HKSAR v. ZHONG MINGJING

 DCCC259/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 259 OF 2010

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Reasons for Sentence

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1.  Zhong Mingjing, you have been convicted on your own plea to one charge of assisting the passage to Hong Kong of a sampan carrying eight unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance. You have also been convicted on your plea of one charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, and one charge of failing to stop the sampan, contrary to regulation 20(1) and (3) of the Shipping and Port Control Regulations.

2.  You admitted the facts that were read to you but in order to clarify the nature of the chase before you were apprehended and the speed of your vessel, I heard evidence from two police officers, SSGT Hui Ka-wai and SPC 48051. Having heard their evidence and taking into account the facts that you have admitted, I am satisfied of the following.

3.  At about 1845 hours on the day in question you were the coxswain of an unlit sampan which crossed into Hong Kong waters in Mirs Bay carrying eight male unauthorised entrants, all mainland males. Although it was almost dark, your vessel was unlit. On your own admission, you had no prior training in driving sampans and were unlicensed to do so.

4.  You admitted that you had picked up the eight men at Nan’ao. Neither you nor any of your passengers were wearing life jackets; indeed, there were no life jackets on board the sampan, nor was there any fire‑fighting equipment. The sampan had no navigation lights for night-time navigation. The ship inspector who subsequently inspected the vessel concluded that for these reasons the sampan was unseaworthy.

5.  Your vessel was picked up on police radar travelling at about 13 knots as it entered Hong Kong waters travelling in the direction of Crescent Island. Thirteen knots was not an excessively fast speed if the vessel had been otherwise safe. A police vessel, PV5, which was positioned behind Crescent Island, was notified.

6.  At about 7 pm, your vessel came into sight of those on board the police vessel. It approached your vessel at a speed of about 25 to 30 knots. When it was about 10 metres from your vessel, it switched on its warning light. Your response was to accelerate your vehicle away at what must have been approaching the top speed of the sampan in the circumstances. The police vessel switched on its blue light and shone a searchlight on your vessel and used it to signal to your vessel to stop. You ignored it.

7.  For the next 4 minutes or so there was a chase between your vessel and the police vessel. SPC 48051 has drawn a sketch to give a rough indication of the main directions taken in the course of the chase. During the chase, the two vessels were very close to each other, about 2-3 metres. The vessels were running a parallel course but your vessel was for most of the chase slightly ahead of the police vessel. SPC 48051, who was on the police vessel, estimated that your speed must have been at least 20 knots because that was the speed which he said the police vessel must have been travelling at in order to glide in the water.

8.  What was particularly dangerous was not so much your speed but the manner in which you navigated the vessel during the chase. You would suddenly turn your vessel to the left or right during the course of the chase. Those turns are not indicated on SPC 48051’s sketch. The officer said that over 10 times you attempted to turn your vessel into what would have been the path of the police vessel. This manoeuvring caused the police vessel to decelerate and turn sharply. SPC 48051 said that on occasions the police vessel was caused to tilt as much as 45 degrees. Not only was there a risk of collision but there was also a danger that your passengers would fall overboard. SPC 48051 described your navigating as very unsafe. That is obviously right.

9.  Eventually, for some unexplained reason, your outboard motor appears to have cut out and the police were able to intercept your vessel. When you were later interviewed, you admitted that you had kept changing course in order to escape. Although you claimed that you only realised it was a police vessel later, I do not accept that you can have been in any doubt that this was a police vessel that was chasing you.

10.  The offence of assisting the passage to Hong Kong of unauthorised entrants is one viewed by the courts in Hong Kong very seriously. It carries a maximum term of 14 years’ imprisonment. In your case, the offence is aggravated by the fact that you were the coxswain of a vessel bringing eight unauthorised entrants in on a vessel without lights, with no life jackets and no fire-fighting appliances. A starting point of 6 years’ imprisonment is appropriate on Charge 1.

11.  The particulars of offence of the 2nd charge of endangering the safety of others at sea makes clear that the conduct complained of was that you “steered the said motorised sampan in dangerous manoeuvre during pursuit by police vessel PV5.” The conduct alleged is therefore distinct from the allegations regarding the lights and equipment carried in the vessel. I bear in mind that there was no actual collision in this case and no evidence that anybody was even thrown off balance by what occurred. I bear in mind that there were no other vessels in the vicinity.

12.  Nevertheless, to attempt to escape the police by increasing your speed, swerving your vessel and turning it into the path of a police vessel is dangerous conduct. I adopt a starting point of 18 months’ imprisonment in respect of that offence.

13.  The 3rd offence of failing to stop is part of the attempt you made to escape from the police vessel. I adopt a starting point of 3 months’ imprisonment.

14.  I have taken into account the skeleton submissions given to me by Mr Mui and all that he has said on your behalf. I bear in mind what you said in your letter that was read out to me; in particular, I bear in mind that you are a young man who has recently married and have a young baby and that this is your first offence in Hong Kong and in the mainland. However, the only real substantial mitigation in this case are your pleas of guilty, for which you are entitled to the usual discount of one‑third.

15.  Having taken into account the overall criminality in the case, I pass sentence as follows:

Charge 1: 4 years' imprisonment;

Charge 2: 1 year's imprisonment, which is to run consecutively to the sentence on Charge 1;

Charge 3: 2 month'’ imprisonment, which is to run concurrently with the sentence on Charge 2 but consecutive to the sentence on Charge 1.

16.  The overall sentence is 5 years' imprisonment.