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DCCC 1185/2010
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 1185 OF 2010 D
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E HKSAR E
v
F F
HU Guangqiu
G ____________ G
H
Before: Deputy District Judge Dufton H
Date: 14 December 2010
I Present: Miss Jennifer Fok, Public Prosecutor, for HKSAR I
Mr Solomon Chong of Messrs Solomon C. Chong & Co.
J assigned by the Director of Legal Aid, for the defendant J
Offence: Assisting the passage to Hong Kong of a conveyance which
K carried unauthorised entrants K
(協助載有未獲授權進境者的運輸工具前來香港的旅程)
L REASONS FOR SENTENCE L
M M
1. The defendant pleads guilty to one charge of assisting the passage
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to Hong Kong of a conveyance which carried unauthorized entrants, N
contrary to section 37D(1)(a) of the Immigration Ordinance, Chapter 115.
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2. At about 03:30 hours on the 6th September this year the police P
saw from the radar a vessel travelling to the Southwest of Lantau Island.
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Five minutes later police officers on board PV85 spotted a wooden
R fishing vessel with no lights on. When PV85 approached the fishing R
vessel and put on the flash light, the fishing vessel immediately changed
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course, accelerated and sailed away. The vessel was intercepted within
T five minutes by PV85. The defendant, who was the coxswain, and five T
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passengers were found on board the vessel. All six of them were
C confirmed to be unauthorized entrants. C
D D
3. I am satisfied the correct starting point after trial where a
E
defendant is in charge of a vessel in which unauthorized entrants are E
being carried is 5 years imprisonment (see R v WONG Yin-lung [1995] 1
F F
HKCLR 151 as applied in HKSAR v TSUI Kwong-ming CACC
G 247/2004 and HKSAR v WONG Chi-kin CACC 357/2004). The starting G
point should be increased if there is evidence that the vessel was not in a
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seaworthy condition.
I I
4. In passing sentence I have carefully considered everything said
J on the defendant’s behalf by Mr Chong, in particular that the defendant J
has clear record in Hong Kong and that he committed the offence to earn
K K
money to pay for the medical fees of his mother, who is going blind.
L I have also considered Mr Chong’s submission that the starting point L
should not be increased because of the condition of the fishing vessel by
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reason of the fact no hazard actually occurred and that standards in the
N Mainland are not as high as in Hong Kong. N
O O
5. In the recent case of HKSAR v TSE Chi-hei CACC 393/2009 the
P Court of Appeal said that unless there are extremely unusual reasons the P
starting point with such aggravating features should not be higher than
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6 years imprisonment. In that case the aggravating features showing the
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fishing vessel was not seaworthy were that the hull was in poor condition;
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there were no fire-fighting or life-saving appliances and the vessel was S
not equipped with navigation light for night time navigation. The Court
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of Appeal, taking into account these aggravating features; that there were
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12 illegal immigrants on board and that the appellant had no previous
C convictions in Hong Kong, held that a starting point of 6 years was C
adequate.
D D
E
6. The condition of the wooden fishing vessel could be described as E
similar to that in TSE Chi-hei. Inspection of the fishing vessel revealed
F F
that the general condition of the hull was very poor; the condition of the
G inboard engine was poor; there was no fire fighting appliance; there were G
not enough life saving appliances on board, only one life jacket and there
H H
was not enough navigation light fitted on board for night operation.
I There is however no evidence that the fishing vessel ran the risk of I
sinking in the journey. Taking into account the poor condition of the
J J
vessel and that the number of illegal entrants was less than in TSE Chi-
K hei I am satisfied the proper starting point is 5 years and 9 months K
imprisonment.
L L
M 7. Giving the defendant full credit for his plea of guilty he is M
sentenced to 3 years and 10 months imprisonment.
N N
O O
P P
(D. J. DUFTON)
Deputy District Judge
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