HKSAR v. YE HAOYUAN AND ANOTHER

DCCC 887/2019

[2020] HKDC 345

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 887 OF 2019

------------------------------

------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The two defendants in the present case, both Mainlanders, involved in the smuggling of migrants into Hong Kong from the Mainland on sea.

2.  Just before dawn on 26 July 2019, D1, being the coxswain together with his crew, D2, was steering a speedboat without any navigation lights off the East of Conic Island, which prompted the marine police to approach it for investigation. They made the international code signal “L” to the speedboat to stop, but instead it picked up speed to more than 40 nautical miles to escape. Two police vessels and a police launch gave chase and eventually intercepted it somewhere off Tai Long Tsui, Sai Kung without incident.

3.  On board the speedboat, aside from the two smugglers, the officers also found some illegal migrants-three Bangladeshi men; none of them were wearing any lifesaving equipment. Consequently, both defendants were arrested for smuggling-related offences.

4.  A subsequent examination of the speedboat discovered that it had no firefighting appliances, no navigation lights and not enough lifesaving equipment.  Mr. Wong, Senior Ship Inspector, was of the opinion that the boat was, albeit seaworthy, not suitable for operation because of the aforementioned deficiencies.

5.  D1 pleaded guilty to three counts of offence, namely,

Charge 1- Failing to stop, contrary to regulation 20(1) and (3) of the Shipping and Port Control Regulations, Cap 313A;

(Maximum Term – 6 months’ imprisonment)

Charge 2-Endangering the safety of others at Sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313;

(Maximum Term – 4 years’ imprisonment)

Charge 3- Assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.

(Maximum Term – 14 years’ imprisonment)

D2 faced one offence only, i.e. charge 3 - he was jointly charged with D1 in respect of assisting the passage within Hong Kong of unauthorised entrants to which he pleaded guilty.

6.  D1, aged 32, married with two children, a daughter (11) and a son (2); he earns his living as a fisherman making about $2,000 and $3,000 RMB a month. His middle-aged parents are both a diabetic, father is retired and mother is a housewife, and both of them are dependent on D1.

7.  Counsel for D1 tells the court that D1 committed the offences solely for economic reasons. D1 was introduced to this criminal operation by a friend who promised him a reward of $3,000 RMB if he could transport some South Asians from the Mainland to Hong Kong on sea; given the fact that he had a family and parents to support, he foolishly agreed to the invitation.

8.  Counsel submitted that there was no evidence to suggest it was a dangerous manoeuvre when fleeing from the police,  the officers said in their statement that there were no other vessels around during the course of the pursuit, and thus only the lives of the officers and the three passengers on board were at risk but fortunately no casualties were reported.

9.  Finally, counsel stressed that D1 was not the mastermind of this operation, and urged the court to consider concurrent sentences as it arose out of the same incidents.

10.  D2, aged 26, single, has two prior drug-related convictions back in 2012 and the matter was dealt with by way of fine. He worked as a salesman earning about $3,000 a month. His parents divorced when he was 11 and he was brought up by his grandfather.   

11.  Counsel for D2 put it down to momentary foolishness on the part of D2 for the commission of the offence. He was only helping his friend, D1, and did not really appreciate the seriousness of what he was doing. He would be paid $1,000 RMB as a reward. During the remand period, counsel continued, he has deeply reflected on his wrongdoing and felt very remorseful. He promises that he will not re-offend again.

12.  Migrant smuggling is a dangerous operation which may in some cases result in the dead of those individuals being smuggled. This could arise from the unseaworthy conditions of the vessel on which they are travelling or collision between the vessel and police launch in the attempt to shake off the police chase or both.

13.  Here in the present case no details of the police chase were provided to the court, but it was clear that it occurred without incident – no collision, no casualties; counsel has urged the court to accept that the boat trip was not one putting the lives of the occupants of the speedboat at serious risk. 

14.  Turning to the conditions of the boat, there were three life-jackets and three lifebuoys on board but it had neither fire-fighting equipment nor navigation lights, the boat was nevertheless described as seaworthy.  

15.  Speaking of the risk of endangering passengers, the Appellate Court has this to say in Tang Zhuyan CACC 223/2010:

“In respect of charge 1 (Equivalent to charge 3 in the present case), aggravating factors included a vessel which was “unseaworthy” by reason of poor maintenance or age, with the risk of endangering passengers; one which was described as a “floating coffin” or “leaky tub”; and danger to human life inherent in the smuggling of human cargo. The absence of firefighting equipment and navigation lights was “of relatively little significance”. Although the absence of life-saving equipment was to “stand differently”, nevertheless it brought only some slight increase in the hazard over and above the sort inherent to this kind of activity.”

16.  The speedboat in the instant case was not considered unseaworthy, the lifesaving equipment such as lifejackets and lifebuoys seemed enough to go round, the things lacking were firefighting equipment and navigation lights which were of little significance.

17.  Having said that, however, it should be noted that those on board, in particular the migrants, were not wearing any lifejacket. If anything should go wrong, whether by way of collision with police vessel or otherwise, the passengers would likely fall overboard and could be drown to death.

18.  Coming back to the question of smuggling of migrants, the current authorities held that for those who are in charge of the vessel such as the captain or coxswain, in the absence of any aggravating features, it would normally attract a term of 5 years; while those simply giving a helping hand such as a crew member, a lighter sentence is appropriate.

19.  Given the facts of the case, for charge 1, I would take one and a half months as the starting point, for charge 2, 9 months and for charge 3, in the case of D1- 5 years and D2- 4 years.

20.  Insofar as mitigation is concerned, apart from their guilty pleas, there aren’t anything of substance; their pleas are timely, so each defendant is entitled to a full 1/3 discount.

21.  Their final sentence is as follows:

D1	:	charge 1- one-month imprisonment;
		charge 2- 6 months’ imprisonment;
		charge 3- 40 months’ imprisonment;
D2	:	D2- charge 3 – 32 months’ imprisonment.

22.  Regarding D1, taking into account the totality principle, I order that 2 months of charge 2 be served consecutively to charge 3, the rest concurrently, total term is one of 42 months’ imprisonment.