HKSAR v. LIANG ZEQIANG

DCCC 1146/2022

[2023] HKDC 1700

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1146 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of assisting the passage to Hong Kong of unauthorised entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115 (1^st charge)  and endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (2^nd charge)  on his own plea and agreement to the Summary of Facts.

Facts

2.  On 30 August 2022 at around 6 pm, police spotted a motorised sampan (the “Vessel”)  sailing towards Hong Kong. They kept it under observation. Later, the Vessel entered Hong Kong waters.

3.  At around 10:23 pm, police spotted the Vessel with the defendant and another male (a PRC citizen)  (“Subject”)  100 metres off Tsang Tsui with no navigation lights on. They kept the Vessel under supervision.

4.  At around 10:56 pm, police saw the Vessel anchored next to an oyster raft and the defendant and Subject stayed at the oyster raft. At around 00:04 am on 31 August 2022, the defendant and Subject left the oyster raft and boarded the Vessel.

5.  The Vessel was later intercepted by police vessel at around 00:06 am at 100 metres off Tai Shui Hang near Nim Wan Road with the defendant and Subject found on board.

6.  Upon enquiries by police, the defendant could not produce any valid document or provide any legitimate reasons for their presence in Hong Kong. Therefore, police arrested the defendant for “arranging passage to Hong Kong of unauthorised entrants”. Subject could not produce any valid HKID or entry documents either.

7.  Under caution upon arrest, the defendant claimed that he came to Hong Kong for fishing. He also said that they arrived at an unknown oyster raft in Hong Kong where they stayed there for 30 minutes but they could not harvest any oyster.

8.  He also said that they were intercepted by police when the Vessel was on the way back to mainland and that he himself was the coxswain of the Vessel. He said he did not know the ownership of the oyster raft and whether the oyster raft was licensed, and he did not possess any coxswain or engine operator licence.

9.  Pursuant to the inspection report on the Vessel prepared by a senior ship inspector of Marine Department, it was noted that:

(a)  There were no fire-fighting appliances equipped on board.

(b)  2 life vests found on the Vessel but they did not comply with the safety standards.

(c)  There were not enough life-saving appliances equipped on board.

(d)  There were no navigation lights fitted on board for night operation.

10.  Inspection report concluded that the Vessel was seaworthy but not suitable for operation.

Criminal Record

11.  The defendant has a clear record in Hong Kong.

Mitigation

12.  The defendant is a fisherman in the mainland. He is now aged 38. He is married with a son aged 15 and a daughter aged 1.

13.  Before his arrest, his family and parents all relied on the defendant’s financial support. It was said that the defendant’s parents both have ill health.

14.  The defendant started his job as a fisherman, assisted his father after he completed Form 1. It was said that in order to make ends meet, he worked two jobs. Apart from being a fisherman, he also worked in an air-conditioning parts factory as a driver.

15.  It was also said that he suffered two epileptic fits while in custody for this case as he has epilepsy from the age of 12. It was also said that the defendant is a man of clear record in Hong Kong.

16.  Defence counsel refers this court to the cases of HKSAR v Wong Chi Kin, CACC 357/2004, where the Court of Appeal stated that when the accused was a captain of the vessel or the person in charge, the appropriate sentencing starting point is 5 years’ imprisonment. The Court of Appeal also set out certain situations which constitute aggravating features in sentencing.

17.  Defence counsel said that in the case of R v Lo Shui Lun, CACC 109/1995, the Court of Appeal made the observation that the absence of fire-fighting equipment was probably of relatively little significance. The court takes the same stance for the absence of navigational lights. It is also said, however, that the absence of life-saving equipment stands at a different position.

18.  Defence counsel also refers this court to the case of HKSAR v Zhong Ming Jing, CACC 180/2010, where a different constituted division of the Court of Appeal regarded the absence of life-saving equipment or absence of fire-fighting equipment as an aggravating factor.

19.  Defence counsel submitted that in the present case there were actually 2 life vests on the Vessel.

20.  He also said there is no evidence to show that the defendant or the passenger had intended to land and remain in Hong Kong. He said that the police observation showed the defendant and passenger boarded and stayed at the oyster raft for slightly over an hour, and that had they intended to land in Hong Kong, they would not have spent such a long time at the raft. He urged this court not to adopt the usual sentencing starting point in view of this rather unusual feature.

21.  He submitted that the culpability of the defendant in relation to the 2^nd charge in the present case is far less than the appellant in the HKSAR v Tang Zhuyan [2011] 1 HKLRD 447, as there was no attempt to escape and as a result no chase had ever occurred.

22.  Defence counsel submitted that the particular facts of the present case placed the defendant’s culpability at the lowest end of the spectrum.

23.  He submitted that as this court must have taken into account the observations by the senior ship inspector when arriving at an appropriate sentencing starting point for the 1^st charge, this court ought to impose a concurrent sentence for the two charges.

24.  He also urged this court to give the defendant a full one-third sentencing discount by reason of the defendant’s guilty plea. It is said that the defendant now feels deeply remorseful as to what he has done which caused trouble and anxiety to his family. He wishes the court to deal with him with leniency.

Discussion

25.  This court has carefully considered mitigation submissions from defence counsel as well as the cited authorities and the mitigation letters from the defendant and his wife.

1^st Charge

26.  On conviction upon indictment of this charge, a person is liable to a fine of HK$5 million and to imprisonment for 14 years.

27.  This court does not see any valid reason to depart from the sentencing guideline in Wong Chi Kin case. The defendant being the coxswain of the vessel in question, the appropriate sentencing starting point would be 5 years’ imprisonment.

28.  According to examination report of the senior ship inspector, the vessel in question was seaworthy but not suitable for operation as there is an absence of fire-fighting apparatus on board, insufficient life-saving appliances and no navigation lights for night sailing. Further, the defendant said under caution that he had no coxswain or engine operator licence.

29.  The condition of the vessel, as observed by the ship inspector, exposed the passenger of the vessel to extra and unreasonable risk at sea. The same amounts to an aggravating feature in sentencing as stated in Tang Zhuyan case.

30.  Having regard to the fact that only one passenger was on board at the time, the sentencing starting point is enhanced by 3 months’ imprisonment.

31.  The defendant said he did not know about the ownership of the oyster raft but it was submitted and agreed that he and the Subject stayed at the oyster raft for quite a long time, although at the end of which they were not able to harvest.

32.  It is clear to this court they came to Hong Kong for the purpose of harvesting or attempting to harvest from oyster rafts within the jurisdiction. It matters not whether at the end of the day they did harvest. This again constitute an aggravating feature in sentencing for this charge. The sentencing starting point is further enhanced by 3 months’ imprisonment.

33.  The defendant has a clear record in Hong Kong. But as a mainland resident, having a clear record in Hong Kong do not carry as much weight as a Hong Kong resident for obvious reasons.

34.  The most valid mitigating factor is obviously his guilty plea for which he is entitled to full one-third sentencing discount.

35.  Accordingly, he is sentenced to 44 months’ imprisonment for the 1^st charge.

2^nd Charge

36.  On conviction upon indictment of this charge, a person is liable to a fine of HK$200,000 and to imprisonment for 4 years.

37.  Having regard to the said factors which endanger the safety of one passenger on board, the court considers 9 months’ imprisonment is an appropriate sentencing starting point for this charge.

38.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount. He is therefore sentenced to 6 months’ imprisonment.

Totality

39.  Having regard to the totality principle and the overall culpability of the defendant in this case, the court considers that a total sentence of 44 months’ imprisonment is just and appropriate.

40.  Further, as the aggravating features have been considered in the sentencing process of the 1^st charge, the court orders that the sentence of the 2^nd charge is to run totally concurrent to the sentence of the 1^st charge.

41.  The defendant is therefore sentenced to a total of 44 months in this case.