HKSAR v. LI CHUAN

 DCCC548/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 548 OF 2010

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Reasons for Sentence

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1.  Defendant has pleaded guilty to one charge of assisting the passage to Hong Kong of a conveyance which carried unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. This offence carries a maximum sentence of 14 years’ imprisonment and a $5 million fine.

2.  The facts of this case are very straightforward. Defendant was a coxswain of a wooden vessel seen in Hong Kong waters and followed for a period of time. Marine police, off Lantau, then intercepted this vessel. There was no chase necessary. The defendant surrendered and gave up immediately. There is no challenge that the defendant was the person in charge of this vessel, the coxswain. On board the marine police found seven Chinese males, all unauthorised entrants. I have no evidence of their age or whether or not they were able- bodied men. The defendant admitted the offence to the police and told the police he was offered RMB300 to drive the vessel from the mainland to Hong Kong.

3.  Defendant is a fisherman by profession, is educated to Primary 6 level, married, with two teenagers. His children, wife and his bed-bound elderly father all rely on him financially. His income is obviously tight, which is why RMB300 tempted him to commit this offence. There is no evidence that the defendant was the mastermind, and often the coxswain is not the mastermind. But still these seven men would not have been able to come into Hong Kong waters without the defendant.

4.  Defence counsel has prepared a written mitigation and a list of authorities to assist the court in sentence. From authorities it is clear that where a defendant is in charge of the vessel an appropriate starting point would be 5 years' imprisonment. I have read mitigation of counsel and the authorities helpfully submitted, and I have referred myself also to the authority of HKSAR v Wong Chi Kin, a Court of Appeal authority, CACC357/2004. And I will quote from authority. Vice President Woo said at paragraph 12:

“Where the accused was the captain of the vessel, or the person in charge, or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment: R v Wong Yiu Lung [1995], as well as the R v Pang Wing [1996].  The following situations will be considered as aggravating factors increasing the sentence from the 5 year starting point in respect of the person in charge of the vessel or of the one who was in some way actively involved in the circumstances of the aggravation:”

5.  Vice President Woo sets out five such situations. I am only concerned with the second, and I will quote:

(b) The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers: also see Ng Kit Yuen, at page 174, and HKSAR v Tsui Kwong Ming, CACC247/2004.

6.  There is only one factor in the facts today that caused me concern, and that is the seaworthy of this wooden vessel. The defendant does not challenge the vessel’s seaworthiness is questionable, and I am sure this is due to the fact that the ship inspector of the marine department, Mr Lau Hi-kwai examined the vessel and made certain findings, including the watertight integrity and the general condition of the hull was very poor. He also commented on the engine, lack of navigational lights, fire-fighting equipment and life saving appliances.

7.  However, at the time that the vessel was stopped by the police there was no evidence of any imminent danger to the passengers on board, and I will take that into account. I will also take into account mitigation put forward, the facts of this case and the authorities referred to.

8.  Defendant, please stand up. I will take a starting point of 5 years, but I do find that there is an aggravating factor that will lead me to consider a higher starting point. This aggravating factor, I repeat, is the unseaworthiness of this vessel. For this aggravating factor I will add 6 months to the 5-year starting point. The defendant is entitled to a discount of one-third for his plea of guilty. That would be a discount of 22 months' imprisonment.

9.  For this offence the defendant is sentenced to 3 years and 8 months’ imprisonment.