HKSAR v. XIAO ZHENSHENG

DCCC 62/2020

[2020] HKDC 940

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 62 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Defendant is convicted on his own plea and agreement to Summary of Facts to a charge of arranging the passage to Hong Kong of unauthorised entrants, contrary to sections 37D(1)(a) of the Immigration Ordinance, Cap 115.

Facts

2.  At about 1:18 am on 18 November 2019, PW1, an Immigration officer, boarded a vessel (“V”) at Yau Ma Tei Typhoon Shelter to conduct a check.  Upon check, the defendant and two crew members (“S2” and “S3”) were found on V.

3.  D, S2 and S3 (“the party”) were asked by PW1 to present their identity proof.  In reply, the party presented their Mainland ID cards and claimed that they did not have any other identity proof.

4.  Body search was conducted on the party and the rooms of the party on V was also searched.  No other identity proof of the party could be found.

5.  Records of Immigration Department showed that the party had not performed any Immigration clearance for entering Hong Kong.

6.  In the cautioned interview, defendant claimed that:-

(i)  he was the captain of V;

(ii)  he steered V and came to Hong Kong from Dongguan on 17 November 2019 and V arrived at Hong Kong at 11 pm on the same day;

(iii)  he knew nothing about the immigration clearance for entering Hong Kong;

(iv)  he did not perform any immigration clearance for V to enter Hong Kong and he did not prepare any documents.

(v)  he came to Hong Kong to get some goods and deliver them back to Mainland;

(vi)  he came with two crew members, namely S2 and S3;

(vii)  the party did not have any travelling documents with them;

(viii)  the party did not have Seafarer’s Passport;

(ix)  he did not know what requirements one should comply with for leaving Mainland; and

(x)  the party did not go ashore.

Criminal record

7.  Defendant has a clear record in Hong Kong.

Mitigation

8.  Defendant was born in the Mainland. 

9.  He is now aged 35. 

10.  He has a clear record in Hong Kong.  He was educated up to Form 3. He previously got married but divorced in 2018 and he has custody of a baby boy now aged 3. 

11.  His mother is over the age of 70 and is suffering from diabetes and high blood pressure and the defendant lives with her and help her getting regular medical checks and medication.  He was upset that he has not been able to get into contact with his mother nor his son since his arrest.

12.  Defendant says that since the year 2008, he worked as a sailor, and from the year 2019 his wage was raised to about 7,000 to 8,000 Renminbi a month.

13.  He said that in the morning of 17 November 2019, his boss promoted him to the rank of captain with a monthly salary of 12,000 Renminbi and also ordered him to immediately take the vessel V to Yau Ma Tei Typhoon Shelter in Hong Kong and fetch and bring back some goods to Mainland later on. Defendant’s boss also mentioned that there would be two sailors on board to assist the defendant. 

14.  Defendant has said that he never knew that there are necessary procedure and documents for driving a boat into Hong Kong and he never knew that one needed necessary documentation for sailors to enter Hong Kong waters. 

15.  Defendant said only when he was arrested, did he come to know that he had violated the Immigration laws of Hong Kong and he is worried and lost. 

16.  Defendant also says that he is now helpless and scared, worried about his aged mother and infant son as he has not been able to get into contact with them.

17.  Defendant said he did not know that the three of them need to go through clearance procedure when entering Hong Kong waters.  He also wrote a mitigation letter to this court and urged this court to be as lenient as possible on him as he has committed the offence out of ignorance.

18.  Defence counsel cited the case of HKSAR v Hui Kin Kwan [2008] 1 HKLRD 188 and asked this court to adopt a sentencing starting point of 4 years’ imprisonment for this charge. 

19.  Defence counsel also asked this court to give the defendant the one-third sentencing discount by reason of defendant’s guilty plea.

Discussion

20.  Before sentencing, this court has considered fully the written submission by defence counsel and his oral submission in court, the mitigation letter written by the defendant as well as the authorities cited.

21.  As said earlier, this court does not accept the ignorance of the defendant in the need for clearance both for the vessel and the persons on board of the vessel when entering Hong Kong waters as defendant is experienced.

22.  Defendant has said that on his own admission that he has been at sea since year 2008. 

23.  Section 37D(1)(a) of the Immigration Ordinance, Cap 115 reads:-

“Arranging passage to Hong Kong of unauthorised entrants. Subject to subsection (2), any person who, on his behalf or on behalf of any other person, whether or not such person is in Hong Kong, arranges or assists the passage to, or within, Hong Kong of a person who is, or of a conveyance which carries, an unauthorised entrant, commits an offence, is liable to, on conviction on indictment to a fine of 5 million and to imprisonment for 14 years.”

24.  In this case, the defendant was the captain of the vessel which brought himself and the other two passengers into Hong Kong waters. 

25.  The entry to Hong Kong waters was committed in the evening time. 

26.  It is said that the defendant is a man of clear record but as he is not a Hong Kong resident, not much weight can be attached to this background of the defendant. 

27.  In the case of HKSAR v Wong Chi Kin, CACC 357/2004, Woo VP said in the judgment that,

“The generally applicable tariff is 4 years’ imprisonment: the cases R v Ho Siu Lun and Others [1987] HKLR 1086, R v Chan Kwok Keung and Another [1988] 1 HKLR 273(279?), R v Lam Kon Man, Crim App No 329/1990. Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment: R v Wong Yin Lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A...”

28.  And later on in the judgment he also sets out a list of aggravating factors which increases the sentence from 5 years’ imprisonment starting point. 

29.  The applicable tariff was later applied in the case of

HKSAR v Yeung Wui and Others, CACC 415/2004 (see paragraphs 26 and 27 ).

30.  In our case here, the defendant is the captain of the vessel and he brought into Hong Kong also two unlawful entrants.  This court sees no reason to depart from the tariff guideline and will therefore adopt the 5 years’ imprisonment as the sentencing starting point in this case.

31.  Having considered all that was said on the defendant’s behalf, including the mitigation letters from the defendant, this court finds that the only and the most useful mitigating factor is the defendant’s own timely guilty plea of which he is entitled to a full one-third sentencing discount. 

32.  Accordingly, for the present offence, the defendant is sentenced to 40 months’ imprisonment.