HKSAR v MAO XINGZHAN AND ANOTHER

DCCC 119/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 119 OF 2013

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Reasons for Sentence

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1.  Both of you are very fortunate, it seems to me, because having regard to the prosecution’s policy of charging offences in circumstances such as these where the unlawful entrants into Hong Kong are not Mainland Chinese citizens, you have been charged with an offence which attracts a lesser sentence as a maximum than the one that would be charged if the unlawful entrants were Mainland Chinese, for which the sentences are far greater. I think you are fortunate in that regard.

2.  Notwithstanding all of that, of course, this is a serious matter, as you both realise, and as I see you realise, not only from what has been said by your learned counsel, but what both of you have written for me to read, which in one case has been explained to me by Mr Chu on your behalf D1, and I have read the translation of your letter which was handed up to me by Mr Boase on your behalf D2.  It is fortunate that on this occasion I am not dealing with a case where there were great numbers of unlawful entrants.  There were only four on this occasion and perhaps that is not surprising given the size of the boat, but that is something that undoubtedly will sound in the sentence which I am about to impose on this first charge.

3.  Addressing this matter overall I think it has been rightly drawn to my attention that you were highly co-operative, there was no attempt to escape or anything of that sort, although it strikes me given that the size of this boat and looking at the size of the outboard motor that you would not have got very far, but to all events you were entirely co-operative with the police and those who interviewed you, and you followed that up with an immediate plea of guilty, so I take all of that into account in a way that I will demonstrate in a moment. Both of you have never been trouble with the law in Hong Kong before and that is something that you are also entitled to have taken into account in your favour. 

4.  Turning to the second charge, I see photographs of the boat, the allegation which you both accept by virtue of your pleas and by having indicated that the facts were agreed, that there is the bald statement that the boat was found to be unseaworthy, although I have not been favoured with any description as to what way it was unseaworthy.  I have got a number of photographs.  The boat is looking, is a bit tatty, but it does not seem to have been leaking water or anything of that sort and gives every appearance of being perfectly serviceable, although perhaps well past its best.  There was no fire-fighting appliance; I suppose that could have been met had you carried a fire extinguisher given the size of the boat, that is an aggravating feature, and you were showing no navigation lights, no doubt that was because you did not want to be detected.    I notice there were life-jackets, that is clear from the photographs.

5.  Turning to sentence, what I propose to do is to accede to the submission that this case can be properly disposed of by means of concurrent sentences in all the circumstances of this particular case.  There is no, and I have heard no submission to the contrary unsurprisingly, there is no reason for me to differentiate between either of you, you are both equally culpable in respect of this matter. 

6.  In respect of the first charge I propose to take as a starting point, it seems to me that this is the correct starting point to reflect the gravity of the offence, the overall circumstances of it, a sentence of 24 months, and I am going to give you a one-third discount to have regard to your pleas of guilty and your general co-operation and all the other circumstances of the case, so the sentence of the court is 16 months’ imprisonment in respect of the first charge. 

7.  In respect of the second charge, you have accepted the proposition that the boat was unseaworthy and that is a serious matter, although I think I am entitled to proceed on the basis that it was in no imminent danger of sinking or anything of that sort, so a starting point of 9 months, which I reduce by one‑third to reflect your pleas and all the other matters which I have referred to, that will be 6 months therefore in respect of the second charge on each of you and that sentence will be served concurrently to the 16 months in respect to the first charge, so 16 months in all.

8.  May I say, to make it clear, that had you been charged under Section 37, which does not seem to follow the current prosecutorial policy, the sentence would have been much greater because I would have been bound by the guidelines which the Court of Appeal have established for offences under that section, which are indicative of starting points of between 4 and 5 years’ imprisonment, but this has not been a charge under that section.