A A
DCCC88/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 88 OF 2010
C C
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D D
HKSAR
E v. E
Fan Guomou
F F
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G G
Before: H H Judge Lok
Date: 1 March 2010 at 3.43 pm
H Present: Mr Stewart Hau, SPP of the Department of Justice, for H
HKSAR
Mr Fung Kai-lin, Louis, of Messrs Haldanes, for the
I I
Defendant
Offence: Arranging the passage to or within Hong Kong of
J unauthorized entrants (安排未獲授權進境者前來香港或在香港境內 J
的旅程)
K K
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L L
Reasons for Sentence
M --------------------- M
N N
1. The Defendant pleads guilty to one count of arranging
the passage to or within Hong Kong of unauthorized entrants,
O O
contrary to section 37D(1)(a) of the Immigration Ordinance.
P P
2. At about 2030 hours on 20 December 2009, a police
Q officer, who was on duty as a radar man, observed a vessel Q
departing from Shenzhen Bay and headed towards Hong Kong waters.
R R
At about 2040 hours, the vessel was observed to have entered into
Hong Kong waters approaching Sha Kiu, and three police vessels
S S
were deployed to intercept it.
T T
3. At about 2045 hours, the vessel was intercepted at 500
U metres off Sha Kiu, Deep Bay, and it was found to be a motorized U
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A A
Sampan (“the Sampan”). The Defendant was the coxswain of the
Sampan, and one male and four female Mainlanders were found on
B B
board.
C C
4. Upon enquiry, the Defendant said all the Mainlanders on
D board did not have Hong Kong identity cards. He told the police D
officers that he set off from Shenzhen Bay and he charged
E E
Renminbi $700 per passenger. The Defendant was then arrested by
the police.
F F
G 5. During a subsequent video-recorded interview, the G
Defendant, under caution, admitted the following:
H (a) he was the coxswain of the Sampan and he had 16 H
years of navigation experience;
I I
(b) a ‘boss’ asked him to sail the Sampan from Shenzhen
to convey illegal immigrants to Hong Kong;
J J
(c) the Defendant knew that it was illegal but he
K accepted the job of steering the motorized Sampan to K
convey Mainlanders into Hong Kong because he was in
L need of money; L
(d) at about 1900 hours on 20 December 2009 the
M Defendant steered the Sampan with a view to sneak M
four female and one male passengers to Hong Kong;
N N
(e) the Defendant would receive Renminbi $3,500 as
reward upon his return to the Mainland; and
O O
(f) with no compass, no life jacket, no fire fighting
P appliances and no navigation light for sailing, the P
Defendant only used his mobile phone and a torch for
Q navigation. Q
R R
6. A senior ship inspector examined the Sampan. The hull
structure of the Sampan was found deteriorated and rot severely.
S S
There were cracks, undesired holes and loosened seal compounds
T which diminished the degree of watertight integrity as well as T
the buoyancy of the Sampan. No bilge system was fitted on board
U to pump out any accumulation of water. There was no fire U
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A A
fighting appliance, no life saving appliance and no navigation
light equipped on board. He was of the view that the Sampan was
B B
in a very poor condition and it was unseaworthy.
C C
7. All the five passengers on board the Sampan were found
D to be unauthorized entrants, and they were between 17 to 34 years D
of age.
E E
8. The Defendant is aged 34. He was born in Yangjiang in
F F
Guangdong Province. He has a clear record in Hong Kong. I
G understand from the Defendant’s solicitor that the Defendant is G
the sole breadwinner of the family, and his previous employments
H included chef and fisherman. H
I I
9. Arranging the passage to or within Hong Kong of
authorized entrants is a very serious offence. According to the
J J
case of R v Ng Kit Yuen [1992] 1 HKCLR 170 and HKSAR v Wong Chi
K Kin Cr App 357 of 2004, a starting point of 5 years’ imprisonment K
would be appropriate for an accused who was in charge of a vessel
L or captain of a vessel carrying unlawful entrants. I would L
therefore adopt the same starting point.
M M
10. According to Wong Chi Kin, there are a number of
N N
aggravating factors which the court can take into account in
increasing further the starting point. My main concern here is
O O
the condition of the Sampan which might endanger the life of the
P passengers on board. As laid down in the case of R v Lo Shui Lun P
Cr App109/1995, I am not here particularly concerned about the
Q absence of fire fighting equipment or the absence of navigation Q
light, because realistically we do not expect the Defendant
R R
sneaking illegal immigrants to Hong Kong would turn on such
navigation light in navigating the ship.
S S
T 11. In the present case, I am concerned about the physical T
condition of the Sampan. The hull structure of the Sampan was
U found deteriorated and rot severely. There were cracks, U
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A A
undesired holes and loosened seal compounds which would certainly
diminish the degree of watertight integrity as well as the
B B
buoyancy of the Sampan. In such circumstances, I increase the
C starting point to 6 years’ imprisonment. C
D 12. Giving the Defendant one-third discount for his plea of D
guilty, the sentence is reduced to 4 years’ imprisonment.
E E
F F
G G
(David Lok)
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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