HKSAR v. LO CHUN YIN

DCCC 718/2022

[2023] HKDC 1427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was convicted of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115 on his own plea and agreement to Amended Summary of Facts. 

2.  Upon application by the prosecution, Charge 2 was withdrawn and Charge 3 was put on court file and not to be proceeded with without leave of the court.

Facts

3.  At around 10:33 pm on 29 December 2021, a suspicious vessel approached Sham Wat, Lantau.  Police officers were deployed to attend the scene by vehicle.

4.  At around 11:23 pm on the same day, they spotted a light goods vehicle bearing registration number RY6428 (“the Van”)  parked at Sham Wat Road junction, Tung O Ancient Trail near Lamppost V7620, Lantau, New Territories, in Hong Kong.  A male was sitting at the driver’s seat of the Van.  In the meantime, the defendant was seen escorting a group of 4 women to board the Van.

5.  Upon interception, the defendant was found to be picking up 3 unauthorized entrants, who were unable to produce identification documents, at an unknown shore near Sham Wat and leading them to the Van for onward trip to the urban area.

6.  The defendant was arrested.  The Immigration Department confirmed that there was no record of the 3 entrants formally entering Hong Kong.

Criminal Record

7.  The defendant has 5 previous criminal records involving convictions of 7 charges, none similar to the present charge.

Mitigation

8.  The defendant is aged 33, married, used to work as a casual worker, waiter and sailor.  At the time of offence, he was unemployed.  He used to earn around $10,000 per month.  He lives with his parents.  His wife and 2 sons live in the mainland.

9.  The defendant’s last conviction was on 10 February 2022.  It related to a gambling offence committed during the time when he was granted police bail in relation to the present case. 

10.  Defence counsel submitted that the said gambling offence is not a serious offence, and he asked this court not to aggravate his sentence because of the proximity in time between his last conviction and the present offence.

11.  He referred this court to the cases of: -

(1)  HKSAR v Wong Chi Kin;[1]

(2)  HKSAR v Yeung Wui and others;[2]

(3)  HKSAR v Chan Lai Choi;[3] and

(4)  香港特別行政區訴賴奮仁及另三人.[4]

12.  Defence counsel submitted that the defendant was seen escorting a group of women to board the van for onward trip to the urban area.  There was no evidence that he was in the boat or in the vessel.  He submitted that the present case is akin to the case of Chan Lai Choi and 賴奮仁.  He asked this court to consider 3 years’ imprisonment as the sentencing starting point.

13.  He also handed to this court a mitigation letter from the defendant.  He urged this court to give the defendant leniency by reason of his guilty plea and his background.

Discussion

14.  Before sentencing, this court has considered the mitigation submission, authorities submitted by defence counsel as well as the mitigation letter from the defendant.

15.  On conviction upon indictment of Charge 1, a person is liable to a fine of $5 million and to imprisonment for 14 years. 

16.  This court accepts that the facts of the case is similar to that in the Chan Lai Choi case.  There is no concrete evidence that the defendant was involved in the bringing-in of the 3 unlawful entrants into Hong Kong.  I would adopt the sentencing starting point in the Chan Lai Choi case, ie the appropriate sentencing starting point for this charge is 3 years’ imprisonment.

17.  The defendant committed the gambling offence whilst he was on police bail for this case.  I do not think this is appropriate for this court to consider that as an aggravating factor as the same should have been considered by the sentencing court in the gambling offence, if necessary.

18.  The defendant has pleaded guilty.  This is the most valid mitigating factor, for which he is entitled to one-third sentencing discount.  He is therefore sentenced to 2 years’ imprisonment for this offence.