HKSAR v. GUO CANHUI

DCCC 874/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 874 OF 2013

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Reasons for Sentence

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1. The defendant pleads guilty to two charges. The 1st charge is aiding and abetting the attempt to land in Hong Kong without the permission of an immigration officer. The 2nd charge is endangering the safety of the seven persons named in the charge at sea.

2. The facts are quite simple and typical.  At about 8 pm on 11 July 2013, police found a motorised sampan entered the waters of Hong Kong from the mainland at a speed of about 6.5 knots. The sampan was intercepted.  It did not have navigation light.  The defendant was the coxswain.  Seven other persons named in the charges were on board, squatting or lying on the deck.  They were illegal immigrants.

3. It can be seen by their names that they are not of Chinese origin.  The defendant admitted that a person known as Lik Gor gave him a reward of $3,000 to take the seven illegal immigrants from a pier in Dongguan to Hong Kong.  The sampan was owned by Lik Gor.  The defendant did not check the safety facility or the structure of the sampan.  He did not have any certificate to navigate a sampan in the mainland.

4. The sampan was later examined.  Its size is about 1.8 metres by 5.8 metres.  The sampan was unseaworthy in that the main hull structure was in poor condition.  It had an outboard engine of 40 horsepower.  There was no fire-fighting appliance equipped and only three working lifejackets on board.  It had no navigation light for night operation. The maximum passenger capacity for a sampan sailing in Hong Kong is five persons, including the coxswain.

The Court’s Concern as to Appropriateness of the 1st Charge

5. Concerns of the judges of the District Court have been expressed over the discrepancy of treatment of people being unauthorised entrants from the mainland and people who are unlawful entrants from elsewhere. 

6. In respect of the 1st charge under section 38(1)(a) of the Immigration Ordinance, the maximum sentence is 3 years’ imprisonment.  However, if the defendant is charged under section 37D of the Immigration Ordinance for carrying Chinese citizens falling within the definition of “unauthorised entrants,” the maximum sentence is 14 years’ imprisonment.  Absent any aggravating features, a usual starting point for sentence would be 5 years’ imprisonment. 

7. The great disparity in the maximum sentences cannot be justified simply because of the ethnic origin of the people being brought into Hong Kong unlawfully.  Moreover, for cases where a large number of unauthorised persons are brought into Hong Kong unlawfully, 3 years’ imprisonment as the maximum sentence is clearly inadequate.  Such concerns of the court have been raised as early as 2010 by Her Honour Judge Yuen in DCCC 1289 of 2009 and by His Honour Judge Browne in DCCC 1411 of 2009. 

8. The Court of Appeal shared those concerns in HKSAR v Tang Zhuyan (唐珠炎) CACC 223 of 2010 (see paragraph 12 of the judgment).  Yet, nothing has been done by the Secretary of Justice for remedy.   

9. Before plea is taken in this case, this court raised the same issue again with the prosecution and asked if they would consider laying a charge under section 38(4) of the Immigration Ordinance.  Section 38(4) provides that:

“(4) If a person lands from a ship in contravention of subsection (1)(a)-

(a) the captain of the ship; and

(b) (skipped)

shall be guilty of an offence and shall be liable-

(i) on conviction on indictment, to a fine of $600,000 and to imprisonment for 7 years; and

(ii) (skipped)

unless he proves that all reasonable steps had been taken to ensure that persons did not land from the ship in contravention of subsection (1).”

10. Mr Lee, public prosecutor for the prosecution, having taken instructions, did not indicate whether the Department of Justice agreed that section 38(4) is also an appropriate charge.  He said, however, that the prosecution would not amend the charge at this late stage.  He undertook to pass the court’s observations to the Department of Justice, and his department would consider the option in the future prosecution.

11. Mr Lee further concedes that the maximum sentence under section 38(1)(a) cannot be enhanced under section 38(4) as they are different offences.

12. The right to prefer charges rests with the Secretary of Justice.  Section 38(4) may or may not be a correct charge. Regrettably, the prosecution do not seek to explore this possibility in this case.  As there is no charge under section 38(4) before this court, I will not proceed to discuss the appropriateness of laying charge under that section. It can only be an academic and unfruitful exercise for this court to interpret the ambit of section 38(4) without proper argument of both parties.

13. I now come back to the sentence in this case. 

The Defendant’s Background and Mitigation

14. According to the undisputed antecedent statement of the defendant, he is a 19-year-old single young man.  He completed junior secondary education in China and was a vehicle maintenance worker in the mainland.  He lives with his parents who are both fishermen and a 14-year-old younger brother in Dongguan.  He has no criminal record in Hong Kong.

15. In mitigation, Mr Lee, solicitor for the defendant, submits to the court two cases: HKSAR v Tseung Yim Kwan (蔣艷群) CACC 531 of 2005 and HKSAR v Tang Zhuyan which I referred to earlier.  It is submitted that the defendant did not escape or resist.  He also made frank admissions at a very early stage.  Relying on paragraph 22 of the judgment in HKSAR v Tseung Yim Kwan (蔣艷群), Mr Lee submits that the proper sentence on Charge 1 is 15 months’ imprisonment on a plea of guilty.

16. For the 2nd charge, it is submitted that the defendant in Tang Zhuyan escaped to resist the police, there was a pursuit for 21 minutes and there were children of young age on board.  Even in such circumstances, the Court of Appeal regarded that 12 months was the correct starting point.  In this case, however, there are no young children on board and the defendant did not escape.  It is submitted that the starting point in this case should therefore be less than 12 months.

17. Mr Lee also asks that the sentences in the two charges be served concurrently.

Reasons for Sentence

The 1st Charge

18. The maximum sentence for Charge 1 is 3 years’ imprisonment.  Paragraph 22 of the judgment in HKSAR v Tseung Yim Kwan (蔣艷群), relied upon by Mr Lee, is concerned with the sentence of the illegal immigrant herself on appeal.  Here, however, we are dealing with a defendant who aided and abetted seven illegal immigrants. 

19. Her Honour Judge Yuen in DCCC 1289 of 2009 used two and a half years’ imprisonment as the starting point for this charge involving eight illegal immigrants, whereas His Honour Judge Browne adopted 27 months for a case involving 20 illegal immigrants.

20. In HKSAR v Wu Zhi Chao (吳志超) CACC 208 of 2013, the sentencing judge adopted 2 years as the starting point for four Pakistani illegal immigrants.  While the starting point was not the subject matter of the appeal against sentence, the Court of Appeal made no criticism of the starting point.

21. The present case involved seven illegal immigrants.  Bearing in mind the maximum sentence of 3 years should be imposed only for the most serious scenario, I adopt two and a half years as a starting point for the 1st charge.  

22. I notice the defendant’s relatively young age but, in my view, it cannot be a mitigating factor.  There are no mitigating factors in favour of the defendant except his plea of guilty, for which he will get one-third reduction of the sentence.  He is therefore sentenced to 20 months’ imprisonment.

The 2nd Charge

23. The maximum sentence is 4 years’ imprisonment. Mr Lee relies on Tang Zhuyan.  He has probably misread the facts of the case in saying that young children were carried on board.  There was only one illegal immigrant on board the sampan, and there is no evidence that the II was of young age.  There was indeed a chase of 21 minutes in that case. However, that was not a factor taken into account in sentencing the defendant in Tang Zhuyan (see paragraph 14 of the judgment in Wu Zhi Chao).

24. The aggravating features of dangers were discussed in HKSAR v Yeung Wui CACC 415 of 2004, HKSAR v Chow Tin Shing CACC 85 of 2007 and HKSAR v Zhong Ming Jing CACC 180 of 2010. The manner the vessel being manoeuvred, its conditions, its safety appliance and how it was maintained are the main factors in sentencing.

25. In the present case, there was no fire-fighting appliance equipped on board.  There were only three lifejackets for eight persons on board.  No navigation light was fitted on board.  The defendant did not even have any certificate for navigation in the mainland.  It was an open sampan of small size with an outboard engine of 40 horsepower.  The defendant did not check the safety facilities or the structure of the sampan at all.   

26. On the other hand, I accept that the defendant did not escape.  There was no evidence of dangerous manoeuvres of the sampan.

27. In Zhong Ming Jing, eight passengers were on board the sampan.  There was apparent aggravating feature in that on numerous occasions, the defendant deliberately altered the course of the sampan to put it directly in the path of the police vessel during its flights.  By comparison, I would regard the circumstances in Zhong Ming Jing more serious than the present case.  The Court of Appeal identified that 18 months’ imprisonment was the appropriate starting point in that case.

28. In Tang Zhuyan, there was only one illegal immigrant on board the sampan.  Absent any aggravating features of dangers, the Court of Appeal adopted 12 months as the starting point. 

29. Given the number of passengers whose lives were endangered in the present case, I would adopt 15 months as the starting point for the 2nd charge.  It is reduced to 10 months to reflect the guilty plea.

Concurrent or Consecutive Sentences?

30. In R v Chan Siu Yun CAAR 9 of 1995, the Court of Appeal was satisfied that the sentence for the additional offence of endangering the safety of others at sea should have been consecutive.  This approach was followed in HKSAR v Sze Yu CACC 143 of 2003, Zhong Ming Jing (above) and Wu Zhi Chao (above).

31. I have considered totality and still come to the conclusion that the sentences in the two charges should run consecutively.  The total term of sentence is therefore two and a half years’ imprisonment.