A A
DCCC71/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 71 OF 2010
C C
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D D
HKSAR
E v. E
Tong Hon-hing 唐漢興
F F
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G G
Before: H H Judge S. D’Almada Remedios
Date: 25 February 2010 at 11.56 am
H Present: Mr Winston Chan, SPP of the Department of Justice, for H
HKSAR
Mr Dennis Ting Koon-hung, instructed by Messrs Tse
I I
Yuen Ting Wong, for the Defendant
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 J
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
N N
1. Defendant, you have pleaded guilty to an offence of
assisting the passage to Hong Kong a conveyance which carried
O O
unauthorised entrants, contrary to section 37D(1)(a) of the
P Immigration Ordinance. P
Q 2. You have admitted that on 10 December 2009, in Hong Q
Kong, at about 7.30 pm, you drove a motorised sampan carrying
R R
two Vietnamese unauthorised entrants into Hong Kong from China.
On that day the police officers on board police launches spotted
S S
your unlit motorised sampan in the waters of Sha Kiu, Deep Bay,
T Tuen Mun. They switched on a flashlight, launched navigation T
signals and demanded you stop the sampan. They then intercepted
U U
CRT33/25.2.2010/NB 1 DCCC71/2010/Sentence
V V
A A
your sampan and found, lying inside the sampan, two Vietnamese
females aged 22 and 25. They had passports but no valid visas.
B B
C 3. As to the condition of the sampan, the main hull C
structure was found in a very poor condition, there was no fire
D fighting appliances equipment on board, there was no lifesaving D
appliances on board and no navigation lights for night
E E
operation.
F F
4. You admitted under caution in a video recorded
G interview that you had agreed to convey these two women from G
China to Hong Kong for a reward of RMB400. You admitted that you
H were the coxswain of the sampan and did not know how to H
manoeuvre the vessel.
I I
5. Mr Ting has mitigated on your behalf today. I have
J J
taken into account what he has had to say. You are 35 years of
K
age and are of clear record. You are divorced and have three K
children, two daughters and one son, living with your parents.
L When you divorced your wife the agreement was that you maintain L
the three children. You had worked as a farmer all your life,
M helping your parents, who live in a clay hut. As the hut was M
seriously damaged and you needed money to repair it, you went to
N N
find work in Dongguan. However, shortly after finding work you
were unemployed and owed a lot of money, and therefore took up
O O
this illegal work.
P P
6. Your solicitor, Mr Ting, has referred to the case of
Q HKSAR v Wong Chi Kin CACC357/2004 and HKSAR v Ko King Hung Q
CACC410/2004. He has asked me to distinguish between section 37D
R R
and 37C of the Immigration Ordinance. He says that although you
were the captain in charge of the vessel, he asked that I take a
S S
4-year starting point as section 37D deals with conduct while
T 37C deals with members of the crew. In my view, the authorities T
have clearly laid down the difference between crew members, that
U is distinguishing between the captain of the vessel, crew U
CRT33/25.2.2010/NB 2 DCCC71/2010/Sentence
V V
A A
members and other people on board who may assist in the
navigation.
B B
C 7. In paragraph 12 of that judgment the general C
applicable tariff is 4 years’ imprisonment for section 37C,
D usually applicable to crew members. And it goes on to say: D
E “Where the accused was the captain of the vessel or the E
person in charge, or assisting in the operation of the
organisation of the venture, the appropriate starting
F point is 5 years’ imprisonment.” F
G G
8. You fall squarely within the bracket that you were the
captain of the vessel or the person in charge of the vessel. In
H H
paragraph 12 the court considered aggravating factors for
I increasing the sentence from the 5-year starting point in I
respect of the person in charge of the vessel.
J J
9. In this case I do consider there has been an
K aggravating factor that the vessel concerned was unseaworthy in K
view of the main hull structure which was found in a very poor
L L
condition, as well as, of course, the risk of endangering
passengers because it had no fire-fighting appliance or
M M
lifesaving equipment, or navigation lights fitted onboard.
N N
10. In those circumstances I would increase the starting
O point by 3 months. In those circumstances the starting point for O
this offence is 63 months’ imprisonment. You have pleaded
P P
guilty, and I gave you full credit for your plea of guilty. That
term should be reduced to one of 42 months’ imprisonment, and
Q Q
therefore the total term to which you are sentenced is one of
R 3 years and 6 months’ imprisonment. R
S S
T T
(S. D’Almada Remedios)
U District Judge U
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V V