HKSAR v. YE FALU AND ANOTHER

DCCC 747/2019

[2020] HKDC 188

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 747 OF 2019

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REASONS FOR SENTENCE

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1.  The defendants pleaded guilty to and were convicted of the charges preferred against them.

The charges and the facts

2.  In Charge 1, they were jointly charged with assisting the passage to Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115. 

3.  In Charge 2, the 1st defendant is also charged with endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313.

4.  According to the summary of facts that they admitted:

(1) On 26 June 2019 at around 5:45 am, the police first detected on the digital radar system the sampan on which the defendants were travelling at about 0.6 nautical miles away from the west of Shekou, Shenzhen outside the boundary of Hong Kong. The sampan entered Hong Kong waters at around 5:51 am and was spotted at 6:40 am navigating towards Black Point, Tuen Mun;

(2) When the sampan was intercepted by the police at 0.5 nautical miles west of Black Point, the 1st defendant was found to be the coxswain at the rear whilst the 2nd defendant was sitting at the front with eight unauthorised entrants in the middle of the sampan covered underneath a blue tarpaulin;

(3) No valid Immigration documents or crew permits were provided by the defendants;

(4) The unauthorised entrants were Pakistani passport holders who had no record of entry into Hong Kong. Their passports revealed that they had last landed in Guangzhou or Urumqi on 22 or 24 June 2019;

(5) The defendants were then arrested. Under caution, the 1st defendant admitted that he had received RMB300 per head for sending the eight unauthorised entrants to Hong Kong whilst the 2nd defendant admitted that he would receive RMB300 per head for sending the unauthorised entrants somewhere near a power plant for landing;

(6) The 1st defendant later elaborated under caution in his video recorded interview that he knew how to navigate boats as he grew up by the sea but did not have a coxswain licence. He was asked by a friend called “Ah Leung” to help sneak people into Hong Kong and agreed to do so for a reward of RMB300 per head. In the afternoon of 25 June 2019, he went to Shenzhen and met up with the 2nd defendant. He followed Ah Leung’s instructions and found the sampan by the sea. The 2nd defendant boarded the eight unauthorised entrants and covered them with a tarpaulin and the 1st defendant then navigated the sampan to Hong Kong. The 1st defendant had intended to drop the unauthorised entrants at a power plant inside Hong Kong and then navigate the sampan back to Shenzhen and receive the reward from Ah Leung. However, the sampan malfunctioned during the journey and drifted along the current until they were intercepted by the police;

(7) The 2nd defendant similarly elaborated under caution in his video recorded interview that he was asked by “Leung Kee” to help sneak Pakistani illegal immigrants into Hong Kong. He was in need of money to repay his wife’s debts and agreed to do so for a reward of RMB300 per head. On 25 June 2019, he and the 1st defendant went to Dachan Bay, Shenzhen where they picked up the eight unauthorised entrants and set off for Hong Kong. The 1st defendant was responsible for navigating the sampan, while the 2nd defendant was responsible for helping the unauthorised entrants board the sampan, cleaning up and refuelling the boat. After the sampan had entered Hong Kong waters, it malfunctioned and was drifting along the current when they were intercepted by the police;

(8) The Marine Department inspected the sampan and found it to be seaworthy, but it was not suitable for operation as (i) there were no firefighting appliances equipped on board; (ii) there were insufficient lifesaving appliances equipped on board; and (iii) no navigation light was fitted on board for night operation.

The 1st defendant’s mitigation

5.  The 1st defendant is 28 years old.  He was educated to a secondary school standard.  Prior to his arrest, he worked as a construction worker on a casual basis in Mainland China and earned roughly RMB3,000 per month.  He is single and residing with his parents and elder brother.  His father is retired and his mother is receiving follow-up treatment for endometrial cancer and is unable to work.  His brother also works in construction industry on a casual basis.  The 1st defendant has a clear record.

6.  In mitigation, Mr Cheung submitted that the 1st defendant had acceded to his friend’s request and participated in the unlawful activity because he wanted to raise money to supplement his mother’s medical expenses.

7.  He said that the 1st defendant is remorseful, as he had made frank admissions to the police and had pleaded guilty to the charges.  The 1st defendant also articulated his remorse in a handwritten letter, in which he stated that life in prison is difficult and that he misses his mother and family day and night.  I am also presented with the medical report of someone said to be the 1st defendant’s mother.

The 2nd defendant’s mitigation

8.  Turning to the 2nd defendant, he has just turned 33.  He came from a poor family and was educated up to Secondary 1 level.  He is married to a kindergarten school teacher and the couple have a 12-year-old son.

9.  In mitigation, Ms Lo submitted that the 2nd defendant (because of his poor family background) had developed the virtue of shouldering responsibility for the family since a very young age.  He had been a factory worker and a construction worker.  In 2015, he started to subcontract construction works in the hope of earning more money for the family.  However, his business flopped and he had to borrow RMB170,000 from finance companies to repay his workers. He was persuaded to commit the offence given his financial difficulty.  Since his arrest, he has learnt that his parents and his wife in the Mainland had been harassed by dubious people as he had been unable to make monthly repayments towards his debts. 

The Sentence

10.  Both counsel acknowledged the seriousness of the offences.

11.  In Wong Chi Kin (CACC 357/2004), the Court of Appeal went through a number of authorities relating to the offence of assisting the passage within Hong Kong of an unauthorised entrant and reiterated that the generally applicable tariff for the offence is 4 years’ imprisonment.  The fact that the accused was the captain of the vessel or in charge of the operation warrants an even higher starting point of 5 years’ imprisonment.  The Court of Appeal further identified a number of non-exhaustive aggravating factors. 

12.  For the offence of endangering the safety of others at sea, the Court of Appeal held in Tang Zhuyan (CACC 223/2010) that, in the absence of 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 vessels and its condition, the appropriate starting point is a sentence of 12 months’ imprisonment.

13.  In sentencing the 1st defendant (who is convicted of the offence of assisting the passage to Hong Kong of unauthorised entrants and the offence of endangering the safety of others at sea), I shall adopt the approach advocated by McWalters JA in Wan Ruzhong (CACC 128/2016) to avoid the perception of punishing the defendant twice for the same conduct.  In other words, I have decided not to enhance the sentence for Charge 1 by reason of the aggravating features that formed the basis of Charge 2 but simply punish the defendant for Charge 2 appropriately, including the ordering of wholly or partially consecutive sentence.

14.  Given the 1st defendant’s role as the coxswain of the sampan, I adopt a starting point of 5 years’ imprisonment for Charge 1.  He is entitled to a one-third discount of his sentence by reason of his guilty plea.  Thus, he is sentenced to 40 months’ imprisonment for Charge 1.

15.  Mr Cheung has submitted that the 1st defendant made no attempt to escape when intercepted by the police (which may be due to the fact that the sampan was malfunctioned at the time as the defendants have claimed), and there were no children, elderly or particular vulnerable passengers on board.  In the circumstances, I adopt a starting point of 12 months’ imprisonment for Charge 2.  The 1st defendant is also entitled to a one-third discount for pleading guilty.  Thus, he is sentenced to 8 months’ imprisonment for Charge 2.

16.  I am entitled to order the sentences to run wholly consecutively as they relate to separate and distinct criminal conduct.  On totality however, I shall only order 2 months of the sentence for Charge 2 to run consecutively with the sentence for Charge 1.  Thus, the 1st defendant is to serve a total term of 42 months’ imprisonment.

17.  Turning to the 2nd defendant, I am not persuaded by Ms Lo’s submission to depart from the generally applicable tariff for Charge 1 (which is the only charge the 2nd defendant is convicted of) of 4 years’ imprisonment.  The fact that he had been naïve and did not appreciate the consequences of his criminal activity and that he had not received his promised reward did not really mitigate against the seriousness of the offence.

18.  The 2nd defendant is entitled to a one-third discount for pleading guilty and he is therefore sentenced to 32 months’ imprisonment.

19.  Lastly, I note that the personal plights urged upon me in mitigation by the defendants are not on all fours with their admissions to the police under caution.  The 1st defendant did not mention his mother’s medical condition to the police and the 2nd defendant claimed that he was covering for the debt of his wife.  In any event, their family circumstances should be disregarded when sentences for serious offences such as the one they are convicted of are concerned, see the judgment in Tang Zhuyan (CACC 223/2010) at paragraph 14.