HKSAR v. NG CHUN TAK

 DCCC1331/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1331 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges: the 1st charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313; and the 2nd charge of aiding and abetting the attempt to land in Hong Kong without permission, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221, and section 38(1)(a) of the Immigration Ordinance, that is, persons who by virtue of section 7 of the Immigration Ordinance may not land in Hong Kong without the permission of the Immigration officer.

2.  The charges relate to the same date, which is 27 October 2009, in Hong Kong. At about 0309 hours on 27 October 2009, a moving object was spotted on the radar at the Stonecutters Island Operation Base. That object was entering Hong Kong Marine West waters. Marine Police vessels were tasked to conduct inquiry about this moving object. At 3.21 am the same day, Marine Police observed that that moving object was an unlit wooden motorised sampan.

3.  Nine South Asians were seen crouching on the deck of the sampan in a suspicious manner. Officers signalled the vessel to stop and at that time they saw you, the defendant, were controlling the engine steer bar at the stern, with the other Asians in the vessel.

4.  You complied with the police’s signals and stopped the sampan. On board were eight Pakistani males and one Bangladeshi male. None of them could produce any valid travel document for entry into Hong Kong. At that time the vessel, yourself and the illegal immigrants were in Hong Kong waters.

5.  The sampan was inspected later on 20 October 2009 by a senior ship inspector and it was found that the vessel was in a very poor condition and unseaworthy.

6.  You had been interviewed by the police under caution. Under caution you told the police that you had, on 26 October 2009, left your home town of Guangxi to Shenzhen alone to look for a job. You came across an unknown male who showed you how to steer the sampan and on that evening you were instructed by that unknown male to steer the boat to Hong Kong with those passengers on board. You have admitted that you had aided and abetted these nine illegal immigrants to enter Hong Kong without permission.

7.  You are 16 years of age from Mainland China.

8.  Charge 1 carries a maximum sentence of 4 years’ imprisonment and Charge 2 a maximum sentence of 3 years’ imprisonment. The courts have regularly seen similar facts of this type of case involving illegal immigrants from China or Vietnam. Those in respect of immigrants from China, Macau or Vietnam, I am informed by Mr Lui the prosecutor in this case are charged under a different section of the same Ordinance, section 37C. Only those people from Vietnam, China and Macau are considered unauthorised entrants and can fall within that section. Any other persons not of those nationalities are charged under the present section, that is, of aiding and abetting an attempt to land in Hong Kong under the present charge, as I say, under section 38(1)(a) of the Immigration Ordinance.

9.  Under section 37C, the maximum term of imprisonment is 14 years. Under the present charge, the maximum is one of 3 years. As can be seen, there is a significant difference in the two terms of imprisonment that can be imposed. On the face of it, it is much more serious if the passengers come from Vietnam, China or Macau, but not from other countries. This of course is quite illogical and unfair, and in my view unreasonable. However, that is what the legislature has laid down and I am bound by the legislation.

10.  On the charge of assisting the passage of illegal immigrants under section 37C, the usual starting point after trial is one of 5 years’ imprisonment. Despite the facts of this case being exactly the same as those of assisting the passage usually that come before the court, of course the court cannot impose the same starting point as that is over and above the maximum allowed in this section.

11.  Mr Lui has been very frank with this court and informed the court that the reason why a charge of endangering the safety of others at sea was brought against this defendant was particularly because it would appear the maximum in Charge 2 is too low.

12.  It is evident from cases that have come before the court that usually cases involving endangering the safety of others at sea involve either dangerous, reckless and deliberate driving and/or dangers that have caused injury or death. Those cases which do not involve those factors, and if it is just assisting the passage of unauthorised entrants with an unseaworthy boat, then the courts usually take into account the unseaworthiness of the vessel as an aggravating factor in sentence of assisting the passage.

13.  I am informed by Mr Lui that there have been other cases in the District Court in respect of the 2nd charge of which the courts have imposed approximately a 2-year starting point.

14.  In considering the facts before me in this particular case, dealing with the endangering the safety of others at sea charge (Charge 1) I take into account the following factors.

the vessel was 7.8 metres in length, 1.5 metres in breadth and 0.7 metres in depth;

the wooden hull planking, structural frames and sub‑division bulkheads were found deteriorated and severely rotted;

cracks, undesired holes and loosened seal compounds were observed on the bulkhead to diminish the degree of watertight integrity, as well as buoyancy of the vessel;

no bilge system was fitted on board to pump out any accumulation of water;

extreme low freeboard at no‑load condition rendered the vessel to be flooded easily at moderate sea conditions.

There were no fire-fighting appliances, life‑saving appliances or navigation lights fitted on board.

That on its own shows that this vessel was, in a very poor and unseaworthy condition as it could have apparently sunk quite easily. Another aggravating fact was that this vessel was carrying nine illegal immigrants; as well as the defendant, a total of 10 people on board.

15.  I have also had regards to recall of HKSAR v Chow Tin Sing [2007] 4 HKLRD 991 on matters relating to sentence for this charge.

16.  I accept Miss Lau's mitigation on behalf of the defendant in that the weather was fair, the sea was calm and visibility was good. There was no evidence of the defendant driving at high speed or dangerously. There was no injury to the defendant or the passengers as a result of being carried in this vessel, and the defendant when signalled by the police to stop obeyed their order.

17.  For this offence, I consider a starting point of 9 months' imprisonment to be appropriate. However, I give him full credit for his plea of guilty and reduce that term to 6 months' imprisonment.

18.  In respect of the 2nd charge, I considered the number of people that one attempts to bring into Hong Kong illegally is of great relevance. I take into account that in this case there were nine people brought on board the vessel, and in those circumstances I consider a sentence of 2 years' imprisonment to be appropriate after trial. I also give the defendant full credit for his plea of guilty and reduce that term to 16 months' imprisonment.

19.  The two offences are separate and distinct offences and I do consider a partly consecutive and partly concurrent sentence to be appropriate. I take into account the principle of totality and in those circumstances I order three months of Charge 1 to run consecutive to Charge 2, making a total term of imprisonment of 19 months.

20.  I am well aware of the defendant's young age of 16, his clear record and that he is from China. I have taken into account his clear record in my discount for a plea of guilty. I do consider that in view of his young age of 16, a further discount should be granted. I reduce that 19 months' imprisonment term by a further two months to one of 17 months' imprisonment.

21.  You are so sentenced to a total of 17 months' imprisonment.