HKSAR v. LAI GUANGPING

DCCC 75/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 75 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges. The 1st charge is one of assisting the passage to Hong Kong of unauthorized entrants from the mainland. The second related charge is of endangering the safety of others at sea.

2.  At 9 o’clock on the evening of 28 November, officers were on board a police launch when they spotted on the radar a suspicious object entering Hong Kong waters heading towards Sham Wat at 12 knots. 

3.  10 minutes later, they intercepted a sampan which was being controlled by the defendant.  He was controlling the engine and the steering bar at the stern of the sampan.  Covered underneath a canvas on board the sampan, there were five mainlanders: three men and two women aged between 35 and 47.

4.  The defendant was arrested and cautioned and admitted that he was paid RMB900 to convey these five mainlanders to Hong Kong.  He told the police at interview that he was a mainlander and had previously worked as a fisherman.  He was recently unemployed and had met a boss.  His boss had offered him RMB900 to convey some illegal immigrants to Hong Kong, provided a vessel and a compass.

5.  At 6 pm on 28 November, his boss took three males and two females on board the vessel, and the defendant then set off heading towards Hong Kong International Airport direction.  He knew the passengers were to enter Hong Kong illegally, looking for jobs, and he said he was only the coxswain of the vessel.  The defendant held no licence for navigating any vessel, and there were no navigation lights equipped on the vessel.

6.  The passengers were repatriated to the mainland a few days after their detention.

7.  A ship inspector employed by the Marine Department conducted an inspection of the sampan and found that the main hull structure was in poor condition; there was no fire-fighting appliance on board; there was no life jacket, and as mentioned previously, there were no navigation lights fitted.  The inspector concluded that the sampan was unseaworthy.

8.  The defendant has a clear record.  He is 35 years of age.  He has worked previously as a fisherman although for the last seven or eight years he has worked as a casual construction worker earning some RMB1,000 per month.  The defendant was educated on the mainland to Primary 2 standard.  He is single and enjoys good health.  He lives with his mother who is only 78 years of age but suffers from diabetes.  He has to pay his mother’s medical expenses and it was because of these expenses that he was tempted to accept the offer made to bring these mainlanders to Hong Kong. 

9.  He wrote a letter to the court, saying that he comes from a poor family, and he says that he is remorseful for this offence and concerned about who is going to look after his mother.  He asks to be dealt with leniently.

10.  In mitigation, as counsel has rightly said, the main mitigation in this case is the fact that the defendant has pleaded guilty.  There are mitigating circumstances concerning the circumstances of the commission of the offence; the defendant did not attempt to evade detection when the police launch came upon him; there was no evidence of any high speed employed by the defendant in driving the vessel; the conditions at the time of the crossing were mild; the number of persons involved was not large.

11.  However, I note that the defendant has no licence of any kind for navigating vessels, there were no navigation lights equipped on the vessel; he was thereby putting not only himself but the illegal immigrants at serious risk.  In addition, the main hull structure of the sampan was in poor condition.  There was no fire-fighting appliance on board and there were no life jackets.  This was an inherently dangerous situation.

12.  The usual starting point for the first offence is a sentence of 4 to 5 years.  Looking at the mitigating circumstances as well as the aggravating features, I decide to take a starting point of 4 and a half years and reduce that by one-third to reflect his guilty plea. 

13.  As regards the 2nd charge, I take a starting point of 12 months, reduce that to 8 months to reflect the guilty plea and order that 2 months of that sentence run consecutive to the sentence on Charge 1.

14.  The total sentence will therefore be 38 months’ imprisonment.