HKSAR v. XIE YOUNGQI

DCCC 1170/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1170 OF 2012

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Reasons for Sentence

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Charges

1. The defendant pleads guilty to the 1^st Charge, that of assisting the passage within Hong Kong of 4 unauthorized entrants (“Assisting Passage”) and the 2^nd Charge, that of endangering the safety of passengers at sea (“Endangering Safety”). 

Facts

2. At 3:06 a.m. on 7 October 2012, the marine police radar detected a moving object (later known as a motorized sampan, “the Sampan”) off Black Point, Tuen Mun, N.T., heading northwest towards the Mainland.   Two police vessels were deployed to intercept it.  The defendant was steering it.  Despite repeated light signals and verbal orders made by the police to stop, it did not stop.  The police vessels intercepted it near Black Point within Hong Kong waters. 

3. Apart from the defendant, there were 10 passengers as follows, aged between 22 and 53, on board:

(1) 4 unauthorised entrants, namely 3 illegal immigrants from the Mainland and 1 illegal immigrant from Vietnam;

(2) 5 overstayers from the Mainland;

(3) 1 Hong Kong resident.

4. After arrest and caution, he remained silent.  In a subsequent interview, he admitted the following:

(1) He was himself an illegal immigrant from the Mainland;

(2) Upon an offer of $500 as reward he was to bring 10 passengers from Hong Kong to Sai Heung in the Mainland by the Sampan;

(3) He steered the sampan despite knowledge of its lack of life jackets, safety equipment, navigation light and compass.

5. In 2 reports, the ship inspector found the Sampan unseaworthy and unsafe for the following problems:

(1) The poor condition of the main hull structure;

(2) No fire fighting appliances;

(3) No approved life jackets;

(4) No navigation light fitted for night navigation;

(5) No handrail or other gripping facilities;

(6) 2 seats only;

(7) Maximum carrying capacity of only 4 people.

6. The photos and report also reveal that the boat has a shallow moulded depth.  Common sense dictates that it can easily capsize in the open sea.  

Personal background and mitigation

7. He is aged 40, a resident of the Mainland.  He was educated up to Primary 5 level.  He was a casual worker in construction site.  He lives with his wife and children in Shenzhen.

8. His solicitor submits that at the material time, the wind and sea condition were not adverse, there was no dangerous manoeuvre and there were no young, handicapped or pregnant passengers on board.  

Sentencing considerations

Statutory maximum imprisonment

9. It is 14 years for Assisting Passage (1^st Charge) and 4 years for Endangering Safety (2^nd Charge). 

Assisting Passage and endangering safety

10. A person in charge of the boat assisting the passagefaces a customary starting point of 5 years in the lack of aggravating features (R v. Ng Kit Yuen [1992] 1 HKCLR 170; R v. Wong Yin Lung [1995] 1 HKCLR 151, at 153; R v. Pang Wing [1996] 1 HKC 624, at 626 and 627; HKSAR v. Wong Chi Kin CACC 357/2004; HKSAR v. Yeung Wui CACC 415/2004). 

11. Gross overloading warrants an enhancement of sentence as seen in The Queen v. Chan Shing Chun CACC 390/1995 where a small boat was grossly overloaded with passengers.  It had a high-speed manoeuvre to avoid the police chase in a rough wind and sea condition in the dark.  It was intercepted after it collided several times with the police vessel.  A sentence of 4 years and 8 months on a guilty plea was approved on appeal, signifying a notional starting point of 7 years.  

12. A crew member who offered his services for the whole voyage for reward can expect a starting point of 4 years (R v. Ho Siu-lun [1987] HKLR 1086; R v. Chan Kwok-keung [1988] 1 HKLR 279; R v. Lam Kon-man CACC 329/1990). 

13. Aggravating features include the lack of appropriate safety equipment, in particular life-jackets, firefighting equipment, and navigation light for night operation (HKSAR v. Zhong Ming Jing CACC 180/2010, at paras 19 – 20; HKSAR v. Tang Zhuyan CACC 223/2010, at paras 16 – 20).  

14. The following are examples of the range of sentences:

(1) In The Queen v. Mok King Ching CACC 146/1995, the defendant pleaded guilty to the 2 charges. He was aged 17 at conviction. He steered a motorized sampan overloaded with many illegal immigrants. In his most dangerous handling of the sampan in order to escape from the chase by the police in the choppy waters, the sampan collided with the police vessel. The sampan sank within 3 seconds. All on board were thrown into the sea but rescued by the police. He himself, his co-helmsman and 2 pregnant women suffered injuries. The sentences were 4 years for Assisting Passage and 3 years for Endangering Safety. With partly concurrent sentences, the eventual sentence was 5 years. The sentence was affirmed on appeal.

(2) In The Queen v. Chan Siu Yun CAAR 9/1995, the defendant was convicted after trial of the 2 charges. The police spotted a motorized sampan with about 8 people on board. It disappeared for some time but then emerged with defendant taking up the helm with an unauthorised entrant on board. Upon the police issuing a stop signal, the sampan sped up to leave instead. A dangerous high speed sea chase by a number of police vessels led to a collision between the sampan and a police vessel. The impact caused several police officers to be thrown to the deck but no serious injuries. There was no finding of any reward for his helmsmanship at the particular juncture. He was sentenced to a concurrent sentence of 3 ½ years and 2 ½ years.

For Assisting Passage, the Court of Appeal took the view that as he had not been found to be a crew member or for reward, the sentence ought to be reduced to 3 years, Adopting a consecutive approach, the eventual sentence was to be 5 ½ years, comprising 3 years and 2 ½ years respectively.

(3) In HKSAR v. Sze Yu CACC 143/2003, the defendant pleaded guilty to the 2 charges. He was the helmsman and person in charge of an unlit motorized sampan with 10 unauthorised entrants on board. He engaged in a most dangerous zigzagging and violent manoeuvre which lasted 15 minutes. The sampan engine caught fire. The sampan capsized. The waves at that time were at grade 2 – 3. The police jumped into the sea to rescue the 10 people on board, including him. All were injured. Four police officers were also injured. Some passengers were unconscious. Three had swallowed sea water and suffered from respiratory insufficiency. One had a minor burn to the arm. The sampan was small and shallow. It had no life-saving or fire-fighting equipment, no navigation lights. It was unsuitable for carrying passengers. The defendant admitted taking the passengers from the Mainland to Hong Kong for reward. He had similar criminal records.

For Assisting Passage, the starting point adopted by the sentencing judge was 7 years, based on 5 years for his role and another 2 years for his dangerous manoeuvre and the lack of safety devices etc in the rough wave condition which obtained at that time. For Endangering Safety, the starting point was the statutory maximum of 4 years in view of his most dangerous manoeuvre.

This approach as a whole was approved by the Court of Appeal. The eventual sentence was only to be reduced by 2 months, from 7 ½ years to 7 years and 4 months in order to reflect a full one-third discount for the latter charge which the sentencing judge had somehow not given him.

(4) In HKSAR v. Zhong Ming Jing (鍾明青) CACC 180/2010, the defendant pleaded guilty. The defendant was the helmsman of a motorized sampan carrying 8 unauthorised entrants. There were no navigation lights, fire-fighting equipment, life-jackets or other life-saving equipment on board. He caused much danger to his passengers and the police on board the police vessel during a 4-minute chase preceding the arrest. For Assisting Passage, a starting point of 6 years was suggested by the mitigating counsel. For Endangering Safety, a starting point of 18 months was adopted by the sentencing judge. A one-third discount brought the sentences down to 4 years and 1 year respectively on a consecutive basis. The eventual sentence was 5 years.

The Court of Appeal reduced the starting point of 6 years to 5 years for Assisting Passage. One-third off from 5 years, the sentence was 3 years and 4 months. The consecutive sentence of 1 year for Endangering Safety being affirmed on appeal, the eventual sentence was 4 years and 4 months.

(5) In HKSAR v. Tang Zhuyan (唐珠炎) CACC 223/2010, the defendant pleaded guilty. He was the helmsman or person in charge of a motorized sampan carrying an unauthorized entrant at night time. The sampan was stopped after a chase. There were no navigation lights, fire-fighting or sufficient life-saving appliances. There were 2 life-jackets on board. The judge adopted a starting point of 6 years and 1 ½ years respectively. One-third off would be 4 years and 1 year respectively. Recognizing the call for consecutive sentences on one hand and making totality adjustment on the other hand, the judge came to an eventual sentence of 4 years and 2 months, by ordering partly consecutive sentences.

The Court of Appeal reduced the starting point for Assisting Passage to 5 years as there was no evidence of the sampan being unseaworthy. The starting point for Endangering Safety was reduced to 1 year as there were no aggravating features of danger. The totality reduction of 2 months was affirmed.

Issue of consecutive sentences

15. Where there is only one charge, no issue of consecutive or concurrent sentences can arise.  In the old days, such as in The Queen v. Ng Kit Yuen CACC 118A/1991, 18 illegal immigrants were hidden on board a 150-ton vessel with 8 crew members.  The defendant was the captain.  The marine inspector found the general condition of the vessel to be poor and unseaworthy for deep sea voyages.  The hidden compartment put the unauthorized entrants at risk of flooding and fire from open-type cooking overhead.  These hazards were counted as aggravating features as there was only a single charge of Assisting Passage.  With only one charge, there was no cause for double counting aggravating features.

16. Afterwards, it looked like customary to add Endangering Safety as the second charge.  The issue of overlapping fact for sentencing then arose.  There were 2 groups of cases.  

17. The first group has no overlapping aggravating fact(s) in the sentences of the 2 charges:

(1) In Mok King Ching (above), the Assisting Passage related to the defendant being the person in charge of the sampan carrying unauthorized entrants. The Endangering Safety related to his dangerous manoeuvre. The Court of Appeal approved the partly consecutive sentences.

(2) In Chan Siu Yun (above), the Assisting Passage related to the defendant being the helmsman of the sampan carrying an unauthorized entrant. The Endangering Safety related to his dangerous manoeuvre. The Court of Appeal ordered for consecutive sentences.

(3) In Tang Zhuyan (above), the Assisting Passage related to the defendant being the helmsman of the sampan carrying an unauthorized entrant and the lack of safety gear etc. The Endangering Safety related to the escape from chase. The Court of Appeal ordered for consecutive sentences but approved a slight totality reduction.

18. The second group has overlapping fact(s) in the sentences (Sze Yu; Zhong Ming Jing (above)).  

(1) In Sze Yu (above), the Assisting Passage related to his role as the helmsman of the sampan carrying unauthorized entrants and his dangerous manoeuvre (at para 22) and its being an unseaworthy sampan with no safety gear etc. The Endangering Safety again related to his dangerous manoeuvre. The consecutive sentences were somehow upheld on appeal.

Under the heading “Consecutive Sentences”, the Court of Appeal cited (at para 33) the case of Chan Siu Yun (above) for the proposition that a consecutive sentence should be imposed where a defendant faced both charges. Somewhat puzzling to me is the fact that Chan Siu Yun (above) had actually no overlapping aggravating features to make consecutive sentences inappropriate.

(2) In Zhong Ming Jing (鍾明青) (above), the Assisting Passage related to his role as the helmsman and person in charge of the sampan carrying unauthorized entrants and the lack of safety gear etc. on board. The Endangering Safety related to his dangerous manoeuvre and again the lack of safety gear on board (at para 24). The consecutive approach was approved on appeal.

Approach in our instant case

19. It is not easy to reconcile these 2 groups of cases.  In the second group, namely Sze Yu and Zhong Ming Jing, the defendants appeared to have been doubly punished by an overlapping aggravating feature.  

20. My own research has not yielded any appeal cases with this peculiar feature like our instant case, namely a mix of unauthorized entrants and non-unauthorised entrants.  We had here 4 unauthorised entrants and 6 non-unauthorised entrants (ie 5 overstayers and 1 Hong Kong resident).  To apply the approach of Sze Yu or Zhong Ming Jing is to aggravate the Assisting Passage sentence by attaching the lack of safety gear etc. in respect of the 4 unauthorised entrants first, then sentence the defendant for Endangering Safety by the same lack of safety gear etc. in respect of 10 passengers and eventually order consecutive sentences.  This approach appears devious and hard to justify. 

21. In my view, there should be no overlapping aggravating feature for each sentence.  In case there is, partly consecutive sentences or totality reduction should be ordered. 

Sentencing this defendant

22. I sentence him for Assisting Passage on the basis of his being the helmsman for reward for carrying 4 unauthorised entrants.  I take 4 ½ years as the starting point.  One-third off for the plea of guilty, it comes to 3 years. 

23. I sentence him for Endangering Safety on the basis of the sampan being utterly unseaworthy and unsafe for the voyage.  I take a starting point of 24 months. One-third off for the plea of guilty, it comes to 1 year and 4 months. 

24. There are no other mitigating factors.  The sentences shall be consecutive with no totality reduction.  The eventual sentence is 4 years and 4 months.