HKSAR v. LIANG WEIXIAN

DCCC 803/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 803 OF 2013

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

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

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

Reasons for Sentence

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

1.  Defendant, you have pleaded guilty to one offence of 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, and to one offence of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313.

2.  You admitted the Brief Facts, and I convicted you.  What happened is this.  On 22 June last at about 5.45 pm, PC4706, who was on duty at the radar room on Stonecutters Island, noticed an object entering Hong Kong.

3.  Two police vessels were deployed to intercept it.  At about 5.57 pm, a sampan was intercepted near Lung Kwu Upper Beach, Tuen Mun.  Sergeant 16783 saw you sitting next to the engine as coxswain.  You tried to go to the middle of the sampan as the police approached.

4.  Six other people were hiding on board.  You are a Chinese national; four Pakistanis; and two Bangladeshis.  All your passengers were male, and none possessed the required Hong Kong visas to enter.

5.  You were arrested and cautioned.

6.  The six male passengers claimed their lives were in danger in their home countries.  They had boarded at 3.30 pm that day to come to Hong Kong.

7.  In a video-recorded statement under caution later, you claimed that your friend, “Ah Mou”, asked you to take someone to Hong Kong by sampan for 1,000 Renminbi.  You did not know the six males who entered Hong Kong illegally.  You knew how to operate the sampan as you had been a fisherman for over 10 years. 

8.  There were no life jackets or navigation lights.  Later examination of the sampan found it to be unseaworthy for three reasons:

(a) there were no fire-fighting appliances;

(b) there were no life jackets; and

(c) there were no navigation lights for night‑time operation.

9.  You are a man of hitherto clear record.

10.  Prior to mitigation, Ms Cheuk informed me that the usual starting point for the first offence was approximately 27 months, and very fairly, after mitigation had been entered by Ms Hung, she informed me that the starting point for the second charge was now 12 months.  Previous authorities had placed it at 18 months, so that operates very much in your favour.

11.  On your behalf Ms Hung entered mitigation. She told me that you are 36 years of age, married, with three children; Form 3 educated; and a fisherman by trade.  You earn approximately 2,000 Renminbi per month, with a state subsidy of an additional 1,000 Renminbi.  You are the sole breadwinner of the family.  Your mother, who is 60, has had an operation to her legs which requires money for the medical expenses.

12.  You were introduced to “Ah Mou” through a friend, and he asked you to sail to Hong Kong by sampan for 1,000 Renminbi.  He told you that to do so was not a crime, and you believed this to be the case. At a later stage, it seems he phoned you to give you the location.  You attended there, to find the six passengers already aboard.

13.  You came to Hong Kong.  You were intercepted, and made no attempt to evade or to escape capture.

14.  I am told that you are now remorseful for what you have done.

15.  Ms Hung submitted four authorities for my guidance.  With respect, the first two related to a slightly different situation, and the second two, relating to the second offence, now seem to have been superseded.

16.  She concluded her mitigation by asking for leniency and suggesting that the sentences should be concurrent.

17.  I turn now to the sentence.  You are a family man of clear record who committed the offence out of financial necessity to meet the medical expenses of your mother.  I am prepared to accept what is said: that you were somewhat naïve in believing this was not illegal.  That, of course, is of limited mitigation.  Upon interception, you were fully co‑operative, making no attempt to escape or to evade.  You went on to make full and frank confession to the police.

18.  The danger to your passengers lay in the lack of life jackets and fire-fighting equipment.  The danger itself is self‑evident in these circumstances.  The lack of night lights for navigation, whilst serious, is not so relevant given the time of day at which these offences occurred.

19.  Taking all the facts into consideration, the mitigation and the sentencing authorities that I have been referred to, on Charge 1, I take a starting point of 24 months, reduced to 16 months for your plea of guilty; and Charge 2, a starting point of 12 months, reduced to 8 months for your plea of guilty.

20.  These, however, will be served consecutively, making a total of 2 years.