HKSAR v. HU GUANGQIU

DCCC 1185/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1185 OF 2010

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Chapter 115.

2.  At about 03:30 hours on the 6th September this year the police saw from the radar a vessel travelling to the Southwest of Lantau Island.    Five minutes later police officers on board PV85 spotted a wooden fishing vessel with no lights on.  When PV85 approached the fishing vessel and put on the flash light, the fishing vessel immediately changed course, accelerated and sailed away.  The vessel was intercepted within five minutes by PV85.  The defendant, who was the coxswain, and five passengers were found on board the vessel.  All six of them were confirmed to be unauthorized entrants.

3.  I am satisfied the correct starting point after trial where a defendant is in charge of a vessel in which unauthorized entrants are being carried is 5 years imprisonment (see R v WONG Yin-lung [1995] 1 HKCLR 151 as applied in HKSAR v TSUI Kwong-ming CACC 247/2004 and HKSAR v WONG Chi-kin CACC 357/2004).  The starting point should be increased if there is evidence that the vessel was not in a seaworthy condition.    

4.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Chong, in particular that the defendant has clear record in Hong Kong and that he committed the offence to earn money to pay for the medical fees of his mother, who is going blind.         I have also considered Mr Chong’s submission that the starting point should not be increased because of the condition of the fishing vessel by reason of the fact no hazard actually occurred and that standards in the Mainland are not as high as in Hong Kong. 

5.  In the recent case of HKSAR v TSE Chi-hei CACC 393/2009 the Court of Appeal said that unless there are extremely unusual reasons the starting point with such aggravating features should not be higher than     6 years imprisonment.  In that case the aggravating features showing the fishing vessel was not seaworthy were that the hull was in poor condition; there were no fire-fighting or life-saving appliances and the vessel was not equipped with navigation light for night time navigation.  The Court of Appeal, taking into account these aggravating features; that there were 12 illegal immigrants on board and that the appellant had no previous convictions in Hong Kong, held that a starting point of 6 years was adequate.

6.  The condition of the wooden fishing vessel could be described as similar to that in TSE Chi-hei.  Inspection of the fishing vessel revealed that the general condition of the hull was very poor; the condition of the inboard engine was poor; there was no fire fighting appliance; there were not enough life saving appliances on board, only one life jacket and there was not enough navigation light fitted on board for night operation.  There is however no evidence that the fishing vessel ran the risk of sinking in the journey.  Taking into account the poor condition of the vessel and that the number of illegal entrants was less than in TSE Chi-hei I am satisfied the proper starting point is 5 years and 9 months imprisonment.

7.  Giving the defendant full credit for his plea of guilty he is sentenced to 3 years and 10 months imprisonment.