HKSAR v. WAN RUZHONG

CACC 128/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2016

(ON APPEAL FROM DCCC 238 OF 2016)

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REASONS FOR JUDGMENT

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1. The applicant was charged in the District Court with two offences. The first was “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. The second charge was “Endangering the safety of others at sea”, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313. He pleaded guilty to both offences before District Judge Casewell (“the judge”) on 29 April 2016. On the first charge he was sentenced to 38 months’ imprisonment and on the second charge to 8 months’ imprisonment. The judge further ordered that two months of the second charge be served consecutively to the first charge so that the applicant’s total sentence was 40 months’ imprisonment.

2. The applicant subsequently applied for leave to appeal against his sentences.  At the hearing of the application I dismissed it and said I would give my reasons for doing so at a later date.  This I now do.

The background to the offences

3. On 6 February 2016, two police vessels were patrolling in the Marine South Division of Hong Kong.  At about 4 am on 7 February 2016, a radar operator detected an unidentified motorized sampan moving across the boundary of marine south waters towards Lantau Island and estimated that it would land at the southern area of Lantau Island.  The police vessels travelled to this location. 

4. At about 4:24 am, the police ordered the sampan to stop which it did at about 1 nautical mile from the south coast of Lantau Island.  The applicant, who is a mainland identity card holder, was in charge of the sampan and was steering it from the stern.  The police officers found 7 illegal immigrants crouching on the deck of the sampan.  They were a mix of Indian, Pakistani and Bangladeshi nationals and they had no permission to land in Hong Kong. 

5. The police found that there was no life jacket, compass or navigation light on the sampan.  The applicant admitted that he knew there was no life jacket on the sampan and was arrested at the scene.

6. Upon examination by a ship inspector, it was found that there was no firefighting appliance on board the sampan nor was there any lifesaving appliance on board.  Furthermore, there was no navigation light fitted for night operation.  The ship inspector concluded that the sampan was seaworthy at sea but was not suitable for operation. 

7. In a subsequent video recorded interview the applicant said that he was a fisherman from Hainan and that on 5 February 2016 an agent called him to work in Zhuhai.  On the following day he met a person who offered him RMB300 to skipper a boat transporting some persons or goods.  At about 9 pm he was brought to the shore of Zhuhai where he boarded a bigger boat which towed the sampan.  Later 7 foreigners boarded the bigger ship and the bigger ship then departed from the pier.  Around 4 am the applicant was asked to be the coxswain of the sampan and to transport the 7 foreigners to a beach.  As he was doing so he was intercepted by the police.  He knew that there was no navigation light or life jacket on the sampan.  He said that this was the first time he had skippered a boat to Hong Kong and that he does not have a vessel licence and he had no travel documents for entering Hong Kong.

The mitigation

8. The lawyer for the applicant informed the court of the personal background and circumstances of his client, namely that he was a 44 years old fisherman from Hainan.  He was divorced and there were no children from his marriage.  He went to Zhuhai City to obtain work on fishing vessels and it was there he was recruited to assist in the smuggling of these illegal immigrants into Hong Kong.

9. In respect of the offence it was submitted that the applicant had performed a minor role as he was only the coxswain of the sampan and in payment had only received a meagre sum.

10. All the illegal immigrants were healthy adult males and I presume this point was made in order to show that the applicant’s conduct was not likely to endanger anyone.  The applicant’s lawyer also asked the judge to note that the weather and sea conditions were not stormy.

11. Finally, it was submitted that the applicant cooperated fully from the moment his sampan was intercepted.  He did not attempt to flee or take any kind of action which would have placed anyone in harms way.

12. In respect of the second charge it was said that though the sampan was not equipped as required it was nevertheless seaworthy.

The Judge’s Reasons for Sentence

13. After setting out the facts of the case and the antecedents of the applicant the judge approached the question of sentences.  He was referred to the judgment of the Court of Appeal in HKSAR v Ding Qijing [2015] 1 HKC 233 for guidance on the appropriate sentence.  The facts of that case and the facts of the applicant’s case were very similar and so the judge adopted the same starting points of 4 years 6 months’ imprisonment for charge 1 and 12 months’ imprisonment for charge 2.  For charge 1 the judge enhanced the initial starting point by 3 months to allow for the aggravating factor of there being no safety appliance on board the sampan.  This produced a final starting point of 4 years 9 months’ imprisonment for the first charge.  When these starting points were then discounted by one third for the applicant’s plea of guilty they became 38 months’ imprisonment and 8 months’ imprisonment respectively.

14. The judge ordered that 2 months for the second charge be served consecutively to the first charge to result in a total sentence for both charges of 40 months’ imprisonment.

The grounds of appeal

15. The applicant is legally unrepresented and has not filed any grounds of appeal or written submission.  In an attachment to his Form XI he said that he thought the sentence for the first charge was too heavy.  At the hearing of the appeal he handed to the court a letter he had written and which he supplemented orally.  The effect of what he wrote and said was that he had not tried to flee once he saw the police vessel; quite the contrary he stopped and slowly motored towards the police vessel.  He did this so as not to endanger those on board his sampan.  He also expressed remorse for his actions and apologised for having broken Hong Kong’s laws.

Discussion

16. The applicant’s sensible behaviour in not attempting to flee and not conducting himself in a way which might endanger his passengers or expose the occupants of the police vessel to the risk of harm is in the nature of the absence of an aggravating factor.  It is not, it seems to me, a mitigating factor which entitles him to either a lower starting point or a further discount additional to the normal one third that he is awarded for his plea of guilty.

17. But there is one issue that is of concern to me and that is the possibility that the applicant has been punished twice for his conduct of endangering the safety of his passengers by transporting them in a sampan not equipped as required.  This possibility arises from the starting point of the first charge being enhanced by 3 months to allow for the aggravating feature of the facts of the second charge and then that same aggravating feature being the subject of a separate sentence, part of which was ordered to be served consecutively.

18. In this respect the comments of Lunn VP in giving the judgment of the court in the Ding Qijing case are opposite.  At page 245E-F, paragraph 34 he said:

“In this regard, as noted earlier, it is to be remembered that the judge had enhanced by 3 months’ imprisonment the starting point for sentence to be taken for Charge 1, to reflect the absence of the requisite fire and life-saving equipment on the vessel. Of course, to avoid double counting, that is a matter to which regard is to be had in a consideration of what, if any, of the sentence to be imposed in respect of Charge 3 is to be made consecutive to that imposed in respect of Charge 1.”

19. However, the ultimate question is whether the overall sentence is manifestly excessive.  In this respect, I do not see any reasonable prospect of the applicant being able to persuade the Court of Appeal that his final sentence is manifestly excessive.

20. However, before leaving this case I feel impelled to say that using the sentencing tool of enhancement for an aggravating factor in the situation where a charge has been laid that specifically targets the conduct underlying that aggravating factor is, at the very least, an unnecessarily complicated approach to sentencing.  It seems to me that there is a very strong argument for saying that in principle it does amount to punishing an offender twice for the same conduct and it is only saved from being appellable by the fact that the totality is not manifestly excessive. 

21. From my researches it appears that the appellate direction that the immigration offence be enhanced to allow for the unseaworthiness of the vessel may have been first mentioned by the Court of Appeal in R v Ng Kit Yuen [1992] 1 HKCLR 170 where the court was dealing with an applicant had been charged only with an offence under section 37C(1) of the Immigration Ordinance of being the captain of a ship which entered Hong Kong with unauthorized entrants on board.  In giving the judgment of the court Power JA, as he then was, said at page 173, line 46 to page 174 line 5:

“Sentencing courts should, we are satisfied, give weight to the following circumstances which have not, heretofore, played a part in the assessment of sentence:

(i) Were the illegal immigrants concealed in a place from which escape would have been difficult?

(ii)  Was the vessel by reason of poor maintenance or age in an unseaworthy condition?”

22. It is clear from what was said by Power JA that the court was of the view that the presence of these factors exposed the illegal immigrants to a greater risk to their lives and so made the offence “one of considerably more gravity.”[1]

23. The same approach was taken in HKSAR v Wong Sing Fai [1995-2000] HKCLRT 375 where the Court of Appeal was concerned with an applicant who had been charged only with an offence of being a member of the crew of a ship which carried unauthorised entrants into Hong Kong.

24. In HKSAR v Wong Chi King CACC 357/2004, unreported, 2 February 2005 the Court of Appeal was again dealing with an applicant who had only been charged with a section 37C(1) Immigration Ordinance offence and a charge of handling stolen goods.  At paragraph 12 of the judgment Woo VP, in giving the judgment of the court, summarized the applicable tariffs and the aggravating factors, amongst which was the unseaworthiness of the vessel.

25. At some stage the DPP started charging together with the Immigration Ordinance offence the section 72 Shipping and Port Control Ordinance offence.  The section 72 offence seems to have been used to encompass two situations.  The first was where there was conduct by the coxswain in his control of the vessel which endangered the occupants of his vessel or of the police vessel.  Such conduct might include trying to flee the police vessel, taking dangerously evasive action or even risking collision with the police vessel.  Sometimes the sea and weather conditions exacerbated the risks and dangers associated with the coxswain’s conduct.

26. The other situation was where there were features of the vessel which made it either unseaworthy or which exposed its occupants to risks to their lives and well-being or both.  Lack of life-saving and fire-fighting equipment were common particulars in respect of the exposure to risks situation when the vessel was otherwise seaworthy.

27. I cannot date when this practice a laying a separate section 72 charge first started but an early example of it may be HKSAR v Yeung Wui & Ors [2005] 1 HKC 646.  In that case the Court of Appeal quoted with approval the comments by Woo VP in Wong Chi Kin and Power JA in Ng Kit Yuen.  However, it did not consider the approach that should be taken to sentencing when a separate section 72 charge was laid and simply confined itself to saying that the final sentence was not manifestly excessive.

28. Both an Immigration Ordinance Offence and a section 72 offence were charged in HKSAR v Zhong Ming Jing CACC 180/2010, unreported, 5 November 2010 but the section 72 charge was in respect of the coxswain steering the sampan in a dangerous manner.  However, there was evidence that the sampan was not equipped with lifejackets or life-saving equipment and had no fire-fighting equipment.  Lunn J, as he then was, in giving the judgment of the court said in respect of these factors, as they related to a section 37D(1)(a) Immigration Ordinance offence:

“Accordingly, henceforth the courts should regard the absence of life-saving equipment and of fire-fighting equipment as aggravating factors.”

29. By this route conduct which related to the seaworthiness or safety of the vessel and which could be separately charged under section 72 came to be regarded as aggravating factors of the Immigration Ordinance offence.  But, it seems clear that this sentencing practice started when the Immigration offence was charged as a stand-alone offence and was not accompanied by a charge under section 72.  I have not been able to find a case where the Court of Appeal has discussed how to sentence an offender who has been charged with both an Immigration Ordinance offence and a section 72 offence and the particulars of the section 72 offence constitute an aggravating factor for the Immigration Ordinance offence.  

30. It seems to me that where these two offences are charged together and the particulars of the section 72 offence are aggravating factors for the Immigration Ordinance offence, the simplest way of reaching the appropriate totality is not to enhance the sentence for the section 39 offence but rather to simply punish the section 72 conduct appropriately, including the ordering of wholly or partially consecutive sentences, depending upon the seriousness of the defendant’s conduct.  Such an approach has the attraction of simplicity and it enables an assessment to be readily made as to whether the totality is just in the circumstances. However, more importantly, it prevents any misunderstanding arising, and the sense of grievance which inevitably flows from it, as to whether the defendant has been punished twice for the same conduct.

Conclusion

31. For these reasons I dismissed the application for leave to appeal against sentence.

[1]  R v Ng Kit Yuen [1992] 1 HKCLR 170 at 174 line 9.