A A
DCCC1439/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1439 OF 2009
C C
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D D
HKSAR
E v. E
Zeng Chaojun
F F
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G G
Before: Deputy District Judge H.F. Woo
Date: 3 February 2010 at 2.44 pm
H Present: Mr Jones Tsui, PP of the Department of Justice, for H
HKSAR
Mr Wong Wai-man, Raymond, of Messrs Yu & Associates,
I assigned by the Director of Legal Aid, for the I
Defendant
J Offence: Assisting the passage to Hong Kong of a conveyance J
which carried unauthorised entrants (協助載有未獲授權進境
者的運輸工具前來香港的旅程)
K K
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L L
Reasons for Sentence
M --------------------- M
Charge
N N
1. The defendant was convicted on his own plea of
O assisting the passage to Hong Kong of a conveyance which carried O
unauthorised entrants. Such offence was contrary to
P section 37D(1)(a) of the Immigration Ordinance, Chapter 115. P
Q Q
Facts
2. The facts of this case can be summarised as follows.
R R
At 6 o’clock in the morning on 14 November 2009, Sergeant 46772
S of Police Barge 2 spotted a suspicious vessel at about S
0.2 nautical mile off Sha Kiu moving at about 8 knots heading
T towards Fu Tian of mainland. Police Vessel 102 was vectored to T
intercept the said vessel which immediately changed course,
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A A
heading back to Sha Kiu, Hong Kong. Police officers were
deployed to ambush at the Sha Kiu coast.
B B
C 3. When the suspicious vessel was near the shore, four C
unauthorised entrants and the defendant jumped overboard and
D fled ashore, but they were all intercepted by the police. Upon D
inquiries, it was revealed that the defendant was the coxswain.
E E
The defendant was thus arrested and cautioned. Under caution,
the defendant admitted steering the vessel and to take the other
F F
four people back to Shenzhen for a reward of $1,000. He claimed
G that halfway through the voyage, he decided to back out and G
turned the vessel round but was arrested. He said he took up
H this job for more money since his parents were old and his elder H
brother took drugs.
I I
4. The defendant further admitted that on
J J
12 November 2009, a man call Ah Keung asked him to steer a
K
vessel to Hong Kong to take people back to mainland for a reward K
of about 1,000 yuan. The defendant agreed to the deal.
L L
5. On 14 November 2009, Ah Keung led the defendant to the
M vessel and asked him to do the job. Eventually the defendant M
steered the vessel and arrived at an unknown place in Hong Kong
N N
with shallow water. He saw one male and three females walked to
his vessel and came on board. As he became afraid, he turned
O O
round to convey the people back to the shore, but then he was
P arrested. P
Q 6. The defendant claimed that this was the second Q
occasion he came to Hong Kong and was the first time he ever
R R
assisted Ah Keung in steering a vessel. He did not know if those
passengers had travel documents with them. He knew there were no
S S
life jacket, no food and no key but only 5 to 6 litres of diesel
T on board. T
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A A
Mitigation
7. The defendant, aged 26, came from China. He was single
B B
and lived with his parents. He used to be an electrician earning
C 1,500 yuan per month. Unfortunately, he had lost his job in C
November last year. He claimed that he committed such offence
D out of monetary pressure and financial difficulties. He said he D
needed to shoulder the financial responsibilities of his family
E E
and to take care of his parents. He had not committed any
offence in the past. He was co-operative with the Hong Kong
F F
Police upon arrest.
G G
Authorities
H 8. The Court of Appeal had in CACC357 of 2004 and H
CACC410/2004, HKSAR v Wong Chi Kin and HKSAR v Ko King Hung,
I I
confirmed that the general applicable tariff is a 4-year
imprisonment for this type of offence. But where the accused was
J J
the captain of the vessel or the person in charge or assisting
K
in the operation of the organisation of the venture, the K
appropriate starting point would be a 5-year imprisonment.
L L
9. It was undisputed that the four other arrested persons
M on board of the defendant’s sampan were unauthorised entrants. M
The defendant was the coxswain and the person in charge of the
N N
sampan. The appropriate starting point is therefore a 5-year
imprisonment.
O O
P 10. The Court of Appeal had also indicated that should P
certain aggravating factors be present, 5 years’ starting point
Q would have to be increased. Such factors include unseaworthiness Q
of the vessel by reasons of poor maintenance or age, with the
R R
risk of endangering the passengers.
S S
11. The motorised sampan in question was duly inspected by
T the senior ship inspector and was found to be very poor and T
unseaworthy. The wooden hull planking, structural frames and
U subdivision bulkheads were found deteriorated and rot severely. U
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A A
Cracks, undesired holes and loosen seal compounds were observed
on the bulkheads to diminish the degree of watertight integrity
B B
as well as buoyancy of the vessel. No bilge system was fitted
C onboard to pump out any accumulation water. The extreme low C
freeboard at no load condition rendered the vessel to be flooded
D easily at moderate sea condition. There was no fire-fighting D
appliance nor life-saving appliance equipped on board. There was
E E
no navigation light fitted onboard for night operation.
F F
12. Nevertheless, the defendant had chosen to take four
G passengers in his unseaworthy vessel and had obviously G
endangered the life of these people. As such, this court
H considers appropriate to increase the starting point by 3 months H
to a 63 months’ imprisonment. This court has taken into account
I I
of all the mitigating factors put forward by the defence
counsel. Upon plea, the defendant is entitled to a one-third
J J
discount in sentence. However, there were no other mitigating
K
features which could further reduce the sentence. K
L 13. Hence, the defendant has to serve a 42 months’ L
imprisonment.
M M
N N
`
O O
H.F. Woo
Deputy District Judge
P P
Q Q
R R
S S
T T
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