HKSAR v. ZHENG JINDONG

DCCC 744/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 744 OF 2013

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Reasons for Sentence

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1.  Zheng Jindong, you have been convicted on your own plea of aiding and abetting the four Pakistani males named in Charge 1 to attempt to land in Hong Kong without the permission of an Immigration officer or Immigration assistant, contrary to section 38(1)(a) of the Immigration Ordinance; that is Charge 1; and being the person in charge of a motorised sampan, endangering the safety of those four Pakistani males and other people at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313; that is Charge 2.

2.  The four named Pakistani men had travelled from Pakistan to Shenzhen intending to enter Hong Kong illegally and seek asylum here.  At around 10 pm on 11 May, they boarded your sampan and paid someone between $900 and $3,200 each for the journey to Hong Kong.  I have been told by Mr Yiu that you did not receive this money directly but would be paid by the person who collected that money for your services in transporting the men in your boat to Hong Kong.

3.  Just before 3.30 am on 12 May, your sampan was detected entering Hong Kong waters with no navigation lights displayed, and about 20 minutes later, seven to eight people were seen jumping off from your sampan.  They divided into two groups.  One group consisted of the four Pakistani males in question, who were arrested.  The other group were not arrested, and so presumably the prosecution are not in a position to determine their immigration status.

4.  When you were arrested, you claimed that you were simply laying down fishing cages to catch fish.  Today, however, you have admitted the truth of what you were doing that night.

5.  Your vessel was inspected by a senior ship inspector of the Marine Department.  In addition to the complete absence of any navigation lights for night operation, he found that the hull and the waterproof integrity of the vessel were in poor condition; there was no firefighting equipment in case there had been a fire in the engine; there were no lifejackets on board; and the buoyancy chambers of the vessel had been demolished.

6.  The maximum penalty for the offence that is the subject of the 1st charge is 3 years’ imprisonment.  Courts in the past have commented on the low maximum penalty for an offence under this section and contrasted it with the much higher maximum penalty that would have been available had the passengers been “unauthorised entrants” and therefore liable to prosecution under section 37D of the Immigration Ordinance.  However, the law remains unchanged.

7.  I do not know whether the four Pakistani males in question were genuine asylum seekers or simply economic migrants intending to abuse the system.  You would not have known either.  You presumably were simply concerned with the money you would earn by bringing them to Hong Kong.  Hong Kong incurs a very substantial financial burden in relation to vetting claims and supporting those people who claim asylum or make allegations of torture.  Many of such claims are completely unfounded.

8.  However, I am faced with the maximum term of imprisonment now provided by the section, and bearing that in mind, I am of the view that the appropriate starting point on Charge 1 is a sentence of 18 months’ imprisonment.

9.  Insofar as Charge 2 is concerned, that of endangering the safety of others at sea, I bear in mind that there were seven or eight passengers on board this sampan.  I have been told that if this vessel had been seaworthy and had been licensed in Hong Kong, it would normally have only been licensed to carry two people.  However, I bear in mind that the seven to eight people who were passengers on board your sampan appear to have been adults; that the vessel does not appear to have been travelling at an excessive speed or in heavy seas; and that there was no chase or any other attempt to evade capture.

10.  On that offence I also adopt a starting point of 18 months’ imprisonment.

11.  You have pleaded guilty and are therefore entitled to the usual discount of one-third.

12.  On Charge 1, I sentence you to 12 months’ imprisonment.  On Charge 2, I sentence you to 12 months’ imprisonment.

13.  Both sentences are to run consecutively to each other, which means there is a total sentence of 24 months’ imprisonment.