A A
DCCC548/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 548 OF 2010
C C
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D D
HKSAR
E v. E
Li Chuan
F F
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G G
Before: Deputy District Judge Woodcock
Date: 24 June 2010 at 3.49 pm
H Present: Mr Cheung Man-kwan, Bobby, PP of the Department of H
Justice, for HKSAR
Mr Mui Moosdeen Azmat of Messrs A M Mui & Kwan,
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 unauthorized 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
N N
1. Defendant has pleaded guilty to one charge of
assisting the passage to Hong Kong of a conveyance which carried
O O
unauthorised entrants, contrary to section 37D(1)(a) of the
P Immigration Ordinance, Cap. 115. This offence carries a maximum P
sentence of 14 years’ imprisonment and a $5 million fine.
Q Q
2. The facts of this case are very straightforward.
R Defendant was a coxswain of a wooden vessel seen in Hong Kong R
waters and followed for a period of time. Marine police, off
S S
Lantau, then intercepted this vessel. There was no chase
necessary. The defendant surrendered and gave up immediately.
T T
There is no challenge that the defendant was the person in
U charge of this vessel, the coxswain. On board the marine police U
CRT5/24.6.2010/NB 1 DCCC548/2010/Sentence
V V
A A
found seven Chinese males, all unauthorised entrants. I have no
evidence of their age or whether or not they were able- bodied
B B
men. The defendant admitted the offence to the police and told
C the police he was offered RMB300 to drive the vessel from the C
mainland to Hong Kong.
D D
3. Defendant is a fisherman by profession, is educated to
E E
Primary 6 level, married, with two teenagers. His children, wife
and his bed-bound elderly father all rely on him financially.
F F
His income is obviously tight, which is why RMB300 tempted him
G to commit this offence. There is no evidence that the defendant G
was the mastermind, and often the coxswain is not the
H mastermind. But still these seven men would not have been able H
to come into Hong Kong waters without the defendant.
I I
4. Defence counsel has prepared a written mitigation and
J J
a list of authorities to assist the court in sentence. From
K
authorities it is clear that where a defendant is in charge of K
the vessel an appropriate starting point would be 5 years'
L imprisonment. I have read mitigation of counsel and the L
authorities helpfully submitted, and I have referred myself also
M to the authority of HKSAR v Wong Chi Kin, a Court of Appeal M
authority, CACC357/2004. And I will quote from authority. Vice
N N
President Woo said at paragraph 12:
O O
“Where the accused was the captain of the vessel, or
the person in charge, or assisting in the operation of
P the organisation of the venture, the appropriate P
starting point is 5 years’ imprisonment: R v Wong Yiu
Q Lung [1995], as well as the R v Pang Wing [1996]. The Q
following situations will be considered as aggravating
factors increasing the sentence from the 5 year
R starting point in respect of the person in charge of R
the vessel or of the one who was in some way actively
involved in the circumstances of the aggravation:”
S S
5. Vice President Woo sets out five such situations. I am
T T
only concerned with the second, and I will quote:
U U
CRT5/24.6.2010/NB 2 DCCC548/2010/Sentence
V V
A A
(b) The vessel concerned was unseaworthy by reason of
poor maintenance or age, with the risk of endangering
B B
the passengers: also see Ng Kit Yuen, at page 174, and
C HKSAR v Tsui Kwong Ming, CACC247/2004. C
D 6. There is only one factor in the facts today that D
caused me concern, and that is the seaworthy of this wooden
E E
vessel. The defendant does not challenge the vessel’s
seaworthiness is questionable, and I am sure this is due to the
F F
fact that the ship inspector of the marine department, Mr Lau
G Hi-kwai examined the vessel and made certain findings, including G
the watertight integrity and the general condition of the hull
H was very poor. He also commented on the engine, lack of H
navigational lights, fire-fighting equipment and life saving
I I
appliances.
J J
7. However, at the time that the vessel was stopped by
K
the police there was no evidence of any imminent danger to the K
passengers on board, and I will take that into account. I will
L also take into account mitigation put forward, the facts of this L
case and the authorities referred to.
M M
8. Defendant, please stand up. I will take a starting
N N
point of 5 years, but I do find that there is an aggravating
factor that will lead me to consider a higher starting point.
O O
This aggravating factor, I repeat, is the unseaworthiness of
P this vessel. For this aggravating factor I will add 6 months to P
the 5-year starting point. The defendant is entitled to a
Q discount of one-third for his plea of guilty. That would be a Q
discount of 22 months' imprisonment.
R R
9. For this offence the defendant is sentenced to 3 years
S S
and 8 months’ imprisonment.
T T
U
A. J. Woodcock U
Deputy District Judge
CRT5/24.6.2010/NB 3 DCCC548/2010/Sentence
V V