 2 HKCLR 223, this Court determined that a sentence of 2½ years’ imprisonment was appropriate in circumstances where a collision occurred between a pursuing police vessel and the sampan upon which the defendant at trial was carrying two unauthorized entrants and in which police officers were injured as a result of a collision between two of the pursuing police vessels.  In Yeung Wui, this Court did not criticise a starting point taken by the judge for this offence of 18 months’ imprisonment in circumstances in which the 10-minute pursuit of the defendant sampan, on which there were six unlawful entrants, was brought to an end only by a collision between the sampan and a police vessel.

26.  In all the circumstances of the commission of this offence, we are satisfied that the judge was entitled to identify 18 months’ imprisonment as the appropriate starting point to be taken for sentence for Charge 2.

Charge 3

27.  Regulation 20(1) and (3) of the Shipping Port Control Regulations, made pursuant to Cap. 313, provides for a penalty of six months’ imprisonment and a fine of $5,000 for the offence by a master of a vessel of failing to stop as required by a police vessel, inter-alia, flashing international code signal “L” by lamp.  Obviously, the circumstances of the commission of the offence may vary widely.  Clearly, the applicant’s failure to stop his vessel, as required, was very much part and parcel of the conduct the subject of Charge 2.  In Yeung Wui, this Court did not criticise a starting point of three months’ imprisonment taken for sentence for this offence by a judge in respect of a defendant who faced the same three charges faced by the applicant.

28.  We are satisfied that in all circumstances the judge was entitled to take a starting point of three months’ imprisonment in respect of Charge 3.

Consecutive sentences

29.  This Court determined in its judgment in Chan Siu Yun, at page 225 line 35, that a court sentencing a defendant in respect of the offences that are the subject of Charges 1 and 2 should order that the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  That approach to sentencing was cited with approval by this Court in HKSAR v Sze Yu (unreported) CACC143/2003, at paragraph 33.

30.  Having regard to considerations of the appropriate totality of the sentence of imprisonment to be imposed upon the applicant, nevertheless we are satisfied that the judge was correct to order that the sentences of imprisonment imposed in respect of Charges 2 and 3, namely 12 months and two months, be served concurrently but consecutively to the sentence imposed in respect of Charge 1.

CONCLUSION

31.  For the reasons set out earlier, we are satisfied that the judge erred in taking a starting point of six years’ imprisonment in respect of Charge 1.  The apposite starting point was five years’ imprisonment.  Affording the applicant a discount of one third for his plea of guilty, as the judge did, the appropriate sentence on Charge 1 is three years and four months’ imprisonment.

32.  Accordingly we grant the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentence of four years’ imprisonment imposed in respect of Charge 1.  In its place, we impose a sentence of three years and four months’ imprisonment.  The other orders made by the judge stand.  It follows, that the total sentence imposed upon the applicant is four years and four months’ imprisonment.