HKSAR v. TSE YU CHUN

DCCC 436/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 436 OF 2009

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Reasons for Sentence

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The charges

1.  The Defendant pleads guilty to 2 charges as follows:

Statement of the 1^st Offence

Assisting the passage within Hong Kong of a conveyance which carried one unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115 on 4^th March 2009. 

Particulars of the 1^st Offence

On 4^th March 2009, he assisted the passage within Hong Kong of a conveyance, namely a motorized sampan which carried one unauthorized entrants, namely KAM Lo. 

Statement of the 2^nd Offence

Assisting offender, contrary to section 90(1) of the Criminal Procedure Ordinance, Cap. 221.

Particulars of the 2^nd Offence

On 4^th March 2009, in Hong Kong, after LO Kwa0-lan had committed an arrestable offence, namely breach of condition of stay, knowing or believing that the said LO Kwai-lan to be guilty of the said of offence or of some other arrestable offence, without lawful authority or reasonable excuse, conveyed the said LO Kwai-lan onboard of a motorized sampan back to China for monetary gain, with intent to impede the apprehension or prosecution of the said LO Kwa-lan.

The facts

2.  At about 3 a.m. on 4^th March 2009, the police radar showed a moving object speeding across the Sha Kiu Tsuen waters.  The police deployed 2 vessels to conduct enquiry.  The object was found to be an unlit moving motorized sampan going northwest from Sha Kiu Tsuen towards the Boundary of Administration.  The Defendant was steering the engine control bar at the rear of the sampan. 

3.  The police switched on the spotlight and blue flashlights of their vessels and launched the stop signal to the Defendant.  The Defendant accelerated the speed of the sampan with intent to escape.  About a few minutes, the police intercepted the sampan off the shore of Sha Kiu Tsuen about 500 metres to the Boundary of Administration (within Hong Kong waters).  Upon interception, the Defendant was seen steering the control bar.  Two females, namely KAM Lo as particularized in the 1^st Offence and LO Kwai-lan as particularized in the 2^nd Offence, were crouching at the aft of the sampan. 

3.  Neither the Defendant, KAM, nor LO could produce any travel document or identity card.  Upon arrest and caution, the Defendant said:

(1)  He was a native of Haifeng;

(2)  Being a fisherman frequenting Shenzhen Bay, he was familiar with the Shenzhen and Hong Kong waters;

(3)  At about 6 p.m. that day, his friend offered to pay him RMB￥600 for each of the two Mainland females if he could successfully carry them from Hong Kong to Mainland;

(4)  At nighttime, he sneaked into Hong Kong on a sampan and berthed it at a small pier of Sha Kiu Tsuen as directed by a middleperson;

(5)  At 3 a.m., the two Mainland females boarded his sampan;

(6)  A few minutes later, they were intercepted by the police. 

(7)  He was not the owner of the sampan;

(8)  He did not have any valid travel document or visa for entry into Hong Kong waters.

4.  Upon enquiry by the police, KAM claimed to be WANG Fei Fei.  She was later found to have a Mainland identity card underneath her bra.  It turned out that she was called KAM Lo.     

5.  Upon enquiry by the police, LO Kwai-lan said that she had used her Two-way Permit to visit Hong Kong in mid-September 2008.  She then lost it and overstayed in Hong Kong.

6.  On 12^th March 2009, the sampan was inspected by a qualified ship inspector, who found the sampan unseaworthy with the following features:

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

(2)  There were no fire fighting or life-saving appliances equipped on board;

(3)  There were no navigation lights fitted on board for night operation.

7.  Subsequent checking confirmed that KAM Lo was an unauthorized entrant whereas Lo Kwai-lan was an overstayer.

Mitigation put forward

8.  The Defendant is 38 years of age.  He has a clear record.  He is a Mainland resident, working nautical odd jobs at the waters in Deep Bay.  His wife is a part-time farmer.  They have a 5-year-old daughter.  The Defendant was familiar with the area where the offence took place.  The water was calm.       

The sentencing principles

Sentence for assisting passage to leave Hong Kong

9.  Section 37D(1) of the Immigration Ordinance, Cap. 115, states that:

class="quote"(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong-

(a) arranges or assists the passage to, or within, Hong Kong;
(b) offers to arrange or assist the passage to, or within, Hong Kong; or
(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable-

(i) on conviction on indictment to a fine of $5000000 and to imprisonment for 14 years…

10.  In HKSAR v Yeung Wui CACC 415/2004, the appellant was assisting the passage of unauthorized entrants in leaving Hong Kong after stealing some Buddhist pine trees.  Lugar-Mawson J, delivering the judgment of the Court of Appeal, said there should be no difference in the sentence between assisting the passage “to” or “from” Hong Kong:

25.  Neither do we think that the fact that in this present case the 1^st Applicant was taking the unauthorised entrants back to the Mainland reduces his criminality in anyway.  Although there is a specific offence of assisting the passage of unauthorised entrants to Hong Kong, there is no specific offence of assisting the passage of unauthorised entrants from Hong Kong.  This is because the act of assisting their passage out of Hong Kong is encompassed in the phrase “passage within Hong Kong.” 

11.  In R v Wong Yin-lung [1995] 1 HKCLR 151, 153 Power VP said:

The five year starting point and the accretions for aggravating circumstances have application to the captain, the person in charge of the vessel, the crew member who has taken an active part in the organization of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of the aggravation. 

12.  In Yeung Wui (above), the Court of Appeal also regarded 5 years’ imprisonment as the proper starting point for a person in charge of the vessel.  Lugar-Mawson J, delivering the judgment of the Court, said:

26.  As to the appropriate level of sentence for the offence of assisting the passage of others, after considering a number of relevant authorities, this Court in Wong Chi Kin said at page 5 paragraph 12 of the judgment, that:

“The generally applicable tariff [for the assisting the passage of others offence] is 4 years’ imprisonment: R v Ho Siu Lun and Ors [1987] HKLR 1086, R v Chan Kwok Keung and Anor [1988] 1 HKLR 279 and R v Lam Kon Man, Crim App No. 329/1990.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organization of the venture, the appropriate starting point is 5 years’ imprisonment : R v Wong Yin Lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624, at 626H and 627A.”

27.  In this case, as the 1^st Applicant was the person who both steered and was in charge of the sampan, it cannot be said that the judge erred in adopting a 5-year starting point for the assisting the passage of others offence.

13.  The unseaworthy condition and operation of the boat are aggravating factors.  In HKSAR v Tsui Kwong Ming CACC 247/2004, the Court of Appeal affirmed a starting point of 6 years.  Lugar-Mawson J said:

4.  The boat had no fire fighting equipment, no life saving appliances, no navigation lights suitable for night operation and was unsuitable for carrying passengers.  The best that could be said for it was that the Marine Department's ship inspector described its hull as being “in normal condition.”

…

14.  In this case, as it was part of the Summary of Facts, to which the Applicant agreed, that the boat was both in an unseaworthy condition and operated in an unseaworthy manner, the Judge’s finding that the boat was “flimsy” appears to be justified.  That alone justified the higher starting point of 6 years, which she took.

Sentence for assisting offender

14.  The maximum sentence for this offence is 10 years if convicted on indictment.  Section 90(1) of the Criminal Procedure Ordinance, Cap. 221, states that:

(1) If a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does, without lawful authority or reasonable excuse, any act with intent to impede his apprehension or prosecution shall be guilty of an offence.
…
(3) A person guilty of an offence under subsection (1) shall be liable-

(a) on conviction on indictment, to imprisonment for 10 years…

15.  There are not many cases on this offence, let alone sentencing guidelines. 

Concurrent sentences

16.  In Attorney General v Cheung Pit-yiu CAAR 11/ 1988, Cons VP explained the nature of concurrent sentences:

6．This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed. 

The sentence I pass

17.  The Defendant was steering and in charge of the sampan.  Its condition and operation were both unseaworthy.  For the 1^st charge, I take 6 years’ imprisonment as the starting point.  I give him one-third discount for the plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 4 years. 

18.  For the 2^nd charge, the same circumstances apply.  I take 6 years as the starting point.  I give him one-third discount for the plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 4 years. 

19.  The facts relating to both charges form a single transaction.  But for the technicality involving the status of the two travellers, the Defendant would have been charged under a single count.  I order that the sentences shall be concurrent.