HKSAR v. DENG SHIJIAN AND ANOTHER

DCCC 546/2024

[2025] HKDC 503

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 546 OF 2024

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REASONS FOR SENTENCE

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D1 and D2 are jointly charged with an offence of "Assisting the passage to Hong Kong of unauthorized entrants" (Charge 1). D1 also faces a charge of "Endangering the safety of others at sea" (Charge 2)  and a charge of "Failing to stop" (Charge 3).

2.  Both D1 and D2 pleaded guilty to Charge 1; whereas D1 also pleaded guilty to Charge 2.  I granted the prosecution's application to leave Charge 3 against D1 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

3.  About 4:04 a.m. on 4 November 2023, a police radar operator noticed a vessel ("the Speedboat")  having entered Hong Kong waters and heading towards Fan Lau.  Police multi-mission interceptors MM12 and MM18 were deployed to intercept the Speedboat.

4.  About 4:10 a.m. on the same day, PC 10070, who was on board of PL60, observed the Speedboat, through thermal imaging equipment,  getting close to shore and someone (later confirmed to be D2)  was assisting passengers (subsequently confirmed to be unauthorized entrants)  getting onshore.  At the same time, MM12 and MM18 were about 20 metres away from the Speedboat.  PC 8959 (PW3)  and PC 16272 (PW4), who were on board of the 2 multi-mission interceptors, also witnessed what was happening on the Speedboat.

5.  The Police turned on the blue flashing lamp, made the International Code of Signals "L" and ordered the Speedboat to stop through a loudspeaker.  Instead of stopping, the Speedboat accelerated and fled.  About 6 minutes later, the Police intercepted the Speedboat about 0.4 nautical mile southwest of Fan Lau. At that time, only D1 and D2 were on board of the Speedboat.

6.  About 4:30 a.m. on the same day, upon enquiry, D1 admitted to PW3 that he was assisting 11 South Asians to get onshore at Fan Lau.  PW3 then arrested D1 for Charge 1. Under caution, D1 said "Ah Sir, this was the first time I arranged for people to come to Hong Kong by boat."  Almost at the same time, PW4 arrested D2 for Charge 1 as well.

7.  The Police conducted a search at Fan Lau and found 11 male unauthorized entrants (as particularized in Charge 1)  who were assisted by D1 and D2 to get onshore near a lighthouse.  One of them was an Indian passport holder; 3 were Pakistani passport holders; and 7 were Bangladeshi passport holders.  They were aged between 22 and 40.

Admissions

D1

8.  In his video recorded interview, D1 admitted, inter alia, that he had conveyed about 11 people to Hong Kong.  He began the journey from Shangchuan Island, Taishan around 9:00 p.m. on 3 November 2023.  The Speedboat belonged to someone named "Ah Lung", whom D1 had met in a bar 2 days ago.  Ah Lung asked D1 to deliver something.  In return, D1 would receive $5,000 upon steering the Speedboat back to mainland.  D1 was told to steer the Speedboat first from Taishan to Tanzhou, Zhongshan.  He was then given further instructions on where to pick up the unauthorized entrants.  After they had all boarded, Ah Lung asked D1 to steer the Speedboat directly to Hong Kong.

9.  The Speedboat reached Hong Kong about 4:00 a.m. and D1 was supposed to drop off the unauthorized entrants on a randomly picked island in Hong Kong and then return to mainland.  D1 recruited D2 to help.  He promised to pay D2 $2,500.  D1 did not have any licence to operate any vessel.  He only had a "sailor licence" in Wuzhou, Guangxi.  D1 did not know how many life jackets were on the Speedboat.  Only he and D2 wore life jackets and the 11 passengers did not.

D2

10.  In his video recorded interview, D2 admitted, inter alia, that D1, who steered the Speedboat, had asked him to help.  D1 agreed to pay him about $2,000 as his reward.  D2 was not qualified to operate any vessel.  D2 boarded the Speedboat around 8:00 or 9:00 p.m. at Taishan.  They then arrived at Tanzhou, Zhonghan around 1:00 or 2:00 a.m. and people got on board.  D2 later knew that those passengers were unauthorized entrants.  The Speedboat reached Hong Kong around 3:00 or 4:00 a.m. and all the passengers got onshore when he and D1 were arrested.

Vessel examination

11.  The Speedboat was examined by a Ship Inspector of the Marine Department on 20 November 2023. It was found that insufficient fire-fighting appliances were equipped on board (2 portable 1.4 kg dry powder fire extinguishers were required but only 1 portable 2 kg dry powder fire extinguisher was found); insufficient life-saving appliances were equipped on board (the 17 buoyancy aids found on board were not in compliance with the standards on lifejackets laid down by the Director of Marine); and insufficient navigation lights were fitted on board for night operation (one all-round white light and 2 sidelights were required but only one all-round white light was found).

Mitigation

D1

12. He is 30 and has a clear record. His counsel Mr. Yip informed me that D1 is divorced with 2 daughters (aged 5 and 8). He resides with his mother and daughters in Guangxi. D1 has been working as a sailor earning about RMB5,000 per month since 2016. In mitigation, Mr. Yip submitted that D1's income was not enough to make ends meet. He committed the present offences in order to earn more money for his family.

D2

13. He is almost 25 and has a clear record. His counsel Ms. Ho informed me that D2 is single and has been unemployed since the beginning of the pandemic. In mitigation, Ms. Ho submitted that D2 wanted to earn some quick money to support his family. Thus, he accepted D1's invitation to assist him. D2 was just a crew member and did not take part in organizing or planning the journey. He was also cooperative with the Police throughout the investigation.

Sentence

14. Time after time, the courts in Hong Kong have expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime, needless to say a cross-border crime by bringing illegal immigrants to Hong Kong in a dangerous way.

Charge 1

15. In respect of sentencing principles and guidelines, the Court of Appeal's decisions in HKSAR v Wong Chi Kin CACC 357/2004 (dated 2 February 2005), HKSAR v Yeung Lap CACC 385/2007, HKSAR v Tse Chi Hei [2010] 5 HKLRD 708 and HKSAR v Tang Zhuyan[2011] 1 HKLRD 447 are relevant.

16. Yeung JA (as he then was)  in Tse Chi Hei held that the usual starting point for a charge of "Assisting the passage to Hong Kong of unauthorized entrants" is 4 years' imprisonment. If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the starting point should be one of 5 years. Where there are other aggravating factors such as hiding the illegal immigrants in places where it would be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and the lack of life-saving apparatus, risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further.

17. For D1, I consider a starting point of 5 years' imprisonment appropriate and just. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 40 months' imprisonment.

18. For D2, I adopt a starting point of 4 years' imprisonment. With the timely guilty plea, the sentence is reduced to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 32 months' imprisonment.

Charge 2

19. I have considered a number of cases[1] in relation to the sentencing of this charge. I find the facts in the present case comparable to those in The Queen v Chan Siu Yun CAAR 9/1995, which involves a motorized sampan carrying illegal immigrants in Hong Kong waters and a high speed chase at sea by police vessels. The late Power Ag. CJ commented at paragraph 14 of the judgment "The respondent put at risk not only himself and his passenger but the police officers who were chasing him and any other persons operating vessels in the vicinity on that night. It was conduct demanding a sentence of some severity. Persons in charge of vessels in circumstances such as this must be given an indication that such conduct will not be tolerated." At the end of the day, the Court of Appeal granted the review application of the Attorney General and increased the sentence (after trial)  from 18 months to 2.5 years.

20. In the present case, D1 disobeyed the police signal to stop and tried to escape. I accept that at that time, only he and D2 were on board of the Speedboat. Also, no one was injured and no vessel was damaged as a result of D1's dangerous manoeuvres. Furthermore, the Speedboat was not unseaworthy. On the other hand, D1 had conveyed 11 passengers and 1 crew member from mainland to Hong Kong on a substandard vessel in terms of firefighting and life-saving appliances as well as night operation. D1 has clearly put the safety of his passengers (albeit illegal immigrants), D2 and the police officers in the vicinity at risk. I consider a starting point of 2 years' imprisonment appropriate and just. With the timely guilty plea, I sentence D1 to 16 months' imprisonment for this charge.

Totality

21. Since a partial basis of prosecution for Charge 2 (i.e. insufficient safety appliances and night navigation lights on board)  also constitutes an aggravating factor in Charge 1, D1 should not be punished twice. Having considered his overall criminality as well as the totality principle, I order 6 months in Charge 2 to run consecutive to the sentence for Charge 1; thereby arriving at a total prison term of 46 months.