DCCC949/2011 HKSAR v. LI SHENG AND OTHERS - LawHero
DCCC949/2011
HKSAR v. LI SHENG AND OTHERS
區域法院（刑事）H H Judge Tallentire3/10/2011
DCCC949/2011
A A
DCCC949/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 949 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Li Sheng (D1)
F Chen Shengren (D2) F
Liu Xiaode (D3)
G Bao Shenan (D4) G
----------------------
H H
Before: H H Judge Tallentire
Date: 4 October 2011 at 3.38 pm
I Present: Ms Lisa Go, PP of the Department of Justice, for HKSAR I
Mr Leung Man-ching, of Wong Poon Chan Law & Co.,
J assigned by the Director of Legal Aid, for all J
Defendants
Offence: (1) Assisting the passage to Hong Kong of a conveyance
K which carried unauthorized entrants (協助載有未獲授權 K
進境者的運輸工具前來香港的旅程)
L (2) Assisting the passage within Hong Kong of a L
conveyance which carried unauthorized entrants (協
助載有未獲授權進境者的運輸工具在香港境內的旅程)
M M
(3) Endangering the safety of others at sea (危害他人在
海上的安全)
N (4) Theft (盜竊罪) N
(5) - (7) Remaining in Hong Kong without the authority
of the Director of Immigration after having landed
O O
unlawfully in Hong Kong (在香港非法入境後未得入境事務處
處長授權而留在香港)
P P
---------------------
Q Q
Reasons for Sentence
R R
---------------------
S S
1. D1, you have pleaded guilty to two offences of
T assisting the passage to Hong Kong of a conveyance which carried T
unauthorized entrants, contrary to section 37D(1)(a) of the
U U
Immigration Ordinance, Cap.115, and to one offence of
CRT31/4.10.2011/AL/lt 1 DCCC949/2011/Sentence
V V
A A
endangering the safety of others at sea, contrary to section 72
of the Shipping and Port Control Ordinance, Cap.313.
B B
C 2. D2, D3 and D4, you have pleaded guilty to a joint C
offence of theft, contrary to section 9 of the Theft Ordinance,
D Cap.210, and to a single offence each of remaining in Hong Kong D
without the authority of the Director of Immigration after
E E
having landed unlawfully, contrary to section 38(1)(b) of the
Immigration Ordinance, Cap.115.
F F
G 3. Briefly the facts were as follows. G
H 4. At about 5.52 am on 21 June last, Marine Police on H
board a vessel saw a motorized sampan sail to Lo Kei Wan,
I I
Lantau, at high speed at about 25 nautical miles per hour, pick
up three persons and then sail southeast. They gave chase,
J J
sounding the siren and ordering it to stop, but it speeded up.
K K
5. After a short pursuit, they intercepted it and found
L D1 steering with D2, D3 and D4 on board. The latter three were L
carrying Mainland identity cards. D3, you had in your possession
M a rucksack weighing about 2.5 kilograms. They also found a nylon M
bag containing three saws on board.
N N
6. Under caution, you, D1, denied knowing D2 to D4. You
O O
said you were employed by one Ah Kwan to take them from
P Wailingding Dao to Hong Kong the day before to work. You P
received a total of $300 for that. That morning on 21 June, Ah
Q Kwan called you again, asking you to take D2 to D4 back to Q
Wailingding Dao for another $300.
R R
7. Under caution, you, D2, said you were employed by Ah
S S
Kwan. At 6 am the previous day you were instructed by Ah Kwan to
T go to Hong Kong by boat where you were to cut wood from trees T
according to samples of wood given by Ah Kwan. You, D2 to D4,
U went up the hill after landing. After cutting wood, you, D4, U
CRT31/4.10.2011/AL/lt 2 DCCC949/2011/Sentence
V V
A A
phoned Ah Kwan who arranged for you, D1, to collect them. You,
D3 and D4, both confirmed this under caution. You were each to
B B
receive $300.
C C
8. At the police station, you, D1 to D4, were
D interviewed. You, D1, said that Ah Kwan told you to convey D2 to D
D4 to work at a rocky beach on Lantau at 11 am on 20 June. They
E E
went ashore whilst you returned to Wailingding Dao. D1 said he
thought you were gathering snails. At about 5 am on 21 June,
F F
Ah Kwan called him again and told him to collect them.
G G
9. The sampan belonged to Ah Kwan. You sailed from
H Wailingding Dao to Lantau. You picked up D2 to D4 and then you H
were arrested. The wood and the saws were taken on board by D2
I I
to D4, who gave similar versions.
J J
10. Subsequent tests showed the wood to be Aquilaria
K
sinensis, which is Incense Tree, weighing 2.42 kilograms. K
Dr Pang spoke of the damage done to the trees by cutting the
L wood illegally and the damage to the ecology. L
M 11. The sampan was examined by a ship inspector of the M
Marine Department, who opined that the vessel was unseaworthy:
N N
(a) the hull was in poor condition;
O O
(b) there was no fire fighting appliance;
P (c) there was no life saving appliance; and P
(d) there was no navigation lighting.
Q Q
12. Police statistics showed there was an uprising trend
R R
in this sort of case in the last fours years with 20 cases in
2008, namely 1 trunk and 28 kilograms of Aquilaria sinensis
S S
seized, 15 cases in 2009 (5 trunks and 1.959 kilograms of
T Aquilaria sinensis seized), 19 cases in 2010 (7 trunks and T
14.265 kilograms of Aquilaria sinensis seized), and 30 cases in
U 2011 (124 trunks and 56.357 kilograms of Aquilaria sinensis U
CRT31/4.10.2011/AL/lt 3 DCCC949/2011/Sentence
V V
A A
seized). Thus the police statistics showed a rising trend in the
stealing of this wood.
B B
C 13. Following from this, an application was made under the C
Organized and Serious Crimes Ordinance, Cap.455, pursuant to
D section 27(2), for enhancement of sentence. This was based on D
the prevalence of thefts of this type, and the nature and extent
E E
of any harm or the direct or indirect costs to the community by
recent occurrences of the specified offence. Mr Leung indicated
F F
that there is no opposition by D2, D3 or D4 to this application.
G For my part, I was satisfied with this information and that an G
enhanced sentence should be imposed.
H H
14. To assist me with the sentencing, Miss Go referred me
I I
to three sentencing authorities: HKSAR v Tsui Kwong Ming,
CACC247/2004, which deals with the offence of assisting the
J J
passage to Hong Kong of an unauthorized entrant; HKSAR v Wong
K
Chi Kin, CACC357/2004, which was heard along with HKSAR v Ko K
King Hung, CACC410/2004; and HKSAR v Xie Jinbin, CACC195/2010,
L the latter case dealt with wood. L
M 15. Mr Leung entered mitigation on behalf of all four of M
you defendants.
N N
16. Dealing first of all with D1, he said you were charged
O O
with three offences and had pleaded guilty, you are 31 years of
P age, single and living with your aged and ailing father. By P
occupation, you were a fisherman earning ¥700 Renminbi per
Q month, and the sole breadwinner. He told me you had been asked Q
by one Ah Kwan to transport three persons to Hong Kong for $600,
R R
and you were unaware of the purpose of their coming. He referred
me to a letter that you have written wherein you express your
S S
remorse.
T T
17. D2, you have pleaded guilty to two charges. You met Ah
U Kwan in the People’s Republic of China. You were to receive $300 U
CRT31/4.10.2011/AL/lt 4 DCCC949/2011/Sentence
V V
A A
a day for two days’ work, cutting wood from hilltop on an
island. He claims you did not appreciate the nature of the wood,
B B
nor that you were coming to Hong Kong. You have a clear record,
C 18 years of age, single, and reside with your mother and younger C
brother. Your father passed away some time ago, and you are the
D sole breadwinner of the family. You too had written to court D
expressing your remorse.
E E
18. D3, you have pleaded guilty to two offences. You are
F F
married with two children, both young. You are a farmer earning
G ¥800 Renminbi per month. You did not appreciate the nature of G
the wood. You were very cooperative from the time of your
H arrest, and letters were provided by yourself. H
I I
19. D4, you met Ah Kwan in China. You were employed to cut
wood from a hillside on an island. You too had no idea of its
J J
value nor its nature. You are 42 years of age, married with two
K
sons and a mother. You care for a younger brother who suffers K
from severe mental problems. In fact, your younger brother’s
L medical expenses have placed a great burden on the family. You L
too produced letters and receipts.
M M
20. In addition to the personalised mitigation, there was
N N
some common mitigation. You were all poor, the money was to be
used for ordinary living expenses, not luxuries, the amount of
O O
wood taken was small, and in your native village in the Mainland
P it is not illegal to cut wild trees. Again, in respect of D2, D3 P
and D4, there was no opposition to enhancement.
Q Q
21. I turn now to the sentences.
R R
22. These are serious offences, there is no doubt about
S S
that. In arriving at my sentence, I have taken into account the
T facts of the cases, the mitigation advanced including the T
letters that you have written, and the sentencing authorities
U U
CRT31/4.10.2011/AL/lt 5 DCCC949/2011/Sentence
V V
A A
produced to me. You are all of clear record and appear to have
been fully cooperative from the point of arrest.
B B
C 23. I deal now with D1. There are two offences of C
assisting the passage to Hong Kong of a conveyance carrying
D unauthorized entrants, but in fact it seems to me to be one D
action. What you did was you brought your passengers and then
E E
you took them away again. In that case, I take as a starting
point 4½ years’ imprisonment. That is reduced to 3 years for
F F
your plea of guilty, that is 3 years concurrent on each of the
G two offences. In respect of the unseaworthy craft, I take a G
starting point of 18 months, reduced to 1 year for your plea of
H guilty, but that will be served consecutively. That is a total H
of 4 years’ imprisonment.
I I
24. D2, D3 and D4, I intend to deal with all of you in
J J
exactly the same way. I can see no grounds to differentiate.
K
Charge 4 is one for which there has been an application for K
enhancement. I find the grounds made out in that and I find it
L necessary to enhance. I therefore take as a starting point L
3 years’ imprisonment, reduced to 2 for your plea of guilty,
M enhanced by 25 per cent to give 2½ years’ imprisonment each. M
N N
25. In respect of Charges 5, 6 and 7, I take as a starting
point 18 months, reduced to 12 months on each. These will be
O O
served consecutively, so you will each go to prison for
P 3½ years. P
Q 26. Finally, I thank Miss Go and Mr Leung for their Q
assistance.
R R
S S
Tallentire
T District Judge T
U U
CRT31/4.10.2011/AL/lt 6 DCCC949/2011/Sentence
V V
A A
DCCC949/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 949 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Li Sheng (D1)
F Chen Shengren (D2) F
Liu Xiaode (D3)
G Bao Shenan (D4) G
----------------------
H H
Before: H H Judge Tallentire
Date: 4 October 2011 at 3.38 pm
I Present: Ms Lisa Go, PP of the Department of Justice, for HKSAR I
Mr Leung Man-ching, of Wong Poon Chan Law & Co.,
J assigned by the Director of Legal Aid, for all J
Defendants
Offence: (1) Assisting the passage to Hong Kong of a conveyance
K which carried unauthorized entrants (協助載有未獲授權 K
進境者的運輸工具前來香港的旅程)
L (2) Assisting the passage within Hong Kong of a L
conveyance which carried unauthorized entrants (協
助載有未獲授權進境者的運輸工具在香港境內的旅程)
M M
(3) Endangering the safety of others at sea (危害他人在
海上的安全)
N (4) Theft (盜竊罪) N
(5) - (7) Remaining in Hong Kong without the authority
of the Director of Immigration after having landed
O O
unlawfully in Hong Kong (在香港非法入境後未得入境事務處
處長授權而留在香港)
P P
---------------------
Q Q
Reasons for Sentence
R R
---------------------
S S
1. D1, you have pleaded guilty to two offences of
T assisting the passage to Hong Kong of a conveyance which carried T
unauthorized entrants, contrary to section 37D(1)(a) of the
U U
Immigration Ordinance, Cap.115, and to one offence of
CRT31/4.10.2011/AL/lt 1 DCCC949/2011/Sentence
V V
A A
endangering the safety of others at sea, contrary to section 72
of the Shipping and Port Control Ordinance, Cap.313.
B B
C 2. D2, D3 and D4, you have pleaded guilty to a joint C
offence of theft, contrary to section 9 of the Theft Ordinance,
D Cap.210, and to a single offence each of remaining in Hong Kong D
without the authority of the Director of Immigration after
E E
having landed unlawfully, contrary to section 38(1)(b) of the
Immigration Ordinance, Cap.115.
F F
G 3. Briefly the facts were as follows. G
H 4. At about 5.52 am on 21 June last, Marine Police on H
board a vessel saw a motorized sampan sail to Lo Kei Wan,
I I
Lantau, at high speed at about 25 nautical miles per hour, pick
up three persons and then sail southeast. They gave chase,
J J
sounding the siren and ordering it to stop, but it speeded up.
K K
5. After a short pursuit, they intercepted it and found
L D1 steering with D2, D3 and D4 on board. The latter three were L
carrying Mainland identity cards. D3, you had in your possession
M a rucksack weighing about 2.5 kilograms. They also found a nylon M
bag containing three saws on board.
N N
6. Under caution, you, D1, denied knowing D2 to D4. You
O O
said you were employed by one Ah Kwan to take them from
P Wailingding Dao to Hong Kong the day before to work. You P
received a total of $300 for that. That morning on 21 June, Ah
Q Kwan called you again, asking you to take D2 to D4 back to Q
Wailingding Dao for another $300.
R R
7. Under caution, you, D2, said you were employed by Ah
S S
Kwan. At 6 am the previous day you were instructed by Ah Kwan to
T go to Hong Kong by boat where you were to cut wood from trees T
according to samples of wood given by Ah Kwan. You, D2 to D4,
U went up the hill after landing. After cutting wood, you, D4, U
CRT31/4.10.2011/AL/lt 2 DCCC949/2011/Sentence
V V
A A
phoned Ah Kwan who arranged for you, D1, to collect them. You,
D3 and D4, both confirmed this under caution. You were each to
B B
receive $300.
C C
8. At the police station, you, D1 to D4, were
D interviewed. You, D1, said that Ah Kwan told you to convey D2 to D
D4 to work at a rocky beach on Lantau at 11 am on 20 June. They
E E
went ashore whilst you returned to Wailingding Dao. D1 said he
thought you were gathering snails. At about 5 am on 21 June,
F F
Ah Kwan called him again and told him to collect them.
G G
9. The sampan belonged to Ah Kwan. You sailed from
H Wailingding Dao to Lantau. You picked up D2 to D4 and then you H
were arrested. The wood and the saws were taken on board by D2
I I
to D4, who gave similar versions.
J J
10. Subsequent tests showed the wood to be Aquilaria
K
sinensis, which is Incense Tree, weighing 2.42 kilograms. K
Dr Pang spoke of the damage done to the trees by cutting the
L wood illegally and the damage to the ecology. L
M 11. The sampan was examined by a ship inspector of the M
Marine Department, who opined that the vessel was unseaworthy:
N N
(a) the hull was in poor condition;
O O
(b) there was no fire fighting appliance;
P (c) there was no life saving appliance; and P
(d) there was no navigation lighting.
Q Q
12. Police statistics showed there was an uprising trend
R R
in this sort of case in the last fours years with 20 cases in
2008, namely 1 trunk and 28 kilograms of Aquilaria sinensis
S S
seized, 15 cases in 2009 (5 trunks and 1.959 kilograms of
T Aquilaria sinensis seized), 19 cases in 2010 (7 trunks and T
14.265 kilograms of Aquilaria sinensis seized), and 30 cases in
U 2011 (124 trunks and 56.357 kilograms of Aquilaria sinensis U
CRT31/4.10.2011/AL/lt 3 DCCC949/2011/Sentence
V V
A A
seized). Thus the police statistics showed a rising trend in the
stealing of this wood.
B B
C 13. Following from this, an application was made under the C
Organized and Serious Crimes Ordinance, Cap.455, pursuant to
D section 27(2), for enhancement of sentence. This was based on D
the prevalence of thefts of this type, and the nature and extent
E E
of any harm or the direct or indirect costs to the community by
recent occurrences of the specified offence. Mr Leung indicated
F F
that there is no opposition by D2, D3 or D4 to this application.
G For my part, I was satisfied with this information and that an G
enhanced sentence should be imposed.
H H
14. To assist me with the sentencing, Miss Go referred me
I I
to three sentencing authorities: HKSAR v Tsui Kwong Ming,
CACC247/2004, which deals with the offence of assisting the
J J
passage to Hong Kong of an unauthorized entrant; HKSAR v Wong
K
Chi Kin, CACC357/2004, which was heard along with HKSAR v Ko K
King Hung, CACC410/2004; and HKSAR v Xie Jinbin, CACC195/2010,
L the latter case dealt with wood. L
M 15. Mr Leung entered mitigation on behalf of all four of M
you defendants.
N N
16. Dealing first of all with D1, he said you were charged
O O
with three offences and had pleaded guilty, you are 31 years of
P age, single and living with your aged and ailing father. By P
occupation, you were a fisherman earning ¥700 Renminbi per
Q month, and the sole breadwinner. He told me you had been asked Q
by one Ah Kwan to transport three persons to Hong Kong for $600,
R R
and you were unaware of the purpose of their coming. He referred
me to a letter that you have written wherein you express your
S S
remorse.
T T
17. D2, you have pleaded guilty to two charges. You met Ah
U Kwan in the People’s Republic of China. You were to receive $300 U
CRT31/4.10.2011/AL/lt 4 DCCC949/2011/Sentence
V V
A A
a day for two days’ work, cutting wood from hilltop on an
island. He claims you did not appreciate the nature of the wood,
B B
nor that you were coming to Hong Kong. You have a clear record,
C 18 years of age, single, and reside with your mother and younger C
brother. Your father passed away some time ago, and you are the
D sole breadwinner of the family. You too had written to court D
expressing your remorse.
E E
18. D3, you have pleaded guilty to two offences. You are
F F
married with two children, both young. You are a farmer earning
G ¥800 Renminbi per month. You did not appreciate the nature of G
the wood. You were very cooperative from the time of your
H arrest, and letters were provided by yourself. H
I I
19. D4, you met Ah Kwan in China. You were employed to cut
wood from a hillside on an island. You too had no idea of its
J J
value nor its nature. You are 42 years of age, married with two
K
sons and a mother. You care for a younger brother who suffers K
from severe mental problems. In fact, your younger brother’s
L medical expenses have placed a great burden on the family. You L
too produced letters and receipts.
M M
20. In addition to the personalised mitigation, there was
N N
some common mitigation. You were all poor, the money was to be
used for ordinary living expenses, not luxuries, the amount of
O O
wood taken was small, and in your native village in the Mainland
P it is not illegal to cut wild trees. Again, in respect of D2, D3 P
and D4, there was no opposition to enhancement.
Q Q
21. I turn now to the sentences.
R R
22. These are serious offences, there is no doubt about
S S
that. In arriving at my sentence, I have taken into account the
T facts of the cases, the mitigation advanced including the T
letters that you have written, and the sentencing authorities
U U
CRT31/4.10.2011/AL/lt 5 DCCC949/2011/Sentence
V V
A A
produced to me. You are all of clear record and appear to have
been fully cooperative from the point of arrest.
B B
C 23. I deal now with D1. There are two offences of C
assisting the passage to Hong Kong of a conveyance carrying
D unauthorized entrants, but in fact it seems to me to be one D
action. What you did was you brought your passengers and then
E E
you took them away again. In that case, I take as a starting
point 4½ years’ imprisonment. That is reduced to 3 years for
F F
your plea of guilty, that is 3 years concurrent on each of the
G two offences. In respect of the unseaworthy craft, I take a G
starting point of 18 months, reduced to 1 year for your plea of
H guilty, but that will be served consecutively. That is a total H
of 4 years’ imprisonment.
I I
24. D2, D3 and D4, I intend to deal with all of you in
J J
exactly the same way. I can see no grounds to differentiate.
K
Charge 4 is one for which there has been an application for K
enhancement. I find the grounds made out in that and I find it
L necessary to enhance. I therefore take as a starting point L
3 years’ imprisonment, reduced to 2 for your plea of guilty,
M enhanced by 25 per cent to give 2½ years’ imprisonment each. M
N N
25. In respect of Charges 5, 6 and 7, I take as a starting
point 18 months, reduced to 12 months on each. These will be
O O
served consecutively, so you will each go to prison for
P 3½ years. P
Q 26. Finally, I thank Miss Go and Mr Leung for their Q
assistance.
R R
S S
Tallentire
T District Judge T
U U
CRT31/4.10.2011/AL/lt 6 DCCC949/2011/Sentence
V V