區域法院（刑事）Deputy District Judge Anthony Kwok18/6/2012
DCCC418/2012
A A
B DCCC418/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 418 OF 2012
E E
----------------------
F HKSAR F
v
G G
SU Rulu
H ---------------------- H
I Before: Deputy District Judge Anthony Kwok I
Date: 19 June 2012
J J
Present: Mr Alvin Chui, PP of the Department of Justice, for HKSAR
K K
Mr Charles Tse of Messrs. Yip Tse & Tang, assigned by the
L
Director of Legal Aid, for the defendant L
Offence: (1) Assisting the passage to Hong Kong of unauthorized
M M
entrants ( 協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程 )
N (2) Endangering the safety of others at sea (危害他人在海上 N
O
安全) O
P P
-------------------------------
Q Q
Reasons for Sentence
R ------------------------------- R
S S
1. The defendant pleaded guilty before me to the following two
T charges: T
U U
V V
- 2 -
A A
(1) Charge 1, assisting the passage to Hong Kong of
B B
unauthorised entrants, contrary to section 37D(1)(a) of
C C
the Immigration Ordinance, Cap 115;
D
(2) Charge 2, endangering the safety of others at sea, D
contrary to section 72 of the Shipping and Port Control
E E
Ordinance, Cap 313.
F F
Facts
G G
H 2. The facts admitted by the defendant and which gave rise to H
the two charges were that at about 10:00pm on 3 March 2012, the marine
I I
police spotted a suspicious motorised sampan near Sha Kiu. The sampan
J was intercepted. The defendant, who was the coxswain, another male and J
3 females were found on board the sampan. The defendant and the 4 other
K K
persons were all Mainlanders and did not have valid travel document or
L permission to enter Hong Kong and were hence unauthorized entrants at L
the material times.
M M
N 3. Under caution, the defendant admitted that he was instructed N
to bring illegal immigrants, whom he did not know, from China to Hong
O O
Kong with a reward of RMB300 each. In a subsequent video-recorded
P interview, the defendant further said that he has no experience in steering a P
boat and did not know whether there was any equipment on the sampan.
Q Q
He only had a torch during the night journey and he was only given a
R lesson by his friend to steer the sampan one day before he was arrested. R
The 4 other mainlanders were also arrested and they claimed they had paid
S S
RMB300 for the trip and they intended to come to Hong Kong to seek jobs
T or visit friends. T
U U
V V
- 3 -
A A
B B
4. The sampan used by the defendant was, upon examination by
C C
the Marine Department, found to be unseaworthy as the main hull structure
D
was in poor condition; there were no fire-fighting appliances, no D
navigation light fitted and no life jacket on the sampan.
E E
F The defendant’s background and mitigations F
G G
5. The defendant is now aged 36 and has a clear record. He is
H still single and lives with an aged old mother of 69 years old. Before he was H
arrested, he worked as a casual construction worker earnind a monthly
I I
income of RMB1,500.
J J
6. In mitigation, it was said that the defendant was diagnosed to
K K
be HIV positive in last September and since then his health condition
L deteriorated and he needs to buy expensive drugs and thereby incurs huge L
medical expenses. He first turned to borrow money from his relatives and
M M
finally resorted to committing the present crimes to solve his financial
N problem. N
O O
7. It was also said on his behalf that it was not a large operation
P and the sampan was not overloaded and all the 4 unauthorised entrants on P
board were normal adult persons instead of pregnant females or old
Q Q
persons.
R R
8. Further, it was said that the defendant was very co-operative
S S
and did not attempt to escape. He made full confessions to his crimes and
T he pleaded guilty at the very first opportunity. T
U U
V V
- 4 -
A A
9. Mr Tse, for the defendant, therefore asked this court to
B B
impose as lenient a sentence on the defendant as possible, given his pleas
C C
and that he was merely used by others to commit the present offences. He
D
also referred me to the recent authority of HKSAR v. Tang Zhuyan [2010] 1 D
HKLRD 447 which also deals with the same set of two charges.
E E
F 10. The Court of Appeal has said time and again that a F
defendant’s personal predicament is generally not a mitigating factor, for
G G
the defendant should have seriously thought about that before committing
H the offence. Whilst the Court sympathizes with the defendant for his H
predicament and in particular, with his mother, it is not a basis upon which
I I
this Court can reduce an otherwise appropriate sentence of imprisonment.
J As this Court said in HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, J
87E-F, "... family circumstances should be disregarded, particularly when
K K
sentences for serious offences are concerned".
L L
11. In the present case, I find that apart from the defendant’s pleas,
M M
there are no other mitigating factors.
N N
Sentencing considerations
O O
Charge 1
P P
12. In Tang Zhuyan, the Court of Appeal has said the followings
Q Q
(para 16-18) :-
R R
“16. As this Court noted in HKSAR v Wong Chi Kin (unrep.,
S CACC 357, 410/2004, [2005] HKEC 176), the appropriate S
starting point for sentence after trial for an offence under
s.37D(1) of the Immigration Ordinance, where the accused is
T the captain or the person in charge of the vessel, is 5 years' T
imprisonment. The Court went on to give a non-definitive list of
U U
V V
- 5 -
A A
aggravating factors relevant to sentence. Those factors included
B the fact that, "the vessel concerned was unseaworthy by reason B
of poor maintenance or age, with the risk of endangering
C passengers" C
17. In R v Lo Shui Lun (unrep., CACC 109/1995, [1995]
D HKLY 394), in a judgment delivered by Bokhary JA, this Court D
said that regard was to be had in sentencing to the aggravating
E
factor (p.453) of "unseaworthiness" where the vessel was to be
E
described as a "floating coffin" or "leaky tub" (para.11). Further,
danger to human life was inherent in the smuggling of human
F cargo. The Court went on to say that the absence of fire-fighting F
equipment and navigation lights was "of relatively little
significance". Although the absence of life-saving equipment
G G
was said to "stand differently", nevertheless it was described as
bringing only "some slight increase in the hazard over and above
H the sort inherent to this kind of activity" (para.10). H
18. In HKSAR v Zhong Ming Jing (unrep., CACC 180/2010,
I [2010] HKEC 2003), a differently constituted division of this I
Court, noting that public expectations of safety at sea had moved
J on, expressed disagreement with those observations in respect J
of fire-fighting and life-saving equipment and said that
henceforth those were matters that should be regarded as factors
K of aggravation (paras.19-20).” K
L L
13. Clearly in the judgment of Tang Zhuyan, the Court of Appeal
M M
was of the view that the applicant falls to be treated under the previous
N practice, prior to the judgment in HKSAR v Zhong Ming Jing. The Court of N
Appeal also ruled that in that case there was no evidence that the vessel
O O
was "unseaworthy" in the sense described in HKSAR v Wong Chi Kin or R
P v Lo Shui Lun. Accordingly, the appropriate starting point to be taken for P
sentence in respect of Charge 1 was 5 years' imprisonment. (see para. 20)
Q Q
R 14. Our present case, however, was committed after Zhong Ming R
Jing. After considering the facts of this case, including that the defendant
S S
was the coxswain or the person in charge of the sampan, that the sampan
T was unseaworthy as described above, and the presence of the aggravating T
U U
V V
- 6 -
A A
factors as mentioned in Zhong Ming Jing, I am going to adopt a higher
B B
starting point of 5 years and 3 months’ imprisonment.
C C
D
Charge 2 D
E E
15. In Tang Zhuyan, the Court of Appeal took into account the
F absence in that case of the aggravating features of danger, either F
deliberately caused by the coxswain of the escaping sampan or as a
G G
consequence of the state of sea, the overloading of the vessel and its
H condition, and regarded the starting point of 18 months' imprisonment H
adopted by the judge below as manifestly excessive and substituted it with
I I
a starting point of 12 months' imprisonment.
J J
16. In the present case, there was no mention about any act of
K K
escape or dangerous maneuvers by the defendant. Be that as it may, the
L defendant is not a fisherman by occupation as the applicant in Tang L
Zhuyan who has the knowledge of the sea and knew how to steer a vessel
M M
and worse still, he only learned to steer the sampan one day before the
N voyage. There were only insufficient life-jackets on board (two jackets for N
three persons) in Tang Zhuyan but in the present case, there was simply no
O O
life-jacket for the five persons on board the sampan including the
P defendant. By reason of the above, I consider that an appropriate starting P
point should still be at least 15 months’ imprisonment.
Q Q
R 17. The defendant is entitled to the reduction for his plea, so he is R
to serve a term of 3 ½ years’ imprisonment for Charge 1 and 10 months’
S S
imprisonment for Charge 2.
T T
U U
V V
- 7 -
A A
Totality
B B
C C
18. In the present case, after considering the totality principle, I
D
order that 4 months of the 10 months imposed in respect of Charge 2 are to D
run consecutively to the term of 3 ½ years imposed in respect of Charge 1.
E E
F Order F
G G
19. Defendant, stand up. You are therefore to serve a total term of
H 3 years’ and 10 months’ imprisonment in respect of both charges. H
I I
J J
K K
L (A. Kwok) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B DCCC418/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 418 OF 2012
E E
----------------------
F HKSAR F
v
G G
SU Rulu
H ---------------------- H
I Before: Deputy District Judge Anthony Kwok I
Date: 19 June 2012
J J
Present: Mr Alvin Chui, PP of the Department of Justice, for HKSAR
K K
Mr Charles Tse of Messrs. Yip Tse & Tang, assigned by the
L
Director of Legal Aid, for the defendant L
Offence: (1) Assisting the passage to Hong Kong of unauthorized
M M
entrants ( 協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程 )
N (2) Endangering the safety of others at sea (危害他人在海上 N
O
安全) O
P P
-------------------------------
Q Q
Reasons for Sentence
R ------------------------------- R
S S
1. The defendant pleaded guilty before me to the following two
T charges: T
U U
V V
- 2 -
A A
(1) Charge 1, assisting the passage to Hong Kong of
B B
unauthorised entrants, contrary to section 37D(1)(a) of
C C
the Immigration Ordinance, Cap 115;
D
(2) Charge 2, endangering the safety of others at sea, D
contrary to section 72 of the Shipping and Port Control
E E
Ordinance, Cap 313.
F F
Facts
G G
H 2. The facts admitted by the defendant and which gave rise to H
the two charges were that at about 10:00pm on 3 March 2012, the marine
I I
police spotted a suspicious motorised sampan near Sha Kiu. The sampan
J was intercepted. The defendant, who was the coxswain, another male and J
3 females were found on board the sampan. The defendant and the 4 other
K K
persons were all Mainlanders and did not have valid travel document or
L permission to enter Hong Kong and were hence unauthorized entrants at L
the material times.
M M
N 3. Under caution, the defendant admitted that he was instructed N
to bring illegal immigrants, whom he did not know, from China to Hong
O O
Kong with a reward of RMB300 each. In a subsequent video-recorded
P interview, the defendant further said that he has no experience in steering a P
boat and did not know whether there was any equipment on the sampan.
Q Q
He only had a torch during the night journey and he was only given a
R lesson by his friend to steer the sampan one day before he was arrested. R
The 4 other mainlanders were also arrested and they claimed they had paid
S S
RMB300 for the trip and they intended to come to Hong Kong to seek jobs
T or visit friends. T
U U
V V
- 3 -
A A
B B
4. The sampan used by the defendant was, upon examination by
C C
the Marine Department, found to be unseaworthy as the main hull structure
D
was in poor condition; there were no fire-fighting appliances, no D
navigation light fitted and no life jacket on the sampan.
E E
F The defendant’s background and mitigations F
G G
5. The defendant is now aged 36 and has a clear record. He is
H still single and lives with an aged old mother of 69 years old. Before he was H
arrested, he worked as a casual construction worker earnind a monthly
I I
income of RMB1,500.
J J
6. In mitigation, it was said that the defendant was diagnosed to
K K
be HIV positive in last September and since then his health condition
L deteriorated and he needs to buy expensive drugs and thereby incurs huge L
medical expenses. He first turned to borrow money from his relatives and
M M
finally resorted to committing the present crimes to solve his financial
N problem. N
O O
7. It was also said on his behalf that it was not a large operation
P and the sampan was not overloaded and all the 4 unauthorised entrants on P
board were normal adult persons instead of pregnant females or old
Q Q
persons.
R R
8. Further, it was said that the defendant was very co-operative
S S
and did not attempt to escape. He made full confessions to his crimes and
T he pleaded guilty at the very first opportunity. T
U U
V V
- 4 -
A A
9. Mr Tse, for the defendant, therefore asked this court to
B B
impose as lenient a sentence on the defendant as possible, given his pleas
C C
and that he was merely used by others to commit the present offences. He
D
also referred me to the recent authority of HKSAR v. Tang Zhuyan [2010] 1 D
HKLRD 447 which also deals with the same set of two charges.
E E
F 10. The Court of Appeal has said time and again that a F
defendant’s personal predicament is generally not a mitigating factor, for
G G
the defendant should have seriously thought about that before committing
H the offence. Whilst the Court sympathizes with the defendant for his H
predicament and in particular, with his mother, it is not a basis upon which
I I
this Court can reduce an otherwise appropriate sentence of imprisonment.
J As this Court said in HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, J
87E-F, "... family circumstances should be disregarded, particularly when
K K
sentences for serious offences are concerned".
L L
11. In the present case, I find that apart from the defendant’s pleas,
M M
there are no other mitigating factors.
N N
Sentencing considerations
O O
Charge 1
P P
12. In Tang Zhuyan, the Court of Appeal has said the followings
Q Q
(para 16-18) :-
R R
“16. As this Court noted in HKSAR v Wong Chi Kin (unrep.,
S CACC 357, 410/2004, [2005] HKEC 176), the appropriate S
starting point for sentence after trial for an offence under
s.37D(1) of the Immigration Ordinance, where the accused is
T the captain or the person in charge of the vessel, is 5 years' T
imprisonment. The Court went on to give a non-definitive list of
U U
V V
- 5 -
A A
aggravating factors relevant to sentence. Those factors included
B the fact that, "the vessel concerned was unseaworthy by reason B
of poor maintenance or age, with the risk of endangering
C passengers" C
17. In R v Lo Shui Lun (unrep., CACC 109/1995, [1995]
D HKLY 394), in a judgment delivered by Bokhary JA, this Court D
said that regard was to be had in sentencing to the aggravating
E
factor (p.453) of "unseaworthiness" where the vessel was to be
E
described as a "floating coffin" or "leaky tub" (para.11). Further,
danger to human life was inherent in the smuggling of human
F cargo. The Court went on to say that the absence of fire-fighting F
equipment and navigation lights was "of relatively little
significance". Although the absence of life-saving equipment
G G
was said to "stand differently", nevertheless it was described as
bringing only "some slight increase in the hazard over and above
H the sort inherent to this kind of activity" (para.10). H
18. In HKSAR v Zhong Ming Jing (unrep., CACC 180/2010,
I [2010] HKEC 2003), a differently constituted division of this I
Court, noting that public expectations of safety at sea had moved
J on, expressed disagreement with those observations in respect J
of fire-fighting and life-saving equipment and said that
henceforth those were matters that should be regarded as factors
K of aggravation (paras.19-20).” K
L L
13. Clearly in the judgment of Tang Zhuyan, the Court of Appeal
M M
was of the view that the applicant falls to be treated under the previous
N practice, prior to the judgment in HKSAR v Zhong Ming Jing. The Court of N
Appeal also ruled that in that case there was no evidence that the vessel
O O
was "unseaworthy" in the sense described in HKSAR v Wong Chi Kin or R
P v Lo Shui Lun. Accordingly, the appropriate starting point to be taken for P
sentence in respect of Charge 1 was 5 years' imprisonment. (see para. 20)
Q Q
R 14. Our present case, however, was committed after Zhong Ming R
Jing. After considering the facts of this case, including that the defendant
S S
was the coxswain or the person in charge of the sampan, that the sampan
T was unseaworthy as described above, and the presence of the aggravating T
U U
V V
- 6 -
A A
factors as mentioned in Zhong Ming Jing, I am going to adopt a higher
B B
starting point of 5 years and 3 months’ imprisonment.
C C
D
Charge 2 D
E E
15. In Tang Zhuyan, the Court of Appeal took into account the
F absence in that case of the aggravating features of danger, either F
deliberately caused by the coxswain of the escaping sampan or as a
G G
consequence of the state of sea, the overloading of the vessel and its
H condition, and regarded the starting point of 18 months' imprisonment H
adopted by the judge below as manifestly excessive and substituted it with
I I
a starting point of 12 months' imprisonment.
J J
16. In the present case, there was no mention about any act of
K K
escape or dangerous maneuvers by the defendant. Be that as it may, the
L defendant is not a fisherman by occupation as the applicant in Tang L
Zhuyan who has the knowledge of the sea and knew how to steer a vessel
M M
and worse still, he only learned to steer the sampan one day before the
N voyage. There were only insufficient life-jackets on board (two jackets for N
three persons) in Tang Zhuyan but in the present case, there was simply no
O O
life-jacket for the five persons on board the sampan including the
P defendant. By reason of the above, I consider that an appropriate starting P
point should still be at least 15 months’ imprisonment.
Q Q
R 17. The defendant is entitled to the reduction for his plea, so he is R
to serve a term of 3 ½ years’ imprisonment for Charge 1 and 10 months’
S S
imprisonment for Charge 2.
T T
U U
V V
- 7 -
A A
Totality
B B
C C
18. In the present case, after considering the totality principle, I
D
order that 4 months of the 10 months imposed in respect of Charge 2 are to D
run consecutively to the term of 3 ½ years imposed in respect of Charge 1.
E E
F Order F
G G
19. Defendant, stand up. You are therefore to serve a total term of
H 3 years’ and 10 months’ imprisonment in respect of both charges. H
I I
J J
K K
L (A. Kwok) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V