HKSAR v. GUO ZIMING

DCCC 40/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 40 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “Being the captain of a ship with persons on board seeking to land unlawfully in Hong Kong”, contrary to section 39 of the Immigration Ordinance, Cap 115 (first charge) and one charge of “endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (second charge).

Facts

2.  On 13^th November 2015, at around 2:32 p.m., while Police officers were patrolling in the area near Lung Ku Tan, they intercepted an unlit wooden cargo vessel and found defendant as the coxswain.  There was a piece of cloth covering 13 south Asian males on board.  The defendant and 13 other males were therefore arrested. 

3.  In his video-recorded interview, the defendant admitted under caution that on 12 November 2015, at about 9:00 pm, he started off from Nansha as a coxswain conveying that 13 other males to Hong Kong.  He did not know how many people were on the vessel.  He had never met the 13 other males before.  He was responsible for sailing the vessel.  He was not the owner of the vessel.  He conveyed the 13 other males to Hong Kong for a reward of RMB5,000.  He would be paid in cash if he returns to Nansha successfully.  He did not know if the males had identity/travel documents.  These males came to Hong Kong to seek political asylum.  He did not possess a sailing license.  No life-saving equipment or navigation lights were on board.  There was a torch for lighting.  There were three tanks of petrol on board. 

4.  A ship inspector of the Marine Department examined the vessel and opined that the vessel was seaworthy.  The main hull structure was found in normal condition, but it was not suitable for operation in that it had no fire-fighting appliance or life-saving appliances on board.  Further, there was no navigation lift fitted onboard for night operation.

Mitigation

5.  The defendant is aged 44.  He is a mainlander, single and lived with his parents in the Mainland prior to the arrest.  Prior to the offence, he was unemployed.  The defendant had no criminal conviction record in Hong Kong and the Mainland.

6.  In mitigation, Mr Chan told the court that the defendant’s parents were financially dependent on the defendant.  The defendant committed the present offences due to economic stress.  Mr Chan submitted that all the South Asian males on board were adult, the vessel was seaworthy but not suitable for operation, there was no evidence that the sea was rough to cause additional hazard and that there was no attempt to escape or dangerous manoeuvre.  Mr Chan also referred a few cases in his mitigation[1].  Mr Chan further submitted that the appropriate starting point for the first charge would be around 4½ years.  He took no issue that the starting point could be enhanced for the lack of fire-fighting and life-saving equipment.  However, he stressed that such an enhancement should be taken into consideration when the court decided the totality of the sentences for the two charges.

Sentence

7.  For the first charge, the maximum sentence of imprisonment is 7 years.  For the second charge, the maximum sentence of imprisonment is 4 years.

8.  In HKSAR v Ding Qijing, CACC 75/2014, the applicant of that case was convicted of the same charges as the defendant in this case.  The Court of Appeal held that both offences were serious offences.  Facts of that case reveal that the applicant conveyed into Hong Kong in the middle of the night on open seas 7 passengers who were seeking to land in Hong Kong without permission on a vessel that was bereft of the requisite safety equipment.  In that case, the Court of Appeal was satisfied that the appropriate starting point for the first charge was 4½ years’ imprisonment.  No issue was taken with the enhancement of 3 months’ imprisonment to reflect the aggravating factor of the absence on the vessel of the requisite fire-fighting and life-saving equipment.  In that case, no issue was taken in respect of the 12 months’ starting point for the charge concerning the condition of the vessel, which is same as the second charge in the present case.  To avoid double counting of the aggravating factor of absence of requisite fire-fighting and life-saving equipment, the Court of Appeal held that it was appropriate to order part of the sentence of the other charge to run consecutively to the sentence of the first charge.   

9.  Similar to Ding Qijing, the defendant in this case conveyed into Hong Kong in the middle of the night on open seas 13 South Asian males who were seeking to land in Hong Kong without permission.  According to the defendant, these males came to Hong Kong intending to seek political asylum.  The defendant would be paid RMB 5,000 upon returning to the Mainland successfully.  Taking into consideration the defendant’s background, the facts of the present case and the judgment in Ding Qijing, I consider the appropriate starting point for the first charge is 4½ years’ imprisonment.  Given the presence of aggravating factor, namely the absence of fire-fighting and life-saving equipment, I consider an enhancement of 3 months is appropriate (see HKSAR v Zhong Ming Jing, CACC 180/2010).  Therefore, the total sentence for the first charge is 4 years and 9 months’ imprisonment. This sentence is reduced to 38 months’ imprisonment for the defendant’s guilty plea.

10.  For the second charge, I note that there was no attempt to escape or dangerous manoeuvre by the defendant to avoid interception by the police.  There was no collision.  In the circumstances, I consider the appropriate starting point is 12 months’ imprisonment. Given the defendant’s plea, it is reduced to 8 months’ imprisonment.

11.  As I have already enhanced the starting point for the first charge to reflect the absence of the requisite fire-fighting and life-saving equipment on the vessel, which is the same subject matter of the second charge, I would therefore order that 2 months of the sentence of the second charge to be served consecutively to the sentence for the first charge.  The total sentence is therefore 40 months’ imprisonment.  I hereby sentence the defendant to 40 months’ imprisonment.