HKSAR v. HUANG FAJIN

DCCC 140/2020

[2020] HKDC 937

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Arranging the passage to Hong Kong of unauthorized entrants[1]".

Summary of Facts

2.  About 4:00 a.m. on 4 January 2020, a cargo vessel named Sheng Ping 501 ("the Boat") was intercepted by the Marine Department at the west of Castle Peak Power Station for inspection.  The defendant and the 2 persons named in the Charge (PANG and OU) were found on board.

3.  The defendant, PANG and OU could only produce their mainland identity cards.  According to the records of the Immigration Department, they did not perform any immigration clearance for entering Hong Kong.  Both PANG and OU were unauthorized entrants for the purpose of this case.

4.  In his video recorded interviews, the defendant admitted, inter alia, that he was the captain of the Boat.  He started the voyage from Mawan Anchorage around 10:00 p.m. on 3 January 2020 and arrived at Hong Kong about 2 hours later.  The Boat unloaded goods at the Stonecutters Island Public Cargo Working Area.  The defendant employed PANG and OU to work on the Boat.  He knew that they did not have the seaman qualification certificate or other crew documents.  He also knew that he could not enter Hong Kong by his PRC identity card.  The defendant claimed that he did not have sufficient time to process the formalities for coming to Hong Kong since the trip was urgent.  He just tried his luck of not getting caught.

Mitigation & Sentence

7.  The defendant is 48 and has a clear record. Defence counsel Mr. Wong informed me that the defendant is divorced with 3 children (aged 22, 14 and 12). He is not in contact with his ex-wife.

8.  In mitigation, Mr. Wong submitted that the defendant has been a seaman for over 20 years. He purchased the Boat in October 2019 at the price of RMB650,000, of which about RMB400,000 were borrowed from relatives. He intended to use her to deliver goods to make a living. Having spent about 2 months on repair works, the defendant first used the Boat on 3 January 2020. Mr. Wong also mentioned the defendant's health issues; surgery was postponed due to lack of financial ability.

9.  Mr. Wong stressed that the defendant and his crew were in Hong Kong for only 4 hours. They did not go ashore and had no plans to remain in Hong Kong or to seek employment as illegal immigrants. They were stopped on their way back to the mainland. Finally, Mr. Wong stated that for reasons unknown, the Boat disappeared from the Tuen Mun Immigration Anchorage on 8 January 2020 whilst she was in the custody of the HKSAR Government. The defendant is extremely concerned with her whereabouts. Prosecuting counsel Mr. Wong confirmed that the Boat is missing, but is unable to offer any further information or explanation.

9.  In respect of sentencing principles and guidelines, counsel for both sides have drawn my attention to HKSAR v Chow Kam Tai [2018] HKCA 496 (Chinese judgment), the facts of which are similar to those in the present case. I accept the mitigation put forward by Mr. Wong. The defendant had no intention for PANG and OU to remain in Hong Kong as illegal immigrants. They stayed in Hong Kong for only 4 hours and did not go ashore. They were leaving Hong Kong waters when stopped for inspection. There is also no evidence suggesting that the Boat was unseaworthy or any lives on board were endangered.

10.  Based on the Court of Appeal's decision in Chow Kam Tai, I consider a starting point of 4 years' imprisonment just and appropriate since the defendant has a clear record. With his 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 the defendant to 32 months' imprisonment. Regarding the disappearance of the Boat, Mr. Wong informed me that he has duly advised the defendant of his rights.