HKSAR v. TANG ZHUYAN

CACC223/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2010

(ON APPEAL FROM DCCC 512 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court):

1.  The applicant sought leave to appeal against sentences of imprisonment imposed upon him by Judge Anthea Pang, to a total of 4 years and 2 months’ imprisonment, in respect of two charges following his pleas of guilty in the District Court on 15 June 2010.

THE CHARGES

2.  By Charge 1, it was alleged that on 17 March 2010 the applicant had assisted the passage to Hong Kong of a conveyance which carried an unauthorized entrant, contrary to section 37D(1)(A) of the Immigration Ordinance, Cap. 115.  By Charge 2, it was alleged that in so doing the applicant had endangered the safety of others at sea, namely the two persons on board his motorized sampan, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313.  The ‘Particulars of Offence’ of Charge 2 averred that as the coxswain of the sampan the applicant had navigated the sampan from the Mainland into Hong Kong waters when:

(a)   it was not seaworthy;

(b)   it carried no fire-fighting appliances and navigation lights; and

(c)   it carried insufficient life-saving appliances.

THE FACTS

3.  The Summary of Facts, accepted by the applicant as the basis of his pleas, stated that he was the coxswain of the sampan that sought to escape when approached by a marine police vessel at 10:55 p.m. on 17 March 2010 in the waters of Shek O.  Although no measurements of the dimensions of the sampan were provided, it is apparent from the photographs available to the court that the sampan was of the open blue-coloured kind powered by an outboard motor commonly seen plying Hong Kong waters.  The ensuing chase lasted until 11:16 p.m., by which stage the applicant’s vessel was described as being 2 nautical miles south-west of Waglan Island.  Although the applicant and another man on board the sampan were fishermen holding documentation issued by the Mainland, the third man did not have either a valid travel document or permission to enter Hong Kong.

4.  Examination of the sampan by the Marine Department resulted in it being described as “unseaworthy”.  No other particulars were provided.   However, it had insufficient lifejackets on board, in that there were only two such devices for the three persons aboard the vessel.  It had no fire-fighting appliances or navigation lights.

REASONS FOR SENTENCE

5.  In her reasons for sentence the judge described the sampan as being found to be unseaworthy, “as there were no firefighting appliances, no navigation light sufficient life-saving appliances on the sampan.”  She noted that the unauthorized entrant was an adult male and that, although there were insufficient life-saving appliances, there were two lifejackets on board the sampan.

6.  In taking a starting point of 6 years’ imprisonment in respect of Charge 1 the judge stated that she had regard to the following matters in respect of the sampan, namely that the applicant was the captain or person in charge, it was unseaworthy and there was a chase before the sampan was intercepted.  She made reference to decisions of this court in HKSAR v Wong Chi Kin (unreported) CACC357/2004 and HKSAR v Yeung Wui & Others [2005] 1 HKC 646.  The judge stated that she took a starting point of 18 months’ imprisonment in respect of Charge 2, although she did not articulate reasons for determining that to be appropriate.  Having regard to the applicant’s pleas of guilty, the judge discounted the starting points for sentence by one third.  In the result, she imposed sentences of imprisonment of four years in respect of Charge 1 and 12 months’ imprisonment in respect of Charge 2.

7.  Having referred to the judgments of this court in AG v Chan Siu Yun [1995] 2 HKCLR 223 and HKSAR v Sze Yu (unreported) CACC143/2003, the judge acknowledged that the sentence to be imposed in respect of Charge 2 should be made consecutive to that imposed in respect of Charge 1.  However, having regard to a consideration of the “totality principle”, she ordered only two months of the sentence imposed in respect of Charge 2 to be served consecutively to the sentence of four years imprisonment’ imposed in respect of Charge 1. Accordingly, the total sentence of imprisonment imposed on the applicant was four years and two months.

GROUNDS OF APPEAL AGAINST CONVICTION

8.  In his home-made grounds of appeal against conviction the applicant invited this court to have regard to his family circumstances and to substitute a lenient sentence of imprisonment.  His mother was hospitalised with heart ailment, his wife had left their family of three young children, all under the age of six years, in the care of his aged father.

9.  Further, he reminded the court that he had carried only one unauthorized entrant into Hong Kong and invited acceptance of his submission that it was not an organised enterprise.  Rather, he had succumbed to greed on this one occasion.  He had no criminal record in the Mainland or in Hong Kong.

10.  Finally, the applicant referred the court to the sentence of imprisonment imposed by Judge Browne in the District Court on 8 March 2010 upon the defendant in HKSAR v Chen Hui Yung DCCC1411/2009 (unreported).  Copies of the Reasons for Sentence were made available to the court.  That defendant had pleaded guilty to two charges, firstly one of endangering the safety of others at sea, contrary to the Shipping and Port Control Ordinance, Cap. 313 and, secondly, without the permission of an immigration officer, of aiding and abetting the attempt to land in Hong Kong the 20 South Asian persons on board the vessel, contrary to section 38(1) of the Immigration Ordinance, Cap. 115.

11.  The judge noted that the low freeboard wooden vessel was in very poor condition, in that the bulkheads were rotting severely, the watertight integrity of the vessel was diminished and there was no bilge pump system.  Also, he had regard to the fact that the vessel carried no lifejackets, fire-fighting equipment or navigation lights.  Finally, he noted that two of the 20 persons carried by that defendant were young children age two and three years.

12.  In respect of the second charge, the judge described the maximum sentence of 3 years’ imprisonment as being “wholly inadequate”.  He noted that, if the persons carried by the applicant had fallen within the definition of “unauthorized entrants”, which they did not, and in consequence the charge had been brought under section 37D of the Immigration Ordinance, the maximum sentence was 14 years’ imprisonment. He said that, absent aggravating factors, a starting point for sentence of 5 years’ imprisonment after trial was appropriate for a defendant in charge of a vessel bringing “unauthorized entrants” into Hong Kong.  He observed that the discrepancy of treatment of people being unauthorized entrants from the Mainland and people who are unauthorized entrants from elsewhere “has caused some concern”.  We share those concerns.

13.  In the event, Judge Browne took a starting point of 27 months’ imprisonment in respect of Charge 1 and 18 months’ imprisonment in respect of Charge 2.  Affording the defendant a discount of one third for his plea of guilty, he imposed sentences of 18 months and 12 months’ imprisonment which you would be served consecutively.  Accordingly, the defendant in that case was sentenced to a total of 3 years’ imprisonment.

A CONSIDERATION OF THE SUBMISSIONS

14.  Whilst the court sympathises with the applicant for the predicament that his family find themselves in, given his absence, it is not a basis upon which this court can reduce an otherwise appropriate sentence of imprisonment.  As this court said in HKASR v Shum Chung Wai [2002] 2 HKLRD 81 at 87E-F, “... family circumstances should be disregarded, particularly when sentences for serious offences are concerned...”

15.  As was pointed out to the applicant at the oral hearing, the sentences imposed in Chen Hui Yung and the reasons given by the judge are not of assistance to this court in this case given that the judge was dealing with very different factual circumstances and, in respect of one of the charges, a different provision of the Immigration Ordinance.

Charge 1

16.  As this court noted in Wong Chi Kin, (paragraph 12) the appropriate starting point for sentence after trial for an offence under section 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 (unreported) CACC109/1995, in a judgment delivered by Bokhary J, this court said that regard was to be had in sentencing to the aggravating factor of “unseaworthiness” where the vessel was to be described as a “floating coffin” or “leaky tub”.  (See paragraph 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.”  (See paragraph 10.)

18.  In HKSAR v Zhong Ming Jing (unreported) CACC180/2010, 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.  (See paragraphs 19-20.)

19.  As noted above, the judge treated the description of the sampan as being “unseaworthy” as arising out of the absence of fire-fighting equipment and navigation lights and the insufficient supply of lifejackets.  That was hardly unsurprising, given that no other particulars had been given in the Summary of Facts of any other lack of seaworthiness of the vessel.

20.  Clearly, the applicant falls to be treated under the previous practice, prior to the judgment in Zhong Ming Jing.  It follows that there was no evidence that the vessel was “unseaworthy” in the sense described in Wong Chi Kin or Lo Shui Lun.  Accordingly, the appropriate starting point to be taken for sentence in respect of Charge 1 was 5 years’ imprisonment.

Charge 2

21.  As noted above, no particulars whatsoever were provided to the judge in the Summary of Facts of the sea state or wind conditions obtaining at the material time.  Further, no details whatsoever were provided of the nature of the chase sampan by the police vessel, in particular the speed and manner in which the sampan was steered, or the circumstances of how the chase came to an end.  It follows that the known relevant facts were minimal: there was a chase for 21 minutes at night from the waters off Shek O to a place about two nautical miles south west of Waglan Island.

22.  It is to be noted that many of the judgments of this court, in which the issue of the appropriate sentence for the offence the subject of Charge 2 is raised, involve aggravating factors in the commission of the offence absent in the current case.  Often, in the attempts to escape the respective defendants deliberately steered their sampans dangerously, significantly increasing the risks to the occupants of both the sampans and the pursuing police vessels.  Sometimes, there were collisions between the vessels.

23.  In AG v Chan Siu Yun, the escaping sampan was manoeuvred to collide with one of the pursuing police vessel which, having put its engines astern, was involved in a collision with another of the pursuing police vessels.  In a review of sentence by the Attorney-General, the sentence of 18 months’ imprisonment imposed after trial was increased to 2½ years’ imprisonment.  In HKSAR v Yeung Wui, this court did not disturb a sentence of 12 months’ imprisonment imposed on the applicant in respect of this offence after a plea of guilty in circumstances in which the applicant had steered a zigzag course on his sampan trying to out run pursuing police vessels, which chase was only brought to an end as a result of a collision between the sampan and one of the police vessels.

24.  Given the absence in this 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, the starting point of 18 months’ imprisonment is manifestly excessive.  In our judgment, the appropriate starting point for sentence is 12 months’ imprisonment.

25.  Affording the applicant the discount of one third from the starting point, to which he was entitled in consequence of his pleas of guilty, the appropriate sentences are:

(1)   Charge 1—3 years and 4 months’ imprisonment; and

(2)   Charge 2—8 months’ imprisonment.

26.  We do not disturb the judge’s order that two months of the sentence imposed in respect of Charge 2 be served consecutively to the sentence imposed in respect of Charge 1.

CONCLUSION

27.  We allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentences imposed by the judge in respect of Charges 1 and 2 and in their place we impose a sentence of 3 years and 4 months’ imprisonment in respect of Charge 1 and 8 months’ imprisonment in respect of Charge 2, two months of which is to be served consecutively to the sentence imposed in respect of Charge 1. Accordingly, the total sentence of imprisonment imposed upon the applicant is 3 years and 6 months.