HKSAR v. LIU JINGFENG AND ANOTHER

DCCC 813/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 813 OF 2013

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REASONS FOR SENTENCE

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1.  D1 and D2 were jointly charged “Attempting to land in Hong Kong without permission”, contrary to section 38(1)(a) of the Immigration Ordinance, Cap 115, section 159G of the Crimes Ordinance, Cap 200 and section 89 of the Criminal Procedure Ordinance, Cap 221 (charge 1) .

2.  The particulars of the offence are that both defendants on 17 June 2013 in Hong Kong aided and abetted five Pakistanis, as named in the charge, who by virtue of section 7 of the Immigration Ordinance may not land in Hong Kong without the permission of an Immigration Officer or Immigration Assistant to attempt to land in Hong Kong without such permission.

3.  D1 is also additionally charged with “Endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (charge 2). The particulars of this offence are that on 17 June 2013, without reasonable excuse, D1 endangered or caused to be endangered the safety of the five Pakistanis conveyed in his sampan by navigating the said sampan which was unseaworthy in that:-

(1) There was no fire fighting appliance equipped on board;

(2) There were only three life jackets on board; and

(3) There was no navigation light fitted on board for night operations.

4.  According to the amended summary of facts which has been admitted by both defendants, at around 7.35 am of 17 June 2013, police officers who were on board of a police vessel found a suspicious sampan in Hong Kong waters.  The police officers then approached the sampan and saw D1 and D2.  D1 was the coxswain and was operating the engine.  Upon seeing the police, the sampan suddenly turned to the right and sped up.  As a result, the police vessel had to slow down to avoid the collision.  The sampan then fled towards Chinese waters.  The police vessel then immediately gave chase after the sampan and during the chase, the policemen spotted five passengers on board.  The passengers were seen holding up their hands and they were yelling loudly.  At the same time, D2 kept on telling the passengers to sit down.  After chasing for about 10 minutes, D1 eventually followed the policemen’s command and stopped the sampan voluntarily.

5.  Upon investigation, there were five Pakistani males on the sampan.  They only possessed their respective passports and did not have valid visas to enter into Hong Kong.  They further revealed that they had paid a middleman in Pakistan and Hong Kong to convey them to Hong Kong for seeking asylum and that they boarded the sampan in China.

6.  Both defendants had admitted their offences under caution.  D1 said that he committed the offence because he was promised a reward of $5,000 and then he asked D2 to assist him and they together with the five males departed Guangdong for Hong Kong. 

7.  As far as D2 was concerned, he admitted that he was friends with D1 and he would be paid RMB1,500 as reward.

8.  The sampan was later examined.  It was found that:-

(a) Fire extinguishers should be provided for oil or engine fire but no fire-fighting appliances were equipped on the sampan;

(b) One life jacket should be provided to each person on board but there were only three life jackets on board;

(c) There was no navigation light fitted on board for night operation; and

(d) The sampan was unseaworthy.

9.  Both prosecution and defence agreed that at the material time, the sky was clear, visibility was high, the sea was calm, wind speed was low and the traffic was light.

10.  Both defendants were residents of mainland China.  They both have a clear record.  They were both in their mid-thirties.  I was told that D1 was born in China and educated to Secondary Form 3 level.  His father died when he was young and he now resided together with his mother, who is now aged 70.  He was married.  His wife is aged 28 who is a housewife and they have a son now aged 6 who is a kindergarten student.

11.  D1 was a farmer at home and before that he had worked as a sailor for a brief period.  Mr Joseph Chan, the solicitor appearing for D1, told the court that it was financial reasons for D1 to commit the offence to give a better life for his family and to pay for the school fee for his son.  In mitigation, Mr Chan also submitted a letter of mitigation written by D1 himself.  Basically it confirmed what Mr Chan had told the court.  In the letter, D1 had expressed remorse and he asked for a chance to be treated as leniently as possible so that he can go back to his age-old mother and also the young son.

12.  D2 was educated to primary school level.  He was also married and have two sons now aged 10 and 15, and both are students.  He also had parents to support who were aged 71 and 72.  He was a watchman by occupation.  Mr Chan also told me that it was because of financial reasons that D2 committed the offence.  He wanted to give a better life for his family and particularly for his children.

Mitigations

13.  Mr Chan prefaced the mitigation by pointing out that in this case, after defendants were arrested they have fully cooperated with the police and had pleaded guilty to the offences at the earliest opportunity indicating that they are extremely remorseful.  Needless to say, both defendants had clear conviction records.

14.  Mr Chan also pointed out to me that luckily in this incident no collision was involved and no one was injured.  The vessel is not in a dilapidated state.  There were no children or women on board and there was no hidden compartment.  In the end, D1 eventually followed the police command and stopped the vessel voluntarily, albeit after a 10 minutes chase.  Mr Chan urged the court to consider these factors which are favourable to the defendants.

15.  In relation to charge 1, Mr Chan relied on the case of HKSAR v Tseung Yim Kwan CACC531/2005, in which the Court of Appeal had dealt with a case involving the same offence which is “Attempting to land in Hong Kong without permission”.  In that case, the court below adopted a sentence of 18 months’ imprisonment and the prosecution submitted that the sentence of 18 months’ imprisonment which was imposed after trial was not in any sense excessive.  In dealing with this submission, the Court of Appeal had expressed that the guideline tariff as laid down in the case of R v So Man King & Others [1989] 1 HKLR 142 which is for “Unlawfully remaining in Hong Kong” contrary to section 38(1)(b) of the Immigration Ordinance is equally applicable to this offence.  In the end, the Court accepted the prosecution submission and did not disturb the starting point taken by the Judge below for this offence.

16.  In relation to charge 2, Mr Chan relied on another case laid down by the Court of Appeal and that is HKSAR v Tang Zhu Yan CACC223/2010.  In that case, the court below had adopted a starting point of 18 months’ imprisonment. In the end, the court allowed the appeal and reduced the starting point from 18 months to 12 months’ imprisonment.  In so deciding, the Court of Appeal had said that:-

“24. Given the absence in this case of aggravating features of danger, either deliberately caused by the coxswain of the escaping sampan or as a consequence of the state of the sea, the overloading of the vessel and its condition, the starting point of 18 months’ imprisonment is manifestly excessive. In our judgment, the appropriate starting point for sentence is 12 months’ imprisonment.”

Mr Chan urged this court to follow this decision and to adopt a similar starting point of 12 months’ imprisonment for charge 2 and also give full discount to D1’s guilty plea.

17.  Finally, Mr Chan submitted that because of the totality principle, he urged the court to consider passing at least a partly consecutive sentence in relation to the sentences of both charges.

Sentencing considerations

18.  In relation to charge 1, the maximum sentence is only 3 years’ imprisonment.  I should say in the beginning that both defendants should consider themselves very lucky in that the passengers on board of the sampan at this time were Pakistanis and as such were not “unauthorised entrants” as defined by the Immigration Ordinance.  Had those persons on board the vessel been Mainlanders, the prosecution would no doubt have been under section 37D of the Immigration Ordinance and the usual starting point of sentence would have been 5 years’ imprisonment. 

19.  This discrepancy has already caused considerable concern to the court before.  In DCCC1411/2009, His Honour Judge Browne had already expressed that there was a discrepancy in the treatment of the people bringing unauthorised entrants from the Mainland and people who are unauthorised from elsewhere.  Judge Browne had already urged that there should be an amendment of the law either to reform the definition of “unauthorised entrant” or simply to increase the maximum sentence under section 38.  The case was decided in March 2010.  More than three years had elapsed since but unfortunately nothing was done so far to remedy the situation and instead in the last three years, we saw the growing numbers of the influx of people, particularly South East Asians, from China to Hong Kong to seek political asylum.  Once again, I can only adopt what Judge Browne had said in that case and urge the authority to remedy the situation without delay.

20.  Coming back to charge 1, I accept the usual sentencing tariff guideline in So Man King (supra) which is 15 months on a plea should be equally applicable to section 38(1)(a) of the Immigration Ordinance but in this present case, we are not dealing with a single Pakistani, but five Pakistanis who intended to come to Hong Kong to be asylum-seekers. 

21.  Also, there are additional aggravating features in that there was lack of fire-fighting equipment and there was insufficient lifesaving equipment.  In HKSAR v Zhong Ming Jing (unreported) CACC180/2010, the Court of Appeal had already said that in the future, those were matters that should be regarded as factors of aggravation.  While Zhong Ming Jing was decided in relation to “unauthorised entrants” but I judge that the nature of the two offences are the same and I see no reason why the Court of Appeal’s comment in relation to the aggravating factors which are applied to the section 37D offence should not equally apply to the present offence.  For this reason and because this case involved altogether five Pakistanis, another 6 months should be added to the notional starting point of 22½ months.

22.  After giving the defendant the one‑third discount, the sentence should be reduced to 19 months’ imprisonment but because I accept that D2 assumed a lesser role than D1 in this case, I would reduce a further 2 months in his case.  In the end, D1 is sentenced to 19 months’ and D2 17 months’ imprisonment.

23.  Insofar as charge 2 is concerned, Mr Chan had urged the court to impose a 12 month starting point instead but in this case there are some factors present which are aggravating factors in that when the police vessel approached the sampan, the sampan suddenly turned to the right and sped up, the police vessel had to slow down to avoid the collision.  Thus, unlike the decision relied on by Mr Chan, I judge that there are some aggravating features in this case and for these reasons, the appropriate starting point should be 15 months imprisonment.

24.  Because of the D1’s plea, in this charge, the sentence should be 10 months’ imprisonment.

25.  Finally it is the matter of totality.  D1 faces two sentences, 19 months and 10 months respectively.  There are authorities which says that the two sentences can run wholly consecutively.

26.  However, because of the principle of totality, I decide that I will order 5 months out of charge 2 to run consecutive to charge 1 and the balance to run concurrently.  In the end, for the two offences, D1 would receive a total of 24 months’ imprisonment.