HKSAR v. PENG ZHENGYE

DCCC 782/2019

[2019] HKDC 1588

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2019

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REASONS FOR SENTENCE

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1.  This is a case of smuggling of human cargo by sea.

2.  The defendant, a 44-year-old Mainlander, being the coxswain of a motorized sampan carrying on board four Pakistani men (unauthorized entrants) was seen entering into Hong Kong waters from the Mainland in the small hours on 25 July 2019. When moving towards Lung Kwu Tan, the sampan was intercepted by the marine police without incident.  

3.  The defendant, who was then arrested, told the police under caution that he received $500 for each person he conveyed from the Mainland to Hong Kong.

4.  About three weeks later on 14 August, the sampan was examined by a senior ship inspector of the Marine Department, who found it to be unseaworthy for the following reasons:

a)- The main hull structure was in poor condition;

b)- It was not equipped with any life-saving equipment;

c)- There were no firefighting appliances nor navigation lights.

5.  Consequently, the defendant was charged with two counts of offence to which he pleaded guilty:

Charge 1: Assisting the passage to Hong Kong of unauthorized entrants[1];

Charge 2: Endangering the safety of others at sea[2].

6.  The defendant, a fisherman by profession with only primary one education, has never had any trouble with the law before. He is a divorce living with his mother and a 16-year-old daughter. The whole family is relying on his meagre fisherman’s income of about $4,000 RMB a month.

7.  In mitigation, the court heard that the defendant, who was tested HIV positive in 2006, has had to spend approximately $15,000 RMB a year for his medication and fortunately his current condition remains stable.

8.  To make matters worse, however, there is moratorium on fishing between the months of May and August; in other words, he needs to look for some other sources of income to live on.  Counsel for the defendant, Miss Anna Ho, said that it was under such circumstances that he committed the present offences.

9.  A section 37 offence carries the maximum term of 14 years’ imprisonment. For those who engage in human smuggling by sea, the usual sentence, in the absence of aggravating features, is one of 5 years if he is the person in charge of the vessel, such as the captain or the coxswain; those who are just giving a helping hand such as the crew members will attract a lesser term like 4 years.

10.  I accept that the defendant in the instant case made no attempt to escape when being intercepted by the marine police, thus avoiding the danger arising from any possible high-speed pursuit, which might aggravate the matters further by putting the lives of those unauthorized entrants at risk.

11.  As far as Charge 2 is concerned (the maximum sentence is one of 4 years), the matters which rendered the sampan dangerous to the unauthorized entrants are to do with the conditions of the sampan itself, rather than the way the defendant maneuvered it in a dangerous manner resulting from, for example, escaping from the police.

12.  Given the facts of the present case, I would take 5 years and 1 year for charges 1 and 2 respectively, and reduce it to 40 months and 8 months to reflect the defendant’s timely pleas. Insofar as mitigation is concerned, apart from the guilty pleas, there is not anything of substance.

13.  Taking into account the totality principle, I order that the term of charge 1 be run consecutively to 2 months of charge 2, the total term is one of 42 months’ imprisonment.