A A
DCCC1411/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1411 OF 2009
C C
--------------------
D HKSAR D
v.
E E
Chen Hui-yung
F F
--------------------
G G
Before: H H Judge Browne
Date: 8 March 2010 at 10.30 am
H Present: Mr Paul Stephenson, Counsel on fiat, of the Department H
of Justice, for HKSAR
I
Mr Henry Ma, instructed by Herman H M Hui & Co., I
assigned by the Director of Legal Aid, for the
defendant
J Offence: (1) Endangering the safety of others at sea (危害他人在 J
海上的安全)
K
(2) Aiding and abetting the attempt to land in Hong K
Kong without permission (協助及教唆他人未經准許而企圖
在香港入境)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. The defendant pleaded guilty to two offences. The O
first offence is one of endangering the safety of others at sea,
P P
contrary to the Shipping and Port Control Ordinance, Cap. 313.
Q Q
2. The particulars of the offence are that on 31 October
R 2009, without reasonable excuse, he endangered or caused to be R
endangered the safety of persons in a motorised wooden boat,
S those persons being 20 South Asian persons, and the defendant S
was the coxswain of the boat. The particulars also state that
T T
the vessel was considered very poor and unseaworthy for voyage
U U
CRT36/8.3.2010/MC 1 DCCC1411/2009/Sentence
V V
A and there was a failure to provide life-saving equipment, fire A
extinguisher, navigation light and life jacket.
B B
3. The 2nd charge was one of aiding and abetting the
C C
attempt to land in Hong Kong without permission of the 20 South
Asian persons who were on board the vessel.
D D
E 4. At 2.24 in the morning of 31 October, officers of the E
Small Boat Division of the Marine Police observed a suspicious
F object on a radar moving at a speed of about 5 knots from the F
coastal area of Shekou of mainland China towards the Black Point
G G
Power Station, Tuen Mun. Two police vessels were tasked to
investigate, and at 2.39, they discovered the unlit motorised
H H
wooden vessel, the subject of the charges, sailing towards Black
I
Point Power Station, and they then gave chase. The vessel was I
intercepted about 10 minutes later in Hong Kong waters.
J J
5. Upon interception, they discovered 20 non-ethnic
K Chinese, illegal immigrants, including an Afghanistan family K
with two children aged 2 and 3, together with a mainland male on
L L
board the vessel. The mainland male was the defendant who turned
out to be the coxswain who conveyed these 20 non-ethnic Chinese
M M
to Hong Kong.
N N
6. The defendant told the police that he was hired by a
O person called Ah Hung to convey the illegal immigrants to the O
opposite island for a monetary reward of 1500 Renminbi. He told
P P
the police he had only learnt to steer the vessel just a few
hours before departing from China and he did not know why the
Q Q
vessel was wobbling at the time of its interception.
R R
7. In a subsequent video-recorded interview, the
S defendant said he came to know Ah Hung via the introduction of a S
female mainlander called Madam Lau. He waited for Ah Hung at
T T
Shekou station. They met up and went for a meal, and thereafter
Ah Hung arranged for the defendant to check into a hotel. The
U U
CRT36/8.3.2010/MC 2 DCCC1411/2009/Sentence
V V
A next morning, he followed Ah Hung to the seaside where he learnt A
to drive the vessel. They waited till nightfall and then the
B illegal immigrants got on board the vessel, and he was told to B
drive it across the sea.
C C
8. In a subsequent interview, he said he did not know
D D
whether there was any life-saving appliance on the vessel. He
E did not know if there was any navigation light fitted and the E
vessel wobbled during the voyage because the defendant did not
F know how to steer it properly. F
G G
9. The vessel was later examined. It was found that the
wooden hull planking, structural frames and subdivision
H H
bulkheads had deteriorated and were rotting severely. Cracks,
I
holes and loose seal compounds were observed on the bulkheads to I
diminish the degree of watertight integrity as well as the
J buoyancy of the vessel. There was no bilge system to pump out J
any accumulation of water inside the vessel. The extreme low
K freeboard at no load condition rendered the vessel to be flooded K
easily at moderate sea conditions. There was no fire fighting
L L
appliance equipped on board, no life-saving appliance and no
navigation lights.
M M
N 10. The defendant has a clear record. I am told he is N
25 years of age. He was born in China and educated to Primary 3
O level. His parents died when he was young, and he lives with his O
elder brother who unfortunately has broken a leg, so that leaves
P P
the defendant as the sole breadwinner for the family. On the
mainland, he worked as a painter earning some 1300 Yuan or
Q Q
Renminbi a month.
R R
11. In mitigation, it was urged upon me that the sampan
S moved slowly. It was moving only at 5 kilometres per hour. The S
defendant made no attempt to escape. It was not a busy channel.
T T
Nobody in fact was harmed although, in my view, that was
entirely fortuitous. It was urged upon me that there was no
U U
CRT36/8.3.2010/MC 3 DCCC1411/2009/Sentence
V V
A secret compartment. Again, it would seem that with so many on A
board, it would be very difficult to secrete them anywhere on a
B vessel. And there is no evidence that the vessel was flooded. B
C C
12. The defendant had agreed to carry out this task for
1500 Renminbi and, in fact, he has been paid nothing so far for
D D
his involvement in this offence. This was an extremely reckless
E and foolhardy act by the defendant. The lives of 20 people were E
in his hands, including two young children aged 2 and 3. The
F condition of the vessel was very poor. As regards the F
1st charge, the maximum sentence, I notice, is four years’
G G
imprisonment.
H H
13. I take the view that a starting point of 27 months is
I
appropriate in this case, and I reduce that by one-third to I
reflect the guilty plea. So, that will be a sentence of
J 18 months’ imprisonment. J
K 14. With regards to the 2nd charge, the maximum sentence K
is three years’ imprisonment. I take the view, looking at
L L
similar cases, that an appropriate sentence is 18 months’
imprisonment. In my view, these sentences are wholly inadequate.
M M
Had the persons on board the vessel been unauthorised entrants,
N the prosecution would have been under 37D of the Immigration N
Ordinance and the usual starting period for sentence would have
O been a term of five years’ imprisonment. The people on board O
this vessel do not fall within the definition of “unauthorised
P P
entrants” under section 2 of the Immigration Ordinance.
Q Q
15. I am told that this is a matter that has caused some
R concern because of the discrepancy in treatment of people R
bringing unauthorised entrants from the mainland and people who
S are unauthorised from elsewhere. Under section 37, the maximum S
sentence is 14 years’ imprisonment as opposed to three under
T T
section 38(1). I am advised that this has caused concern and a
possible reform of the definition of “unauthorised entrants” in
U U
CRT36/8.3.2010/MC 4 DCCC1411/2009/Sentence
V V
A section 2 of the Ordinance is being considered. It seems to me a A
simple solution might be simply to increase the maximum sentence
B under section 38. B
C C
16. I have considered the question of totality, and I take
the view that these sentences should be consecutive. The
D D
defendant will therefore go to prison for three years.
E E
F F
G G
Browne
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
CRT36/8.3.2010/MC 5 DCCC1411/2009/Sentence
V V
A A
DCCC1411/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1411 OF 2009
C C
--------------------
D HKSAR D
v.
E E
Chen Hui-yung
F F
--------------------
G G
Before: H H Judge Browne
Date: 8 March 2010 at 10.30 am
H Present: Mr Paul Stephenson, Counsel on fiat, of the Department H
of Justice, for HKSAR
I
Mr Henry Ma, instructed by Herman H M Hui & Co., I
assigned by the Director of Legal Aid, for the
defendant
J Offence: (1) Endangering the safety of others at sea (危害他人在 J
海上的安全)
K
(2) Aiding and abetting the attempt to land in Hong K
Kong without permission (協助及教唆他人未經准許而企圖
在香港入境)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. The defendant pleaded guilty to two offences. The O
first offence is one of endangering the safety of others at sea,
P P
contrary to the Shipping and Port Control Ordinance, Cap. 313.
Q Q
2. The particulars of the offence are that on 31 October
R 2009, without reasonable excuse, he endangered or caused to be R
endangered the safety of persons in a motorised wooden boat,
S those persons being 20 South Asian persons, and the defendant S
was the coxswain of the boat. The particulars also state that
T T
the vessel was considered very poor and unseaworthy for voyage
U U
CRT36/8.3.2010/MC 1 DCCC1411/2009/Sentence
V V
A and there was a failure to provide life-saving equipment, fire A
extinguisher, navigation light and life jacket.
B B
3. The 2nd charge was one of aiding and abetting the
C C
attempt to land in Hong Kong without permission of the 20 South
Asian persons who were on board the vessel.
D D
E 4. At 2.24 in the morning of 31 October, officers of the E
Small Boat Division of the Marine Police observed a suspicious
F object on a radar moving at a speed of about 5 knots from the F
coastal area of Shekou of mainland China towards the Black Point
G G
Power Station, Tuen Mun. Two police vessels were tasked to
investigate, and at 2.39, they discovered the unlit motorised
H H
wooden vessel, the subject of the charges, sailing towards Black
I
Point Power Station, and they then gave chase. The vessel was I
intercepted about 10 minutes later in Hong Kong waters.
J J
5. Upon interception, they discovered 20 non-ethnic
K Chinese, illegal immigrants, including an Afghanistan family K
with two children aged 2 and 3, together with a mainland male on
L L
board the vessel. The mainland male was the defendant who turned
out to be the coxswain who conveyed these 20 non-ethnic Chinese
M M
to Hong Kong.
N N
6. The defendant told the police that he was hired by a
O person called Ah Hung to convey the illegal immigrants to the O
opposite island for a monetary reward of 1500 Renminbi. He told
P P
the police he had only learnt to steer the vessel just a few
hours before departing from China and he did not know why the
Q Q
vessel was wobbling at the time of its interception.
R R
7. In a subsequent video-recorded interview, the
S defendant said he came to know Ah Hung via the introduction of a S
female mainlander called Madam Lau. He waited for Ah Hung at
T T
Shekou station. They met up and went for a meal, and thereafter
Ah Hung arranged for the defendant to check into a hotel. The
U U
CRT36/8.3.2010/MC 2 DCCC1411/2009/Sentence
V V
A next morning, he followed Ah Hung to the seaside where he learnt A
to drive the vessel. They waited till nightfall and then the
B illegal immigrants got on board the vessel, and he was told to B
drive it across the sea.
C C
8. In a subsequent interview, he said he did not know
D D
whether there was any life-saving appliance on the vessel. He
E did not know if there was any navigation light fitted and the E
vessel wobbled during the voyage because the defendant did not
F know how to steer it properly. F
G G
9. The vessel was later examined. It was found that the
wooden hull planking, structural frames and subdivision
H H
bulkheads had deteriorated and were rotting severely. Cracks,
I
holes and loose seal compounds were observed on the bulkheads to I
diminish the degree of watertight integrity as well as the
J buoyancy of the vessel. There was no bilge system to pump out J
any accumulation of water inside the vessel. The extreme low
K freeboard at no load condition rendered the vessel to be flooded K
easily at moderate sea conditions. There was no fire fighting
L L
appliance equipped on board, no life-saving appliance and no
navigation lights.
M M
N 10. The defendant has a clear record. I am told he is N
25 years of age. He was born in China and educated to Primary 3
O level. His parents died when he was young, and he lives with his O
elder brother who unfortunately has broken a leg, so that leaves
P P
the defendant as the sole breadwinner for the family. On the
mainland, he worked as a painter earning some 1300 Yuan or
Q Q
Renminbi a month.
R R
11. In mitigation, it was urged upon me that the sampan
S moved slowly. It was moving only at 5 kilometres per hour. The S
defendant made no attempt to escape. It was not a busy channel.
T T
Nobody in fact was harmed although, in my view, that was
entirely fortuitous. It was urged upon me that there was no
U U
CRT36/8.3.2010/MC 3 DCCC1411/2009/Sentence
V V
A secret compartment. Again, it would seem that with so many on A
board, it would be very difficult to secrete them anywhere on a
B vessel. And there is no evidence that the vessel was flooded. B
C C
12. The defendant had agreed to carry out this task for
1500 Renminbi and, in fact, he has been paid nothing so far for
D D
his involvement in this offence. This was an extremely reckless
E and foolhardy act by the defendant. The lives of 20 people were E
in his hands, including two young children aged 2 and 3. The
F condition of the vessel was very poor. As regards the F
1st charge, the maximum sentence, I notice, is four years’
G G
imprisonment.
H H
13. I take the view that a starting point of 27 months is
I
appropriate in this case, and I reduce that by one-third to I
reflect the guilty plea. So, that will be a sentence of
J 18 months’ imprisonment. J
K 14. With regards to the 2nd charge, the maximum sentence K
is three years’ imprisonment. I take the view, looking at
L L
similar cases, that an appropriate sentence is 18 months’
imprisonment. In my view, these sentences are wholly inadequate.
M M
Had the persons on board the vessel been unauthorised entrants,
N the prosecution would have been under 37D of the Immigration N
Ordinance and the usual starting period for sentence would have
O been a term of five years’ imprisonment. The people on board O
this vessel do not fall within the definition of “unauthorised
P P
entrants” under section 2 of the Immigration Ordinance.
Q Q
15. I am told that this is a matter that has caused some
R concern because of the discrepancy in treatment of people R
bringing unauthorised entrants from the mainland and people who
S are unauthorised from elsewhere. Under section 37, the maximum S
sentence is 14 years’ imprisonment as opposed to three under
T T
section 38(1). I am advised that this has caused concern and a
possible reform of the definition of “unauthorised entrants” in
U U
CRT36/8.3.2010/MC 4 DCCC1411/2009/Sentence
V V
A section 2 of the Ordinance is being considered. It seems to me a A
simple solution might be simply to increase the maximum sentence
B under section 38. B
C C
16. I have considered the question of totality, and I take
the view that these sentences should be consecutive. The
D D
defendant will therefore go to prison for three years.
E E
F F
G G
Browne
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
CRT36/8.3.2010/MC 5 DCCC1411/2009/Sentence
V V