HKSAR v. YE KUAN

DCCC780/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 780 OF 2009

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Reasons for Sentence

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1.  The following is the sentence and the reasons for it. The defendant appeared in the District Court before me and charged with two offences. Charge 1: assisting the passage within Hong Kong of a conveyance which carried unauthorised entrants contrary to section 37D(1)(a) of the Immigration Ordinance Cap.115. Charge 2,: failing to stop, contrary to regulation 20(1) and (3) of the Shipping and Port Control Regulations made under the Shipping and Port Control Ordinance Cap.313.

2.  He pleaded guilty to both charges and was represented by Mr Ng, solicitor assigned by the Director of Legal Aid.

3.  According to the Summary of Facts which was admitted by the defendant, he was the coxswain of a vessel which at the material time was spotted by the Hong Kong Marine Police within the Hong Kong waters. When the police vessel 102 (”PV102”) turned on the blue siren, the defendant, however, did not stop the vessel. One of the marine policemen shouted at him but he continued to drive the vessel heading towards Mainland China. Finally when PV102 stopped the vessel on its offside, the defendant jumped into the sea. However, he shortly swam back to the vessel.

4.  Five PRC females particularised in Charge 1 were found on board of the intercepted vessel. None of these ladies could produce any valid travel document and were therefore illegal immigrants.

5.  Under verbal caution, defendant told police that he just wanted to earn money for the meal. Later in a video interview made at Tin Shui Wai Police Station, the defendant stated further under caution that it was his cousin who had introduced him to a man called “Long San” who asked him to go to Hong Kong and bring a few people back to mainland for a reward of RMB1,000.

6.  A few hours before the offence, his cousin took him to Hou Hai Bridge in the mainland where he met “Long San” who took him to a beach and where he taught the defendant how to steer the vessel.

7.  According to the ship inspector’s report the followings were noted during the inspection: (1) the main hull structure was found in poor condition; (2) there was no fire-fighting appliances equipped on board; (3) there was no lifesaving appliances equipped on board; and (4) there was no navigation light fitted on board for night operation. All in all, the ship inspector concluded that the vessel was unseaworthy.

8.  Before convicting the defendant I have clarified with Mr Ng in relation to the defendant’s knowledge about the status of the unauthorised entrants on board of the vessel and it was confirmed that although he did say under video caution that he did not know that these people were illegal immigrants or unauthorised entrants, “Long San” had told him that these people were illegal immigrants when he met “Long San” at the beach.

9.  The defendant is now aged 34. He was born in Yangjiang in China. He only received a primary education and he worked as a fisherman by occupation earning an income of about RMB5,000. Although he was single but he had a girlfriend and they had a 2 years old daughter but the girlfriend had separated with him two years ago. The daughter, I was told, is now taken care of by the defendant’s younger sister. The defendant was now living together with his mother now aged 66 in a village house in Hong Kong.

10.  The defendant had a clear record in Hong Kong. In mitigation, I was shown a letter written by the senior medical officer of Lai Chi Kok Reception Centre which confirmed that according to the blood tests for the HIV which was conducted in June this year, positive result was received. According to the report, the defendant was subsequently referred to the Kowloon Bay Integrated Medical Centre for further medical follow-up and he had altogether attended the centre for treatment twice already and his next follow-up appointment is scheduled in the end of August 2009. According to the same report, he was also an abuser of heroin for three years, but apart from his treatment for his withdrawal syndrome, during his stay in the Lai Chi Kok Reception Centre, his general health condition was considered to be stable.

11.  Mr Ng has also submitted for my consideration a letter of mitigation written by the defendant and according to the letter, the defendant has stated his remorse for the offence and said that he committed the present offence for a reward of RMB1,000 because he had no money. The defendant told me that he was told that he had only two years’ life expectancy and he wanted to take care of his mother and daughter before he passed away so he wanted the court to be as lenient as possible.

12.  In sentencing, I was referred to the case by Mr Ng of HKSAR v Li Chih Hui(CACC189/2008) where the Court of Appeal after reviewing the case authorities in relation to the 1st charge finally reduced the sentence of 6 years to 5 years as the proper starting point before the discount on account of the defendant’s plea of guilty.

13.  It is accepted by Mr Ng that where the defendant was the captain of the vessel and in charge of the vessel the usual proper starting point is one of 5 years. It is also accepted by Mr Ng that in some cases the court, however, can give weight to the condition of the vessel and perhaps the number of the illegal immigrants involved and increase the sentence.

14.  Each case has its own facts. In this case, while it is true that according to the ship inspector’s report there was no fire-fighting appliances as well as lifesaving appliances equipped on board but Mr Ng told the court that the destination of the vessel was only Shekou in Shenzhen where the total time for the voyage is about 20 to 25 minutes only. Therefore, in the end, I decided not to increase the starting point in relation to the 1st charge and adopt a 5 year starting point. After a one-third discount of the defendant’s plea of guilty the sentence on this charge is reduced to 3 years and 4 months.

15.  As to the 2nd charge, the failing to stop offence, I adopt a 9 months’ imprisonment as a starting point and after giving the one-third discount on account of his plea the sentence on this charge is therefore one of 6 months’ imprisonment. I take into account the fact that in most cases which involve the 1st charge, a captain of a vessel will not stop the vessel right away, and also because of the principle of totality, I order finally that the sentences on both charges to run concurrently.

16.  Lastly, I was asked by Mr Ng to take into account the fact that the defendant was HIV positive and his reduced life expectancy and to reduce his sentence. In this connection, I need only repeat what I have mentioned in the letter which was written by the senior medical officer of the Lai Chi Kok Reception Centre in relation to the stable health condition of the defendant.

17.  I was also properly referred to the book, “Sentencing in Hong Kong” 5th edition by Miss Fung, the Senior Public Prosecutor.At page 347, the learned author of the book had referred to the case of R v Chan Kui Sheung [1996] 3 HKC 279-284 where Yang CJ said that one of the principles in consideration of the ill health of the defendant was that, “the fact that an offender was HIV positive or had a reduced life expectancy was not generally a reason which should affect sentence.” I am sure that whilst serving the sentence, the prison authority will see to it that the defendantreceive all the proper medical attention because of his medical condition. If, unfortunately, the life expectancy of the defendant is cut short by his deterioration of his health condition this is something which can be considered by the executive of the prerogative of mercy but it was not a reason for the court to interfere which is otherwise an appropriate sentence. I decided therefore not to reduce any sentence on account of the health condition of the defendant.

18.  For the two offences, the defendant will serve a total of 3years and 4 months.