HKSAR v. TANG ZHUYAN

 DCCC512/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 512 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty before me to the following two charges:

(1) 1st charge, assisting the passage to Hong Kong of a conveyance which carried an unauthorised entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115;

(2) 2nd charge, endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.  The facts admitted by the defendant and which gave rise to the two charges were that at night-time on 17 March 2010, the marine police spotted a suspicious motorised sampan near Shek O. When the marine police approached the sampan, the sampan tried to escape. A chase then ensued but after about 20 minutes, the sampan was intercepted. The defendant, his assistant and one unauthorised entrant were found on board the sampan.

3.  Under caution, the defendant admitted that he was the captain of the sampan and that he knew the unauthorised entrant did not possess any valid travel document.

4.  The sampan used by the defendant was, upon examination, found to be unseaworthy as there were no fire-fighting appliances, no navigation light and insufficient life-saving appliances on the sampan.

5.  The defendant is now aged 27. It was said that he had been a fisherman for many years. He is married and has three children who are aged between 3 to 5. Before he was arrested in Hong Kong, he lived with his parents and his wife and children Shanmei. The defendant was the breadwinner of the family and supported his parents as well. His mother suffers from a heart problem and has to receive regular medical treatments.

6.  In mitigation, it was said that the defendant is very depressed and worried, as he has got the news that his wife might petition for a divorce in view of his imprisonment.

7.  It was also said on his behalf that the sampan was not overloaded, as there was only one unauthorised entrant on board and that this unauthorised entrant was an adult male instead of a pregnant female.

8.  Further, it was said that although the sampan had insufficient life-saving appliances, there were two lifesaving jackets on board.

9.  Mr Tse, for the defendant, therefore asked this court to impose as lenient a sentence on the defendant as possible, given his pleas and that he was merely used by others to commit the present offences.

10.  The Court has said time and again that a defendant’s personal predicament is generally not a mitigating factor, for the defendant should have seriously thought about that before committing the offence.

11.  Further, the absence of aggravating factors like heavily pregnant women on board, like overloading the vessel, etc., cannot be turned into mitigating factors. If those aggravating factors were present, the Court would no doubt deal with the defendant more severely.

12.  In the present case, I find that apart from the defendant’s pleas, there are no other mitigating factors.

13.  For the assisting passage charge, the 1st charge, after considering the facts of this case, including that the defendant was the captain or the person in charge of the sampan, that the sampan was unseaworthy, and that there was a chase before the sampan was intercepted, I consider a starting point of 6 years to be appropriate. (See, for example, HKSAR v Wong Chi Kin, CACC357/2004, unreported, and HKSAR v Yeung Wui and Others [2005] 1 HKC 646.)

14.  The defendant is entitled to the reduction for his plea, so he is to serve a term of 4 years’ imprisonment.

15.  For the endangering charge, the 2nd charge, I am going to adopt a starting point of 18 months.

16.  Again, the defendant will be given a one-third reduction for his plea. He is therefore to serve a term of

12 months’ imprisonment.

17.  In AG v Chan Siu Yun [1995] 2 HKCLR 223 and HKSAR v Sze Yu, CACC143/2003, unreported, it was said that a consecutive sentence should be imposed where a defendant was charged with the offence of endangering the safety of others at sea, in addition to the offence of assisting passage.

18.  In the present case, after considering the totality principle, I order that only 2 months of the 12-month term imposed in respect of the 2nd charge are to run consecutively to the term of 4 years imposed in respect of the 1st charge, making a total of 50 months’ imprisonment.

19.  Defendant, stand up. You are therefore to serve a term of 50 months’ imprisonment.