HKSAR v. LIANG CHAOCHENG

DCCC 662/2021

[2022] HKDC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 662 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Assisting the passage to Hong Kong of unauthorized entrants" (Charge 1)  and a charge of "Endangering the safety of others at sea" (Charge 2).

Summary of Facts

2.  About 8:20 p.m. on 12 March 2021, PC 16461 spotted a yellow speedboat with no lights ("the Boat")  heading towards Lung Kwu Tan.  Upon the Boat reaching Lung Kwu Tan, UE1 and UE2 alighted from it.  They walked towards the road; whereas the coxswain (later found to be the defendant)  steered the Boat offshore.

3.  Police officers laying ambush in the vicinity saw UE1 and UE2 carrying some luggage with them.  They pursued the pair.  UE2 managed to flee and UE1 was intercepted outside No.177 Sha Po Kong Village.

4.  Upon enquiries, UE1 (male ZHEN Jianglong)  claimed that he boarded the Boat at Panyu at 6:00 p.m. that day to come to Hong Kong to buy medicine.  The Boat was driven by a male mainlander. An unknown female was also on board.  UE1 knew that he entered Hong Kong illegally.

5.  Officers on board of PL304 and PV27 continued to observe the Boat.  About 8:27 in the same evening, PC 11695 on board of PV27 saw the Boat heading towards Lung Kwu Chau.  PV27 later intercepted the Boat with the defendant being the only person on board.

6.  PC 11695 arrested the defendant for the offence of "Aiding and abetting illegal immigrants". Under caution, the defendant admitted, inter alia, that he was delivering 2 mainlanders (a male and a female)  ashore at Lung Kwu Tan.  They boarded the Boat at a pier in Panyu around 6:00 p.m. and arrived at Lung Kwu Tan around 8:00 p.m. the same day.  He would receive RMB6,000 as his reward for this job.  The defendant later repeated the same admissions in his video recorded interview.  He also claimed that he used the GPS function of his mobile phone to navigate to Hong Kong.  He held a Marine Operator's Licence in the mainland, but had no coxswain licence in Hong Kong.

7.  Subsequent investigation revealed that the Boat had no registration number.  It was examined by a Ship Inspector.  It was found that no fire-fighting appliances were equipped on board; insufficient life-saving appliances were equipped on board (only 2 life jackets were found and they did not comply with the safety standards); and no navigation lights were fitted on board for night operation.  In conclusion, the Boat was seaworthy but not suitable for operation.

8.  The Immigration Department confirmed that both the defendant and UE1 had no valid entry records.  On 12 March 2021, they unlawfully entered and remained in Hong Kong.

Mitigation & Sentence

9.  The defendant is now 35 and has a clear record.  Defence lawyer Mr. Ma informed me that the defendant is married with 2 children (aged 14 and 12).  All 4 of them reside with the defendant's parents in Yunfu.  The defendant is the sole bread winner of his family.  He took up jobs mainly at construction sites before, earning about RMB4,500 to RMB5,000 per month.  Owing to the pandemic, his income dropped substantially to about RMB1,500 per month.

10.  In mitigation, Mr. Ma explained that the defendant has not been able to earn enough to support his family for about 1.5 years.  He was financially desperate.  The defendant was introduced by a friend in Panyu to this job of taking 2 persons to Hong Kong by boat for RMB6,000.  He foolishly believed that he would not commit any offence if he did not get off the Boat by landing at Hong Kong.  Mr. Ma submitted that the defendant has learned a bitter lesson.  He would like to return home as soon as possible.

Charge 1

11.  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 and HKSAR v Tse Chi Hei [2010] 5 HKLRD 708 are relevant.

12.  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.

13.  The present case clearly carries a few aggravating features, namely the lack of fire-fighting and life-saving equipment on board of the Boat; and no navigation lights for night operation.

14.  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 the defendant to 40 months' imprisonment.

Charge 2

15.  I have considered a number of cases[1] in relation to the sentencing of this charge.  In the present case, the defendant did not try to escape when intercepted by the Police.  He did not steer the Boat in a dangerous manner either.  No one was injured and no vessel was damaged as a result of the defendant's operation of the Boat.  The basis of prosecution for this charge is the Boat being not suitable for operation.

16.  Based on the reasons stated above, the appropriate starting point for this charge is 18 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 12 months.  I sentence the defendant to 12 months' imprisonment for this charge.

17.  Since the basis of prosecution for Charge 2 (i.e. the safety level of the Boat)  also constitutes an aggravating factor in Charge 1, the defendant should not be punished twice.  Having considered the overall criminality of the defendant as well as the totality principle, I order the sentence for Charge 2 to run concurrent with Charge 1; thereby arriving at a total prison term of 40 months.