HKSAR v. XIE RUJIAN

DCCC1082/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1082 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of assisting the passage to Hong Kong of a conveyance which carried unauthorised entrants contrary to section 37D(1)(a) of the Immigration Ordinance Cap.115.

Facts of the case

2.  At about 0040 hours on 15 August 2009 the marine police spotted a suspicious vessel off Sha Kiu. Upon interception, the defendant was the coxswain, whereas all the 11 passengers aged between 19 to 40 years old were lying in the cabin of the vessel. The defendant was arrested and under caution he asked for a chance. In a video interview the defendant stated inter alia that on 14 August 2009, “Ah Ming” asked him to go to Shekou. Upon arrival at Shekou the defendant met a young male who escorted him to a motorised sampan. He was instructed to convey people to Hong Kong. He would expect a reward of CNY$400 upon return back to Shekou.

3.  At 0010 hours on 15 August 2009 the defendant set off with 11 persons on board of the vessel. The young man asked him to sail to the other side of the shore and he knew that place was Hong Kong.

Criminal Record

4.  The defendant has one previous of unlawful remaining in Hong Kong in 1991 and he was sentenced to 12 months’ imprisonment.

Mitigation

5.  The defendant is 35 years of age. He used to be a fisherman but wasn’t employed at the time of the offence. He lives with his parents and his daughter who is 10 years old, attending primary school in China. The defence submitted to me that I should take a starting point of 4 years by referring me to Ng Kit Yuen Cr. App. 118 of 91. In fact, in Ng Kit Yuen the applicant was charged under section 37C(1) while the present case the defendant was charged under section 37D(1)(a).

6.  According to the authority of Pang Wing CACC145/1995 the proper starting point for this offence should be 5 years. I also noted in the case of Pang Wing it involved two unauthorised entrants while in the present case there were 11.

Sentence

7.  In the present case the sampan as shown in the pictures was a small one measuring 6 metres in length, 2 metres in breadth and 0.3 metres in depth. All the 11 persons were lying in the small space in the vessel to travel from China to Hong Kong when the main hull structure and the outbound engine were in poor condition. There was no fire-fighting or life-saving appliances equipped on board. There was no navigating light fitted on board. It was concluded by Senior Ship Inspector Chan that the sampan was unseaworthy.

8.  Looking at the photo one can tell that it was just a simple sampan structure. For it to carry 12 persons, just the weight of the 12 persons on the sampan has safety issue. The fact that the defendant has not yet received the $400 reward is neither here nor there. It is obvious that for those who organised and instructed him to carry the 11 unauthorised entrants to Hong Kong want to make sure that he successfully delivered them to Hong Kong so that they would at least not lose their $400.

9.  It is a serious offence and a sentence of deterrence and punishment is necessary to send out a message to the public. In passing sentence I bear in mind the defendant’s guilty plea and all the mitigating factors put forward before me, and I also bear in mind there were altogether 11 unauthorised entrants on the vessel.

10.  I adopt a starting point of 5½ years reduced to 44 months to reflect his guilty plea.