HKSAR v. LAI SHING FAI

DCCC608/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 608 OF 2011

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Reasons for Sentence

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1.  Defendant has pleaded guilty to one offence of assisting the passage within Hong Kong of a conveyance which carried unauthorized entrants which is contrary to 37D(1)(a) of the Immigration Ordinance, and one offence of endangering the safety of others at sea which is contrary to the Shipping and Port Control Ordinance.

2.  The case occurred on 2 April 2011 at about 7.23 in the morning.  The police saw the defendant’s motorised sampan steering towards Kau Ling Chung with some people on board.  The sampan steered close to the beach.  A male landed on the beach, and five to six persons boarded the sampan.  The sampan was then steered back to the sea and sailed towards the boundary of Hong Kong Special Administrative Region.

3.  When the police intercepted the sampan, they found the defendant who was the coxswain of the boat and six females, three of whom were illegal immigrants and three were overstayers.  The motorised sampan was an, I am given to understand, 18-foot-long vessel with an outboard motor. 

4.  When the defendant was cautioned, he admitted he was a mainlander.  He had been out fishing.  He had been asked to carry, convey some friends from a beach.  He said he had not received money, and then he picked up the six females from the beach.  He also told the police that he had taken over the boat on 31 March 2011 and had inspected the boat.  He said there was a white light installed for night navigation, but he did not know how many life-jackets were on board.

5.  In relation to the 2nd charge, the vessel’s inspection showed that the general condition of the hull was very poor; condition of the outboard engine was poor; the main hull structure was found in poor condition; there was no fire‑fighting appliance or equipment on board; there were insufficient life-saving appliances; and there was in fact no navigational light fitted for night operation.  It was the conclusion of the marine inspector that the boat itself was unseaworthy.

6.  The facts admitted by the defendant clearly proved the offences and I convicted the defendant.  His personal details show that he completed primary school in China.  He is a fisherman and earns five to six hundred yuan a month.  He is in good health, is single and lives with his mother in China.

7.  He has written a letter showing remorse, and certain points are put forward in mitigation: that this was a small vessel; there were only seven people on board; the voyage itself was short and being conducted in daylight, so the absence of navigational lighting for night-time use of the vessel was of less significance.  There were in fact two life-jackets on board the vessel, apparently, and it is said there were no substantial aggravating factors.

8.  I have been referred to authorities which show the general level of sentencing in respect of offences of this nature, and the general starting point for a person who may be said to be in charge of a vessel such as this conveying illegal entrants would be a sentence of 5 years’ imprisonment.  Such a sentence could be raised to take into account the general unseaworthiness of the vessel or whether any of the illegal immigrants were concealed.  Then of course, none of the immigrants here were concealed, and also the general seaworthiness of the vessel can be taken into account in the 2nd charge.

9.  I bear in mind what has been put forward in mitigation.  On the 1st charge, I will adopt a starting point of 5 years’ imprisonment which of course is 60 months’ imprisonment.  I will deduct one-third for the defendant’s plea of guilty which leads to a sentence of 40 months’ imprisonment on that charge.  On the 2nd charge, I will take a starting point of 15 months’ imprisonment which I will reduce that 10 months’ imprisonment for the defendant’s plea of guilty. 

10.  To achieve the correct overall totality, I shall order that 5 months of the sentence on Charge 2 is to run consecutively to that on Charge 1 and 5 months to run concurrently.  This gives an overall sentence of 45 months’ imprisonment or what can also be stated as 3 years and 9 months’ imprisonment.  That is the sentence I will impose.