HKSAR v. SU WEITIAN AND ANOTHER

DCCC 509/2024

[2025] HKDC 209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 509 OF 2024

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REASONS FOR SENTENCE

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1.  D1 and D2 plead guilty before the court for the charge of “Assisting the passage to Hong Kong of unauthorised entrants”, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115 (“Charge 1”). D1 also plead guilty to the charge of “Endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 ( “Charge 2”). For Charge 3, “Failing to stop”, contrary to regulation 20(1)  and (3)  of the Shipping and Port Control Regulations, Cap 313A, the prosecution and D1 enter an agreement that the charge will be kept at the court file and will not be proceeded unless with the leave of the court or Court of Appeal.

2.  D1 and D2 also admit that the content of the Amended Summary of Facts to be true and correct.  In a gist, they admit that:

(a)  on 8 November 2023, at around 0013 hours, a police vessel (the “Police Vessel”)  spotted an open-deck speedboat (the “Speedboat”)  within Hong Kong waters near the west coast of Lung Kwu Chau.

(b)The Police Vessel instructed the Speedboat to stop. However, the Speedboat did not and made a rigorous sharp turn that nearly collided with the Police Vessel, then it accelerated towards to the western border of Hong Kong at about 25 knot; made rigorous sharp turns and dangerous manoeuvre on three occasions.

(c)  D1 was the coxswain of the Speedboat. D2, who was sitting next to D1, turned and looked at the Police Vessel from time to time.

(d)  At about 0020 hours, the Speedboat was intercepted and D1, D2 and nine South Asian Bangladeshi males were found on board of the Speedboat. Immigration record showed that there was no entry record to Hong Kong for D1, D2 and the nine South Asian males. The nine South Asian males’ passports showed no exit record from China, and they were handed over to the Immigration Department for repatriation between 10 and 22 November 2023.

(e)  Under caution, D1 admitted, inter alia, that he charged RMB3,000 per head to transport the passengers from Zhongshan, Mainland China to Lung Kwu Chau, Hong Kong. He did not have any identification documents. He steered the Speedboat from Zhongshan to Lung Kwu Chau on 7 November 2023 with the nine South Asian males on board. He knew it was illegal to transport unauthorised entrants into Hong Kong. He did not know if there were fire-fighting equipment on the Speedboat. He and D2 were wearing the life jackets while the nine South Asian males did not.

(f)  Under caution, D2 admitted, inter alia, that he came from Zhongshan to Hong Kong to assist D1 without remuneration. D1 offered him a job for a reward of RMB3,000 to help sailing the Speedboat from Zhongshan to Lung Kwu Tan. He did not have any identification document.

The starting point

3.  For Charge 1, the maximum penalty is a fine of $5,000,000 and a 14 years’ imprisonment;  for Charge 2, that is a fine of $200,000 and a 4 years’ imprisonment.

4.  In respect of sentencing principle and guideline for Charge 1, the Court of Appeal’s decision in HKSAR v Wong Chi Kin, CACC 357/2004, HKSAR v Yeung Lap, CACC 385/2007,  and HKSAR v Tse Chi Hei, [2010] 5 HKLRD 707 are relevant.

5.  Yeung JA (as he then was)  held in Tse Chi Hei that the usual starting point of a charge of assisting the passage to Hong Kong of unauthorised entrants is a 4 years’ imprisonment.  If the defendant is the coxswain of the vessel or has taken part in organising or planning the journey, the starting point should be one of 5 years.  Where there are other aggravating factors such as hiding the illegal immigrants in places where it would be difficult for them to escape in case of emergency; the dilapidated state of the vessel and the lack of life saving apparatus; risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further. (para.  4)

6.  Accordingly, D1 is the coxswain of the Speedboat, the starting point for him in Charge 1 should be one of 5 years’ imprisonment, for D2, the starting point for Charge 1 should be one of 4 years’ imprisonment.

7.  According to HKSAR v Zhong Ming Jing, CACC 180/2010, the starting point of Charge 2 should be one of 18 months’ imprisonment.

Aggravating factors, mitigation and the total sentence

8.  Both D1 and D2 have clear record in Hong Kong.  They plead guilty at the very first opportunity, so they will have one-third discount on sentence.

9.  The court do find there are aggravating factors in Charge 1.  According to the Amended Summary of Facts, when the Speedboat was found, it did not stop and make a rigorous sharp turn that nearly collided with the Police Vessel, then it accelerated towards the western border of Hong Kong at about 25 knots and make rigorous sharp turns and manoeuvred dangerously on three occasions, there were no fire-fighting appliances, no life-saving appliances and no navigation light for night operation to be found on board.  The court cannot turn a blind eye to those aggravating factors.

10.  Accordingly, for D1 in Charge 1, the court will add a 6 months’ imprisonment to reflect the aggravating factors.  The starting point for D1 in Charge 1 is one of 5 years and 6 months’ imprisonment.

11.  For D2, he was not the coxswain and there is no evidence that he had any contribution to the aggravating factors; or he had taken part in organising or planning the journey, so his starting point in Charge 1 remains a 4 years’ imprisonment.

12.  Mr. James Wong acts for D1.  According to his mitigation, D1 has a clear record.  He commits the offence for financial reason.  He is a filial son, a caring husband and a good father who works hard to support his family.  He is known to his fellow villagers as a grateful and helpful person who contributes his time and effort to the welfare of the village.

13.  Further, D1 had, through his wife, supplied information concerning the syndicate of this case in Mainland China, which leads to the arrest of the boss and accomplices by the Chinese authorities. This alleged mitigation happens outside Hong Kong’s jurisdiction, the court has no way to verify it, so I will not put any weight on such mitigation.

14.  Mr. Robert Chan acts for D2.  According to him, D2 commits the offence for financial reason.  He has to support his family and he is deeply remorseful now.

15.  I consider both D1 and D2’s mitigation and conclude that other than their timely plea, they do not have any other mitigating factor.

16.  For D1, the sentence for Charge 1 is one of 5 years and 6 months’ imprisonment, after one-third discount, it becomes 3 years and 8 months;  for Charge 2, the starting point is one of 18 months’ imprisonment, after one-third discount, it is reduced to 12 months’ imprisonment.  As Charge 1 and Charge 2 happened in the same incident, and I have already considered the incidents that happened in Charge 2 to be the aggravating factors for Charge 1, so all the sentence of Charge 1 and 2 shall be run concurrently, the total sentence for D1 is one of 3 years and 8 months’ imprisonment;

17.  For D2, the sentence for Charge 1 should be one of 2 years and 8 months’ imprisonment after one-third discount.

Conclusion

18.  For D1, all the sentence for Charge 1 and 2 to be run concurrently, and the total sentence is one of 3 years and 8 months’ imprisonment.

19.  For D2, his sentence in Charge 1 is one of 2 years and 8 months’ imprisonment.