HKSAR v XIE TIANLONG

DCCC 139/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 139 OF 2013

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Reasons for Sentence

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1.  You realised very well that if you were caught in the commission of this offence that you would go to prison because you had done something very similar in 1999 for which you served a term of 32 months. Fortunately for you this offence was committed some 13 years ago so I am not going to look upon that as an aggravating feature on this occasion, but the position remains that for offences such as these, persons caught committing such offences have to serve substantial terms of imprisonment, and that is because we need to impose rigorous immigration laws in Hong Kong. That said, I do not regard this as the worst case of its kind.

2.  So far as the lst charge is concerned, there were only two relevant passengers rather curiously, although there were four passengers, two from the Mainland and they are mentioned in the lst charge, the other two individuals who were from Pakistan are not mentioned in the lst charge, but anyway, that is how the prosecution elected to proceed, so this is not a case of carrying a great many number of passengers in uncomfortable circumstances or anything of that sort. 

3.  There is a tariff for offences of this sort, and I am constrained by that tariff to impose a sentence of 40 months’ imprisonment, that is 3 years and 4 months, and the way that I arrive at that sentence is by taking the starting point of 5 years, and having regard to your plea, reducing it by one-third and so we get 40 months’ imprisonment, or 3 years and 4 months.

4.  The 2nd charge relates to the means of conveyance, and I have seen a photograph of the boat in question.  It is a small fibreglass boat, an open vessel powered by an outboard motor.  The facts indicate that the condition of the hull was not good.  Judging by the photograph it is looking rather tatty, but as I indicated and I do not mean to appear light-hearted about this at all, but there is nothing there that a lick of paint would not put right and a bit of filler.  On a more serious level there is no indication there that the boat was shipping water or in any way of imminent danger of sinking or that sort of thing, so I bear that in mind. 

5.  What is more serious is the fact that there was no fire-fighting equipment though I suspect that would have been satisfied, that requirement, if you had an operational fire-extinguisher of sufficient size, but there was nothing of that sort on your boat, and there were insufficient life-jackets. There were some life-jackets, I think three in all, but that was not enough having regard to the fact that there were five people on board.  Mr Lee says there were enough but they went overboard, but I do not credit that explanation.

6.  There is a tariff in respect of this offence as well, and what I am going to do is I am going to sentence you to a term of 8 months’ imprisonment.  I do that by taking as a starting point 12 months’ imprisonment, which seems to be the usual sentence in these sort of cases, and you will get your usual reduction of one-third for your early plea of guilty, so 8 months’.