A DCCC526/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 526 OF 2012
----------------------
C C
HKSAR
D D
v.
E Fu Huoan (D1) E
Guo Guiming (D2)
F F
-----------------------
G Before: Deputy District Judge E. Lin G
Date: 27 August 2012 at 3.20 pm
Present: Ms Lisa Go, PP, of the Department of Justice, for
H HKSAR H
Mr Cheng Kwun-chau Derek, of Messrs Cheng & Wong,
I
assigned by the Director of Legal Aid, for both I
Defendants
Offence: (1) Assisting the passage to Hong Kong of unauthorised
J entrants (協助未獲授權進境者前來香港的旅程) J
(2) Endangering the safety of others at sea (危害他人在
K 海上的安全) (against D1 only) K
(3) Possession of dutiable goods (管有應課稅貨品)
(against D1 only)
L (4) Conveyance of dangerous goods without a licence (無 L
牌運送危險品) (against D1 only)
M M
N N
---------------------
O O
Reasons for Sentence
P --------------------- P
Q Q
R 1. In this case the defendants Fu Huoan (D1) and Guo R
Guiming (D2), are jointly charged with one count of ‘assisting
S S
the passage to Hong Kong of unauthorised entrants’, contrary to
section 37D(1)(a) of the Immigration Ordinance, Cap.115.
T T
U 2. D1 is further charged with the following 3 counts: U
CRT26/27.8.2012/ML 1 DCCC526/2012/Sentence
V V
A A
(2) ‘Endangering the Safety of Others at Sea’,
B contrary to section 32 of the Shipping and B
Port Control Ordinance, Cap.313;
C C
(3) ‘Possession of Dutiable Goods’, contrary to
D sections 17(6) and 46(3) of the Dutiable D
Commodities Ordinance, Cap.109; and
E E
(4) ‘Conveyance of Dangerous Goods Without a
F F
Licence’, contrary to sections 6 and 14(1)
G of the Dangerous Goods Ordinance, Cap.295. G
H H
The facts
I I
3. At about 5.55 pm on 19 April 2010, the marine police,
J through its radar, detected a motored wooden vessel travelling J
in the Hong Kong waters towards Shek Kwu Chau at a speed of 8
K knots. The boat was eventually stopped by police vessels. K
L L
4. At the time D2 Guo Guiming was the coxswain. Also on board
were two Vietnamese adults, one Chinese male and D1.
M M
N 5. Investigation revealed that the two Vietnamese males were N
in possession of Vietnam identity cards and they were
O unauthorised entrants (Charge 1). O
P P
6. The condition of the vessel formed the basis of Charge 2,
as examination of it revealed that it was unseaworthy:
Q Q
R (1) the main hull structure was in poor condition; R
S (2) there was no fire-fighting appliances; S
T T
(3) there were insufficient number of approved-type
lifejackets equipped on board;
U U
CRT26/27.8.2012/ML 2 DCCC526/2012/Sentence
V V
A A
(4) the navigation lights fitted on board for night
B operation were not of the approved type. B
C C
7. Furthermore, the police also found two carton boxes
containing a total of eight packets of firecrackers (subject
D D
matter of charge 4) and 17,400 pieces of cigarettes on board the
E vessel (subject matter of Charge 3). E
F 8. At the time of the offence the 1st defendant did not have F
any permit or licence regarding the possession of such goods.
G G
9. Both defendants were arrested and cautioned.
H H
I
10. The 1st defendant admitted that he rented the vessel in I
January 2012 and at the request of the two Vietnamese males he
J agreed to take them from Panyu Pier to Hong Kong for $300 per J
person. He also admitted that he was coxswain of the vessel and
K that D2 was hired by him as a helping hand for fishing. At the K
time when the police showed up, D2 had just taken over the
L L
navigation for the vessel while he had gone to obey the call of
nature.
M M
N 11. He further admitted that the cigarettes and the N
firecrackers belonged to him; in that it was entrusted to him by
O someone in Panyu for conveyance to Hong Kong. O
P P
12. Likewise, D2, under caution, admitted the same set of
facts.
Q Q
R 13. Both defendants were of clear record in Hong Kong. R
S Sentencing Considerations S
T T
14. Owing to the special geographical location and the
political situation, unlawful conveyance of unauthorised
U U
CRT26/27.8.2012/ML 3 DCCC526/2012/Sentence
V V
A entrants had been rampant. The Court of Appeal had a long line A
of authorities clearly pointing the proper sentence to be passed
B in offences of this nature. B
C C
15. In particular, in the case of Wong Chi Kin and Ko King Hung
(DCCC435& 509/2004), the Court of Appeal had the opportunity of
D D
reviewing the line of authorities and came up with clear
E sentencing guidelines. E
F 16. At paragraph 12 of the judgment, Honourable Woo VP had the F
following to say:
G G
“The general applicable tariff is 4 years’
H imprisonment: R v Ho Siu Lun & Ors [1987] HKLR 1086, R H
v Chan Kwok Keung & Anor [1998] 1 HKLR 279 and R v Lam
Kon Man, Criminal App No. 329/1990. When the accused
I was the captain of the vessel or the person in charge I
or assisting in the operation or the organisation of
the venture, the appropriate starting point is 5 years’
J J
imprisonment: R v Wong Yin Lung [1995] 1 HKCLR 151 at
153 and R v Pang Wing [1996] 1 HKC 624 at 626”.
K K
17. In the same judgment, the Court of Appeal also pointed out
L a number of aggravating factors which would justify the increase L
of the 5-year starting point; factors such as:
M M
(1) if the unauthorised entrants were concealed in a
N N
place from which escape would have been difficult;
O O
(2) the vessel concerned was unseaworthy by reason of
P poor maintenance or age, with a risk of endangering the P
passengers;
Q Q
(3) the vessel was carrying a large number of illegal
R R
entrants;
S S
(4) the vessel was grossly overloaded;
T T
U U
CRT26/27.8.2012/ML 4 DCCC526/2012/Sentence
V V
A (5) by reason of the age and the physical condition of A
the unauthorised entrants, the degree of danger was
B greater. B
C C
18. In the present case, only two unauthorised entrants were
involved. In this sense, there is no aggravating factor.
D D
E 19. Although there were firecrackers on board, there was no E
evidence that suggests that it posed any serious hazard to the
F vessel. F
G G
20. The only other matter of concern is the condition of the
vessel, which, according to the facts, was so poor that it was
H H
unseaworthy: there were no fire-fighting appliances and
I
insufficient numbers of approved-type lifejackets. However, I
having looked at the pictures of the vessel in question, I am
J satisfied that the present case did not involve any significant J
aggravating factor which would justify my increase of the
K starting point for Charge 1. K
L L
21. Although in the case of Zhong Ming Jing, CACC180/2010, the
Court of Appeal has pointed out that the fire hazard would be a
M M
relevant factor and could be considered as an aggravating
N factor, this, I noted, is already reflected in the 2nd charge, N
and to use it as a reason for increasing the starting point
O would put the 1st defendant in the danger of having been doubly O
sentenced.
P P
22. For the above reasons, I do not see any particular factors
Q Q
which would make me increase the starting point of
R 5 years in the case of D1. R
S 23. In the case of D2, the prosecution accepted that he was S
playing a relatively minor role. In accordance with authorities
T T
just referred to, I will adopt, therefore, 4 years as a starting
point in his case.
U U
CRT26/27.8.2012/ML 5 DCCC526/2012/Sentence
V V
A A
24. In respect of the second count (‘Endangering the Safety of
B Others at Sea), I pray in aid of the decision of Tang Zhuyan, B
CACC223/2010, where, in a case of similar factual basis, the
C C
Court of Appeal considered an appeal of a sentence order made in
the District Court and concluded that 12 months’ imprisonment
D D
was an appropriate sentence order.
E E
25. In respect of the third and the fourth counts, I accept
F that these are relatively minor offences which had been F
committed by the 1st defendant as an afterthought. Therefore, I
G G
will adopt 3 months’ imprisonment for both counts as a starting
point.
H H
I
Mitigation I
26. I now turn to consider the mitigating factors put forward
J by the defence lawyer. J
K 27. Both defendants were adults. They had a clear record in K
Hong Kong and the purpose of committing the offences obviously
L L
was finance related.
M M
28. Therefore, except for the fact that they pleaded guilty, I
N do not see any particular factors which would justify any N
further reduction of the sentence.
O O
29. Accordingly for the 1st defendant, the sentence is reduced
P P
from the starting point of 5 years to 3 years and 4 months.
Q Q
30. For the 2nd defendant, the sentence of 4 years is likewise
R reduced to take into account his guilty plea to be 32 months. R
S 31. In respect of the second count, the 12 months’ imprisonment S
is hereby reduced to 8, and in the light of the authority of
T T
Tang Zhuyan, 2 months is to run consecutive to the existing
sentence.
U U
CRT26/27.8.2012/ML 6 DCCC526/2012/Sentence
V V
A A
32. In respect of the third and the fourth count, for the same
B reason the sentence order of 3 months is hereby reduced to 2, to B
run concurrently.
C C
33. I also take into account the totality principle. I would
D D
order that the 2 months of the second count to run consecutive
E to the first, and 1 month of the sentence orders for of counts 3 E
and 4 to run consecutive to the other sentences.
F F
34. Therefore, the total sentence for the 1st defendant is 3
G G
years and 7 months.
H H
35. The total sentence for D2 for count 1 is 2 years and
I
8 months. I
J J
K K
(E. Lin)
L Deputy District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/27.8.2012/ML 7 DCCC526/2012/Sentence
V V
A DCCC526/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 526 OF 2012
----------------------
C C
HKSAR
D D
v.
E Fu Huoan (D1) E
Guo Guiming (D2)
F F
-----------------------
G Before: Deputy District Judge E. Lin G
Date: 27 August 2012 at 3.20 pm
Present: Ms Lisa Go, PP, of the Department of Justice, for
H HKSAR H
Mr Cheng Kwun-chau Derek, of Messrs Cheng & Wong,
I
assigned by the Director of Legal Aid, for both I
Defendants
Offence: (1) Assisting the passage to Hong Kong of unauthorised
J entrants (協助未獲授權進境者前來香港的旅程) J
(2) Endangering the safety of others at sea (危害他人在
K 海上的安全) (against D1 only) K
(3) Possession of dutiable goods (管有應課稅貨品)
(against D1 only)
L (4) Conveyance of dangerous goods without a licence (無 L
牌運送危險品) (against D1 only)
M M
N N
---------------------
O O
Reasons for Sentence
P --------------------- P
Q Q
R 1. In this case the defendants Fu Huoan (D1) and Guo R
Guiming (D2), are jointly charged with one count of ‘assisting
S S
the passage to Hong Kong of unauthorised entrants’, contrary to
section 37D(1)(a) of the Immigration Ordinance, Cap.115.
T T
U 2. D1 is further charged with the following 3 counts: U
CRT26/27.8.2012/ML 1 DCCC526/2012/Sentence
V V
A A
(2) ‘Endangering the Safety of Others at Sea’,
B contrary to section 32 of the Shipping and B
Port Control Ordinance, Cap.313;
C C
(3) ‘Possession of Dutiable Goods’, contrary to
D sections 17(6) and 46(3) of the Dutiable D
Commodities Ordinance, Cap.109; and
E E
(4) ‘Conveyance of Dangerous Goods Without a
F F
Licence’, contrary to sections 6 and 14(1)
G of the Dangerous Goods Ordinance, Cap.295. G
H H
The facts
I I
3. At about 5.55 pm on 19 April 2010, the marine police,
J through its radar, detected a motored wooden vessel travelling J
in the Hong Kong waters towards Shek Kwu Chau at a speed of 8
K knots. The boat was eventually stopped by police vessels. K
L L
4. At the time D2 Guo Guiming was the coxswain. Also on board
were two Vietnamese adults, one Chinese male and D1.
M M
N 5. Investigation revealed that the two Vietnamese males were N
in possession of Vietnam identity cards and they were
O unauthorised entrants (Charge 1). O
P P
6. The condition of the vessel formed the basis of Charge 2,
as examination of it revealed that it was unseaworthy:
Q Q
R (1) the main hull structure was in poor condition; R
S (2) there was no fire-fighting appliances; S
T T
(3) there were insufficient number of approved-type
lifejackets equipped on board;
U U
CRT26/27.8.2012/ML 2 DCCC526/2012/Sentence
V V
A A
(4) the navigation lights fitted on board for night
B operation were not of the approved type. B
C C
7. Furthermore, the police also found two carton boxes
containing a total of eight packets of firecrackers (subject
D D
matter of charge 4) and 17,400 pieces of cigarettes on board the
E vessel (subject matter of Charge 3). E
F 8. At the time of the offence the 1st defendant did not have F
any permit or licence regarding the possession of such goods.
G G
9. Both defendants were arrested and cautioned.
H H
I
10. The 1st defendant admitted that he rented the vessel in I
January 2012 and at the request of the two Vietnamese males he
J agreed to take them from Panyu Pier to Hong Kong for $300 per J
person. He also admitted that he was coxswain of the vessel and
K that D2 was hired by him as a helping hand for fishing. At the K
time when the police showed up, D2 had just taken over the
L L
navigation for the vessel while he had gone to obey the call of
nature.
M M
N 11. He further admitted that the cigarettes and the N
firecrackers belonged to him; in that it was entrusted to him by
O someone in Panyu for conveyance to Hong Kong. O
P P
12. Likewise, D2, under caution, admitted the same set of
facts.
Q Q
R 13. Both defendants were of clear record in Hong Kong. R
S Sentencing Considerations S
T T
14. Owing to the special geographical location and the
political situation, unlawful conveyance of unauthorised
U U
CRT26/27.8.2012/ML 3 DCCC526/2012/Sentence
V V
A entrants had been rampant. The Court of Appeal had a long line A
of authorities clearly pointing the proper sentence to be passed
B in offences of this nature. B
C C
15. In particular, in the case of Wong Chi Kin and Ko King Hung
(DCCC435& 509/2004), the Court of Appeal had the opportunity of
D D
reviewing the line of authorities and came up with clear
E sentencing guidelines. E
F 16. At paragraph 12 of the judgment, Honourable Woo VP had the F
following to say:
G G
“The general applicable tariff is 4 years’
H imprisonment: R v Ho Siu Lun & Ors [1987] HKLR 1086, R H
v Chan Kwok Keung & Anor [1998] 1 HKLR 279 and R v Lam
Kon Man, Criminal App No. 329/1990. When the accused
I was the captain of the vessel or the person in charge I
or assisting in the operation or the organisation of
the venture, the appropriate starting point is 5 years’
J J
imprisonment: R v Wong Yin Lung [1995] 1 HKCLR 151 at
153 and R v Pang Wing [1996] 1 HKC 624 at 626”.
K K
17. In the same judgment, the Court of Appeal also pointed out
L a number of aggravating factors which would justify the increase L
of the 5-year starting point; factors such as:
M M
(1) if the unauthorised entrants were concealed in a
N N
place from which escape would have been difficult;
O O
(2) the vessel concerned was unseaworthy by reason of
P poor maintenance or age, with a risk of endangering the P
passengers;
Q Q
(3) the vessel was carrying a large number of illegal
R R
entrants;
S S
(4) the vessel was grossly overloaded;
T T
U U
CRT26/27.8.2012/ML 4 DCCC526/2012/Sentence
V V
A (5) by reason of the age and the physical condition of A
the unauthorised entrants, the degree of danger was
B greater. B
C C
18. In the present case, only two unauthorised entrants were
involved. In this sense, there is no aggravating factor.
D D
E 19. Although there were firecrackers on board, there was no E
evidence that suggests that it posed any serious hazard to the
F vessel. F
G G
20. The only other matter of concern is the condition of the
vessel, which, according to the facts, was so poor that it was
H H
unseaworthy: there were no fire-fighting appliances and
I
insufficient numbers of approved-type lifejackets. However, I
having looked at the pictures of the vessel in question, I am
J satisfied that the present case did not involve any significant J
aggravating factor which would justify my increase of the
K starting point for Charge 1. K
L L
21. Although in the case of Zhong Ming Jing, CACC180/2010, the
Court of Appeal has pointed out that the fire hazard would be a
M M
relevant factor and could be considered as an aggravating
N factor, this, I noted, is already reflected in the 2nd charge, N
and to use it as a reason for increasing the starting point
O would put the 1st defendant in the danger of having been doubly O
sentenced.
P P
22. For the above reasons, I do not see any particular factors
Q Q
which would make me increase the starting point of
R 5 years in the case of D1. R
S 23. In the case of D2, the prosecution accepted that he was S
playing a relatively minor role. In accordance with authorities
T T
just referred to, I will adopt, therefore, 4 years as a starting
point in his case.
U U
CRT26/27.8.2012/ML 5 DCCC526/2012/Sentence
V V
A A
24. In respect of the second count (‘Endangering the Safety of
B Others at Sea), I pray in aid of the decision of Tang Zhuyan, B
CACC223/2010, where, in a case of similar factual basis, the
C C
Court of Appeal considered an appeal of a sentence order made in
the District Court and concluded that 12 months’ imprisonment
D D
was an appropriate sentence order.
E E
25. In respect of the third and the fourth counts, I accept
F that these are relatively minor offences which had been F
committed by the 1st defendant as an afterthought. Therefore, I
G G
will adopt 3 months’ imprisonment for both counts as a starting
point.
H H
I
Mitigation I
26. I now turn to consider the mitigating factors put forward
J by the defence lawyer. J
K 27. Both defendants were adults. They had a clear record in K
Hong Kong and the purpose of committing the offences obviously
L L
was finance related.
M M
28. Therefore, except for the fact that they pleaded guilty, I
N do not see any particular factors which would justify any N
further reduction of the sentence.
O O
29. Accordingly for the 1st defendant, the sentence is reduced
P P
from the starting point of 5 years to 3 years and 4 months.
Q Q
30. For the 2nd defendant, the sentence of 4 years is likewise
R reduced to take into account his guilty plea to be 32 months. R
S 31. In respect of the second count, the 12 months’ imprisonment S
is hereby reduced to 8, and in the light of the authority of
T T
Tang Zhuyan, 2 months is to run consecutive to the existing
sentence.
U U
CRT26/27.8.2012/ML 6 DCCC526/2012/Sentence
V V
A A
32. In respect of the third and the fourth count, for the same
B reason the sentence order of 3 months is hereby reduced to 2, to B
run concurrently.
C C
33. I also take into account the totality principle. I would
D D
order that the 2 months of the second count to run consecutive
E to the first, and 1 month of the sentence orders for of counts 3 E
and 4 to run consecutive to the other sentences.
F F
34. Therefore, the total sentence for the 1st defendant is 3
G G
years and 7 months.
H H
35. The total sentence for D2 for count 1 is 2 years and
I
8 months. I
J J
K K
(E. Lin)
L Deputy District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/27.8.2012/ML 7 DCCC526/2012/Sentence
V V
DCCC526/2012 HKSAR v. FU HUOAN AND ANOTHER - LawHero