HKSAR v. KAM CHI-WA

DCCC 224/2021

[2021] HKDC 1625

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 224 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to the following 5 charges, save for charge 5 which took place on 6 May 2021, the other offences took place on 14 August 2020:

1^st charge: Assisting the passage within Hong Kong of unauthorized entrants, contrary to s37D(1)(a)  of the Immigration Ordinance, Cap. 115;

2^nd charge: Driving while disqualified, contrary to s 44(1)(b)  of the Road Traffic Ordinance Cap. 374;

3^rd charge: Driving without a valid driving licence, contrary to s42(1)  and (4)  of the Road Traffic Ordinance, Cap. 374;

4^th charge: Using a motor vehicle without third party insurance, contrary to s4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272; and

5^th charge: Failing to surrender to custody without reasonable cause, contrary to s9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap. 221.

Facts

Charge 1

2.  In gist, the facts to which the defendant admitted are as follows.  In the early hours on 14 August 2020, police officers were patrolling on a private car in Tung Chung, Hong Kong, in an anti-illegal immigrants operation.  At 2:30am on the same day, the defendant, male Fan Kai-yim (“Fan”)  and male Chan Yuk-lung (“Chan”)  were seen standing next to a light goods vehicle with registration no. WT4996 (“LGV”), which was parked at the carpark outside of Tung Chung Ma Wan Chung Pier.  The officers revealed their police identity and intercepted these 3 men for enquires.  Nothing suspicious was found on the LGV and the officers departed at 3:05 am on the same day.

3.  Later, at 3:21 am on the same day, the officers noted that the LGV was parked outside of Tung Chung Catholic School, Yat Tung Estate, Tung Chung, which is about 450m away from the above pier.  A few minutes later, the officers observed that 5 men appeared from Ma Wan Chung Village and ran on board the LGV.  The LGV pulled out and drove for about 1m.  The police private car intercepted it.  The defendant was found to be the driver of the LVG.  He and the other 5 men alighted from the LGV and ran away.

4.  Later, the defendant and 2 of the men who had alighted from the LGV i.e. Su Shengyin and Su Pinting were intercepted.  Upon search of these 2 men, their China identity cards were found. Meanwhile, police officers also spotted another man, Ye Ziming, running outside of Shun Yat House of Yat Tung Estate (which was just across the street from Tung Chung Catholic School)  and intercepted Ye Ziming who did not carry any identification documents.  The defendant and these 3 men were arrested.

5.  At 3:30 am on the same day, Chan was found driving a private car with registration no. PU 5464 around Chung Yan Road and Yu Tung Road. Chan was intercepted and arrested.  Chan’s phone was examined, it was found that at 3:22 am that day, Chan’s phone sent out a picture of the private car that was used by the police officers in a WeChat conversation to “Big Brother”.  In that conversation, Chan sent out voice messages, saying that it was one of the vehicles that intercepted them just now. 6 minutes later, Chan sent another voice message, saying that just now even there were someone ambushing at the bridge.

6.  Around 3:36 am on the same day, Fan was found near House No. 15 in Ma Wan Chung Village.  Fan was intercepted and arrested.

7.  Under caution at scene, the defendant said voluntarily that he was disqualified and had nothing to do, therefore he received $3,000 from Ah Yim to help out driving several Chinese illegal immigrants to leave Tung Chung so as to support his family.

8.  In the subsequent video-recorded interview, the defendant said under caution voluntarily:

a)  he was disqualified from driving for a year on 6 March 2020 because he drove without a licence;

b)  he knew Fan a few months ago; Fan offered him HK$3,000 to carry some illegal immigrants out of Tung Chung by car;

c)  Around 2 odd am on 14 August 2020, he was at Ma Wan Chung Village and Fan called him, asking him to carry “goods” at the Ma Wan Chung Pier;

d)  At the pier, he, Fan and another man were intercepted by the police;

e)  After the police had left, about 5 Chinese illegal immigrants came out from Ma Wan Chung Village; Fan drove the LGV to take him and these Chinese illegal immigrants to leave the pier;

f)  However, since there was oncoming traffic, the LGV had to reverse back to the pier and these Chinese illegal immigrants alighted from it;

g)  Fan said that he needed to lead these Chinese illegal immigrants to Yat Tung Estate on foot and the defendant needed to drive the LGV to Yat Tung Estate to wait for these Chinese illegal immigrants to get on board;

h)  Fan asked him to carry these Chinese illegal immigrants out of Tung Chung by car and Fan would later tell him the destination; and

i)  he still had not received the HK$3,000 reward.

Charges 2-3

9.  The defendant was disqualified from driving for 12 months on 6 March 2020. He had obtained driving licence (Class 1 & 2)  in 2005 but the licence had expired since 2015.

Charge 4

10.  The LGV’s third party insurance provides that only a person who is not disqualified from holding or obtaining the relevant driving licence is entitled to drive the LGV.

Charge 5

11.  The defendant was charged with Charges 1-4 in the Magistracy and released on court bail.  He first appeared in the District Court for this case on 25 March 2021 and the case was adjourned to 6 May 2021 with bail granted by the Court to him.  However, the defendant did not appear in court on 6 May 2021 in compliance with the bail condition.

12.  At 9:30pm on 2 September 2021, police officers spotted the defendant in Mui Wo.  He acted furtively at the sight of the officers and attempted to leave on bike.  Thus, he was intercepted.  Upon arrest and under caution at scene, he said voluntarily that he did not know he needed to attend court for this case.

13.  In the subsequent record of interview, under caution the defendant said voluntarily that he forgot to attend court on 6 May 2021. During the time that he jumped court bail, he resided in Mui Wo and did not work.

Antecedent Statement

14.  The antecedent statement of the defendant was read out in court.  In summary, it provides that the defendant, aged 40, received secondary three education level.  He was previously a transportation worker.   He has criminal records and was last discharged in May 2020.

Criminal Record

15.  The defendant has 5 criminal convictions.  He was sentenced on 6 March 2020 to a term of 2 months’ imprisonment, fined and was subject to a disqualification order for offences of taking conveyance without authority; driving without a licence and using a motor vehicle on a road against third party risks.

16.  On 3 September 2021, he was sentenced to concurrent sentence of 6 months and 3 week’s imprisonment for each of the 2 fraud offences (KCCC 574/2021).  In other words, he is now serving this prison term.

Mitigation

17.  Ms. Ho, Counsel representing the defendant, submitted in mitigation that the Defendant has separated with his wife since 2019 and they have two sons aged 16 and 7 years.  The Defendant lives together with his mother, younger brother and elder son in Mui Wo, Lantau Island.  He is the main breadwinner for both his mother and ex-wife (for maintenance of his younger son), contributing a total of HK$10,000 to them. 

18.  Prior to the disqualification in 2020, he was a driver earning approximately HK$15,500 a month.  He then became unemployed and experienced great difficulty in finding gainful employment during the pandemic. He committed the present offences with a view to earning quick money to support his family.  The defendant did not fully consider the serious consequences of his actions.

19.  In respect of the sentence of charge 1, Ms. Ho referred to the following 3 cases namely HKSAR v Lee Kin Ming CACC 536/1991, HKSAR v Wong Fu Keung CACC 158/1996 and HKSAR v Chan Lai Choi CACC 166/1997.  The facts were summarised in her written submissions and I do not intend to repeat them here.  She made a comparison of the facts of the present case to that of these cases.  What I understand from her is that a starting point for the 1^st charge should be in the region of 3 years. 

20.  Finally, Ms. Ho submitted that the defendant has learnt a bitter lesson, and urged this Court to consider the sentence of the present case to run concurrently to his existing sentence.

Reasons for Sentence

21.  In sentencing, I have considered everything said and written by Ms Ho and the authorities cited.

Charge 1 Assisting the passage within HK of unauthorized entrants

22.  It goes without saying that the 1^st charge is a very serious offence and the maximum penalty is a fine of $5,000,000 and 14 years’ imprisonment.  In Lee King Ming, the Court of Appeal said that:

“5…these were indeed serious offences…”.

23.  Although Ms. Ho referred this Court to Lee Kin Ming (date of judgment 12 March 1992), Wong Fu Keung (date of judgment: 16 August 1996)  and Chan Lai Choi (date of Judgment: 19 February 1998), there are relatively recent judgments which the Court of Appeal have dealt with the same offence: HKSAR v Wong Chi Kin (unreported, CACC 357/2004, 5 February 2005)  and HKSAR v Yeung Wui (ureported, CACC 415/2004 18 March 2005).

24.  In Wong Chi Kin, Woo VP said:

“12. The generally applicable tariff is 4 years’ imprisonment…Where the accused was the captain of the vessel or the person in charge of assisting in the operation of the organization of the venture, the appropriate starting point is 5 years’ imprisonment.”

25.  In her submission, Ms. Ho considers that:

(a)  The defendant faces 1 single charge but the appellant Lee King Ming pleaded guilty to seven charges of the same offence for which he received concurrent sentence of 2 ½ years’ imprisonment. Lee Kin Ming was more culpable than the defendant;

(b)  The appellant Wong Fu Keung provided not only transport but also forged ID documents to the unauthorized entrants and received 3 years’ imprisonment after trial. Here, the defendant simply provided transport to the unauthorized entrants;

(c)  The defendant’s culpability is similar to that of Chan Lai Choi who assisted the passage of 5 unlawful entrants and was, on appeal, sentenced to 3 years’ imprisonment but for his clear record, the sentence was reduced to 2 ½ years’ imprisonment.

26.  Notwithstanding the aforesaid, this court must not lose sight that the defendant is charged together with Fan for assisting the passage within Hong Kong of not a single but 3 unauthorized entrants.  The facts also show that (a)  another culprit Chan was involved, and (b)  the defendant said under caution, there were a total of 5 Chinese illegal immigrants.  Pausing here, I must emphasis that I am aware that the 1^st charge named 3 but not 5 unauthorized entrants.  The facts to which the defendant pleaded guilty show that he did not act alone.  Each of them (the defendant, Fan and Chan)  has a role to play in order to carry out a pre-planned scheme of assisting the passage of at least 3 unauthorized entrants.  

27.  In Wong Chi Kin, Woo VP said: 


“22. In our law, it is always recognized that two or more persons committing a crime would normally be considered as an aggravating factor as compared with the sentencing in respect of a lone culprit.”

28.  Despite Ms. Ho said the Court of Appeal in Chan Lai Choi adopted a starting point of 3 years, I take into account all the circumstances of the case including those stated in paragraph 26, and come to the conclusion that a starting point of 4 years’ imprisonment is appropriate.

Charge 2 driving while disqualified

29.  The offence of driving while disqualified is serious.  The maximum prison term is 12 months, and the court shall order that the person be disqualified in the case of a first conviction, for a period of not less than 12 months unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  

30.  Fully aware of the disqualification order imposed on him on 6 March 2020 for a period of 12 months, the defendant paid no heed to it and committed the offence of driving while disqualified five months after the court order.  Doubtless to say, it is a flagrant breach of the court order and a custodial sentence is inevitable.

31.  In HKSAR v Wong Chi Ming HCMA 510/1999, Yeung J (as he then was)  said:

“20. The offences of driving whilst disqualified and the offences of driving without insurance are, of course, very serious offences. Their seriousness lies in the possibility that victims in traffic accidents may be left without any compensation.”

32.  In light of the circumstances, I take a starting point of sentence of 3 months’ imprisonment.  No special reason was put forward, and I order that the defendant be disqualified for 12 months.

Charge 3 - driving without a valid driving licence

33.  The maximum penalty for this offence as provided in 42(4)  of Cap. 374 is to imprisonment for 3 months in the case of a first conviction, and to imprisonment for 6 months in the case of a second or subsequent conviction.

34.  The defendant committed this offence previously on 6 April 2019 and 14 April 2019 for which he was fined $2,000 and $3,000 respectively. This is the third time he committed this offence. Obviously, previous sentences of a fine did not deter the defendant from committing the same offence again and again.  As such, I take a starting point of sentence of 6 weeks’ imprisonment.  

Charge 4 using a motor vehicle without third party insurance

35.  An offender, who drives a motor vehicle whilst being disqualified, will also face a charge of driving without third party insurance.  These two offences go hand-in-hand. The maximum penalty for such an offence was, at the time of the offence, a fine of $10,000 and to imprisonment for 12 months, and be disqualified for a period of not less than 12 months nor more than 3 years from the date of conviction.

36.  In HKSAR v Chan Chuk Hon HCMA 623/2005, Deputy High Court Judge D. Pang (as he then was)  noted that: -

“9…...if the breach was flagrantly committed and there was no operative factor to diminish culpability, then an immediate custodial sentence should be imposed even if the offender has never before suffered imprisonment”

37.  It is the second time the defendant committed this offence, and I will adopt the same starting point for sentence as that of charge 2 i.e. 3 months’ imprisonment.  Again, no special reason is put forward, and I order that the defendant be disqualified for 2 years.

Charge 5 Failing to surrender to custody without reasonable cause

38.  Any person who commits the offence of failing to surrender to custody without reasonable cause is liable on conviction upon indictment to a fine and to imprisonment for 12 months.  

39.  The defendant disregarded the court order and jumped bail and I adopt a starting point of sentence of 3 months’ imprisonment.

40.  The prosecution applied to estreat the defendant’s bail money of $8,000 to which the defence raised no objection.  I order that the bail money of $8,000 be estreated.

Starting point and sentence reduction

41.  The starting points for each offence and the sentence after 1/3 discount for the defendant’s guilty pleas are summarized in the table below:

Charge	Starting Point	1/3 discount
1st charge, assisting passage	48 months (4 years)	(32 months)
2nd charge, driving whilst disqualified	3 months	2 months + a disqualification order (DQ)  for 12 months
3rd charge, driving without licence	6 weeks	4 weeks
4th charge, no third party insurance	3 months	2 months + DQ for 2 years, the DQ order is concurrent with charge 2
5th charge, failing to surrender	3 months	2 months

Totality

42.  The offences of charges 1 to 4 though happened on the same day are in fact separate and distinct.  In principle, each of the sentence should run consecutively to each other.  However, I pay regard to the totality principle. If the sentences of charges 1 to 4 are to run concurrently with each other, it will not reflect the culpability of the defendant who, having known that he was disqualified, still drove to transport the unauthorized entrants.  As such, I order that the sentences for the traffic/driving offences, namely charges 2, 3 and 4 should run concurrently with each other but 1 month of it should run consecutively to the sentence of charge 1 (1 month + 32 months = 33 months).

43.  Charge 5 did not arise from the incident on 14 August 2020. The defendant disregarded the court order and jumped bail.  The defendant, by absconding, committed a fresh offence and had to be punished separately.

44.  The sentence of 2 months for charge 5 should run consecutively to the sentence of other charges thus making a total of 35 months’ imprisonment:

[1 month (charges 2,3,4)  + 32 months (charge 1)  + 2 months (charge 5)  = 35 months]

KCCC 574/2021

45.  The defendant is now serving a sentence of 6 months and 3 weeks’ imprisonment imposed on him on 3 September 2021 for two offences of fraud in relation to KCCC 574/2021.  I have called for the case papers of that case and found that the offence dates of the fraud offences were between 1 and 6 September 2019.  The defendant was not arrested until 14 August 2020 on which day he committed the present offences.

46.  Having considered all the circumstances of the case, I order that 2 months of the sentences of the present case should run concurrently with his existing sentence (i.e. 33 months consecutive to his existing sentence).

Disqualification order

47.  Now I have to explain to the defendant in relation to the disqualification order imposed on charges 2 and 4.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles. The defendant is warned that driving whist disqualified is a serious offence which attracts immediate imprisonment.