DCCC838/2010 HKSAR v. LEE WAH CHUN AND OTHERS - LawHero
DCCC838/2010
HKSAR v. LEE WAH CHUN AND OTHERS
區域法院（刑事）Deputy District Judge G. Lam9/9/2010
DCCC838/2010
A A
DCCC838/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 838 OF 2010 C
D
---------------------- D
HKSAR
E E
v.
F LEE Wah-chun(D1) F
WAI Man-ping (D2)
G WAI Ching-hung (D3) G
----------------------
H H
Before: Deputy District Judge G. Lam
Date: 10 September 2010 at 2.58 pm
I Present: Ms Monica Chan, PP, of the Department of Justice, for I
HKSAR
J Mr Tong Yee Chun, of Messrs Raymond Chan, Kenneth Yuen J
& Co., assigned by the Director of Legal Aid, for the
1st Defendant
K Mr Tang Kim Fung, of Messrs Tang Leung Li & Tsang, K
assigned by the Director of Legal Aid, for the 2nd
Defendant
L L
Mr Charles Wong, of Messrs Charles Wong & Co, assigned
by the Director of Legal Aid, for the 3rd Defendant
M Offence: (1) Assisting the passage to Hong Kong of a conveyance M
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)
N N
(2) Assisting the passage within Hong Kong of a
conveyance which carried unauthorized entrants (協
O 助載有未獲授權進境者的運輸工具在香港境內的旅程) O
---------------------
P P
Reasons for Sentence
Q Q
---------------------
R R
1. D1 to D3 are jointly charged with 2 offences of
S "Assisting the passage to/within Hong Kong of a conveyance which S
carried unauthorized entrants" (Charges 1 and 2). They each
T pleaded guilty to both charges. T
U U
1 DCCC838/2010/Sentence
V V
A A
Summary of Facts
2. About 11:55 pm on 19 June 2010, police officers on
B B
board of Police Vessel PV37 intercepted a motorized wooden
C sampan ("V1") near Fan Lau Kok (at the west tip of Lantau Island) C
and found D1 on board. After inquiry, D1 was arrested for being
D an illegal immigrant. D
E E
3. About 12:10 am on 20 June 2010, police officers on
F board of Police Vessel PV85 saw a smaller motorized sampan ("V2") F
moving in a westerly direction from Fan Lau Kok. PV85 signalled
G V2 to stop but it did not obey. Upon approaching shore, D2 and G
D3 jumped overboard and disappeared. V2 was intercepted. The 8
H H
Chinese unauthorized entrants named in Charge 2 (UE4 to UE11)
and 7 Chinese overstayers were found on board of V2. This is
I I
Charge 2.
J J
4. Following the interception of V2, the Police searched
K K
for illegal immigrants in the vicinity of Shek Lau Po Tsuen (on
Lantau Island near Tung Chung). The 3 Chinese female
L L
unauthorized entrants named in Charge 1 (UE1 to UE3) were
M intercepted at 2:20 am when they were taking a taxi. M
N N
5. About 5:00 pm on the same day, police officers
arrested D2 and D3 at the beach near Tai Long Wan Tsuen (on
O O
Lantau Island near Shek Pik).
P P
6. Subsequently, UE1 to UE11 were found to be
Q Q
"unauthorized entrants" as defined in section 37A of the
Immigration Ordinance (Cap.115).
R R
S 7. D1 admitted under caution that in the evening on 19 S
June 2010, he and 2 males named "Ah Pang" and "Ah Ping" smuggled
T T
3 females from Zhuhai to Hong Kong using V1 (Charge 1). They
were then supposed to convey another group of people from Hong
U U
Kong to Zhuhai (Charge 2). Ah Ping agreed to pay him RMB500 as a
2 DCCC838/2010/Sentence
V V
A A
reward. After V1 had reached Hong Kong waters, Ah Ping asked the
3 females to board V2. Ah Ping and Ah Pang also boarded V2 to
B B
take the females ashore. D1 was asked to wait on V1 for their
C return. He does not have any licence to operate a sampan. C
D D
8. D2 admitted under caution that in the evening on 19
June 2010, his boss asked him to smuggle people from the
E E
mainland to Hong Kong and then from Hong Kong back to the
F mainland for a reward of RMB200 per head. D2 agreed. D2, D3 and F
a young man aged about 16 boarded V1 with V2 being towed at V1's
G rear. After V1 had reached Hong Kong waters, D2, D3 and 3 G
females boarded V2 to go ashore whilst the young man waited on
H H
V1 (Charge 1). After the 3 females had landed, 10 odd persons
boarded V2. D2 covered them with a canvas. After travelling for
I I
about 10 minutes, V2 was detected by the Hong Kong Police
J (Charge 2). He and D3 jumped into the sea and swam to the shore. J
D2 knew that the 3 females and the 10 odd persons were illegal
K immigrants. He does not have any licence to operate a sampan. K
L L
9. D3 admitted under caution that on 19 June 2010, he, D2
M and Ah Wah operated V1 to convey 3 females from Zhuhai to Hong M
Kong. After a 3-hour journey, he and D2 took the 3 females to
N board V2 to go ashore. He sat at the bow and D2 steered at the N
stern (Charge 1). Ah Wah was asked to wait on V1. After the 3
O O
females had landed, 10 odd persons boarded V2. D2 asked D3 to
cover them with a canvas. After travelling for about 10 minutes,
P P
V2 was detected by the Hong Kong Police (Charge 2). He and D2
Q
jumped into the sea and swam to the shore. D3 does not have any Q
licence to operate a sampan.
R R
10. A Senior Ship Inspector examined V1 and V2. He
S S
concluded that both vessels were unseaworthy since the main hull
T
structure was in poor condition; no fire fighting or life saving T
appliances were equipped on board; and no navigation light was
U fitted on board. U
3 DCCC838/2010/Sentence
V V
A A
Mitigation & Sentence
11. D1 to D3 are all mainland residents and each has a
B B
clear record in Hong Kong.
C C
12. D1 is now 17. He was 16 at the time of the offences.
D D
He received education up to Primary 4 and used to be a fisherman
together with his father. Mr. TONG submitted that D1 has not
E E
received his reward. Everyone has arrived at Hong Kong safely in
F the 1st journey. Regarding Charge 2, D1 was merely waiting on V1, F
the voyage back to the mainland had not yet commenced. He was
G cooperative and made frank admissions. The contents of the 4 G
mitigation letters are noted.
H H
I 13. D2 is now 31. Prior to his arrest, he worked as a I
construction worker in Zhuhai earning RMB2,000 per month. Mr.
J TANG adopted D1's mitigation and added that D2's mother is J
suffering from lung cancer and cataract. He needed money to pay
K K
for her medical expenses. D2 was also cooperative and made full
and frank admissions. The contents of D2's mitigation letter are
L L
noted.
M M
14. D3 is now 29. He and D2 came from the same hometown to
N N
work as construction workers in Zhuhai, but they are not related.
Mr. WONG submitted that D3 is separated with his wife. He has 2
O O
sons (aged 5 and 3) living with his mother in Guizhou. D3 needs
P to send money home to support them. He was cooperative and made P
frank admissions right after his arrest.
Q Q
15. In respect of sentencing principles and guidelines,
R R
the Court of Appeal's decision in HKSAR v WONG Chi Kin and KO
S King Hung CACC 357 & 410/2004 is of direct relevance. Woo V-P S
reiterated all the previous guideline cases and held that the
T generally applicable tariff is 4 years imprisonment. Where the T
accused was the captain of the vessel or the person in charge or
U U
4 DCCC838/2010/Sentence
V V
A A
assisting in the operation of the organization of the venture,
the appropriate starting point is 5 years imprisonment 1.
B B
C 16. In determining the roles played by D1 to D3, I bear in C
mind the comments made by the late Power V-P in The Queen v WONG
D D
Yin-lung [1995] 1 HKCLR 151 :
E "Normally in charges of this kind the particulars of E
the offence refer to all those operating the vessel,
F F
including the person in charge of the vessel, as crew
members. It is only rarely, and then in the case of
G G
substantial vessels, that one of them is referred to in
H the particulars as the captain." (p.153, lines 8 to 10) H
I
His Lordship then elaborated on the applicability of the 5-year I
and 4-year starting point :
J J
"The five year starting point and the accretions for
K aggravating circumstances have application to the K
captain or person in charge of a vessel. If the persons
L employed on a vessel are charged with being 'members of L
the crew' but the facts reveal that one is the person in
M M
charge, that being admitted, the five year starting
point is appropriate for him as are the accretions if
N N
applicable. The starting point will apply also to crew
O
members and others who have taken an active part in the O
organization of the venture but the accretions will not
P unless it be shown that they were in some way actively P
involved in the circumstances of aggravation.
Q Defendants not infrequently suggest to the court that Q
they are not crew members but are on board only for the
R R
purpose of collecting money for the real snake head.
Again for such persons five years is the appropriate
S S
starting point.
T T
Four years is the appropriate starting point for a
person who can be described as a crew member simpliciter,
U U
1
See paragraph 12 of the judgment.
5 DCCC838/2010/Sentence
V V
A A
i.e. a person who has taken no part in the organization
of the illicit venture and is simply assisting in the
B B
operation of the vessel pursuant to the orders of the
C captain or person in charge. (See The Queen v. Chan C
Kwok-keung & another [1988] 1 HKLR 279). (p.153, lines
D 17 to 30) D
E E
17. I note that the size of V1 and V2 are small. For
F vessels like V1 and V2 and based on the evidence before me, it F
would be artificial and arbitrary to determine who the captain
G or person-in-charge was. Although D2 and D3 were obviously more G
in command than D1 was throughout the course of the events, for
H H
the purpose of sentencing, I will treat them all as crew members.
I I
18. On this basis, for each defendant and for each charge,
J I adopt a starting point of 4 years imprisonment. One-third J
discount is given for the guilty pleas, reducing the sentence
K K
for each charge to 32 months. For D1, I will give a small credit
for his young age by further reducing his sentence for each
L L
charge by 2 months. For D2 and D3, who have both played a more
M leading role, I see no other mitigating factors which warrant M
any further reduction. Thus, for each charge, D1 is sentenced to
N 2.5 years imprisonment, whereas D2 and D3, 2 years and 8 months. N
O O
19. In respect of totality, Charges 1 and 2 clearly
P involve 2 separate and distinct journeys and 2 different groups P
of unauthorized entrants. In principle, the sentences for both
Q charges should run consecutive to each other. However, since the Q
journey in Charge 2 has barely commenced, I consider it fair
R R
that only a small portion of the sentence for Charge 2 should be
served consecutive to Charge 1.
S S
T 20. Hence, for each defendant, I order 6 months in Charge T
2 to run consecutive to Charge 1. In other words, the total
U U
6 DCCC838/2010/Sentence
V V
A A
prison term for D1 is 3 years, whereas D2 and D3, 3 years and 2
months.
B B
C C
D D
(G. Lam)
E E
Deputy District Judge
F F
G G
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
7 DCCC838/2010/Sentence
V V
A A
DCCC838/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 838 OF 2010 C
D
---------------------- D
HKSAR
E E
v.
F LEE Wah-chun(D1) F
WAI Man-ping (D2)
G WAI Ching-hung (D3) G
----------------------
H H
Before: Deputy District Judge G. Lam
Date: 10 September 2010 at 2.58 pm
I Present: Ms Monica Chan, PP, of the Department of Justice, for I
HKSAR
J Mr Tong Yee Chun, of Messrs Raymond Chan, Kenneth Yuen J
& Co., assigned by the Director of Legal Aid, for the
1st Defendant
K Mr Tang Kim Fung, of Messrs Tang Leung Li & Tsang, K
assigned by the Director of Legal Aid, for the 2nd
Defendant
L L
Mr Charles Wong, of Messrs Charles Wong & Co, assigned
by the Director of Legal Aid, for the 3rd Defendant
M Offence: (1) Assisting the passage to Hong Kong of a conveyance M
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)
N N
(2) Assisting the passage within Hong Kong of a
conveyance which carried unauthorized entrants (協
O 助載有未獲授權進境者的運輸工具在香港境內的旅程) O
---------------------
P P
Reasons for Sentence
Q Q
---------------------
R R
1. D1 to D3 are jointly charged with 2 offences of
S "Assisting the passage to/within Hong Kong of a conveyance which S
carried unauthorized entrants" (Charges 1 and 2). They each
T pleaded guilty to both charges. T
U U
1 DCCC838/2010/Sentence
V V
A A
Summary of Facts
2. About 11:55 pm on 19 June 2010, police officers on
B B
board of Police Vessel PV37 intercepted a motorized wooden
C sampan ("V1") near Fan Lau Kok (at the west tip of Lantau Island) C
and found D1 on board. After inquiry, D1 was arrested for being
D an illegal immigrant. D
E E
3. About 12:10 am on 20 June 2010, police officers on
F board of Police Vessel PV85 saw a smaller motorized sampan ("V2") F
moving in a westerly direction from Fan Lau Kok. PV85 signalled
G V2 to stop but it did not obey. Upon approaching shore, D2 and G
D3 jumped overboard and disappeared. V2 was intercepted. The 8
H H
Chinese unauthorized entrants named in Charge 2 (UE4 to UE11)
and 7 Chinese overstayers were found on board of V2. This is
I I
Charge 2.
J J
4. Following the interception of V2, the Police searched
K K
for illegal immigrants in the vicinity of Shek Lau Po Tsuen (on
Lantau Island near Tung Chung). The 3 Chinese female
L L
unauthorized entrants named in Charge 1 (UE1 to UE3) were
M intercepted at 2:20 am when they were taking a taxi. M
N N
5. About 5:00 pm on the same day, police officers
arrested D2 and D3 at the beach near Tai Long Wan Tsuen (on
O O
Lantau Island near Shek Pik).
P P
6. Subsequently, UE1 to UE11 were found to be
Q Q
"unauthorized entrants" as defined in section 37A of the
Immigration Ordinance (Cap.115).
R R
S 7. D1 admitted under caution that in the evening on 19 S
June 2010, he and 2 males named "Ah Pang" and "Ah Ping" smuggled
T T
3 females from Zhuhai to Hong Kong using V1 (Charge 1). They
were then supposed to convey another group of people from Hong
U U
Kong to Zhuhai (Charge 2). Ah Ping agreed to pay him RMB500 as a
2 DCCC838/2010/Sentence
V V
A A
reward. After V1 had reached Hong Kong waters, Ah Ping asked the
3 females to board V2. Ah Ping and Ah Pang also boarded V2 to
B B
take the females ashore. D1 was asked to wait on V1 for their
C return. He does not have any licence to operate a sampan. C
D D
8. D2 admitted under caution that in the evening on 19
June 2010, his boss asked him to smuggle people from the
E E
mainland to Hong Kong and then from Hong Kong back to the
F mainland for a reward of RMB200 per head. D2 agreed. D2, D3 and F
a young man aged about 16 boarded V1 with V2 being towed at V1's
G rear. After V1 had reached Hong Kong waters, D2, D3 and 3 G
females boarded V2 to go ashore whilst the young man waited on
H H
V1 (Charge 1). After the 3 females had landed, 10 odd persons
boarded V2. D2 covered them with a canvas. After travelling for
I I
about 10 minutes, V2 was detected by the Hong Kong Police
J (Charge 2). He and D3 jumped into the sea and swam to the shore. J
D2 knew that the 3 females and the 10 odd persons were illegal
K immigrants. He does not have any licence to operate a sampan. K
L L
9. D3 admitted under caution that on 19 June 2010, he, D2
M and Ah Wah operated V1 to convey 3 females from Zhuhai to Hong M
Kong. After a 3-hour journey, he and D2 took the 3 females to
N board V2 to go ashore. He sat at the bow and D2 steered at the N
stern (Charge 1). Ah Wah was asked to wait on V1. After the 3
O O
females had landed, 10 odd persons boarded V2. D2 asked D3 to
cover them with a canvas. After travelling for about 10 minutes,
P P
V2 was detected by the Hong Kong Police (Charge 2). He and D2
Q
jumped into the sea and swam to the shore. D3 does not have any Q
licence to operate a sampan.
R R
10. A Senior Ship Inspector examined V1 and V2. He
S S
concluded that both vessels were unseaworthy since the main hull
T
structure was in poor condition; no fire fighting or life saving T
appliances were equipped on board; and no navigation light was
U fitted on board. U
3 DCCC838/2010/Sentence
V V
A A
Mitigation & Sentence
11. D1 to D3 are all mainland residents and each has a
B B
clear record in Hong Kong.
C C
12. D1 is now 17. He was 16 at the time of the offences.
D D
He received education up to Primary 4 and used to be a fisherman
together with his father. Mr. TONG submitted that D1 has not
E E
received his reward. Everyone has arrived at Hong Kong safely in
F the 1st journey. Regarding Charge 2, D1 was merely waiting on V1, F
the voyage back to the mainland had not yet commenced. He was
G cooperative and made frank admissions. The contents of the 4 G
mitigation letters are noted.
H H
I 13. D2 is now 31. Prior to his arrest, he worked as a I
construction worker in Zhuhai earning RMB2,000 per month. Mr.
J TANG adopted D1's mitigation and added that D2's mother is J
suffering from lung cancer and cataract. He needed money to pay
K K
for her medical expenses. D2 was also cooperative and made full
and frank admissions. The contents of D2's mitigation letter are
L L
noted.
M M
14. D3 is now 29. He and D2 came from the same hometown to
N N
work as construction workers in Zhuhai, but they are not related.
Mr. WONG submitted that D3 is separated with his wife. He has 2
O O
sons (aged 5 and 3) living with his mother in Guizhou. D3 needs
P to send money home to support them. He was cooperative and made P
frank admissions right after his arrest.
Q Q
15. In respect of sentencing principles and guidelines,
R R
the Court of Appeal's decision in HKSAR v WONG Chi Kin and KO
S King Hung CACC 357 & 410/2004 is of direct relevance. Woo V-P S
reiterated all the previous guideline cases and held that the
T generally applicable tariff is 4 years imprisonment. Where the T
accused was the captain of the vessel or the person in charge or
U U
4 DCCC838/2010/Sentence
V V
A A
assisting in the operation of the organization of the venture,
the appropriate starting point is 5 years imprisonment 1.
B B
C 16. In determining the roles played by D1 to D3, I bear in C
mind the comments made by the late Power V-P in The Queen v WONG
D D
Yin-lung [1995] 1 HKCLR 151 :
E "Normally in charges of this kind the particulars of E
the offence refer to all those operating the vessel,
F F
including the person in charge of the vessel, as crew
members. It is only rarely, and then in the case of
G G
substantial vessels, that one of them is referred to in
H the particulars as the captain." (p.153, lines 8 to 10) H
I
His Lordship then elaborated on the applicability of the 5-year I
and 4-year starting point :
J J
"The five year starting point and the accretions for
K aggravating circumstances have application to the K
captain or person in charge of a vessel. If the persons
L employed on a vessel are charged with being 'members of L
the crew' but the facts reveal that one is the person in
M M
charge, that being admitted, the five year starting
point is appropriate for him as are the accretions if
N N
applicable. The starting point will apply also to crew
O
members and others who have taken an active part in the O
organization of the venture but the accretions will not
P unless it be shown that they were in some way actively P
involved in the circumstances of aggravation.
Q Defendants not infrequently suggest to the court that Q
they are not crew members but are on board only for the
R R
purpose of collecting money for the real snake head.
Again for such persons five years is the appropriate
S S
starting point.
T T
Four years is the appropriate starting point for a
person who can be described as a crew member simpliciter,
U U
1
See paragraph 12 of the judgment.
5 DCCC838/2010/Sentence
V V
A A
i.e. a person who has taken no part in the organization
of the illicit venture and is simply assisting in the
B B
operation of the vessel pursuant to the orders of the
C captain or person in charge. (See The Queen v. Chan C
Kwok-keung & another [1988] 1 HKLR 279). (p.153, lines
D 17 to 30) D
E E
17. I note that the size of V1 and V2 are small. For
F vessels like V1 and V2 and based on the evidence before me, it F
would be artificial and arbitrary to determine who the captain
G or person-in-charge was. Although D2 and D3 were obviously more G
in command than D1 was throughout the course of the events, for
H H
the purpose of sentencing, I will treat them all as crew members.
I I
18. On this basis, for each defendant and for each charge,
J I adopt a starting point of 4 years imprisonment. One-third J
discount is given for the guilty pleas, reducing the sentence
K K
for each charge to 32 months. For D1, I will give a small credit
for his young age by further reducing his sentence for each
L L
charge by 2 months. For D2 and D3, who have both played a more
M leading role, I see no other mitigating factors which warrant M
any further reduction. Thus, for each charge, D1 is sentenced to
N 2.5 years imprisonment, whereas D2 and D3, 2 years and 8 months. N
O O
19. In respect of totality, Charges 1 and 2 clearly
P involve 2 separate and distinct journeys and 2 different groups P
of unauthorized entrants. In principle, the sentences for both
Q charges should run consecutive to each other. However, since the Q
journey in Charge 2 has barely commenced, I consider it fair
R R
that only a small portion of the sentence for Charge 2 should be
served consecutive to Charge 1.
S S
T 20. Hence, for each defendant, I order 6 months in Charge T
2 to run consecutive to Charge 1. In other words, the total
U U
6 DCCC838/2010/Sentence
V V
A A
prison term for D1 is 3 years, whereas D2 and D3, 3 years and 2
months.
B B
C C
D D
(G. Lam)
E E
Deputy District Judge
F F
G G
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
7 DCCC838/2010/Sentence
V V