A A
DCCC512/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 512 OF 2010
C C
--------------------
D HKSAR D
v.
E E
Tang Zhuyan
F F
--------------------
G G
Before: H H Judge Anthea Pang
Date: 15 June 2010 at 10.55 am
H Present: Ms Chan Sze-yan, PP of the Department of Justice, for H
HKSAR
I
Mr Tse Hon-yuen, instructed by, Elaine Tam & Co, I
assigned by the Director of Legal Aid, for the
Defendant
J Offence: (1) Assisting the passage to Hong Kong of a conveyance J
which carried an unauthorised entrant (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
(2) Endangering the safety of others at sea (危害他人在海
上安全)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. The defendant pleaded guilty before me to the O
following two charges:
P P
(1) 1st charge, assisting the passage to Hong Kong of
Q Q
a conveyance which carried an unauthorised
R entrant, contrary to section 37D(1)(a) of the R
Immigration Ordinance, Cap.115;
S S
(2) 2nd charge, endangering the safety of others at
T T
sea, contrary to section 72 of the Shipping and
Port Control Ordinance, Cap.313.
U U
CRT23/15.6.2010/ML 1 DCCC512/2010/Sentence
V V
A A
2. The facts admitted by the defendant and which gave
B rise to the two charges were that at night-time on 17 March B
2010, the marine police spotted a suspicious motorised sampan
C C
near Shek O. When the marine police approached the sampan, the
sampan tried to escape. A chase then ensued but after about
D D
20 minutes, the sampan was intercepted. The defendant, his
E assistant and one unauthorised entrant were found on board the E
sampan.
F F
3. Under caution, the defendant admitted that he was the
G G
captain of the sampan and that he knew the unauthorised entrant
did not possess any valid travel document.
H H
I
4. The sampan used by the defendant was, upon I
examination, found to be unseaworthy as there were no fire-
J fighting appliances, no navigation light and insufficient life- J
saving appliances on the sampan.
K K
5. The defendant is now aged 27. It was said that he had
L L
been a fisherman for many years. He is married and has three
children who are aged between 3 to 5. Before he was arrested in
M M
Hong Kong, he lived with his parents and his wife and children
N Shanmei. The defendant was the breadwinner of the family and N
supported his parents as well. His mother suffers from a heart
O problem and has to receive regular medical treatments. O
P P
6. In mitigation, it was said that the defendant is very
depressed and worried, as he has got the news that his wife
Q Q
might petition for a divorce in view of his imprisonment.
R R
7. It was also said on his behalf that the sampan was not
S overloaded, as there was only one unauthorised entrant on board S
and that this unauthorised entrant was an adult male instead of
T T
a pregnant female.
U U
CRT23/15.6.2010/ML 2 DCCC512/2010/Sentence
V V
A 8. Further, it was said that although the sampan had A
insufficient life-saving appliances, there were two lifesaving
B jackets on board. B
C C
9. Mr Tse, for the defendant, therefore asked this court
to impose as lenient a sentence on the defendant as possible,
D D
given his pleas and that he was merely used by others to commit
E the present offences. E
F 10. The Court has said time and again that a defendant’s F
personal predicament is generally not a mitigating factor, for
G G
the defendant should have seriously thought about that before
committing the offence.
H H
I
11. Further, the absence of aggravating factors like I
heavily pregnant women on board, like overloading the vessel,
J etc., cannot be turned into mitigating factors. If those J
aggravating factors were present, the Court would no doubt deal
K with the defendant more severely. K
L L
12. In the present case, I find that apart from the
defendant’s pleas, there are no other mitigating factors.
M M
N 13. For the assisting passage charge, the 1st charge, N
after considering the facts of this case, including that the
O defendant was the captain or the person in charge of the sampan, O
that the sampan was unseaworthy, and that there was a chase
P P
before the sampan was intercepted, I consider a starting point
of 6 years to be appropriate. (See, for example, HKSAR v Wong
Q Q
Chi Kin, CACC357/2004, unreported, and HKSAR v Yeung Wui and
R Others [2005] 1 HKC 646.) R
S 14. The defendant is entitled to the reduction for his S
plea, so he is to serve a term of 4 years’ imprisonment.
T T
U U
CRT23/15.6.2010/ML 3 DCCC512/2010/Sentence
V V
A 15. For the endangering charge, the 2nd charge, I am going A
to adopt a starting point of 18 months.
B B
16. Again, the defendant will be given a one-third
C C
reduction for his plea. He is therefore to serve a term of
12 months’ imprisonment.
D D
E 17. In AG v Chan Siu Yun [1995] 2 HKCLR 223 and HKSAR v E
Sze Yu, CACC143/2003, unreported, it was said that a consecutive
F sentence should be imposed where a defendant was charged with F
the offence of endangering the safety of others at sea, in
G G
addition to the offence of assisting passage.
H H
18. In the present case, after considering the totality
I
principle, I order that only 2 months of the 12-month term I
imposed in respect of the 2nd charge are to run consecutively to
J the term of 4 years imposed in respect of the 1st charge, making J
a total of 50 months’ imprisonment.
K K
19. Defendant, stand up. You are therefore to serve a term
L L
of 50 months’ imprisonment.
M M
N N
O (Anthea Pang) O
District Judge
P P
Q Q
R R
S S
T T
U U
CRT23/15.6.2010/ML 4 DCCC512/2010/Sentence
V V
A A
DCCC512/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 512 OF 2010
C C
--------------------
D HKSAR D
v.
E E
Tang Zhuyan
F F
--------------------
G G
Before: H H Judge Anthea Pang
Date: 15 June 2010 at 10.55 am
H Present: Ms Chan Sze-yan, PP of the Department of Justice, for H
HKSAR
I
Mr Tse Hon-yuen, instructed by, Elaine Tam & Co, I
assigned by the Director of Legal Aid, for the
Defendant
J Offence: (1) Assisting the passage to Hong Kong of a conveyance J
which carried an unauthorised entrant (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
(2) Endangering the safety of others at sea (危害他人在海
上安全)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. The defendant pleaded guilty before me to the O
following two charges:
P P
(1) 1st charge, assisting the passage to Hong Kong of
Q Q
a conveyance which carried an unauthorised
R entrant, contrary to section 37D(1)(a) of the R
Immigration Ordinance, Cap.115;
S S
(2) 2nd charge, endangering the safety of others at
T T
sea, contrary to section 72 of the Shipping and
Port Control Ordinance, Cap.313.
U U
CRT23/15.6.2010/ML 1 DCCC512/2010/Sentence
V V
A A
2. The facts admitted by the defendant and which gave
B rise to the two charges were that at night-time on 17 March B
2010, the marine police spotted a suspicious motorised sampan
C C
near Shek O. When the marine police approached the sampan, the
sampan tried to escape. A chase then ensued but after about
D D
20 minutes, the sampan was intercepted. The defendant, his
E assistant and one unauthorised entrant were found on board the E
sampan.
F F
3. Under caution, the defendant admitted that he was the
G G
captain of the sampan and that he knew the unauthorised entrant
did not possess any valid travel document.
H H
I
4. The sampan used by the defendant was, upon I
examination, found to be unseaworthy as there were no fire-
J fighting appliances, no navigation light and insufficient life- J
saving appliances on the sampan.
K K
5. The defendant is now aged 27. It was said that he had
L L
been a fisherman for many years. He is married and has three
children who are aged between 3 to 5. Before he was arrested in
M M
Hong Kong, he lived with his parents and his wife and children
N Shanmei. The defendant was the breadwinner of the family and N
supported his parents as well. His mother suffers from a heart
O problem and has to receive regular medical treatments. O
P P
6. In mitigation, it was said that the defendant is very
depressed and worried, as he has got the news that his wife
Q Q
might petition for a divorce in view of his imprisonment.
R R
7. It was also said on his behalf that the sampan was not
S overloaded, as there was only one unauthorised entrant on board S
and that this unauthorised entrant was an adult male instead of
T T
a pregnant female.
U U
CRT23/15.6.2010/ML 2 DCCC512/2010/Sentence
V V
A 8. Further, it was said that although the sampan had A
insufficient life-saving appliances, there were two lifesaving
B jackets on board. B
C C
9. Mr Tse, for the defendant, therefore asked this court
to impose as lenient a sentence on the defendant as possible,
D D
given his pleas and that he was merely used by others to commit
E the present offences. E
F 10. The Court has said time and again that a defendant’s F
personal predicament is generally not a mitigating factor, for
G G
the defendant should have seriously thought about that before
committing the offence.
H H
I
11. Further, the absence of aggravating factors like I
heavily pregnant women on board, like overloading the vessel,
J etc., cannot be turned into mitigating factors. If those J
aggravating factors were present, the Court would no doubt deal
K with the defendant more severely. K
L L
12. In the present case, I find that apart from the
defendant’s pleas, there are no other mitigating factors.
M M
N 13. For the assisting passage charge, the 1st charge, N
after considering the facts of this case, including that the
O defendant was the captain or the person in charge of the sampan, O
that the sampan was unseaworthy, and that there was a chase
P P
before the sampan was intercepted, I consider a starting point
of 6 years to be appropriate. (See, for example, HKSAR v Wong
Q Q
Chi Kin, CACC357/2004, unreported, and HKSAR v Yeung Wui and
R Others [2005] 1 HKC 646.) R
S 14. The defendant is entitled to the reduction for his S
plea, so he is to serve a term of 4 years’ imprisonment.
T T
U U
CRT23/15.6.2010/ML 3 DCCC512/2010/Sentence
V V
A 15. For the endangering charge, the 2nd charge, I am going A
to adopt a starting point of 18 months.
B B
16. Again, the defendant will be given a one-third
C C
reduction for his plea. He is therefore to serve a term of
12 months’ imprisonment.
D D
E 17. In AG v Chan Siu Yun [1995] 2 HKCLR 223 and HKSAR v E
Sze Yu, CACC143/2003, unreported, it was said that a consecutive
F sentence should be imposed where a defendant was charged with F
the offence of endangering the safety of others at sea, in
G G
addition to the offence of assisting passage.
H H
18. In the present case, after considering the totality
I
principle, I order that only 2 months of the 12-month term I
imposed in respect of the 2nd charge are to run consecutively to
J the term of 4 years imposed in respect of the 1st charge, making J
a total of 50 months’ imprisonment.
K K
19. Defendant, stand up. You are therefore to serve a term
L L
of 50 months’ imprisonment.
M M
N N
O (Anthea Pang) O
District Judge
P P
Q Q
R R
S S
T T
U U
CRT23/15.6.2010/ML 4 DCCC512/2010/Sentence
V V