HKSAR v. SU RULU

DCCC418/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 418 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty before me to the following two charges:

(1) Charge 1, assisting the passage to Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap115;

(2) Charge 2, endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap313.

Facts

2.  The facts admitted by the defendant and which gave rise to the two charges were that at about 10:00pm on 3 March 2012, the marine police spotted a suspicious motorised sampan near Sha Kiu.  The sampan was intercepted.  The defendant, who was the coxswain, another male and 3 females were found on board the sampan.  The defendant and the 4 other persons were all Mainlanders and did not have valid travel document or permission to enter Hong Kong and were hence unauthorized entrants at the material times.

3. Under caution, the defendant admitted that he was instructed to bring illegal immigrants, whom he did not know, from China to Hong Kong with a reward of RMB300 each.  In a subsequent video-recorded interview, the defendant further said that he has no experience in steering a boat and did not know whether there was any equipment on the sampan. He only had a torch during the night journey and he was only given a lesson by his friend to steer the sampan one day before he was arrested.  The 4 other mainlanders were also arrested and they claimed they had paid RMB300 for the trip and they intended to come to Hong Kong to seek jobs or visit friends.

4. The sampan used by the defendant was, upon examination by the Marine Department, found to be unseaworthy as the main hull structure was in poor condition; there were no fire-fighting appliances, no navigation light fitted and no life jacket on the sampan.

The defendant’s background and mitigations

5. The defendant is now aged 36 and has a clear record.He is still single and lives with an aged old mother of 69 years old. Before he was arrested, he worked as a casual construction worker earnind a monthly income of RMB1,500.

6. In mitigation, it was said that the defendant was diagnosed to be HIV positive in last September and since then his health condition deteriorated and he needs to buy expensive drugs and thereby incurs huge medical expenses.  He first turned to borrow money from his relatives and finally resorted to committing the present crimes to solve his financial problem.

7. It was also said on his behalf that it was not a large operation and the sampan was not overloaded and all the 4 unauthorised entrants on board were normal adult persons instead of pregnant females or old persons.

8. Further, it was said that the defendant was very co-operative and did not attempt to escape.  He made full confessions to his crimes and he pleaded guilty at the very first opportunity.

9.  Mr Tse, for the defendant, therefore asked this court to impose as lenient a sentence on the defendant as possible, given his pleas and that he was merely used by others to commit the present offences. He also referred me to the recent authority of HKSAR v. Tang Zhuyan [2010] 1 HKLRD 447 which also deals with the same set of two charges.

10. The Court of Appeal has said time and again that a defendant’s personal predicament is generally not a mitigating factor, for the defendant should have seriously thought about that before committing the offence. Whilst the Court sympathizes with the defendant for his predicament and in particular, with his mother, it is not a basis upon which this Court can reduce an otherwise appropriate sentence of imprisonment. As this Court said in HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, 87E-F, "... family circumstances should be disregarded, particularly when sentences for serious offences are concerned".

11. In the present case, I find that apart from the defendant’s pleas, there are no other mitigating factors.

Sentencing considerations

Charge 1

12. In Tang Zhuyan, the Court of Appeal has said the followings (para 16-18) :-

“16. As this Court noted in HKSAR v Wong Chi Kin (unrep., CACC 357, 410/2004, [2005] HKEC 176), the appropriate starting point for sentence after trial for an offence under s.37D(1) of the Immigration Ordinance, where the accused is the captain or the person in charge of the vessel, is 5 years' imprisonment. The Court went on to give a non-definitive list of aggravating factors relevant to sentence. Those factors included the fact that, "the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering passengers"

17. In R v Lo Shui Lun (unrep., CACC 109/1995, [1995] HKLY 394), in a judgment delivered by Bokhary JA, this Court said that regard was to be had in sentencing to the aggravating factor (p.453) of "unseaworthiness" where the vessel was to be described as a "floating coffin" or "leaky tub" (para.11). Further, danger to human life was inherent in the smuggling of human cargo. The Court went on to say that the absence of fire-fighting equipment and navigation lights was "of relatively little significance". Although the absence of life-saving equipment was said to "stand differently", nevertheless it was described as bringing only "some slight increase in the hazard over and above the sort inherent to this kind of activity" (para.10).

18. In HKSAR v Zhong Ming Jing (unrep., CACC 180/2010, [2010] HKEC 2003), a differently constituted division of this Court, noting that public expectations of safety at sea had moved on, expressed disagreement with those observations in respect of fire-fighting and life-saving equipment and said that henceforth those were matters that should be regarded as factors of aggravation (paras.19-20).”

13. Clearly in the judgment of Tang Zhuyan,the Court of Appeal was of the view that the applicant falls to be treated under the previous practice, prior to the judgment in HKSAR v Zhong Ming Jing.  The Court of Appeal also ruled that in that case there was no evidence that the vessel was "unseaworthy" in the sense described in HKSAR v Wong Chi Kin or R v Lo Shui Lun.  Accordingly, the appropriate starting point to be taken for sentence in respect of Charge 1 was 5 years' imprisonment. (see para. 20)

14. Our present case, however, was committed after Zhong Ming Jing.  After considering the facts of this case, including that the defendant was the coxswain or the person in charge of the sampan, that the sampan was unseaworthy as described above, and the presence of the aggravating factors as mentioned in Zhong Ming Jing, I am goingto adopt a higher starting point of 5 years and 3 months’ imprisonment.

Charge 2

15. In Tang Zhuyan, the Court of Appeal took into account the absence in that case of the aggravating features of danger, either deliberately caused by the coxswain of the escaping sampan or as a consequence of the state of sea, the overloading of the vessel and its condition, and regarded the starting point of 18 months' imprisonment adopted by the judge below as manifestly excessive and substituted it with a starting point of 12 months' imprisonment.

16. In the present case, there was no mention about any act of escape or dangerous maneuvers by the defendant.  Be that as it may, the defendant is not a fisherman by occupation as the applicant in Tang Zhuyan who has the knowledge of the sea and knew how to steer a vessel and worse still, he only learned to steer the sampan one day before the voyage. There were only insufficient life-jackets on board (two jackets for three persons) in Tang Zhuyan but in the present case, there was simply no life-jacket for the five persons on board the sampan including the defendant. By reason of the above, I consider that an appropriate starting point should still be at least 15 months’ imprisonment.

17. The defendant is entitled to the reduction for his plea, so he is to serve a term of 3 ½ years’ imprisonment for Charge 1 and 10 months’ imprisonment for Charge 2.

Totality

18. In the present case, after considering the totality principle, I order that 4 months of the 10 months imposed in respect of Charge 2 are to run consecutively to the term of 3 ½  years imposed in respect of Charge 1.

Order

19. Defendant, stand up.  You are therefore to serve a total term of 3 years’and 10 months’ imprisonment in respect of both charges.