HKSAR v. FU HUOAN AND ANOTHER

DCCC526/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 526 OF 2012

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Reasons for Sentence

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1.  In this case the defendants Fu Huoan (D1) and Guo Guiming (D2), are jointly charged with one count of ‘assisting the passage to Hong Kong of unauthorised entrants’, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap.115.

2.  D1 is further charged with the following 3 counts:

(2) ‘Endangering the Safety of Others at Sea’, contrary to section 32 of the Shipping and Port Control Ordinance, Cap.313;

(3) ‘Possession of Dutiable Goods’, contrary to sections 17(6) and 46(3) of the Dutiable Commodities Ordinance, Cap.109; and

(4) ‘Conveyance of Dangerous Goods Without a Licence’, contrary to sections 6 and 14(1) of the Dangerous Goods Ordinance, Cap.295.

The facts

3.  At about 5.55 pm on 19 April 2010, the marine police, through its radar, detected a motored wooden vessel travelling in the Hong Kong waters towards Shek Kwu Chau at a speed of 8 knots.  The boat was eventually stopped by police vessels.

4.  At the time D2 Guo Guiming was the coxswain. Also on board were two Vietnamese adults, one Chinese male and D1.

5.  Investigation revealed that the two Vietnamese males were in possession of Vietnam identity cards and they were unauthorised entrants (Charge 1).

6.  The condition of the vessel formed the basis of Charge 2, as examination of it revealed that it was unseaworthy:

(1) the main hull structure was in poor condition;

(2) there was no fire-fighting appliances;

(3) there were insufficient number of approved-type lifejackets equipped on board;

(4) the navigation lights fitted on board for night operation were not of the approved type.

7.  Furthermore, the police also found two carton boxes containing a total of eight packets of firecrackers (subject matter of charge 4) and 17,400 pieces of cigarettes on board the vessel (subject matter of Charge 3).

8.  At the time of the offence the 1st defendant did not have any permit or licence regarding the possession of such goods.

9.  Both defendants were arrested and cautioned.

10.  The 1st defendant admitted that he rented the vessel in January 2012 and at the request of the two Vietnamese males he agreed to take them from Panyu Pier to Hong Kong for $300 per person. He also admitted that he was coxswain of the vessel and that D2 was hired by him as a helping hand for fishing.  At the time when the police showed up, D2 had just taken over the navigation for the vessel while he had gone to obey the call of nature.

11.  He further admitted that the cigarettes and the firecrackers belonged to him; in that it was entrusted to him by someone in Panyu for conveyance to Hong Kong.

12.  Likewise, D2, under caution, admitted the same set of facts.

13.  Both defendants were of clear record in Hong Kong.

Sentencing Considerations

14.  Owing to the special geographical location and the political situation, unlawful conveyance of unauthorised entrants had been rampant. The Court of Appeal had a long line of authorities clearly pointing the proper sentence to be passed in offences of this nature.

15.  In particular, in the case of Wong Chi Kin and Ko King Hung (DCCC435& 509/2004), the Court of Appeal had the opportunity of reviewing the line of authorities and came up with clear sentencing guidelines.

16.  At paragraph 12 of the judgment, Honourable Woo VP had the following to say:

“The general applicable tariff is 4 years’ imprisonment: R v Ho Siu Lun & Ors [1987] HKLR 1086, R v Chan Kwok Keung & Anor [1998] 1 HKLR 279 and R v Lam Kon Man, Criminal App No. 329/1990. When the accused was the captain of the vessel or the person in charge or assisting in the operation or 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 626”.

17.  In the same judgment, the Court of Appeal also pointed out a number of aggravating factors which would justify the increase of the 5-year starting point; factors such as:

(1) if the unauthorised entrants were concealed in a place from which escape would have been difficult;

(2) the vessel concerned was unseaworthy by reason of poor maintenance or age, with a risk of endangering the passengers;

(3) the vessel was carrying a large number of illegal entrants;

(4) the vessel was grossly overloaded;

(5) by reason of the age and the physical condition of the unauthorised entrants, the degree of danger was greater.

18.  In the present case, only two unauthorised entrants were involved.  In this sense, there is no aggravating factor.

19.  Although there were firecrackers on board, there was no evidence that suggests that it posed any serious hazard to the vessel.

20.  The only other matter of concern is the condition of the vessel, which, according to the facts, was so poor that it was unseaworthy: there were no fire-fighting appliances and insufficient numbers of approved-type lifejackets. However, having looked at the pictures of the vessel in question, I am satisfied that the present case did not involve any significant aggravating factor which would justify my increase of the starting point for Charge 1.

21.  Although in the case of Zhong Ming Jing, CACC180/2010, the Court of Appeal has pointed out that the fire hazard would be a relevant factor and could be considered as an aggravating factor, this, I noted, is already reflected in the 2nd charge, and to use it as a reason for increasing the starting point would put the 1st defendant in the danger of having been doubly sentenced.

22.  For the above reasons, I do not see any particular factors which would make me increase the starting point of 5 years in the case of D1.

23.  In the case of D2, the prosecution accepted that he was playing a relatively minor role. In accordance with authorities just referred to, I will adopt, therefore, 4 years as a starting point in his case.

24.  In respect of the second count (‘Endangering the Safety of Others at Sea), I pray in aid of the decision of Tang Zhuyan, CACC223/2010, where, in a case of similar factual basis, the Court of Appeal considered an appeal of a sentence order made in the District Court and concluded that 12 months’ imprisonment was an appropriate sentence order.

25.  In respect of the third and the fourth counts, I accept that these are relatively minor offences which had been committed by the 1st defendant as an afterthought. Therefore, I will adopt 3 months’ imprisonment for both counts as a starting point.

Mitigation

26.  I now turn to consider the mitigating factors put forward by the defence lawyer.

27.  Both defendants were adults.  They had a clear record in Hong Kong and the purpose of committing the offences obviously was finance related.

28.  Therefore, except for the fact that they pleaded guilty, I do not see any particular factors which would justify any further reduction of the sentence.

29.  Accordingly for the 1st defendant, the sentence is reduced from the starting point of 5 years to 3 years and 4 months.

30.  For the 2nd defendant, the sentence of 4 years is likewise reduced to take into account his guilty plea to be 32 months.

31.  In respect of the second count, the 12 months’ imprisonment is hereby reduced to 8, and in the light of the authority of Tang Zhuyan, 2 months is to run consecutive to the existing sentence.

32.  In respect of the third and the fourth count, for the same reason the sentence order of 3 months is hereby reduced to 2, to run concurrently.

33.  I also take into account the totality principle.  I would order that the 2 months of the second count to run consecutive to the first, and 1 month of the sentence orders for of counts 3 and 4 to run consecutive to the other sentences.

34.  Therefore, the total sentence for the 1st defendant is 3 years and 7 months.

35.  The total sentence for D2 for count 1 is 2 years and 8 months.