A A
DCCC656/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 656 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Lee Wai-tak
F F
----------------------
G G
Before: Deputy District Judge A. Kwok
Date: 31 August 2011 at 10.43 am
H Present: Mr Alvin Chui, PP of the Department of Justice, for H
HKSAR
Miss Money Lo, instructed by Messrs Tsang, Chan & Woo,
I assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) Arranging the passage to Hong Kong of a conveyance J
which carried unauthorized entrants (安排載有未獲授權
進境者的運輸工具前來香港的旅程)
K (2) Failing to comply with the direction given by a K
member of the Customs and Excise Service (不遵從海關
L 人員作出的指示) L
---------------------
M M
Reasons for Sentence
N N
---------------------
O O
1. The defendant came before me and pleaded guilty to two
P charges, namely “arranging the passage to Hong Kong of a P
conveyance which carried unauthorized entrants”, contrary to
Q section 37D(1)(a) of the Immigration Ordinance(Cap.115); and Q
“failing to comply with the direction given by a member of the
R R
Customs and Excise Service”, contrary to section 26(1)(b) of the
Import and Export Ordinance (Cap 60).
S S
T Summary of Facts T
2. The unauthorized entrants in relation to the
U 1st charge are two mainlanders and one Vietnamese (“the three U
CRT35/31.8.2011/SC 1 DCCC656/2011/Sentence
V V
A A
illegal immigrants”) and they have no right of abode in
Hong Kong.
B B
C 3. According to the facts, at about 4 pm on 4 May this C
year, when the defendant was driving a medium goods vehicle
D bearing registration number MM 6508 (the “vehicle”) in Shenzhen D
and he stopped it near the Huanggang Control Point waiting for
E E
custom clearance, the three illegal immigrants approached the
vehicle and asked the defendant to drive them to Hong Kong. They
F F
promised to pay to the defendant each RMB$1,000. Defendant
G agreed to the proposal and let them enter the compartment of the G
vehicle and the vehicle then headed to the direction of
H Hong Kong. H
I I
4. At about 4.55 pm, the vehicle entered Hong Kong via
Lok Ma Chau Control Point. Later, when it arrived at the customs
J J
arrival kiosk No. 12 at the control point, a custom officer
K
instructed the defendant to go to the Inbound Cargo Examination K
Building for further inspection. Defendant, however, did not
L comply with PW1’s instructions after he passed the kiosk and L
drove away instead from the Lok Ma Chau Control Point and headed
M to the direction of Tsuen Wan. M
N N
5. Two Custom officers, one driving a private vehicle and
one driving a motorbike then gave chase immediately. At the time
O O
during the chase, the defendant drove the vehicle very
P dangerously. One of the Custom officers did sound the horn of P
his motorbike and signal the defendant to stop by raising his
Q hands when at one point both vehicles were parallel to each Q
other. However, the defendant still ignored the signal and
R R
continued to flee.
S S
6. The defendant also accepted that during the chase, he
T drove the vehicle at a high speed. For some distance, the T
vehicle was travelling at a speed of about 130 kilometres per
U hour. He also kept changing lanes and overtaking in order to U
CRT35/31.8.2011/SC 2 DCCC656/2011/Sentence
V V
A A
escape. There were two occasions where the vehicle entered the
opposite lane even in order to overtake. Finally, a police
B B
motorbike driven by a sergeant joined the chase, and eventually
C was the vehicle intercepted near Sham Tseng. C
D 7. After the defendant was stopped, he admitted that he D
knew that the vehicle had to be inspected and the vehicle was at
E E
that time carrying three illegal immigrants. The three illegal
immigrants were later found hiding inside the compartment of the
F F
vehicle, and the defendant was arrested.
G G
8. In the interviews with the Custom and Excise
H Department, the defendant admitted the offence. H
I I
Record and the Background of the Defendant
9. The defendant in the past was brought to the court
J J
three times. Two are in relation to drug records, and the first
K
one is about theft and shoplifting. He has been sentenced to K
DATC but those records were a long time ago and the last being
L 1997. He was a professional lorry driver since then and he has L
been working for different logistics companies. This morning, I
M was shown the statement from the owner of the transportation M
company confirming that at the time when the offence took place,
N N
the defendant was in fact under the instructions to transport
mobile phone from China to Hong Kong.
O O
P 10. The defendant is married and the wife and the daughter P
resided in China. Unfortunately, his wife had a brain tumour two
Q or three years ago and for this disease, the wife had to undergo Q
an operation in the mainland and huge medical expenses were
R R
incurred and therefore there is a heavy debt involved.
S S
11. Today, the wife and the daughter are in court to
T support the defendant. I was told that they have since moved T
back to Hong Kong in order to visit the defendant more often.
U U
CRT35/31.8.2011/SC 3 DCCC656/2011/Sentence
V V
A A
The wife also started to work in Hong Kong as a waitress in
order to support the family.
B B
C 12. I was also shown letters written by the defendant and C
the defendant’s wife by Miss Lo, counsel of the defendant. I am
D not going to refer to the content of the two letters. Suffice it D
to say that the defendant was described as a responsible husband
E E
and a caring father. Defendant himself is very remorseful and he
is sorry for what he has done because of the greed. Both the
F F
defendant and the wife urge the court to exercise mercy to pass
G a lenient sentence, if possible, so that the family can get back G
together soon.
H H
Sentencing Consideration
I I
13. This is a serious offence. Usually, the court is
dealing with cases for conveying unauthorized entrants to
J J
Hong Kong by a vessel for monetary gains. Cases involving
K
conveying this kind of unauthorized entrants or illegal K
immigrants by land is, by comparison, rare. When I approach the
L question of sentence, I bear in mind that the usual starting L
point for conveying unauthorized entrants to Hong Kong by a
M vessel for monetary gains was 4 years’ imprisonment. M
N N
14. According to the case authority in this point,
HKSAR v Tse Tse Hei CACC393/2009, the Court of Appeal had
O O
further indicated that if the defendant was the coxswain or the
P helmsman of the vessel or had taken part in the organising or P
planning the journey, the starting point would be increased to
Q 5 years. Where there were other aggravating factors such as Q
hiding the illegal immigrants where it would be difficult for
R R
them to escape in case of an emergency, the dilapidated state of
the vessel and a lack of life-saving apparatus, risking the
S S
lives of the passengers on board, or an extremely large number
T of illegal immigrants being on board, the starting point could T
be raised further.
U U
CRT35/31.8.2011/SC 4 DCCC656/2011/Sentence
V V
A A
15. However, the Court of Appeal also said in the same
judgment that even with such aggravating factors save for
B B
extremely unusual reasons, the starting point should not be
C higher than 6 years’ imprisonment. C
D 16. R v Yu Man Wai CACC160/1996 was one of those few cases D
which has been dealt with by the Court of Appeal concerning the
E E
assisting the passage to Hong Kong of conveyance carrying
unauthorized entrants by land. The defendant in that case was
F F
the driver of a lorry carrying 11 female unauthorized entrants
G and 10 of whom were pregnant. As he drove from the Chinese G
border towards the police checkpoint in Hong Kong, he was asked
H to stop. He did slow down but then drove onward at a speed to H
avoid the police check. He was pursued and he finally lost
I I
control of the vehicle and crashed against some railings and
fell into a 2-metre ditch. He then managed to run away but was
J J
eventually caught.
K K
17. In appeal, the Court of Appeal said the parallel
L between the facts of the present case and the situation where L
offenders were engaged in bringing unauthorized entrants into
M Hong Kong by boat was not an exact one but had marked M
similarities. The defendant in that case was in charge of the
N N
vehicle. It contained unauthorized entrants and he clearly put
them at risk when he acted as he did in an endeavour to evade
O O
apprehension. It was a dangerous manoeuvre which could properly
P be compared to that of a helmsman manoeuvring without proper P
care to avoid capture.
Q Q
18. The Court of Appeal went on to say that the sentencing
R R
policy had remained consistent since the early 90s. There should
not be any change in the sentencing policy even though it might
S S
be that the offence was less prevalent. A starting point of
T 5 years in the circumstances of the present case was clearly T
correct.
U U
CRT35/31.8.2011/SC 5 DCCC656/2011/Sentence
V V
A A
19. I conclude that the present case is exactly on all
fours, as far as the criminality is concerned, with the case of
B B
Yu Man Wai (surpra).
C C
20. Miss Lo, counsel for the defendant, urged me to
D consider the fact that the number of illegal immigrants involved D
in this case is much less and also there was no pregnant woman
E E
on board of the vehicle. While this observation of the facts is
clearly correct, it only serves to impress the point that there
F F
is the absence of aggravating factors in these two respects, but
G that is not the end of the matter. In my mind, there is one G
clearly aggravating factor and it is the dangerous manoeuvre of
H the vehicle by the defendant to avoid apprehension by the Custom H
officers and the police. The fact that the defendant was not
I I
separately charged with dangerous driving was something he
should consider as fortunate.
J J
K
21. That no one was seriously injured during the course of K
the manoeuvre by the defendant was almost miraculous. It might
L be that the defendant was so panicked but he was in an endeavour L
to avoid apprehension when what he could and he should have done
M was to have stopped the vehicle at once and surrendered himself. M
Because of the presence of these aggravating factors, I would
N N
increase the sentence from the starting point of 5 years by 3
months to 63 months.
O O
P 22. The Court of Appeal has said in many authorities in P
the past that when it comes to dealing with serious offences,
Q family circumstances virtually play no part in mitigation. The Q
defendant should think twice about the welfare of the family
R R
before he decided to accept the offer by the three illegal
immigrants and committed the offence. The court can also not
S S
accept economic reasons for committing offence. The only
T mitigating factor in this case is his plea of guilty, to which T
the usual one-third discount will be given.
U U
CRT35/31.8.2011/SC 6 DCCC656/2011/Sentence
V V
A A
23. For Charge 1, I will pass a sentence of 42 months’
imprisonment. For Charge 2, I would use 6 weeks as a starting
B B
point, and because of the plea, this will be reduced to 4 weeks’
C imprisonment. I finally order that the sentence of both charges C
to run concurrently.
D D
E E
F (A. Kwok) F
Deputy District Judge
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
CRT35/31.8.2011/SC 7 DCCC656/2011/Sentence
V V
A A
DCCC656/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 656 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Lee Wai-tak
F F
----------------------
G G
Before: Deputy District Judge A. Kwok
Date: 31 August 2011 at 10.43 am
H Present: Mr Alvin Chui, PP of the Department of Justice, for H
HKSAR
Miss Money Lo, instructed by Messrs Tsang, Chan & Woo,
I assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) Arranging the passage to Hong Kong of a conveyance J
which carried unauthorized entrants (安排載有未獲授權
進境者的運輸工具前來香港的旅程)
K (2) Failing to comply with the direction given by a K
member of the Customs and Excise Service (不遵從海關
L 人員作出的指示) L
---------------------
M M
Reasons for Sentence
N N
---------------------
O O
1. The defendant came before me and pleaded guilty to two
P charges, namely “arranging the passage to Hong Kong of a P
conveyance which carried unauthorized entrants”, contrary to
Q section 37D(1)(a) of the Immigration Ordinance(Cap.115); and Q
“failing to comply with the direction given by a member of the
R R
Customs and Excise Service”, contrary to section 26(1)(b) of the
Import and Export Ordinance (Cap 60).
S S
T Summary of Facts T
2. The unauthorized entrants in relation to the
U 1st charge are two mainlanders and one Vietnamese (“the three U
CRT35/31.8.2011/SC 1 DCCC656/2011/Sentence
V V
A A
illegal immigrants”) and they have no right of abode in
Hong Kong.
B B
C 3. According to the facts, at about 4 pm on 4 May this C
year, when the defendant was driving a medium goods vehicle
D bearing registration number MM 6508 (the “vehicle”) in Shenzhen D
and he stopped it near the Huanggang Control Point waiting for
E E
custom clearance, the three illegal immigrants approached the
vehicle and asked the defendant to drive them to Hong Kong. They
F F
promised to pay to the defendant each RMB$1,000. Defendant
G agreed to the proposal and let them enter the compartment of the G
vehicle and the vehicle then headed to the direction of
H Hong Kong. H
I I
4. At about 4.55 pm, the vehicle entered Hong Kong via
Lok Ma Chau Control Point. Later, when it arrived at the customs
J J
arrival kiosk No. 12 at the control point, a custom officer
K
instructed the defendant to go to the Inbound Cargo Examination K
Building for further inspection. Defendant, however, did not
L comply with PW1’s instructions after he passed the kiosk and L
drove away instead from the Lok Ma Chau Control Point and headed
M to the direction of Tsuen Wan. M
N N
5. Two Custom officers, one driving a private vehicle and
one driving a motorbike then gave chase immediately. At the time
O O
during the chase, the defendant drove the vehicle very
P dangerously. One of the Custom officers did sound the horn of P
his motorbike and signal the defendant to stop by raising his
Q hands when at one point both vehicles were parallel to each Q
other. However, the defendant still ignored the signal and
R R
continued to flee.
S S
6. The defendant also accepted that during the chase, he
T drove the vehicle at a high speed. For some distance, the T
vehicle was travelling at a speed of about 130 kilometres per
U hour. He also kept changing lanes and overtaking in order to U
CRT35/31.8.2011/SC 2 DCCC656/2011/Sentence
V V
A A
escape. There were two occasions where the vehicle entered the
opposite lane even in order to overtake. Finally, a police
B B
motorbike driven by a sergeant joined the chase, and eventually
C was the vehicle intercepted near Sham Tseng. C
D 7. After the defendant was stopped, he admitted that he D
knew that the vehicle had to be inspected and the vehicle was at
E E
that time carrying three illegal immigrants. The three illegal
immigrants were later found hiding inside the compartment of the
F F
vehicle, and the defendant was arrested.
G G
8. In the interviews with the Custom and Excise
H Department, the defendant admitted the offence. H
I I
Record and the Background of the Defendant
9. The defendant in the past was brought to the court
J J
three times. Two are in relation to drug records, and the first
K
one is about theft and shoplifting. He has been sentenced to K
DATC but those records were a long time ago and the last being
L 1997. He was a professional lorry driver since then and he has L
been working for different logistics companies. This morning, I
M was shown the statement from the owner of the transportation M
company confirming that at the time when the offence took place,
N N
the defendant was in fact under the instructions to transport
mobile phone from China to Hong Kong.
O O
P 10. The defendant is married and the wife and the daughter P
resided in China. Unfortunately, his wife had a brain tumour two
Q or three years ago and for this disease, the wife had to undergo Q
an operation in the mainland and huge medical expenses were
R R
incurred and therefore there is a heavy debt involved.
S S
11. Today, the wife and the daughter are in court to
T support the defendant. I was told that they have since moved T
back to Hong Kong in order to visit the defendant more often.
U U
CRT35/31.8.2011/SC 3 DCCC656/2011/Sentence
V V
A A
The wife also started to work in Hong Kong as a waitress in
order to support the family.
B B
C 12. I was also shown letters written by the defendant and C
the defendant’s wife by Miss Lo, counsel of the defendant. I am
D not going to refer to the content of the two letters. Suffice it D
to say that the defendant was described as a responsible husband
E E
and a caring father. Defendant himself is very remorseful and he
is sorry for what he has done because of the greed. Both the
F F
defendant and the wife urge the court to exercise mercy to pass
G a lenient sentence, if possible, so that the family can get back G
together soon.
H H
Sentencing Consideration
I I
13. This is a serious offence. Usually, the court is
dealing with cases for conveying unauthorized entrants to
J J
Hong Kong by a vessel for monetary gains. Cases involving
K
conveying this kind of unauthorized entrants or illegal K
immigrants by land is, by comparison, rare. When I approach the
L question of sentence, I bear in mind that the usual starting L
point for conveying unauthorized entrants to Hong Kong by a
M vessel for monetary gains was 4 years’ imprisonment. M
N N
14. According to the case authority in this point,
HKSAR v Tse Tse Hei CACC393/2009, the Court of Appeal had
O O
further indicated that if the defendant was the coxswain or the
P helmsman of the vessel or had taken part in the organising or P
planning the journey, the starting point would be increased to
Q 5 years. Where there were other aggravating factors such as Q
hiding the illegal immigrants where it would be difficult for
R R
them to escape in case of an emergency, the dilapidated state of
the vessel and a lack of life-saving apparatus, risking the
S S
lives of the passengers on board, or an extremely large number
T of illegal immigrants being on board, the starting point could T
be raised further.
U U
CRT35/31.8.2011/SC 4 DCCC656/2011/Sentence
V V
A A
15. However, the Court of Appeal also said in the same
judgment that even with such aggravating factors save for
B B
extremely unusual reasons, the starting point should not be
C higher than 6 years’ imprisonment. C
D 16. R v Yu Man Wai CACC160/1996 was one of those few cases D
which has been dealt with by the Court of Appeal concerning the
E E
assisting the passage to Hong Kong of conveyance carrying
unauthorized entrants by land. The defendant in that case was
F F
the driver of a lorry carrying 11 female unauthorized entrants
G and 10 of whom were pregnant. As he drove from the Chinese G
border towards the police checkpoint in Hong Kong, he was asked
H to stop. He did slow down but then drove onward at a speed to H
avoid the police check. He was pursued and he finally lost
I I
control of the vehicle and crashed against some railings and
fell into a 2-metre ditch. He then managed to run away but was
J J
eventually caught.
K K
17. In appeal, the Court of Appeal said the parallel
L between the facts of the present case and the situation where L
offenders were engaged in bringing unauthorized entrants into
M Hong Kong by boat was not an exact one but had marked M
similarities. The defendant in that case was in charge of the
N N
vehicle. It contained unauthorized entrants and he clearly put
them at risk when he acted as he did in an endeavour to evade
O O
apprehension. It was a dangerous manoeuvre which could properly
P be compared to that of a helmsman manoeuvring without proper P
care to avoid capture.
Q Q
18. The Court of Appeal went on to say that the sentencing
R R
policy had remained consistent since the early 90s. There should
not be any change in the sentencing policy even though it might
S S
be that the offence was less prevalent. A starting point of
T 5 years in the circumstances of the present case was clearly T
correct.
U U
CRT35/31.8.2011/SC 5 DCCC656/2011/Sentence
V V
A A
19. I conclude that the present case is exactly on all
fours, as far as the criminality is concerned, with the case of
B B
Yu Man Wai (surpra).
C C
20. Miss Lo, counsel for the defendant, urged me to
D consider the fact that the number of illegal immigrants involved D
in this case is much less and also there was no pregnant woman
E E
on board of the vehicle. While this observation of the facts is
clearly correct, it only serves to impress the point that there
F F
is the absence of aggravating factors in these two respects, but
G that is not the end of the matter. In my mind, there is one G
clearly aggravating factor and it is the dangerous manoeuvre of
H the vehicle by the defendant to avoid apprehension by the Custom H
officers and the police. The fact that the defendant was not
I I
separately charged with dangerous driving was something he
should consider as fortunate.
J J
K
21. That no one was seriously injured during the course of K
the manoeuvre by the defendant was almost miraculous. It might
L be that the defendant was so panicked but he was in an endeavour L
to avoid apprehension when what he could and he should have done
M was to have stopped the vehicle at once and surrendered himself. M
Because of the presence of these aggravating factors, I would
N N
increase the sentence from the starting point of 5 years by 3
months to 63 months.
O O
P 22. The Court of Appeal has said in many authorities in P
the past that when it comes to dealing with serious offences,
Q family circumstances virtually play no part in mitigation. The Q
defendant should think twice about the welfare of the family
R R
before he decided to accept the offer by the three illegal
immigrants and committed the offence. The court can also not
S S
accept economic reasons for committing offence. The only
T mitigating factor in this case is his plea of guilty, to which T
the usual one-third discount will be given.
U U
CRT35/31.8.2011/SC 6 DCCC656/2011/Sentence
V V
A A
23. For Charge 1, I will pass a sentence of 42 months’
imprisonment. For Charge 2, I would use 6 weeks as a starting
B B
point, and because of the plea, this will be reduced to 4 weeks’
C imprisonment. I finally order that the sentence of both charges C
to run concurrently.
D D
E E
F (A. Kwok) F
Deputy District Judge
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
CRT35/31.8.2011/SC 7 DCCC656/2011/Sentence
V V