HKSAR v. WAN RUZHONG

DCCC 238/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 238 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to two charges: first one is being captain of a ship with persons on board seeking to land unlawfully in Hong Kong, which is contrary to Section 39 of the Immigration Ordinance; second charge is endangering the safety of others at sea, contrary to Section 72 of the Shipping and Port Control Ordinance.

2.  The facts have been agreed and I convicted the defendant on both charges.

3.  They arise from a patrol carried out by police vessels near Lantau Island on the early morning of 7 February 2016.  Their radar showed an unidentified motorised sampan speeding across the boundary of marine south waters towards Lantau Island, heading for a landing at the south area of Lantau Island.

4.  At about 4.24 am, the vessel, which was unlit, was sailing in the southeast direction, approaching the south of Lantau Island near Fan Lau.  Sea and wave conditions were considered to be rough at the time.

5.  The sampan was intercepted at about 1 nautical mile from the south coast of Lantau Island.  Seven illegal immigrants were found crouching on the deck and the defendant was controlling the steering wheel at the stern.

6.  The defendant was found to be a Mainland identity card holder.

7.  The seven illegal immigrants were from India, Pakistani and Bangladesh.  None had permission to land in Hong Kong.

8.  The defendant said that he was conveying those seven illegal immigrants from Zhuhai to Hong Kong for RMB300.

9.  There was no life jacket, compass and navigation light on the sampan, and the engine was a 10-horsepower Yamaha outboard.

10.  Later, an inspection by Ship Inspector found the hull structure was normal.  There was no fire-fighting equipment on the vessel.  There was no lifesaving appliances on the vessel; no navigation light fitted on board for the night operation.  The vessel was found to be seaworthy but the lack of equipment would have made it not suitable for operation.

11.  The defendant made various admissions during a video recorded interview.  He was to take a vessel from Zhuhai with seven foreigners on board the ship.  He was told to take them to a beach.  He was aware of the absence of navigation light and lifejackets.

12.  The defendant’s antecedent is as follows.  He is aged 44.  He is a resident of the Mainland and has a clear record in Hong Kong.

13.  As far as the mitigating factors put forward, they are as follows.  The defendant immediately confessed his guilt after arrest and has fully co-operated.  He was not the principal mastermind.  He is simply the coxswain of the vessel and did it for the sum of RMB300, which is a small sum of money.  All of the illegal immigrants were adult males.  The vessel stopped immediately when being asked to do so by the police.  No swerving, accelerating or other reckless movements of the vessel.  The conditions were not stormy, although not entirely calm.  Although the vessel lacked necessary equipment, it was in itself seaworthy.

14.  As far as the approach to sentence is concerned, I have been referred to the case of HKSAR v Ding Qijing, which is CACC 75/2014, which involved again a motorised sampan and seven Pakistani males seeking to land from the sampan.  Now, the sampan itself also lacked essential equipment, as this sampan did.  It also appears to differ from this sampan, in that the bottom buoyancy chamber had been removed.  There is no suggestion that happened in this case.

15.  The Court of Appeal considered the sentences that had been imposed by the trial judge and considered that, on the first charge, an appropriate starting point for sentence would be 4½ years’ imprisonment.

16.  That sentence was enhanced by 3 months to represent the aggravating factor in the commission of the offence in the absence of the vessel of the fire-fighting and lifesaving equipment.  That means leading to a total starting point for sentence of 4 years and 9 months’ imprisonment. 

17.  On the second charge, a starting point of 12 months’ imprisonment was adopted.

18.  It appears to me the operating factors in the case of Ding Qijing and in this case are the same in terms of the starting point for sentence on the first charge.  In this case there is also the absence of fire-fighting and lifesaving equipment.

19.  I propose then to adopt the following starting points for sentence in respect of each charge.

20.  On the first, Charge 1, a starting point for sentence of 4 years and 9 months’ imprisonment.   This will be reduced to 38 months’ imprisonment, having regard to the defendant’s plea of guilty.

21.  On the second charge, a starting point of 12 months’ imprisonment, which will be reduced to 8 months’ imprisonment, having regard to the defendant’s plea of guilty.

22.  I shall order that 2 months of the second charge be served consecutively to the first charge to represent the correct overall totality, giving a total sentence of 40 months’ imprisonment for these two charges.