DCCC62/2012 HKSAR v. LI WENXIANG AND ANOTHER - LawHero
DCCC62/2012
HKSAR v. LI WENXIANG AND ANOTHER
區域法院（刑事）Deputy District Judge Chainrai26/2/2012
DCCC62/2012
A A
B B
DCCC 62/2012
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 62 OF 2012
E E
____________
F HKSAR F
v.
G G
Li Wenxiang (D1)
H Wang Ping (D2) H
____________
I I
J Before: Deputy District Judge Chainrai J
Date: 27 February 2012
K K
Present: Mr Cheung Man Kwan, Bobby, PP of the Department of
L Justice, for HKSAR L
Mr Man Yau Wai, David, of David YW Man & Co assigned by
M M
st nd
the Director of Legal Aid, for the 1 and 2 defendants
N N
Offence: (1) Assisting the passage to Hong Kong of a conveyance
O
which carried an unauthorized entrant（協助載有未獲授 O
權進境者的運輸工具前來香港的旅程）
P P
(2) Conspiracy to arrange or assist passage within Hong Kong
Q of a conveyance which carried unauthorized entrants（串 Q
R
謀安排或協助載有未獲授權進境者的運輸工具在香港 R
境內的旅程）
S S
T T
U U
V V
- 2 -
A A
B B
Reasons for Sentence
C C
1. The defendants, D1 and D2 on the indictment and so termed
D D
throughout, have each pleaded guilty to the charges they each face. D1 has
E admitted the first count of assisting the passage to Hong Kong of a E
conveyance, a motorized sampan, which carried an unauthorized entrant,
F F
namely Wang Ping, D2 herein, contrary to section 37D(1)(a) of the
G Immigration Ordinance, cap 115. The defendants have also each admitted G
count 2 of the indictment, wherein they are jointly charged with conspiracy
H H
to arrange or assist passage within Hong Kong of a conveyance, a
I motorized sampan, which carried unauthorized entrants, including Deng I
Jinmei, contrary to section 37D(1)(a) of the Immigration Ordinance, cap
J J
115 and sections 159A and 159C of the Crimes Ordinance, cap 200.
K K
2. Facts admitted by the defendants disclose that in the
L L
afternoon of 30 November, 2011, police officers conducted an anti-human
M smuggling operation at the Sham Wat Pier area in Tai O. At about 2.35 pm, M
police officers found D2 leading 4 females walking and looking around
N N
suspiciously. D2 and the 4 females, hereinafter referred to as AP1 to AP4,
O were intercepted by the police officers. Upon investigation, D2 and AP1 O
were found to be illegal immigrants whilst AP2 to AP4 were holders of
P P
Chinese Two-way permits and had overstayed after entering Hong Kong.
Q AP1 was the unauthorized entrant Deng Jinmei referred to in the Q
particulars of Count 2, whilst D2 was the unauthorized entrant Wang Ping
R R
referred to in the particulars of Count 1.
S S
3. As a result of the arrest of this group in the vicinity of Lantau
T T
Island, officers of the Marine Police conducted an investigation at the
U U
V V
- 3 -
A A
B B
nearby seashore and pier. At about 3.05 pm that day, police vessel PV11
C found an unnumbered sampan, hereinafter referred to as E1, at Shan Shek C
Wan being steered by D1, D1 being at the stern of the vessel. E1 was
D D
stopped by police vessel PV11. D1 failed to produce any document of
E identity on demand. D1 was thus arrested. As it was suspected that D1 and E
D2 might be connected, D1 was cautioned, and remained silent under
F F
caution. An examination of the mobile telephones found from D1 and D2
G disclosed that there was frequent telephone contact between them at the G
material time prior to their arrest.
H H
I 4. D1 was interviewed under caution that evening at the Lantau I
North Police Station and admitted that he was responsible for conveying a
J J
person named Wong Ping, the same name as that of D2, from Zhuhai to Tai
K O in Hong Kong and Wong Ping would manage the rest of the K
arrangements.
L L
M 5. At a video recorded interview on 1 December, 2011, D1 M
disclosed that in November, 2011, a Mainlander named ‘Yee Ng’ had
N N
asked him to convey people to Hong Kong illegally, and another
O Mainlander, Wong Ping, ie D2, would be responsible to go ashore and O
bring people to board the vessel. The Mainlander ‘Yee Ng’ owned two
P P
unnumbered vessels including E1.
Q Q
6. At about 2 am on 30 November 2011, D2 and ‘Yee Ng’ were
R R
on board the bigger of the 2 vessels owned by ‘Yee Ng’ whilst he boarded
S E1, which was towed by the larger vessel. At about 5 am, the larger vessel S
stopped at the boundary between China and Hong Kong waters. When
T T
they were in the vicinity of Kwai Shan Island, D2 boarded E1. D1 then
U U
V V
- 4 -
A A
B B
navigated E1 with D2 on board towards Hong Kong as instructed by ‘Yee
C Ng’. They arrived at a pier in Hong Kong after about 15 minutes. D2 went C
ashore whilst D1 steered E1 to the vicinity of Yee Ng’s larger vessel inside
D D
Chinese waters. This is the subject matter of the first count, D1 having
E steered the vessel E1 in Hong Kong waters with D2, an unauthorized E
entrant, on board, and dropped him off at a pier in Hong Kong. At around
F F
12 noon, D1 received a telephone call from D2 to navigate E1 to pick up
G D2 and AP1 to AP4. At about 2.30 pm, D2 telephoned him and said he G
would arrive soon, but D2 did not show up. D1 then left the pier and was
H H
arrested by the police later. AP1 was an unauthorized entrant named Deng
I Jinmei, referred to in the particulars of count 2. D1 and D2 had jointly I
conspired to arrange or assist passage within Hong Kong of a conveyance,
J J
a motorized sampan, namely E1, to carry unauthorized entrants, including
K AP1 Deng Jinmei. K
L L
7. When interviewed under caution, D2 said initially that he was
M conveyed by a friend on a vessel to Tai O, Hong Kong. His friend M
instructed him to take 4 females from Sha Law Wan to board the vessel for
N N
a boat trip back to the Mainland. That friend was D1, and D1’s mobile
O telephone number was retrieved from D2’s mobile telephone. He had O
come to Hong Kong with D1, and D1 had dropped him off at Tai O, Hong
P P
Kong. D1 instructed him to walk on a small path leading to Sha Law Wan
Q Village where he was to bring 4 ‘natives’ to board D1’s vessel and these 4 Q
‘natives’ would communicate with him via mobile telephones. He was
R R
contacted by one of them, and he told them to meet at the Sha Law Village,
S where he met AP1 to AP4 and he led them back to the pier to meet D1 but S
they got lost on the way, and were arrested by the police. D1 might pay
T T
him a few hundred dollars for doing this.
U U
V V
- 5 -
A A
B B
C 8. At a subsequent video recorded interview, D2 said he had C
boarded a vessel on the Mainland at about 2 am on 30 November, 2011,
D D
and his purpose was for sightseeing. He had an agreement with D1 that D1
E would bring him to Hong Kong by boat. On the boat trip to Hong Kong, he E
and an old man were on board one vessel, while D1 was on board another.
F F
They arrived in Hong Kong waters at about 5 am, when he transferred onto
G the vessel D1 was on. D1 told him where to go and to contact him later to G
be picked up. He sat at a bus stop for an hour until he was contacted by a
H H
woman asking him his whereabouts – he met up with the four women and
I they walked for one to two hours as he tried to lead them back to the pier I
where they were to board D1’s vessel, and they were subsequently arrested.
J J
This was his first time to Hong Kong and he had entered Hong Kong
K illegally. K
L L
9. In respect of Count 2, D1’s role was to steer the unnumbered
M sampan E1 in Hong Kong waters and drop D2 at the pier and pick D2 and M
the unauthorized entrants up from the pier to convey them back to China
N N
while D2’s role was to go ashore at the pier and meet up with the
O unauthorized entrants and bring them back to the pier to board D1’s vessel O
for the journey back to the Mainland. However D2 became lost when he
P P
was leading the unauthorized entrants back to the pier and they were
Q intercepted by police officers and were subsequently arrested, resulting in Q
the Marine Police conducting a search in nearby waters resulting in the
R R
arrest of D1 by officers of the Marine Police on board the vessel E1 off
S Sham Shek Wan. S
T T
U U
V V
- 6 -
A A
B B
10. The vessel E1 was examined and found to be a fibre-glass
C sampan about 6m x 2m in size, fitted with one engine. There were no C
fire-extinguishing appliances or life-saving apparatus on E1. Nor were
D D
there any navigation light for night time navigation. The main hull
E structure was found to be in a poor condition, and E1 was found to be E
unseaworthy. The album of 6 photographs submitted by the Prosecution
F F
clearly depicts the poor condition of the vessel E1.
G G
11. D1 and D2 are both from the Mainland and both have clear
H H
records here in Hong Kong.
I I
12. D1 is aged 45 years and a fisherman earning RMB¥1,000 a
J J
month. He is a widower, and lives with his parents and 2 children, both of
K whom are students. He is the sole breadwinner of the family. Because K
fishing has not been good and the family was in financial difficulties, he
L L
agreed to an offer made to him to earn some extra money by picking up
M people from Hong Kong and conveying them to China – he was offered M
RMB¥1,500 for doing so. He had not yet been paid. Nor was he the
N N
mastermind of the operation. I was told that he was now very remorseful,
O as reflected by his plea, and sought leniency. Counsel submitted on his O
behalf that the journey was conducted in daylight so the absence of
P P
navigational lighting for night-time use of the vessel was of less
Q significance. However facts admitted by D1 disclosed that the journey Q
from China began at 2 am, when the vessel E1 was towed by the bigger
R R
vessel, and it reached Hong Kong waters at about 5 am, when D2
S transferred onto E1 and D1 conveyed him to the pier in Hong Kong, a S
journey that lasted some 15 minutes. At least a part of the journey would
T T
have been conducted in the dark.
U U
V V
- 7 -
A A
B B
C 13. D2 is aged 41 years and a fisherman earning RMB¥1,000 a C
month. He and his wife are separated, and he lives with his aged mother
D D
and 8 year old son. He is the sole breadwinner of the family. Again,
E because of financial hardship and a desire to earn more money, when he E
was approached he agreed to participate. He was not the mastermind. He
F F
had pleaded guilty, and his remorse is reflected by his plea.
G G
14. In my view, save for their pleas, there is very little mitigation
H H
of weight in respect of D1 and D2.
I I
15. Section 37D(1) of the Immigration Ordinance provides that
J J
upon conviction on indictment, a person is liable to a fine of
K HK$5,000,000 and to imprisonment for 14 years. K
L L
16. There is no evidence that either D1 or D2 are the masterminds
M of this venture. Clearly D1’s role was to be in charge of the vessel E1 M
whilst D2’s role was to disembark from the sampan and go ashore and
N N
meet the unauthorized entrants to lead them back to the sampan for the
O journey from Hong Kong back to the Mainland. O
P P
17. I have carefully considered mitigation by Counsel on behalf
Q of the defendants as well as the authorities he has submitted, of which 2 are Q
Reasons for Sentence from the District Court for similar offences, namely
R R
HKSAR v Leung To Tit, [2009] HKDC 1552, DCCC 788/2009 and HKSAR
S v Li Chuan, [2010] HKDC 1413, DCCC 548/2010. I have referred myself S
to the authority of HKSAR v Wong Chi-kin & Ko King Hung, CACC 357 &
T T
410/2004, a decision of the Court of Appeal wherein Woo V-P reiterated
U U
V V
- 8 -
A A
B B
all the previous guideline cases and held that the generally applicable tariff
C is 4 years’ imprisonment. Hon Woo, V-P, in delivering the judgment of C
the Court, said :-
D D
E
“12. The generally applicable tariff is 4 years’ imprisonment: E
R.v. Ho Siu-lun and Ors [1987] HKLR 1086, R. v. Chan
Kwok-keung & Anr. [1988] 1 HKLR 279 and R. v. Lam
F Kon-man, Crim. App. No. 329/1990. Where the accused was F
the captain of the vessel or the person in charge or assisting in
the operation of the organization of the venture, the appropriate
G G
starting point is 5 years’ imprisonment: R. v. Wong Yin-lung,
[1995] 1 HKCLR 151 at 153 and R. v. Pang Wing [1996] 1 HKC
H 624 at 626H and 627A.” H
I 18. He set out five situations that could be viewed as aggravating I
factors warranting an increase in the five year starting point for the person
J J
in charge of the vessel or the one in some way actively involved in the
K circumstances of the aggravation. The only one relevant herein is where K
the vessel concerned was unseaworthy by reason of poor maintenance or
L L
age, with the risk of endangering the passengers. Here, the sampan E1 was
M found to be unseaworthy, and the risk of endangering the passengers was M
an obvious one. Both defendants have admitted that the sampan E1 was
N N
unseaworthy. It was fitted with one engine. There were no
O O
fire-extinguishing appliances or life-saving apparatus on E1. Nor were
P
there any navigation light for night time navigation. The main hull P
structure was also found to be in a poor condition. I have considered that
Q Q
when the vessel was intercepted by officers from the Marine Police, there
R was no evidence of any imminent danger to anyone on board the vessel. R
S S
19. In respect of D1 on Count 1, D1 was the person in charge of
T E1 at the material time when he conveyed D2 in Hong Kong waters. I find T
that there is an aggravating factor herein, namely that the sampan E1 was
U U
V V
- 9 -
A A
B B
unseaworthy, which warrants an increased starting point. I take as a
C starting point 5½ years’ imprisonment and discount this by one-third to C
reflect his plea of guilty, which in my view is the only mitigation of weight.
D D
D1 is sentenced to 44 months’ imprisonment on Count 1.
E E
20. In respect of Count 2, I accept that neither D1 nor D2 were the
F F
masterminds of the venture. However, each had an equally material and
G vital role to play in the venture. In respect of both D1 and D2, I take as a G
starting point 5 years’ imprisonment, discount this by one-third to reflect
H H
their pleas of guilty, which in my view is the only mitigation of weight
I before me, and each is sentenced to 40 months’ imprisonment. I
J J
21. I have borne in mind the totality principle of sentence in
K respect of D1. I find that there was a single venture involved herein, albeit K
that there are 2 counts that D1 has been convicted of. I therefore order that
L L
the sentences for counts 1 and 2 in respect of D1 are to run concurrently
M M
N N
O (Bina Chainrai) O
Deputy District Judge
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 62/2012
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 62 OF 2012
E E
____________
F HKSAR F
v.
G G
Li Wenxiang (D1)
H Wang Ping (D2) H
____________
I I
J Before: Deputy District Judge Chainrai J
Date: 27 February 2012
K K
Present: Mr Cheung Man Kwan, Bobby, PP of the Department of
L Justice, for HKSAR L
Mr Man Yau Wai, David, of David YW Man & Co assigned by
M M
st nd
the Director of Legal Aid, for the 1 and 2 defendants
N N
Offence: (1) Assisting the passage to Hong Kong of a conveyance
O
which carried an unauthorized entrant（協助載有未獲授 O
權進境者的運輸工具前來香港的旅程）
P P
(2) Conspiracy to arrange or assist passage within Hong Kong
Q of a conveyance which carried unauthorized entrants（串 Q
R
謀安排或協助載有未獲授權進境者的運輸工具在香港 R
境內的旅程）
S S
T T
U U
V V
- 2 -
A A
B B
Reasons for Sentence
C C
1. The defendants, D1 and D2 on the indictment and so termed
D D
throughout, have each pleaded guilty to the charges they each face. D1 has
E admitted the first count of assisting the passage to Hong Kong of a E
conveyance, a motorized sampan, which carried an unauthorized entrant,
F F
namely Wang Ping, D2 herein, contrary to section 37D(1)(a) of the
G Immigration Ordinance, cap 115. The defendants have also each admitted G
count 2 of the indictment, wherein they are jointly charged with conspiracy
H H
to arrange or assist passage within Hong Kong of a conveyance, a
I motorized sampan, which carried unauthorized entrants, including Deng I
Jinmei, contrary to section 37D(1)(a) of the Immigration Ordinance, cap
J J
115 and sections 159A and 159C of the Crimes Ordinance, cap 200.
K K
2. Facts admitted by the defendants disclose that in the
L L
afternoon of 30 November, 2011, police officers conducted an anti-human
M smuggling operation at the Sham Wat Pier area in Tai O. At about 2.35 pm, M
police officers found D2 leading 4 females walking and looking around
N N
suspiciously. D2 and the 4 females, hereinafter referred to as AP1 to AP4,
O were intercepted by the police officers. Upon investigation, D2 and AP1 O
were found to be illegal immigrants whilst AP2 to AP4 were holders of
P P
Chinese Two-way permits and had overstayed after entering Hong Kong.
Q AP1 was the unauthorized entrant Deng Jinmei referred to in the Q
particulars of Count 2, whilst D2 was the unauthorized entrant Wang Ping
R R
referred to in the particulars of Count 1.
S S
3. As a result of the arrest of this group in the vicinity of Lantau
T T
Island, officers of the Marine Police conducted an investigation at the
U U
V V
- 3 -
A A
B B
nearby seashore and pier. At about 3.05 pm that day, police vessel PV11
C found an unnumbered sampan, hereinafter referred to as E1, at Shan Shek C
Wan being steered by D1, D1 being at the stern of the vessel. E1 was
D D
stopped by police vessel PV11. D1 failed to produce any document of
E identity on demand. D1 was thus arrested. As it was suspected that D1 and E
D2 might be connected, D1 was cautioned, and remained silent under
F F
caution. An examination of the mobile telephones found from D1 and D2
G disclosed that there was frequent telephone contact between them at the G
material time prior to their arrest.
H H
I 4. D1 was interviewed under caution that evening at the Lantau I
North Police Station and admitted that he was responsible for conveying a
J J
person named Wong Ping, the same name as that of D2, from Zhuhai to Tai
K O in Hong Kong and Wong Ping would manage the rest of the K
arrangements.
L L
M 5. At a video recorded interview on 1 December, 2011, D1 M
disclosed that in November, 2011, a Mainlander named ‘Yee Ng’ had
N N
asked him to convey people to Hong Kong illegally, and another
O Mainlander, Wong Ping, ie D2, would be responsible to go ashore and O
bring people to board the vessel. The Mainlander ‘Yee Ng’ owned two
P P
unnumbered vessels including E1.
Q Q
6. At about 2 am on 30 November 2011, D2 and ‘Yee Ng’ were
R R
on board the bigger of the 2 vessels owned by ‘Yee Ng’ whilst he boarded
S E1, which was towed by the larger vessel. At about 5 am, the larger vessel S
stopped at the boundary between China and Hong Kong waters. When
T T
they were in the vicinity of Kwai Shan Island, D2 boarded E1. D1 then
U U
V V
- 4 -
A A
B B
navigated E1 with D2 on board towards Hong Kong as instructed by ‘Yee
C Ng’. They arrived at a pier in Hong Kong after about 15 minutes. D2 went C
ashore whilst D1 steered E1 to the vicinity of Yee Ng’s larger vessel inside
D D
Chinese waters. This is the subject matter of the first count, D1 having
E steered the vessel E1 in Hong Kong waters with D2, an unauthorized E
entrant, on board, and dropped him off at a pier in Hong Kong. At around
F F
12 noon, D1 received a telephone call from D2 to navigate E1 to pick up
G D2 and AP1 to AP4. At about 2.30 pm, D2 telephoned him and said he G
would arrive soon, but D2 did not show up. D1 then left the pier and was
H H
arrested by the police later. AP1 was an unauthorized entrant named Deng
I Jinmei, referred to in the particulars of count 2. D1 and D2 had jointly I
conspired to arrange or assist passage within Hong Kong of a conveyance,
J J
a motorized sampan, namely E1, to carry unauthorized entrants, including
K AP1 Deng Jinmei. K
L L
7. When interviewed under caution, D2 said initially that he was
M conveyed by a friend on a vessel to Tai O, Hong Kong. His friend M
instructed him to take 4 females from Sha Law Wan to board the vessel for
N N
a boat trip back to the Mainland. That friend was D1, and D1’s mobile
O telephone number was retrieved from D2’s mobile telephone. He had O
come to Hong Kong with D1, and D1 had dropped him off at Tai O, Hong
P P
Kong. D1 instructed him to walk on a small path leading to Sha Law Wan
Q Village where he was to bring 4 ‘natives’ to board D1’s vessel and these 4 Q
‘natives’ would communicate with him via mobile telephones. He was
R R
contacted by one of them, and he told them to meet at the Sha Law Village,
S where he met AP1 to AP4 and he led them back to the pier to meet D1 but S
they got lost on the way, and were arrested by the police. D1 might pay
T T
him a few hundred dollars for doing this.
U U
V V
- 5 -
A A
B B
C 8. At a subsequent video recorded interview, D2 said he had C
boarded a vessel on the Mainland at about 2 am on 30 November, 2011,
D D
and his purpose was for sightseeing. He had an agreement with D1 that D1
E would bring him to Hong Kong by boat. On the boat trip to Hong Kong, he E
and an old man were on board one vessel, while D1 was on board another.
F F
They arrived in Hong Kong waters at about 5 am, when he transferred onto
G the vessel D1 was on. D1 told him where to go and to contact him later to G
be picked up. He sat at a bus stop for an hour until he was contacted by a
H H
woman asking him his whereabouts – he met up with the four women and
I they walked for one to two hours as he tried to lead them back to the pier I
where they were to board D1’s vessel, and they were subsequently arrested.
J J
This was his first time to Hong Kong and he had entered Hong Kong
K illegally. K
L L
9. In respect of Count 2, D1’s role was to steer the unnumbered
M sampan E1 in Hong Kong waters and drop D2 at the pier and pick D2 and M
the unauthorized entrants up from the pier to convey them back to China
N N
while D2’s role was to go ashore at the pier and meet up with the
O unauthorized entrants and bring them back to the pier to board D1’s vessel O
for the journey back to the Mainland. However D2 became lost when he
P P
was leading the unauthorized entrants back to the pier and they were
Q intercepted by police officers and were subsequently arrested, resulting in Q
the Marine Police conducting a search in nearby waters resulting in the
R R
arrest of D1 by officers of the Marine Police on board the vessel E1 off
S Sham Shek Wan. S
T T
U U
V V
- 6 -
A A
B B
10. The vessel E1 was examined and found to be a fibre-glass
C sampan about 6m x 2m in size, fitted with one engine. There were no C
fire-extinguishing appliances or life-saving apparatus on E1. Nor were
D D
there any navigation light for night time navigation. The main hull
E structure was found to be in a poor condition, and E1 was found to be E
unseaworthy. The album of 6 photographs submitted by the Prosecution
F F
clearly depicts the poor condition of the vessel E1.
G G
11. D1 and D2 are both from the Mainland and both have clear
H H
records here in Hong Kong.
I I
12. D1 is aged 45 years and a fisherman earning RMB¥1,000 a
J J
month. He is a widower, and lives with his parents and 2 children, both of
K whom are students. He is the sole breadwinner of the family. Because K
fishing has not been good and the family was in financial difficulties, he
L L
agreed to an offer made to him to earn some extra money by picking up
M people from Hong Kong and conveying them to China – he was offered M
RMB¥1,500 for doing so. He had not yet been paid. Nor was he the
N N
mastermind of the operation. I was told that he was now very remorseful,
O as reflected by his plea, and sought leniency. Counsel submitted on his O
behalf that the journey was conducted in daylight so the absence of
P P
navigational lighting for night-time use of the vessel was of less
Q significance. However facts admitted by D1 disclosed that the journey Q
from China began at 2 am, when the vessel E1 was towed by the bigger
R R
vessel, and it reached Hong Kong waters at about 5 am, when D2
S transferred onto E1 and D1 conveyed him to the pier in Hong Kong, a S
journey that lasted some 15 minutes. At least a part of the journey would
T T
have been conducted in the dark.
U U
V V
- 7 -
A A
B B
C 13. D2 is aged 41 years and a fisherman earning RMB¥1,000 a C
month. He and his wife are separated, and he lives with his aged mother
D D
and 8 year old son. He is the sole breadwinner of the family. Again,
E because of financial hardship and a desire to earn more money, when he E
was approached he agreed to participate. He was not the mastermind. He
F F
had pleaded guilty, and his remorse is reflected by his plea.
G G
14. In my view, save for their pleas, there is very little mitigation
H H
of weight in respect of D1 and D2.
I I
15. Section 37D(1) of the Immigration Ordinance provides that
J J
upon conviction on indictment, a person is liable to a fine of
K HK$5,000,000 and to imprisonment for 14 years. K
L L
16. There is no evidence that either D1 or D2 are the masterminds
M of this venture. Clearly D1’s role was to be in charge of the vessel E1 M
whilst D2’s role was to disembark from the sampan and go ashore and
N N
meet the unauthorized entrants to lead them back to the sampan for the
O journey from Hong Kong back to the Mainland. O
P P
17. I have carefully considered mitigation by Counsel on behalf
Q of the defendants as well as the authorities he has submitted, of which 2 are Q
Reasons for Sentence from the District Court for similar offences, namely
R R
HKSAR v Leung To Tit, [2009] HKDC 1552, DCCC 788/2009 and HKSAR
S v Li Chuan, [2010] HKDC 1413, DCCC 548/2010. I have referred myself S
to the authority of HKSAR v Wong Chi-kin & Ko King Hung, CACC 357 &
T T
410/2004, a decision of the Court of Appeal wherein Woo V-P reiterated
U U
V V
- 8 -
A A
B B
all the previous guideline cases and held that the generally applicable tariff
C is 4 years’ imprisonment. Hon Woo, V-P, in delivering the judgment of C
the Court, said :-
D D
E
“12. The generally applicable tariff is 4 years’ imprisonment: E
R.v. Ho Siu-lun and Ors [1987] HKLR 1086, R. v. Chan
Kwok-keung & Anr. [1988] 1 HKLR 279 and R. v. Lam
F Kon-man, Crim. App. No. 329/1990. Where the accused was F
the captain of the vessel or the person in charge or assisting in
the operation of the organization of the venture, the appropriate
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starting point is 5 years’ imprisonment: R. v. Wong Yin-lung,
[1995] 1 HKCLR 151 at 153 and R. v. Pang Wing [1996] 1 HKC
H 624 at 626H and 627A.” H
I 18. He set out five situations that could be viewed as aggravating I
factors warranting an increase in the five year starting point for the person
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in charge of the vessel or the one in some way actively involved in the
K circumstances of the aggravation. The only one relevant herein is where K
the vessel concerned was unseaworthy by reason of poor maintenance or
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age, with the risk of endangering the passengers. Here, the sampan E1 was
M found to be unseaworthy, and the risk of endangering the passengers was M
an obvious one. Both defendants have admitted that the sampan E1 was
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unseaworthy. It was fitted with one engine. There were no
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fire-extinguishing appliances or life-saving apparatus on E1. Nor were
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there any navigation light for night time navigation. The main hull P
structure was also found to be in a poor condition. I have considered that
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when the vessel was intercepted by officers from the Marine Police, there
R was no evidence of any imminent danger to anyone on board the vessel. R
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19. In respect of D1 on Count 1, D1 was the person in charge of
T E1 at the material time when he conveyed D2 in Hong Kong waters. I find T
that there is an aggravating factor herein, namely that the sampan E1 was
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unseaworthy, which warrants an increased starting point. I take as a
C starting point 5½ years’ imprisonment and discount this by one-third to C
reflect his plea of guilty, which in my view is the only mitigation of weight.
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D1 is sentenced to 44 months’ imprisonment on Count 1.
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20. In respect of Count 2, I accept that neither D1 nor D2 were the
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masterminds of the venture. However, each had an equally material and
G vital role to play in the venture. In respect of both D1 and D2, I take as a G
starting point 5 years’ imprisonment, discount this by one-third to reflect
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their pleas of guilty, which in my view is the only mitigation of weight
I before me, and each is sentenced to 40 months’ imprisonment. I
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21. I have borne in mind the totality principle of sentence in
K respect of D1. I find that there was a single venture involved herein, albeit K
that there are 2 counts that D1 has been convicted of. I therefore order that
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the sentences for counts 1 and 2 in respect of D1 are to run concurrently
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O (Bina Chainrai) O
Deputy District Judge
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