A A
DCCC1331/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1331 OF 2009
C C
----------------------
D D
HKSAR
E v. E
Ng Chun Tak
F F
----------------------
G G
Before: H H Judge S. D’Almada Remedios
Date: 7 January 2010 at 3.28 pm
H Present: Mr Ira Lui, PP of the Department of Justice, for HKSAR H
Miss Wendy Lau Yiu-mei, of Messrs Michael Cheuk, Wong
& Kee, assigned by the Director of Legal Aid, for the
I Defendant I
Offence: (1) Endangering the safety of others at sea
J (危害他人在海上的安全) J
(2) Aiding and abetting the attempt to land in Hong
Kong without permission (協助及教唆他人未經准許而企圖
K K
在香港入境)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. Defendant, you have pleaded guilty to two charges: the
1st charge of endangering the safety of others at sea, contrary
O O
to section 72 of the Shipping and Port Control Ordinance,
P Cap. 313; and the 2nd charge of aiding and abetting the attempt P
to land in Hong Kong without permission, contrary to section 89
Q of the Criminal Procedure Ordinance, Cap. 221, and section Q
38(1)(a) of the Immigration Ordinance, that is, persons who by
R R
virtue of section 7 of the Immigration Ordinance may not land in
Hong Kong without the permission of the Immigration officer.
S S
T 2. The charges relate to the same date, which is T
27 October 2009, in Hong Kong. At about 0309 hours on 27 October
U 2009, a moving object was spotted on the radar at the U
CRT33/7.1.2010/GTT 1 DCCC1331/2009/Sentence
V V
A A
Stonecutters Island Operation Base. That object was entering
Hong Kong Marine West waters. Marine Police vessels were tasked
B B
to conduct inquiry about this moving object. At 3.21 am the same
C day, Marine Police observed that that moving object was an unlit C
wooden motorised sampan.
D D
3. Nine South Asians were seen crouching on the deck of
E E
the sampan in a suspicious manner. Officers signalled the vessel
to stop and at that time they saw you, the defendant, were
F F
controlling the engine steer bar at the stern, with the other
G Asians in the vessel. G
H 4. You complied with the police’s signals and stopped the H
sampan. On board were eight Pakistani males and one Bangladeshi
I I
male. None of them could produce any valid travel document for
entry into Hong Kong. At that time the vessel, yourself and the
J J
illegal immigrants were in Hong Kong waters.
K K
5. The sampan was inspected later on 20 October 2009 by a
L senior ship inspector and it was found that the vessel was in a L
very poor condition and unseaworthy.
M M
6. You had been interviewed by the police under caution.
N N
Under caution you told the police that you had, on 26 October
2009, left your home town of Guangxi to Shenzhen alone to look
O O
for a job. You came across an unknown male who showed you how to
P steer the sampan and on that evening you were instructed by that P
unknown male to steer the boat to Hong Kong with those
Q passengers on board. You have admitted that you had aided and Q
abetted these nine illegal immigrants to enter Hong Kong without
R R
permission.
S S
7. You are 16 years of age from Mainland China.
T T
8. Charge 1 carries a maximum sentence of 4 years’
U imprisonment and Charge 2 a maximum sentence of 3 years’ U
CRT33/7.1.2010/GTT 2 DCCC1331/2009/Sentence
V V
A A
imprisonment. The courts have regularly seen similar facts of
this type of case involving illegal immigrants from China or
B B
Vietnam. Those in respect of immigrants from China, Macau or
C Vietnam, I am informed by Mr Lui the prosecutor in this case are C
charged under a different section of the same Ordinance, section
D 37C. Only those people from Vietnam, China and Macau are D
considered unauthorised entrants and can fall within that
E E
section. Any other persons not of those nationalities are
charged under the present section, that is, of aiding and
F F
abetting an attempt to land in Hong Kong under the present
G charge, as I say, under section 38(1)(a) of the Immigration G
Ordinance.
H H
9. Under section 37C, the maximum term of imprisonment is
I I
14 years. Under the present charge, the maximum is one of
3 years. As can be seen, there is a significant difference in
J J
the two terms of imprisonment that can be imposed. On the face
K
of it, it is much more serious if the passengers come from K
Vietnam, China or Macau, but not from other countries. This of
L course is quite illogical and unfair, and in my view L
unreasonable. However, that is what the legislature has laid
M down and I am bound by the legislation. M
N N
10. On the charge of assisting the passage of illegal
immigrants under section 37C, the usual starting point after
O O
trial is one of 5 years’ imprisonment. Despite the facts of this
P case being exactly the same as those of assisting the passage P
usually that come before the court, of course the court cannot
Q impose the same starting point as that is over and above the Q
maximum allowed in this section.
R R
11. Mr Lui has been very frank with this court and
S S
informed the court that the reason why a charge of endangering
T the safety of others at sea was brought against this defendant T
was particularly because it would appear the maximum in Charge 2
U is too low. U
CRT33/7.1.2010/GTT 3 DCCC1331/2009/Sentence
V V
A A
12. It is evident from cases that have come before the
B B
court that usually cases involving endangering the safety of
C others at sea involve either dangerous, reckless and deliberate C
driving and/or dangers that have caused injury or death. Those
D cases which do not involve those factors, and if it is just D
assisting the passage of unauthorised entrants with an
E E
unseaworthy boat, then the courts usually take into account the
unseaworthiness of the vessel as an aggravating factor in
F F
sentence of assisting the passage.
G G
13. I am informed by Mr Lui that there have been other
H cases in the District Court in respect of the 2nd charge of H
which the courts have imposed approximately a 2-year starting
I I
point.
J J
14. In considering the facts before me in this particular
K
case, dealing with the endangering the safety of others at sea K
charge (Charge 1) I take into account the following factors.
L L
the vessel was 7.8 metres in length, 1.5 metres in
M breadth and 0.7 metres in depth; M
N N
the wooden hull planking, structural frames and
sub-division bulkheads were found deteriorated and
O O
severely rotted;
P P
cracks, undesired holes and loosened seal compounds
Q were observed on the bulkhead to diminish the degree of Q
watertight integrity, as well as buoyancy of the
R R
vessel;
S S
no bilge system was fitted on board to pump out any
T accumulation of water; T
U U
CRT33/7.1.2010/GTT 4 DCCC1331/2009/Sentence
V V
A A
extreme low freeboard at no-load condition rendered the
vessel to be flooded easily at moderate sea conditions.
B B
C There were no fire-fighting appliances, life-saving C
appliances or navigation lights fitted on board.
D D
That on its own shows that this vessel was, in a very
E E
poor and unseaworthy condition as it could have apparently sunk
quite easily. Another aggravating fact was that this vessel was
F F
carrying nine illegal immigrants; as well as the defendant, a
G total of 10 people on board. G
H 15. I have also had regards to recall of HKSAR v Chow Tin H
Sing [2007] 4 HKLRD 991 on matters relating to sentence for this
I I
charge.
J J
16. I accept Miss Lau’s mitigation on behalf of the
K
defendant in that the weather was fair, the sea was calm and K
visibility was good. There was no evidence of the defendant
L driving at high speed or dangerously. There was no injury to the L
defendant or the passengers as a result of being carried in this
M vessel, and the defendant when signalled by the police to stop M
obeyed their order.
N N
17. For this offence, I consider a starting point of
O O
9 months’ imprisonment to be appropriate. However, I give him
P full credit for his plea of guilty and reduce that term to P
6 months’ imprisonment.
Q Q
18. In respect of the 2nd charge, I considered the number
R R
of people that one attempts to bring into Hong Kong illegally is
of great relevance. I take into account that in this case there
S S
were nine people brought on board the vessel, and in those
T circumstances I consider a sentence of 2 years’ imprisonment to T
be appropriate after trial. I also give the defendant full
U U
CRT33/7.1.2010/GTT 5 DCCC1331/2009/Sentence
V V
A A
credit for his plea of guilty and reduce that term to 16 months’
imprisonment.
B B
C 19. The two offences are separate and distinct offences C
and I do consider a partly consecutive and partly concurrent
D sentence to be appropriate. I take into account the principle of D
totality and in those circumstances I order three months of
E E
Charge 1 to run consecutive to Charge 2, making a total term of
imprisonment of 19 months.
F F
G 20. I am well aware of the defendant’s young age of 16, G
his clear record and that he is from China. I have taken into
H account his clear record in my discount for a plea of guilty. I H
do consider that in view of his young age of 16, a further
I I
discount should be granted. I reduce that 19 months’
imprisonment term by a further two months to one of 17 months’
J J
imprisonment.
K K
21. You are so sentenced to a total of 17 months’
L imprisonment. L
M M
N N
O O
(S. D’Almada Remedios)
District Judge
P P
Q Q
R R
S S
T T
U U
CRT33/7.1.2010/GTT 6 DCCC1331/2009/Sentence
V V
A A
DCCC1331/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1331 OF 2009
C C
----------------------
D D
HKSAR
E v. E
Ng Chun Tak
F F
----------------------
G G
Before: H H Judge S. D’Almada Remedios
Date: 7 January 2010 at 3.28 pm
H Present: Mr Ira Lui, PP of the Department of Justice, for HKSAR H
Miss Wendy Lau Yiu-mei, of Messrs Michael Cheuk, Wong
& Kee, assigned by the Director of Legal Aid, for the
I Defendant I
Offence: (1) Endangering the safety of others at sea
J (危害他人在海上的安全) J
(2) Aiding and abetting the attempt to land in Hong
Kong without permission (協助及教唆他人未經准許而企圖
K K
在香港入境)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. Defendant, you have pleaded guilty to two charges: the
1st charge of endangering the safety of others at sea, contrary
O O
to section 72 of the Shipping and Port Control Ordinance,
P Cap. 313; and the 2nd charge of aiding and abetting the attempt P
to land in Hong Kong without permission, contrary to section 89
Q of the Criminal Procedure Ordinance, Cap. 221, and section Q
38(1)(a) of the Immigration Ordinance, that is, persons who by
R R
virtue of section 7 of the Immigration Ordinance may not land in
Hong Kong without the permission of the Immigration officer.
S S
T 2. The charges relate to the same date, which is T
27 October 2009, in Hong Kong. At about 0309 hours on 27 October
U 2009, a moving object was spotted on the radar at the U
CRT33/7.1.2010/GTT 1 DCCC1331/2009/Sentence
V V
A A
Stonecutters Island Operation Base. That object was entering
Hong Kong Marine West waters. Marine Police vessels were tasked
B B
to conduct inquiry about this moving object. At 3.21 am the same
C day, Marine Police observed that that moving object was an unlit C
wooden motorised sampan.
D D
3. Nine South Asians were seen crouching on the deck of
E E
the sampan in a suspicious manner. Officers signalled the vessel
to stop and at that time they saw you, the defendant, were
F F
controlling the engine steer bar at the stern, with the other
G Asians in the vessel. G
H 4. You complied with the police’s signals and stopped the H
sampan. On board were eight Pakistani males and one Bangladeshi
I I
male. None of them could produce any valid travel document for
entry into Hong Kong. At that time the vessel, yourself and the
J J
illegal immigrants were in Hong Kong waters.
K K
5. The sampan was inspected later on 20 October 2009 by a
L senior ship inspector and it was found that the vessel was in a L
very poor condition and unseaworthy.
M M
6. You had been interviewed by the police under caution.
N N
Under caution you told the police that you had, on 26 October
2009, left your home town of Guangxi to Shenzhen alone to look
O O
for a job. You came across an unknown male who showed you how to
P steer the sampan and on that evening you were instructed by that P
unknown male to steer the boat to Hong Kong with those
Q passengers on board. You have admitted that you had aided and Q
abetted these nine illegal immigrants to enter Hong Kong without
R R
permission.
S S
7. You are 16 years of age from Mainland China.
T T
8. Charge 1 carries a maximum sentence of 4 years’
U imprisonment and Charge 2 a maximum sentence of 3 years’ U
CRT33/7.1.2010/GTT 2 DCCC1331/2009/Sentence
V V
A A
imprisonment. The courts have regularly seen similar facts of
this type of case involving illegal immigrants from China or
B B
Vietnam. Those in respect of immigrants from China, Macau or
C Vietnam, I am informed by Mr Lui the prosecutor in this case are C
charged under a different section of the same Ordinance, section
D 37C. Only those people from Vietnam, China and Macau are D
considered unauthorised entrants and can fall within that
E E
section. Any other persons not of those nationalities are
charged under the present section, that is, of aiding and
F F
abetting an attempt to land in Hong Kong under the present
G charge, as I say, under section 38(1)(a) of the Immigration G
Ordinance.
H H
9. Under section 37C, the maximum term of imprisonment is
I I
14 years. Under the present charge, the maximum is one of
3 years. As can be seen, there is a significant difference in
J J
the two terms of imprisonment that can be imposed. On the face
K
of it, it is much more serious if the passengers come from K
Vietnam, China or Macau, but not from other countries. This of
L course is quite illogical and unfair, and in my view L
unreasonable. However, that is what the legislature has laid
M down and I am bound by the legislation. M
N N
10. On the charge of assisting the passage of illegal
immigrants under section 37C, the usual starting point after
O O
trial is one of 5 years’ imprisonment. Despite the facts of this
P case being exactly the same as those of assisting the passage P
usually that come before the court, of course the court cannot
Q impose the same starting point as that is over and above the Q
maximum allowed in this section.
R R
11. Mr Lui has been very frank with this court and
S S
informed the court that the reason why a charge of endangering
T the safety of others at sea was brought against this defendant T
was particularly because it would appear the maximum in Charge 2
U is too low. U
CRT33/7.1.2010/GTT 3 DCCC1331/2009/Sentence
V V
A A
12. It is evident from cases that have come before the
B B
court that usually cases involving endangering the safety of
C others at sea involve either dangerous, reckless and deliberate C
driving and/or dangers that have caused injury or death. Those
D cases which do not involve those factors, and if it is just D
assisting the passage of unauthorised entrants with an
E E
unseaworthy boat, then the courts usually take into account the
unseaworthiness of the vessel as an aggravating factor in
F F
sentence of assisting the passage.
G G
13. I am informed by Mr Lui that there have been other
H cases in the District Court in respect of the 2nd charge of H
which the courts have imposed approximately a 2-year starting
I I
point.
J J
14. In considering the facts before me in this particular
K
case, dealing with the endangering the safety of others at sea K
charge (Charge 1) I take into account the following factors.
L L
the vessel was 7.8 metres in length, 1.5 metres in
M breadth and 0.7 metres in depth; M
N N
the wooden hull planking, structural frames and
sub-division bulkheads were found deteriorated and
O O
severely rotted;
P P
cracks, undesired holes and loosened seal compounds
Q were observed on the bulkhead to diminish the degree of Q
watertight integrity, as well as buoyancy of the
R R
vessel;
S S
no bilge system was fitted on board to pump out any
T accumulation of water; T
U U
CRT33/7.1.2010/GTT 4 DCCC1331/2009/Sentence
V V
A A
extreme low freeboard at no-load condition rendered the
vessel to be flooded easily at moderate sea conditions.
B B
C There were no fire-fighting appliances, life-saving C
appliances or navigation lights fitted on board.
D D
That on its own shows that this vessel was, in a very
E E
poor and unseaworthy condition as it could have apparently sunk
quite easily. Another aggravating fact was that this vessel was
F F
carrying nine illegal immigrants; as well as the defendant, a
G total of 10 people on board. G
H 15. I have also had regards to recall of HKSAR v Chow Tin H
Sing [2007] 4 HKLRD 991 on matters relating to sentence for this
I I
charge.
J J
16. I accept Miss Lau’s mitigation on behalf of the
K
defendant in that the weather was fair, the sea was calm and K
visibility was good. There was no evidence of the defendant
L driving at high speed or dangerously. There was no injury to the L
defendant or the passengers as a result of being carried in this
M vessel, and the defendant when signalled by the police to stop M
obeyed their order.
N N
17. For this offence, I consider a starting point of
O O
9 months’ imprisonment to be appropriate. However, I give him
P full credit for his plea of guilty and reduce that term to P
6 months’ imprisonment.
Q Q
18. In respect of the 2nd charge, I considered the number
R R
of people that one attempts to bring into Hong Kong illegally is
of great relevance. I take into account that in this case there
S S
were nine people brought on board the vessel, and in those
T circumstances I consider a sentence of 2 years’ imprisonment to T
be appropriate after trial. I also give the defendant full
U U
CRT33/7.1.2010/GTT 5 DCCC1331/2009/Sentence
V V
A A
credit for his plea of guilty and reduce that term to 16 months’
imprisonment.
B B
C 19. The two offences are separate and distinct offences C
and I do consider a partly consecutive and partly concurrent
D sentence to be appropriate. I take into account the principle of D
totality and in those circumstances I order three months of
E E
Charge 1 to run consecutive to Charge 2, making a total term of
imprisonment of 19 months.
F F
G 20. I am well aware of the defendant’s young age of 16, G
his clear record and that he is from China. I have taken into
H account his clear record in my discount for a plea of guilty. I H
do consider that in view of his young age of 16, a further
I I
discount should be granted. I reduce that 19 months’
imprisonment term by a further two months to one of 17 months’
J J
imprisonment.
K K
21. You are so sentenced to a total of 17 months’
L imprisonment. L
M M
N N
O O
(S. D’Almada Remedios)
District Judge
P P
Q Q
R R
S S
T T
U U
CRT33/7.1.2010/GTT 6 DCCC1331/2009/Sentence
V V