HKSAR v.WONG HING

DCCC 1289/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1289 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of aiding and abetting the attempt of 8 illegal immigrants (5 Pakistanis and 3 Africans) to land in Hong Kong and another charge of endangering the safety of his passengers (i.e. those 8 illegal immigrants on board) at sea, contrary to section72 of the Shipping and Port Control Ordinance Cap 313.

2.  The defendant entered the Hong Kong waters from the mainland at about 4.15 am on 8 October 2009. When stopped by the marine police, the defendant was found to be manning an unlit motorized wooden boat, in which 8 illegal immigrants were found hidden inside a concealed cabin underneath the deck of the boat.

3.  When cautioned, the defendant said he was a factory worker from Dongguan of the mainland. He was promised a financial reward to repay his debts for conveying some illegal immigrants to Hong Kong. On the evening of 7 October 2009 he set off from the Dongguang waters with the 8 illegal immigrants on board of his boat. He had been travelling for some 5 to 6 hours before he was intercepted by the Hong Kong police. This was the first time he steered a boat.

4.  Upon inspection, the 10 meters long, 2 meters wide and 1 meter deep boat used by the defendant was found to be of poor and unseaworthy condition. The boat was assessed to be about 10 years old. Its wooden hull planking, structural frames as well as the subdivision bulkheads were found to have rotted severely. Cracks, holes and loosen sealing compounds were seen on the bulkheads which diminished the watertight integrity and buoyancy of the boat. There was no bilge system to remove excess water accumulated within the hull. The boat had an extremely low freeboard level at no load condition, which rendered the boat to easy flooding at moderate sea condition. The boat was not equipped with any fire fighting appliance or life jacket. No navigational light was found on the boat.

Statutory Construction

5.  The court was a little concerned about the choice of the charges in the indictment. On the facts placed before court, the most direct charges seem to be (i) carrying unauthorized entrants under section 37C or (ii) assisting passage of unauthorized entrants to Hong Kong under section 37D; and the offence of aiding and abetting illegal immigrants to land in Hong Kong contrary to section 38(1)(a) of Cap 115.

6.  Prosecution seems to have taken the approach of construing r. 2(1)(aa) of the Immigration (Unauthorised Entrants) Order as confining its application to PRC citizens (or PRC residents). If such a narrow construction is intended, the legislative draftsman could have written “all PRC citizens (or residents) who leave, or seek to leave the People’s Republic of China….” in r.2(1)(aa) rather than its current broad generic term of  “all persons who leave, or seek to leave the People’s Republic of China….” [with italics added].

7.  Whether the stance taken by the prosecuting counsel in the interpretation of the statute of r. 2(1)(aa) is correct is beside the consideration of this court as the discretion to prosecute and the choice of charges rest with the Secretary of Justice.

8.  Further no charges under Part VIIA of Cap 115 could be preferred without the consent of the Secretary for Justice (s.37L of Cap 115).

9.  It would be an academic pursuit for this court to interpret the meaning of r.2(1)(aa) of the Immigration (Unauthorised Entrants) Order when there is no charge before court calling for the construction of the meaning of the phrase of “unauthorized entrant”. With the separation of power, the role of the court is really to adjudicate if the facts of the prosecution’s case support the charges preferred against the defendant.

10.  The construction of the phrase “to land” rests largely with the definition provisions within the Immigration Ordinance. In section 2(1) “Land (入境)” is defined as meaning (a) enter by land or disembark from a ship or aircraft; and (b) in the case of a person who arrives in Hong Kong otherwise than by land or in a ship or aircraft, land in Hong Kong.

11.  “To land in Hong Kong” is further expanded in section 2(2) where the subsection stipulates “References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of the Ordinance…..” [with italics added].

12.  When one bears reference to section 2(2) of Cap 115 in the construction of the words of “to land”, one cannot confine the meaning of “to land” in the narrow context of setting foot on dry land of Hong Kong as suggested by the prosecutions.

13.  Section 2(2) of Cap 115 clearly contemplated the situation when an illegal immigrant entered Hong Kong (inclusive of Hong Kong land as well as Hong Kong territorial waters) otherwise than by air of by ship, such as by way swimming. This is possibly the very reason why Mr. Justice Arthur Leong (as he then was) adopted a purposeful construction in Tse Hing San [1997] HKLRD 440 at 444 in stating the meaning of “disembark” include “leaving” a ship.

14.  Whether one wishes to include the act of leaving a ship, such as jumping into the water for the purpose of swimming ashore or by other means, in section 2(2) or as part of the meaning of “disembark” within the 1^st limb or 2^nd limb meaning of “land” in section 2(1) is a matter of semantics.

15.  When one takes international law into consideration, one obviously bears reference to the fact that a vessel represents part of the territory of the country the flag of which the vessel flew. If the illegal immigrant is on board of a foreign vessel, up till the moment he jumps into Hong Kong waters or set foot on Hong Kong soil, he could still be within the territory of the country of registration of the vessel.

16.  As far as a motorized fishing boat from our neighbouring PRC cities is concerned, one would have to be satisfied whether the vessel comes within the definition of a “local vessel” within the meaning of the Merchant Shipping (Local Vessels) Ordinance Cap 548 to decide if the vessel is a local vessel for the application of the Hong Kong law.

17.  Should the vessel be a local vessel, the minute the crewman enters Hong Kong territorial boundary inclusive of Hong Kong waters, there is no reason for the crewman to claim he has not entered Hong Kong for the application of Cap 115.

18.  In my opinion the defendant should have been charged with the offence of aiding and abetting an illegal immigrant to land in Hong Kong rather than to aid and abet an attempt to land if the defendant was using a local vessel within the context of Cap 548.

19.  Since there is no information in the summary of facts to suggest the vessel in question is a local vessel, I see no reason to venture into speculation. In the absence of the above information, I see no irregularity in accepting the defendant’s plea to the charge of aiding and abetting an attempt to land in Hong Kong.

20.  I raise all of the above requisitions in the hope of sparking off a more well-defined approach to be adopted by the Department of Justice in the legislative construction of the meaning of “to land” and “unauthorized entrants” in the context of Cap 115 for subsequent cases brought forth for adjudication.

Sentence

21.  The defendant is 24 years of age. He had a clear record in Hong Kong. He used to work as a factory worker in the mainland. In his mitigation it was said on his behalf the deck of the boat in question was not cemented nor sealed which means the illegal immigrants could jump to free themselves in case of emergency.

22.  The penalty prescribed by section 38(1) of Cap 115 is a level 4 fine and a term of 3 years imprisonment. Illegal remaining of a single illegal immigrant from the mainland is visited with a conventional 15 months imprisonment when a plea of guilty was tendered.  An attempt is usually visited with the same level of punishment as if the entry of the illegal immigrants would have materialized had the defendant’s motorized fishing boat not been stopped by the marine police of Hong Kong before the defendant’s boat reached the shoreline. An aider and abetter should receive similar, if not heavier, penalty as the illegal immigrant so as to curb the growth of the activity.

23.  The defendant was assisting 8 illegal immigrants, 5 of Pakistani and 3 of African race, to enter Hong Kong illegally.

24.  In Nguyen Quoc Thuan HCMA-338/1997 Mr. Justice Leong (as he then was) at paragraph 4 of the judgment indicated nationality of the illegal immigrant makes no difference to the level of sentence to be meted out for the offence of illegal remaining.

25.  Poon Koon Tai CACC-836/79 was a case dealing with the charge of conspiracy to aid and abet the landing of illegal immigrants. In Poon 4 years starting point was adopted for sentence. In Poon the conspiracy involved a more elaborate plan with the participation of a number of co-conspirators for the carrying out of the plot.

26.  The only other reported case which dealt with the charge of aiding and abetting an attempt which came to my attention was the case of Lung Po Chak CACC-418/2007. Lung however was disposed of at a different point of consideration not touching upon sentence.

27.  I am not aware of any reported case on the sentence of a similar charge of aiding and abetting a number of illegal immigrants to attempt to land. Bearing in mind there were a total of 8 illegal immigrants, for the aiding and abetting charge, I adopt a starting point of 2 ½ years.

28.  For the offence of endangering the safety of passengers, section 72 of Cap 313 stipulated 4 years imprisonment and $200,000 fine to be the statutory bracket for sentence for conviction on indictment.

29.  Most of the cases involving acts of endangerment of passengers were dealt with together with the offence of assisting passage of unauthorized entrants where the usual tariff is a term of 4 years for crewmen and 5 years for captain or persons in charge of the vessel (see Yeung Wui CACC-415/2004; Wong Chi Kin CACC-357/2004, Tam Kam Mun CACC-327/2001; Wong Yin lung [1995] 1 HKCLR 151). In Yeung Wui CACC-415/2004 the sentencing judge adopted an 18 months starting point for sentence for the offence of endangering the safety of passengers after adopting a 5 years imprisonment starting point for the offence of assisting passage. I see no difference in the level of protection to be accorded to those passengers, be they unauthorized entrants or illegal immigrants.

30.  A total of 8 illegal immigrants were cramped inside the concealed cabin of the defendant’s 10 meter-long boat. The unseaworthy condition of the boat jeopardized the safety of the 8 illegal immigrants on board. The total lack of navigational skill on the part of the defendant provides no comfort to the situation. The lack of navigational lights when defendant elected to travel at night imposed additional safety hazard. The lack of life saving equipments and fire fighting equipments further escalated the risk. Fortunately the defendant did not run into difficulty in his trip and he posed no extra danger by engaging in reckless manoeuvres when stopped by the marine police officers. Had actual danger been posed I would have adopted a higher starting point for sentence. For the offence of endangering safety of passengers on board of his boat, I adopt a starting point of 2 years imprisonment.

31.  Giving the defendant credit for his plea of guilty indicating his remorse, I accord him 1/3 discount and reduce his sentence to that of 20 months for the aiding and abetting charge; and 16 months for his offence of endangering the safety of his passengers. Taking totality into consideration, I order 6 months of the term for his endangerment charge to be served concurrently with his term for the aiding and abetting charge; leaving the balance of 10 months to be served consecutively. The total duration is a period of 2 ½ years for the two charges.