HKSAR v. CHAU YUI SING

 DCCC389/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 389 OF 2010

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a single offence of assisting the passage to Hong Kong of a conveyance which carried unauthorised entrants, contrary to Section 37D(1)(a) of the Immigration Ordinance, Cap.115.

2.  You admitted the brief facts and I convicted you. Briefly the facts were as follows.

3.  On 9 March of this year at about 3.05 am a suspicious vessel was noted on a radar screen about 1.7 nautical miles west of Sha Kiu Tsuen outside the waters of Hong Kong SAR. It was moving east at about 3 to 5 knots per hour.

4.  At around 3.15 am it was noted to be entering Hong Kong waters and heading for Sha Kiu Tsuen. Two police boats were ordered to intercept.

5.  At around 3.25 am it was about 0.7 nautical miles west of Sha Kiu Tsuen. As the police boats approached it, it turned west towards the Mainland. The police boats demanded it stop by switching on the blue flashing lights and issuing a warning.

6.  However, the boat did not comply. In the course of the pursuit you lost your balance and fell into the sea. The vessel was eventually stopped and you were rescued. On board the vessel were one Vietnamese male and three female Mainlanders. Including you, none held valid travel documents for entering Hong Kong.

7.  You were arrested and cautioned, as were the others, but they are not of any concern to this court. You admitted you would earn RMB400 per person for conveying the persons from Shekou to Hong Kong. You repeated this admission in formal interview under caution. Also, that you were the coxswain and you had never coxed this vessel before. You had been taught briefly by one Ar Lung prior to leaving.

8.  The vessel was in a poor condition, having no fire-fighting equipment, no lifesaving appliances and no navigation light. Also, the maximum number of persons exceeded it in that it was restricted to four and there were five persons aboard. In the opinion of the inspector, the vessel was not properly equipped for navigation on the high seas.

9.  You are a man of clear record. Mr Lok entered mitigation on your behalf and I am obliged for the impressions that he provided. On a personal level he told me that you are 38 years of age, single and employed as a decoration worker in the Mainland. You were educated to P3 and have elderly parents on the Mainland who are unable to work and rely upon you for their living. He stressed your clear record and plea of guilty.

10.  Also, Mr Lok referred to the case of HKSAR v Wong Chi Kin, CACC410/2004, and HKSAR v Yeung Wui and Others, CACC415/2004. The thrust of those cases is to emphasise that the proper starting point for such an offence in the absence of aggravating features is one of 5 years.

11.  In the present case I entirely concur. Whilst the boat itself was far from perfect there are no aggravating features in my opinion. The overloading was slight. You have a clear record and you have pleaded guilty.

12.  I therefore take as a starting point of 5 years’ imprisonment, and to reflect your plea of guilty, that will be reduced to 40 months, one-third discount.