HKSAR v. LEE WAI TAK

DCCC656/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2011

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Reasons for Sentence

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1.  The defendant came before me and pleaded guilty to two charges, namely “arranging the passage to Hong Kong of a conveyance which carried unauthorized entrants”, contrary to section 37D(1)(a) of the Immigration Ordinance(Cap.115); and “failing to comply with the direction given by a member of the Customs and Excise Service”, contrary to section 26(1)(b) of the Import and Export Ordinance (Cap 60).

Summary of Facts

2.  The unauthorized entrants in relation to the 1st charge are two mainlanders and one Vietnamese (“the three illegal immigrants”) and they have no right of abode in Hong Kong. 

3.  According to the facts, at about 4 pm on 4 May this year, when the defendant was driving a medium goods vehicle bearing registration number MM 6508 (the “vehicle”) in Shenzhen and he stopped it near the Huanggang Control Point waiting for custom clearance, the three illegal immigrants approached the vehicle and asked the defendant to drive them to Hong Kong.  They promised to pay to the defendant each RMB$1,000. Defendant agreed to the proposal and let them enter the compartment of the vehicle and the vehicle then headed to the direction of Hong Kong.  

4.  At about 4.55 pm, the vehicle entered Hong Kong via Lok Ma Chau Control Point.  Later, when it arrived at the customs arrival kiosk No. 12 at the control point, a custom officer instructed the defendant to go to the Inbound Cargo Examination Building for further inspection.  Defendant, however, did not comply with PW1’s instructions after he passed the kiosk and drove away instead from the Lok Ma Chau Control Point and headed to the direction of Tsuen Wan.

5.  Two Custom officers, one driving a private vehicle and one driving a motorbike then gave chase immediately.  At the time during the chase, the defendant drove the vehicle very dangerously.  One of the Custom officers did sound the horn of his motorbike and signal the defendant to stop by raising his hands when at one point both vehicles were parallel to each other.  However, the defendant still ignored the signal and continued to flee.

6.  The defendant also accepted that during the chase, he drove the vehicle at a high speed.  For some distance, the vehicle was travelling at a speed of about 130 kilometres per hour.  He also kept changing lanes and overtaking in order to escape.  There were two occasions where the vehicle entered the opposite lane even in order to overtake. Finally, a police motorbike driven by a sergeant joined the chase, and eventually was the vehicle intercepted near Sham Tseng.

7.  After the defendant was stopped, he admitted that he knew that the vehicle had to be inspected and the vehicle was at that time carrying three illegal immigrants.  The three illegal immigrants were later found hiding inside the compartment of the vehicle, and the defendant was arrested. 

8.  In the interviews with the Custom and Excise Department, the defendant admitted the offence.

Record and the Background of the Defendant

9.  The defendant in the past was brought to the court three times.  Two are in relation to drug records, and the first one is about theft and shoplifting.  He has been sentenced to DATC but those records were a long time ago and the last being 1997.  He was a professional lorry driver since then and he has been working for different logistics companies.  This morning, I was shown the statement from the owner of the transportation company confirming that at the time when the offence took place, the defendant was in fact under the instructions to transport mobile phone from China to Hong Kong.

10.  The defendant is married and the wife and the daughter resided in China.  Unfortunately, his wife had a brain tumour two or three years ago and for this disease, the wife had to undergo an operation in the mainland and huge medical expenses were incurred and therefore there is a heavy debt involved.

11.  Today, the wife and the daughter are in court to support the defendant.  I was told that they have since moved back to Hong Kong in order to visit the defendant more often.  The wife also started to work in Hong Kong as a waitress in order to support the family. 

12.  I was also shown letters written by the defendant and the defendant’s wife by Miss Lo, counsel of the defendant. I am not going to refer to the content of the two letters.  Suffice it to say that the defendant was described as a responsible husband and a caring father. Defendant himself is very remorseful and he is sorry for what he has done because of the greed.  Both the defendant and the wife urge the court to exercise mercy to pass a lenient sentence, if possible, so that the family can get back together soon.

Sentencing Consideration

13.  This is a serious offence.  Usually, the court is dealing with cases for conveying unauthorized entrants to Hong Kong by a vessel for monetary gains.  Cases involving conveying this kind of unauthorized entrants or illegal immigrants by land is, by comparison, rare. When I approach the question of sentence, I bear in mind that the usual starting point for conveying unauthorized entrants to Hong Kong by a vessel for monetary gains was 4 years’ imprisonment.

14.  According to the case authority in this point, HKSAR v Tse Tse Hei CACC393/2009, the Court of Appeal had further indicated that if the defendant was the coxswain or the helmsman of the vessel or had taken part in the organising or planning the journey, the starting point would be increased to 5 years.  Where there were other aggravating factors such as hiding the illegal immigrants where it would be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and a lack of life-saving apparatus, risking the lives of the passengers on board, or an extremely large number of illegal immigrants being on board, the starting point could be raised further.  

15.  However, the Court of Appeal also said in the same judgment that even with such aggravating factors save for extremely unusual reasons, the starting point should not be higher than 6 years’ imprisonment.

16.  R v Yu Man Wai CACC160/1996 was one of those few cases which has been dealt with by the Court of Appeal concerning the assisting the passage to Hong Kong of conveyance carrying unauthorized entrants by land.  The defendant in that case was the driver of a lorry carrying 11 female unauthorized entrants and 10 of whom were pregnant.  As he drove from the Chinese border towards the police checkpoint in Hong Kong, he was asked to stop.  He did slow down but then drove onward at a speed to avoid the police check.  He was pursued and he finally lost control of the vehicle and crashed against some railings and fell into a 2-metre ditch.  He then managed to run away but was eventually caught.

17.  In appeal, the Court of Appeal said the parallel between the facts of the present case and the situation where offenders were engaged in bringing unauthorized entrants into Hong Kong by boat was not an exact one but had marked similarities.  The defendant in that case was in charge of the vehicle.  It contained unauthorized entrants and he clearly put them at risk when he acted as he did in an endeavour to evade apprehension.  It was a dangerous manoeuvre which could properly be compared to that of a helmsman manoeuvring without proper care to avoid capture.

18.  The Court of Appeal went on to say that the sentencing policy had remained consistent since the early 90s.  There should not be any change in the sentencing policy even though it might be that the offence was less prevalent.  A starting point of 5 years in the circumstances of the present case was clearly correct.

19.  I conclude that the present case is exactly on all fours, as far as the criminality is concerned, with the case of Yu Man Wai (surpra).

20.  Miss Lo, counsel for the defendant, urged me to consider the fact that the number of illegal immigrants involved in this case is much less and also there was no pregnant woman on board of the vehicle.  While this observation of the facts is clearly correct, it only serves to impress the point that there is the absence of aggravating factors in these two respects, but that is not the end of the matter.  In my mind, there is one clearly aggravating factor and it is the dangerous manoeuvre of the vehicle by the defendant to avoid apprehension by the Custom officers and the police.  The fact that the defendant was not separately charged with dangerous driving was something he should consider as fortunate. 

21.  That no one was seriously injured during the course of the manoeuvre by the defendant was almost miraculous.  It might be that the defendant was so panicked but he was in an endeavour to avoid apprehension when what he could and he should have done was to have stopped the vehicle at once and surrendered himself.  Because of the presence of these aggravating factors, I would increase the sentence from the starting point of 5 years by 3 months to 63 months.

22.  The Court of Appeal has said in many authorities in the past that when it comes to dealing with serious offences, family circumstances virtually play no part in mitigation.  The defendant should think twice about the welfare of the family before he decided to accept the offer by the three illegal immigrants and committed the offence.  The court can also not accept economic reasons for committing offence.  The only mitigating factor in this case is his plea of guilty, to which the usual one-third discount will be given. 

23.  For Charge 1, I will pass a sentence of 42 months’ imprisonment.  For Charge 2, I would use 6 weeks as a starting point, and because of the plea, this will be reduced to 4 weeks’ imprisonment. I finally order that the sentence of both charges to run concurrently.