HKSAR v. HOU SHUANGLIU

DCCC 766/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 766 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 to Hong Kong of 4 unauthorized entrants (“assisting the passage”) and the 2^nd Charge, that of endangering the safety of such passengers at sea (“endangering the safety”).  

Facts

2.  At 1800 h on 2 July 2012 he was the coxswain of a sampan (“the Sampan”) powered by a single outward engine conveying 4 illegal immigrants from Wailing Ding Dao, of Mainland China to Ha Mei Wan, Lamma Island, of Hong Kong.  At 1900 h he dropped them off in Ha Mei Wan and returned alone to Wailing Ding Dao. 

3.  At 2251 h he steered the sampan towards Ha Mei Wan.  The police began to track him down by radar.  At 2320 h, after picking up the 4 illegal immigrants at Ha Mei Wan, the Sampan was intercepted by the police without ado. 

4.  After arrest and caution, he admitted to be the helmsman of the sampan.  His boss had instructed him to drop off the 4 illegal immigrants there to collect conches.  Afterwards he returned to pick them up. 

5.  The marine inspector found the Sampan unseaworthy for the following problems:

(1) The main hull structure in poor condition (due to the fraying of fibre glass, leading to cracks and leakage and a weaker hull, as admitted by the defence in court);

(2) No fire fighting appliances (but with despite the presence of 30 L in barrels of engine oil on board, as admitted by the defence in court);

(3) No approved-type lift jackets;

(4) No navigation light fitted on board for night operation.

Personal background and mitigation

6.  He is 37 years of age, a Mainlander, married and has a daughter aged 4.  His parents are financially supported by him.  He was employed by the owner of the sampan as a seaman at RMB¥2,000 - ¥3,000 per month. 

7.  He had a conviction for assisting the passage in 2008 (DCCC 1165/2007).  There he pleaded guilty and received 40 months’ imprisonment.  There were 8 illegal immigrants on board the sampan. There were no firefighting or lifesaving equipment and no navigation lights fitted on board.  His counsel accepts that his repeat offending may be considered an aggravating factor.     

Statutory maximum imprisonment

8.  It is 14 years for assisting the passage (1^st Charge) and 4 years for endangering the safety (2^nd Charge). 

Sentencing considerations

Assisting the passage

9.  It is well-established that a defendant as a person in charge of the boat assisting the passagefaces a customary starting point of 5 years in the absence of aggravating factors (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 & Ors. CACC 415/2004). 

10.  Aggravating factors include the lack of appropriate safety equipment, in particular life-jackets or life-saving devices, 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).    

11.  In HKSAR v. Lo Shui Lun CACC 109/1995, the Court of Appeal had considered the want of firefighting equipment and navigation lights a latent part of the starting point of 5 years whereas the want of life-saving equipment should warrant only a slight increase in the hazard.  This approach was disapproved by Zhong Ming Jing, at paras 19 – 20, and Tang Zhuyan, at paras 18 – 20, which identified such wants as aggravating factors on top of the starting point of 5 years.  Although Tang Zhuyan was still sentenced on the Lo Shui Lun approach, the Court of Appeal had specifically stated that it was because “the applicant falls to be treated under the previous practice, prior to the judgment in Zhong Ming Jing” (at para 20). 

12.  Further, there is no distinction in sentences between carrying illegal immigrants who plan to settle down in Hong Kong and those who come for a brief task.  Yet the commission of a serious crime in Hong Kong is an aggravating factor (Yeung Wui, above, at paras 23 – 24). 

Endangering the safety

13.  How dangerously the boat is being coursed or how poorly the way it is maintained or fitted with safety devices are core factors in sentencing.  Collision and injury are serious aggravating factors, which can raise the starting point to one of 18 months (Yeung Wui, above; Zhong Ming Jing, above).

14.  In Tang Zhuyan, above, there was only one illegal immigrant on board.  There was a chase before interception.  The Court of Appeal reduced a starting point from 18 months to 12 months for a vessel fitted with only 2 lifejackets for 3 people, no firefighting appliances or navigation lights.    

Concurrent or consecutive sentences for these two charges

15.  In The Queen v. Chan Siu Yun CAAR 9/1995, a dangerous high speed chase led to a collision between the sampan and the police launch, causing slight injuries to several police officers.  The applicant and a male illegal immigrant were on board of the sampan.  The Court of Appeal set aside a wholly concurrent sentence of 3 ½ years, comprising 3 ½ years and 18 months respectively.  A wholly consecutive sentence of 5 ½ years, comprising 3 years and 2 ½ years respectively, was passed instead.  There was no totality adjustment.      

16.  This approach of a consecutive sentence is followed in HKSAR v. Sze Yui CACC 348/1995 and cited with approval in HKSAR v. Sze Yu CACC 143/2003, at para 33 and HKSAR v. Zhong Ming Jing, above, at para 29.    

17.  In HKSAR v. Tang Zhuyan CACC 223/2012, the applicant pleaded guilty and received a partly concurrent sentence of 4 years and 2 months (ie 50 months).  It comprised 3 years and 4 months (ie 40 months) and 12 months respectively.  The sentencing judge allowed a concurrent span of 2 months in between the 2 charges.  The Court of Appeal reduced the starting point of endangering the safety but affirmed the concurrent span of 2 months.  The total sentence was revised to 3 ½ years.    

Sentencing this defendant

18.  In some cases as in the present, the lack of safety equipment, etc. can be seen as an overlapping factor in sentencing on the 2 charges.  Here it has to be regarded as an aggravating factor in the 1^st Charge whilst actually made a particular in the 2^nd Charge. 

19.  As regards the 1^st Charge, he had 4 passengers on board.  The main hull structure was in poor condition.  There was no fire fighting appliances, no approved-type lift jackets or navigation light fitted for night operation.  He is a repeat offender.  I take 6 years as the starting point for assisting the passage.  One-third off for his plea of guilty, the sentence is 4 years in the absence of other mitigating factors. 

20.  As regards the 2^nd Charge, it features a sampan more poorly maintained and fitted with safety devices than Tang Zhuyan, above.  Fortunately, it is unlike Tang Zhuyan where a chase had to precede the interception.  I take 12 months as the starting point.  One-third off for his plea of guilty, the sentence is 8 months in the absence of other mitigating factors.   

21.  The basis of sentencing in the 2^nd Charge has already been incorporated into that of the 1^st Charge.  I shall pass a concurrent sentence.  The total sentence is 4 years.