HKSAR v. LI WENXIANG AND ANOTHER

DCCC 62/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 62 OF 2012

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Reasons for Sentence

1.  The defendants, D1 and D2 on the indictment and so termed throughout, have each pleaded guilty to the charges they each face. D1 has admitted the first count of assisting the passage to Hong Kong of a conveyance, a motorized sampan, which carried an unauthorized entrant, namely Wang Ping, D2 herein, contrary to section 37D(1)(a) of the Immigration Ordinance, cap 115. The defendants have also each admitted count 2 of the indictment, wherein they are jointly charged with conspiracy to arrange or assist passage within Hong Kong of a conveyance, a motorized sampan, which carried unauthorized entrants, including Deng Jinmei, contrary to section 37D(1)(a) of the Immigration Ordinance, cap 115 and sections 159A and 159C of the Crimes Ordinance, cap 200.

2.  Facts admitted by the defendants disclose that in the afternoon of 30 November, 2011, police officers conducted an anti-human smuggling operation at the Sham Wat Pier area in Tai O.  At about 2.35 pm, police officers found D2 leading 4 females walking and looking around suspiciously.  D2 and the 4 females, hereinafter referred to as AP1 to AP4, were intercepted by the police officers.  Upon investigation, D2 and AP1 were found to be illegal immigrants whilst AP2 to AP4 were holders of Chinese Two-way permits and had overstayed after entering Hong Kong.  AP1 was the unauthorized entrant Deng Jinmei referred to in the particulars of Count 2, whilst D2 was the unauthorized entrant Wang Ping referred to in the particulars of Count 1.

3.  As a result of the arrest of this group in the vicinity of Lantau Island, officers of the Marine Police conducted an investigation at the nearby seashore and pier.  At about 3.05 pm that day, police vessel PV11 found an unnumbered sampan, hereinafter referred to as E1, at Shan Shek Wan being steered by D1, D1 being at the stern of the vessel. E1 was stopped by police vessel PV11.  D1 failed to produce any document of identity on demand.  D1 was thus arrested.  As it was suspected that D1 and D2 might be connected, D1 was cautioned, and remained silent under caution.  An examination of the mobile telephones found from D1 and D2 disclosed that there was frequent telephone contact between them at the material time prior to their arrest.

4.  D1 was interviewed under caution that evening at the Lantau North Police Station and admitted that he was responsible for conveying a person named Wong Ping, the same name as that of D2, from Zhuhai to Tai O in Hong Kong and Wong Ping would manage the rest of the arrangements.

5.  At a video recorded interview on 1 December, 2011, D1 disclosed that in November, 2011, a Mainlander named ‘Yee Ng’ had asked him to convey people to Hong Kong illegally, and another Mainlander, Wong Ping, ie D2, would be responsible to go ashore and bring people to board the vessel.  The Mainlander ‘Yee Ng’ owned two unnumbered vessels including E1.

6.  At about 2 am on 30 November 2011, D2 and ‘Yee Ng’ were on board the bigger of the 2 vessels owned by ‘Yee Ng’ whilst he boarded E1, which was towed by the larger vessel.  At about 5 am, the larger vessel stopped at the boundary between China and Hong Kong waters.  When they were in the vicinity of Kwai Shan Island, D2 boarded E1.  D1 then navigated E1 with D2 on board towards Hong Kong as instructed by ‘Yee Ng’.  They arrived at a pier in Hong Kong after about 15 minutes.  D2 went ashore whilst D1 steered E1 to the vicinity of Yee Ng’s larger vessel inside Chinese waters.  This is the subject matter of the first count, D1 having steered the vessel E1 in Hong Kong waters with D2, an unauthorized entrant, on board, and dropped him off at a pier in Hong Kong.  At around 12 noon, D1 received a telephone call from D2 to navigate E1 to pick up D2 and AP1 to AP4.  At about 2.30 pm, D2 telephoned him and said he would arrive soon, but D2 did not show up.  D1 then left the pier and was arrested by the police later.  AP1 was an unauthorized entrant named Deng Jinmei, referred to in the particulars of count 2.  D1 and D2 had jointly conspired to arrange or assist passage within Hong Kong of a conveyance, a motorized sampan, namely E1, to carry unauthorized entrants, including AP1 Deng Jinmei.

7.  When interviewed under caution, D2 said initially that he was conveyed by a friend on a vessel to Tai O, Hong Kong.  His friend instructed him to take 4 females from Sha Law Wan to board the vessel for a boat trip back to the Mainland.  That friend was D1, and D1’s mobile telephone number was retrieved from D2’s mobile telephone.  He had come to Hong Kong with D1, and D1 had dropped him off at Tai O, Hong Kong.  D1 instructed him to walk on a small path leading to Sha Law Wan Village where he was to bring 4 ‘natives’ to board D1’s vessel and these 4 ‘natives’ would communicate with him via mobile telephones. He was contacted by one of them, and he told them to meet at the Sha Law Village, where he met AP1 to AP4 and he led them back to the pier to meet D1 but they got lost on the way, and were arrested by the police.  D1 might pay him a few hundred dollars for doing this.

8.  At a subsequent video recorded interview, D2 said he had boarded a vessel on the Mainland at about 2 am on 30 November, 2011, and his purpose was for sightseeing.  He had an agreement with D1 that D1 would bring him to Hong Kong by boat.  On the boat trip to Hong Kong, he and an old man were on board one vessel, while D1 was on board another.  They arrived in Hong Kong waters at about 5 am, when he transferred onto the vessel D1 was on.  D1 told him where to go and to contact him later to be picked up.  He sat at a bus stop for an hour until he was contacted by a woman asking him his whereabouts – he met up with the four women and they walked for one to two hours as he tried to lead them back to the pier where they were to board D1’s vessel, and they were subsequently arrested.  This was his first time to Hong Kong and he had entered Hong Kong illegally.

9.  In respect of Count 2, D1’s role was to steer the unnumbered sampan E1 in Hong Kong waters and drop D2 at the pier and pick D2 and the unauthorized entrants up from the pier to convey them back to China while D2’s role was to go ashore at the pier and meet up with the unauthorized entrants and bring them back to the pier to board D1’s vessel for the journey back to the Mainland. However D2 became lost when he was leading the unauthorized entrants back to the pier and they were intercepted by police officers and were subsequently arrested, resulting in the Marine Police conducting a search in nearby waters resulting in the arrest of D1 by officers of the Marine Police on board the vessel E1 off Sham Shek Wan.

10.  The vessel E1 was examined and found to be a fibre-glass sampan about 6m x 2m in size, fitted with one engine.  There were no fire-extinguishing appliances or life-saving apparatus on E1. Nor were there any navigation light for night time navigation.  The main hull structure was found to be in a poor condition, and E1 was found to be unseaworthy.  The album of 6 photographs submitted by the Prosecution clearly depicts the poor condition of the vessel E1.

11.  D1 and D2 are both from the Mainland and both have clear records here in Hong Kong.

12.  D1 is aged 45 years and a fisherman earning RMB¥1,000 a month.  He is a widower, and lives with his parents and 2 children, both of whom are students. He is the sole breadwinner of the family.  Because fishing has not been good and the family was in financial difficulties, he agreed to an offer made to him to earn some extra money by picking up people from Hong Kong and conveying them to China – he was offered RMB¥1,500 for doing so.  He had not yet been paid. Nor was he the mastermind of the operation.  I was told that he was now very remorseful, as reflected by his plea, and sought leniency.  Counsel submitted on his behalf that the journey was conducted in daylight so the absence of navigational lighting for night-time use of the vessel was of less significance. However facts admitted by D1 disclosed that the journey from China began at 2 am, when the vessel E1 was towed by the bigger vessel, and it reached Hong Kong waters at about 5 am, when D2 transferred onto E1 and D1 conveyed him to the pier in Hong Kong, a journey that lasted some 15 minutes.  At least a part of the journey would have been conducted in the dark.

13.  D2 is aged 41 years and a fisherman earning RMB¥1,000 a month.  He and his wife are separated, and he lives with his aged mother and 8 year old son. He is the sole breadwinner of the family.  Again, because of financial hardship and a desire to earn more money, when he was approached he agreed to participate.  He was not the mastermind.  He had pleaded guilty, and his remorse is reflected by his plea.

14.  In my view, save for their pleas, there is very little mitigation of weight in respect of D1 and D2.

15.  Section 37D(1) of the Immigration Ordinance provides that upon conviction on indictment, a person is liable to a fine of HK$5,000,000 and to imprisonment for 14 years.

16.  There is no evidence that either D1 or D2 are the masterminds of this venture.  Clearly D1’s role was to be in charge of the vessel E1 whilst D2’s role was to disembark from the sampan and go ashore and meet the unauthorized entrants to lead them back to the sampan for the journey from Hong Kong back to the Mainland.

17.  I have carefully considered mitigation by Counsel on behalf of the defendants as well as the authorities he has submitted, of which 2 are Reasons for Sentence from the District Court for similar offences, namely HKSAR v Leung To Tit, [2009] HKDC 1552, DCCC 788/2009 and HKSAR v Li Chuan, [2010] HKDC 1413, DCCC 548/2010.  I have referred myself to the authority of HKSAR v Wong Chi-kin & Ko King Hung, CACC 357 & 410/2004, a decision of the Court of Appeal wherein Woo V-P reiterated all the previous guideline cases and held that the generally applicable tariff is 4 years’ imprisonment.  Hon Woo, V-P, in delivering the judgment of the Court, said :-

“12. The generally applicable tariff is 4 years’ imprisonment: R.v. Ho Siu-lun and Ors [1987] HKLR 1086, R. v. Chan Kwok-keung & Anr. [1988] 1 HKLR 279 and R. v. Lam Kon-man, Crim. App. No. 329/1990. Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organization of the venture, the appropriate starting point is 5 years’ imprisonment: R. v. Wong Yin-lung, [1995] 1 HKCLR 151 at 153 and R. v. Pang Wing [1996] 1 HKC 624 at 626H and 627A.”

18.  He set out five situations that could be viewed as aggravating factors warranting an increase in the five year starting point for the person in charge of the vessel or the one in some way actively involved in the circumstances of the aggravation.  The only one relevant herein is where the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers.  Here, the sampan E1 was found to be unseaworthy, and the risk of endangering the passengers was an obvious one.  Both defendants have admitted that the sampan E1 was unseaworthy.  It was fitted with one engine.  There were no fire-extinguishing appliances or life-saving apparatus on E1.  Nor were there any navigation light for night time navigation.  The main hull structure was also found to be in a poor condition.  I have considered that when the vessel was intercepted by officers from the Marine Police, there was no evidence of any imminent danger to anyone on board the vessel.

19.  In respect of D1 on Count 1, D1 was the person in charge of E1 at the material time when he conveyed D2 in Hong Kong waters.  I find that there is an aggravating factor herein, namely that the sampan E1 was unseaworthy, which warrants an increased starting point.  I take as a starting point 5½ years’ imprisonment and discount this by one-third to reflect his plea of guilty, which in my view is the only mitigation of weight.  D1 is sentenced to 44 months’ imprisonment on Count 1.

20.  In respect of Count 2, I accept that neither D1 nor D2 were the masterminds of the venture.  However, each had an equally material and vital role to play in the venture.  In respect of both D1 and D2, I take as a starting point 5 years’ imprisonment, discount this by one-third to reflect their pleas of guilty, which in my view is the only mitigation of weight before me, and each is sentenced to 40 months’ imprisonment.

21.  I have borne in mind the totality principle of sentence in respect of D1.  I find that there was a single venture involved herein, albeit that there are 2 counts that D1 has been convicted of.  I therefore order that the sentences for counts 1 and 2 in respect of D1 are to run concurrently