HKSAR v. LIANG ZHIKUN AND ANOTHER

DCCC 91/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 91 OF 2015

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REASONS FOR SENTENCE

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THE CHARGES

1. The defendants appeared before me this morning and pleaded guilty to all of their respective charges. 

2. D1 faces three charges:-

(1) assisting the passage within Hong Kong of an unauthorised entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115 (Charge 1);

(2) assisting in export of unmanifested cargoes, contrary to section 18A(1)(b) of the Import and Export Ordinance, Cap 60 (Charge 2); and

(3) endangering the safety of others at sea, contrary to section 72 of the Shipping & Port Control Ordinance, Cap 313 (Charge 3).

3. D2 was jointly charged with D1 in Charge 2.

4. Charge 1 avers that on 1 December 2014, D1, being the coxswain of a motorised sampan in Hong Kong, assisted the passage within Hong Kong of D2, an unauthorised entrant.

5. Charge 2 avers that D1 and D2 knowingly assisted with the carrying of cargoes, namely, 54 bags of herbal medicine and 22 bags of wood logs, with intent to export the said cargoes without a manifest or with intent to assist another person to export the said cargoes without a manifest.

6. Charge 3 avers that D1, without reasonable excuse, endangered or caused to be endangered the safety of other persons (namely, D2 and police officers on board Police Vessel 31 and police vessel 33), in that being the coxswain of the sampan which was underway:-

(1) navigated the sampan which was unseaworthy, namely, the main hull structure was in poor condition and with no firefighting appliance, lifesaving appliance and navigation light on board; and

(2) made sudden and dangerous manoeuvres of the sampan and caused collisions between the sampan and the said Police Vessels 31 and 33 respectively, so as to evade interception by the said police vessels, and there was no fire-fighting appliance equipped on board.

The facts

7. According to the summary of facts, at 0029 hours on 1 December 2014, D1, being the coxswain of the motorised sampan, was intercepted by two police vessels (PV 31 and PV 33) near Tai A Chau, when the sampan was on the way of leaving Hong Kong at 40 knots/hr.  While the sampan was underway, there was no illumination or navigation light.

8. The police directed the sampan to stop by light signal but D1 did not comply with the direction and kept fleeing from the vicinity.

9. In the course of chasing the sampan, suddenly the sampan swerved to the starboard side and collided with PV 31.  The sampan also later bumped at PV 33.

10. As the sampan was damaged and its speed was lowered, the police made a forced boarding and discovered that D1 was the coxswain with a male D2, a Mainland resident, on board.

11. Upon search by the police, 54 bags of herbal medicine and 22 bags of wood logs were seized from the sampan.  The total estimated value of the seized exhibits is HK$1.25 million.

12. Under caution, D1 admitted that he was instructed by a male surnamed Chan to navigate the sampan so as to smuggle cargoes from Hong Kong to PRC and he would receive RMB1,000 as reward.  He met D2 in PRC and they boarded the sampan and he brought D2 to go to Hong Kong for smuggling.

13. In Hong Kong water, they approached a fishing vessel with red light signal.  Two crew members moved the cargoes from the fishing vessel to the sampan.  D1 and D2 later met the police when they were heading back to China but D1 did not stop and kept fleeing from the vicinity.  He had made several sharp turns and, as a result, the sampan bumped onto the police vessels.

14. Under caution, D2 admitted that he was instructed by the same male to smuggle cargoes from Hong Kong to PRC and for that he would also receive HK$1,000 as reward.  They met a fishing vessel in Hong Kong water and D1 stopped the sampan besides the vessel.  The crew members in the vessel put the cargoes to the sampan.  He said he had no knowledge about the nature of the cargoes.

15. The sampan was later sent to the Marine Department for examination. According to the ship inspector’s opinion, it was confirmed that the main hull structure was found in a poor condition.  There was no fire-fighting appliance equipped on board.  There were only two substandard lifejackets on board and there was no navigation light fitted on board for night operation.  The vessel was thus found to be unseaworthy and not suitable for navigation.

The criminal record and the background of the defendants

16. Both defendants are residents from the Mainland and they each had a clear record in Hong Kong.

17. D1 is aged 43.  He is a farmer by occupation and he also worked as an odd-job labourer.  He only had an education of Primary 3 level.  D1 is married with two children: the daughter is 18 years old and the son is 13 years old.

18. D2 is aged 26.  He was a factory worker and also a labourer.  He only received Primary 1 education.  He is married with a 3-year-old son and they live together with his parents.

Mitigations

19. In mitigation, Mr Carl Yuen, counsel for both defendants, emphasised the fact that the two defendants have pleaded guilty to the charges and were all very co-operative with the police after arrest.  They have disclosed everything they knew to the police during the cautioned interviews and they were now very remorseful.

20. Mr Yuen said both defendants understand the gravity of the offences but they still plead for leniency.  The reason why they agreed to enter into Hong Kong to smuggle the goods was purely greed and they intended to earn quick money.

21. Mr Yuen pointed out that in Charge 1, there is only one unauthorised entrant on board of the sampan and D2 was not travelling inside a hidden compartment.

22. In Charge 2, Mr Yuen said the smuggled goods were found not to be endangered species in Hong Kong and the value of the goods is not that much, approximately HK$1.25 million, in comparison with other more serious smuggling cases.

23. In Charge 3, Mr Yuen said that, firstly, there were still two lifejackets on board of the sampan, albeit they were not up to the safety standard in Hong Kong. 

24. Secondly, D1 was not a fisherman by training and he was just unfortunate enough to be put in a position to be in charge of the sampan after being given only brief instructions to operate the sampan and that was why D1 had no knowledge of the light signals when he was stopped by the police and he committed Charge 3 just out of panic.

25. Mr Yuen further added that D1 was living with an elderly mother who is now 82 and is suffering from Alzheimer disease. 

26. He further handed up two medical certificates in respect of the parents of D2 to confirm that D2’s father has been paralysed after a stroke attack and D2’s mother is also suffering from a spinal disease which affected her mobility seriously.

27. D2 also wrote a letter himself and expressed that he worried so much about the family situation after his arrest and promised not to break the law in the future.  He asked the court to consider passing him a lenient sentence so as to let him go back to his family as soon as possible.

Sentencing considerations

28. In sentencing, I took into account the nature of the offences, the circumstances of the case, the defendants’ personal background, their pleas of guilty and also the authorities by the Court of Appeal in relation to those charges.

29. Both defendants have clear record but it carries little weight in mitigation, as they are all Mainland residents.

30. I do have sympathy for the family members of both defendants but the Court of Appeal has made it clear that family circumstances virtually play no part in mitigation.  If the defendants really care for their family members, they should really think twice before accepting the offer to enter into Hong Kong waters to commit offences.

31. Both defendants admitted that they committed the offence for a monetary reward of RMB1,000.  The court must also make it clear that it would and can never accept any reason, not to mention economic pressure, to commit crimes.

32. Amongst the three charges faced by D1, Charge 1 is most serious and the maximum sentence is 14 years upon a conviction on indictment.

33. The Court of Appeal had already decided that an appropriate starting point for an accused who was in charge of a vessel carrying unauthorised entrants to Hong Kong is 5 years under section 37D of the Immigration Ordinance.

34. In HKSAR v Tang Zhuyan [2001] HKLRD 447, the Court of Appeal said, in paragraph 16:-

“As this court noted in HKSAR v Wong Chi Kin, the appropriate starting point for sentence after trial for an offence under section 37D(1) of the Immigration Ordinance, where the accused is the captain or the person in charge of the vessel, is 5 years’ imprisonment. The court went on to give a non-definitive list of aggravating factors relevant to sentence. Those factors included the fact that ‘the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering passengers’.”

35. In paragraph 18 of Tang Zhuyan (supra), the Court of Appeal has specifically also referred to another case, HKSAR v Zhong Ming Jing (unreported) CACC 180/2010 and said that public expectations of safety at sea had moved on and expressed disagreement with its earlier observation in respect of fire-fighting and lifesaving equipment and said that henceforth, those were matters that should be regarded as factors of aggravation.

36. In relation to Charge 2, “exporting unmanifested cargoes” or what is more commonly known as “smuggling” is also serious.  There are however no guideline for offences of this kind but it is worth recalling that the legislation provides a maximum sentence of 7 years’ imprisonment for such offences when they are tried on indictment.  The scale and organisation of the smuggling operation as well as the nature and the value of the unmanifested cargoes are obviously factors for consideration.

37. In sentencing Charge 2, I have referred myself to HKSAR v So Sung Loi & Ors (unreported), CACC 115/2007.  The defendants in that case were convicted in the District Court for the same offence as in Charge 2 in this case, namely, “assisting in the export of unmanifested cargoes”, and they were sentenced to 2 years’ imprisonment after trial.

38. In So Sung Loi (supra), the defendants were seen removing cartons of goods from a lorry to a sampan in a ferry pier.  There were altogether 83 cartons of assorted electrical goods and computer parts, and 40 ingots of silver.  Their total value exceeded $6 million.  There was no manifest for the goods.

39. The application for appeal against sentence by the coxswain of the sampan and the driver of the lorry were eventually dismissed by the Court of Appeal.

40. Whilst dismissing the appeal, the Court of Appeal did not however agree with the sentences imposed by the court below and commented that:-

“…the sentences for those in this case who played a role which was more than that of a mere labourer could be described as having veered on the side of leniency”. (see paragraph 17)

41. In relation to Charge 3, the Court of Appeal has said in paragraph 22 of Tang Zhuyan (supra) that, after reviewing the facts of that particular case, it came to the conclusion that given that there is absence of aggravating features of danger because there was no collision, no attempt to escape or dangerous manoeuvre, the District Court’s decision to use 18 months’ imprisonment as a starting point was said to be manifestly excessive.  The Court of Appeal considered that, in those circumstances, an appropriate starting point for sentence would therefore be 12 months’ imprisonment.

42. Applying the above decisions to the particular facts of this case, in Charge 1, I accept that the usual starting point in this charge should be one of 5 years. 

43. Because of what the Court of Appeal has said in Zhong Ming Jing (supra), I cannot overlook the aggravating features in the charge in that there was no fire-fighting and also substandard lifejackets on board of the sampan in the present case.

44. I will therefore add another 3 months to the 5-year starting point.

45. For Charge 1, therefore, the appropriate starting point is 63 months.

46. For Charge 2, it is a smuggling case where the two defendants from the Mainland were recruited by the ringleader to carry the valuable herbal medicine and wood logs from Hong Kong and smuggle to the Mainland.  Each defendant played a different role in this operation but was well aware that he was dealing in a cargo without a manifest.

47. In terms of the criminality between the two defendants, D1 obviously played a more major role than D2, although their monetary rewards were said to be the same.  As the operator of the sampan, D1 was more than a mere labourer played by D2.

48. After considering the size of the operation as well as the value of the goods, for this offence, I consider that the appropriate starting point for a coxswain such as D1 in a smuggling operation should be 21 months, whereas for a mere labourer such as D2, it should be 18 months.

49. The starting point for D1 and D2 is therefore 21 months and 18 months respectively.

50. In relation to Charge 3, there were attempts by D1 to flee in order to avoid the police vessels when the police attempted to intercept the sampan. There was also bumping and collision with the two police vessels in the course of the pursuit by the police vessels.  Therefore, there were additional aggravating factors in this charge.

51. Based on the sentiment expressed by the Court of Appeal in paragraph 22 of Tang Zhuyan (supra) as cited above, I shall still adopt an 18 months’ starting point.

52. Affording the defendants the discount for one-third from the starting points, which is the only and effective mitigating factor in their case, the appropriate sentence for each offence for each defendant is as follows:-

53. D1:-

(1) Charge 1: 42 months’ imprisonment;

(2) Charge 2: 14 months’ imprisonment;

(3) Charge 3: 12 months’ imprisonment.

54. D2:-

(1) Charge 2: 12 months’ imprisonment.

Total sentence for D1

55. In D1’s case, the total sentences for the three charges will be 68 months’ imprisonment, if the sentence for each offence is to be served wholly consecutively to each other.

56. Clearly, there should be a further adjustment of the sentences because of the principle of totality and also because there were some overlapping of the facts between Charge 1 and Charge 2 as well as Charge 1 and Charge 3.

57. As a result, I order that 6 months of the sentence imposed in respect of Charge 2 to run consecutively to the sentence of Charge 1, and 3 months in respect of Charge 3 to run consecutively to the sentences on both Charge 1 and Charge 2, making the total sentence of the three charges against D1 one of 51 months’ imprisonment (42 + 6 + 3 = 51).