A DCCC643/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 643 OF 2012
C C
----------------------
D HKSAR D
v.
E E
Meng Xiaodong
F F
----------------------
G Before: District Judge Tallentire G
Date: 27 August 2012 at 11.02 am
Present: Ms Monica Chan, PP, of the Department of Justice, for
H HKSAR H
Mr Chu Chia-chin, Charles, of Messrs Charles Chu &
I
Kenneth Sit, assigned by the Director of Legal Aid, I
for the Defendant
Offence: (1) Assisting the passage within Hong Kong of
J unauthorised entrants(協助未獲授權進境者在香港境內的旅程) J
(2) Endangering the safety of others at sea (危害他人在
K 海上的安全) K
---------------------
L L
Reasons for Sentence
M M
---------------------
N 1. Defendant, you have pleaded guilty to one offence of N
assisting the passage within Hong Kong of unauthorised entrants,
O contrary to section 37D(1)(a) of the Immigration Ordinance, O
Cap.115, and one offence of endangering the safety of others at
P P
sea, contrary to section 72 of the Shipping and Port Control
Ordinance, Cap.313.
Q Q
R 2. You admitted the brief facts and I convicted you. R
S 3. What occurred is this. S
T T
U U
CRT31/27.8.2012/ML 1 DCCC643/2012/Sentence
V V
A 4. Around 8.14 am on 9 June last, police radar captured a A
suspicious object entering Hong Kong waters and heading towards
B Cheung Muk Tau at about 18 knots. B
C C
5. Sergeant 33911 (PW1), who was at an observation post
at Lo Kei Wan) Beach, saw a sampan steered by you. He instructed
D D
two vessels, namely, PV 15 and PV 16, to intercept you.
E E
6. At around 8.28 am, he saw it steer towards Lo Kei Wan
F Beach, where three males boarded it. F
G G
7. At about 8.31 am, the two police vessels arrived.
H H
8. The officers of the police vessels signalled you to
I
stop. However, you accelerated to 25 knots and zigzagged away. I
J 9. A pursuit lasting some nine minutes resulted with the J
sampan taking in water and sinking north of Tai A Chau. You and
K the three males fell into the sea and you were rescued by K
police. You were all found to be illegal immigrants.
L L
10. Upon subsequent investigation, you admitted you picked
M M
up the three Mainlanders at a beach of Hong Kong to go to Ling
N Ding Dao. N
O 11. You were arrested and cautioned. You claimed you were O
to be given half of the sea product as a reward.
P P
12. In a subsequent video recorded interview, you claimed,
Q Q
under caution, the following:
R R
(1) you came to collect your three friends from a beach
S in Lantau, where they had gone to collect conch to S
sell in Ling Ding Dao;
T T
U U
CRT31/27.8.2012/ML 2 DCCC643/2012/Sentence
V V
A (2) your friends had come to Hong Kong the previous A
day;
B B
(3) Huang called you that morning and asked that they
C C
be collected from Lantau;
D D
(4) you came alone from Ling Ding Dao;
E E
(5) the sampan belonged to your boss;
F F
(6) there was one life jacket, three net strings, one
G G
outboard motor and two barrels of fuel on the
sampan. There was no life buoyancy, navigation
H H
light, fire-fighting equipment or compass;
I I
(7) you did not hold a licence to navigate the vessel;
J J
(8) none of you were authorised to enter Hong Kong.
K K
13. The sunken sampan was never recovered.
L L
14. On 10 June, the three IIs were repatriated.
M M
N 15. You are of hitherto clear record. N
O 16. Mitigation was advanced on your behalf by Mr Chu. O
P P
17. He told me that you are of 20 years of age, educated
to primary level, and a fisherman by trade, earning some 1,500
Q Q
to 2,000 Renminbi per month.
R R
18. Each month you remit some 500 to 600 Renminbi to your
S grandfather, who was caring for your younger sister. Your S
grandfather is an ex-soldier in his 70s with a pension of
T T
$1,000 per month. It seems that the contribution that you make
is extremely helpful.
U U
CRT31/27.8.2012/ML 3 DCCC643/2012/Sentence
V V
A A
19. I am also told that your parents are now divorced.
B Your mother is remarried and your father is a drunkard who B
contributes nothing to the family.
C C
20. Mr Chu read to the court a letter which you had
D D
written, explaining the situation and apologising.
E E
21. Whilst I do not feel the need to repeat what you said,
F I have noted what was said and taken it into consideration. F
G G
22. Referring to the facts, Mr Chu asked me to consider
this to be a somewhat less serious case than many others.
H H
I
23. He put forward the following reasons: I
J (1) the incident took place in bright daylight at about J
8.14 am;
K K
(2) the weather was relatively good, there being little
L L
wind and a calm sea with good visibility;
M M
(3) also, the four men involved in this are all seamen,
N so are able to swim and used to the sea; N
O (4) although in your video recorded interview you had O
said there was only one lifejacket, there were, in
P P
fact, two, found at the scene and I was referred to
the statement of Police Sergeant 54633. I shall
Q Q
tell you that I am prepared to accept that was the
R case; R
S (5) also, there was no collision during the short S
pursuit and no one was injured.
T T
U U
CRT31/27.8.2012/ML 4 DCCC643/2012/Sentence
V V
A 24. Both prosecution and defence referred me to the case A
of HKSAR v Tang Zhuyan, CACC223/2010. There, the Court of Appeal
B laid down a starting point of some 5 years for the 1st defendant B
and 12 months for the 2nd. It was also entirely proper to make
C C
part of the second sentence concurrent.
D D
25. I did note that in that case, the situation was
E somewhat similar but not identical to the present case. E
F 26. Additionally, Ms Chan referred me to two cases heard F
together, namely, HKSAR v Wong Chi Kin and HKSAR v Ko King Hung,
G G
CACC357/2004.
H H
27. Whilst I have noted those cases, it is not necessary
I
to recite the facts. I
J 28. Mr Chu also made the point that the men were here to J
collect conch and harvest conch, not the more serious matter of
K stealing Buddhist pines. K
L L
29. He submitted that the taking of conch is not a crime,
whereas the taking of Buddhist pines is.
M M
N 30. He also made the point that, as the matters proceeded N
in daylight, the lack of navigation lights was of little
O significance. O
P P
The sentence itself
Q Q
31. These charges individually and together are always
R serious. R
S 32. I accept that in respect of the 1st charge, the S
evidence was that the men had not actually taken any conch, or
T T
more accurately, I should put it this way, that there is no
evidence that they had.
U U
CRT31/27.8.2012/ML 5 DCCC643/2012/Sentence
V V
A A
33. I also note that the purpose of your incursion was to
B remove the men from Hong Kong, not to bring them here. They were B
then to be restored to the Mainland.
C C
34. I note also that you are a relatively young man of
D D
clear record.
E E
35. Also, it is clear that it is a mitigating circumstance
F that these offences took place in bright daylight with good F
weather conditions and good visibility.
G G
36. It is also extremely significant that all four of you
H H
are fisherman, and therefore, men experienced in the ways of the
I
sea, and all able to swim. I
J 37. The vessel itself was clearly unseaworthy. I am J
satisfied it had only two lifejackets for four people; no
K navigation lights, though I do accept that that is less K
important in daylight; and no fire-fighting equipment.
L L
38. Danger was also caused by the fact that you do not
M M
hold the correct licence to drive such a vehicle and that you
N made an attempt to flee. Zigzagging is extremely dangerous in N
these conditions.
O O
39. I accept that there was no collision and no one was
P P
actually injured.
Q Q
40. I have also taken into account your personal
R circumstances and the reasons for which the men came to Hong R
Kong.
S S
41. I do find that a slightly lesser starting point can be
T T
adopted in the circumstances of this case.
U U
CRT31/27.8.2012/ML 6 DCCC643/2012/Sentence
V V
A 42. Stand up, please. A
B 43. In respect of the 1st charge, I take as a starting B
point 4½ years’ imprisonment, reduced to 3; you will go to
C C
prison for 3 years.
D D
44. In respect of the 2nd charge, I take as a starting
E point 9 months’ imprisonment, reduced to 6 months; you will go E
to prison for 6 months.
F F
45. However, applying the principle of totality, 2 months
G G
will be consecutive and 4 months will be concurrent.
H H
46. That is a total of 3 years and 2 months’ - 38 months’
I
- imprisonment. I
J J
Tallentire
K District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/27.8.2012/ML 7 DCCC643/2012/Sentence
V V
A DCCC643/2012 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 643 OF 2012
C C
----------------------
D HKSAR D
v.
E E
Meng Xiaodong
F F
----------------------
G Before: District Judge Tallentire G
Date: 27 August 2012 at 11.02 am
Present: Ms Monica Chan, PP, of the Department of Justice, for
H HKSAR H
Mr Chu Chia-chin, Charles, of Messrs Charles Chu &
I
Kenneth Sit, assigned by the Director of Legal Aid, I
for the Defendant
Offence: (1) Assisting the passage within Hong Kong of
J unauthorised entrants(協助未獲授權進境者在香港境內的旅程) J
(2) Endangering the safety of others at sea (危害他人在
K 海上的安全) K
---------------------
L L
Reasons for Sentence
M M
---------------------
N 1. Defendant, you have pleaded guilty to one offence of N
assisting the passage within Hong Kong of unauthorised entrants,
O contrary to section 37D(1)(a) of the Immigration Ordinance, O
Cap.115, and one offence of endangering the safety of others at
P P
sea, contrary to section 72 of the Shipping and Port Control
Ordinance, Cap.313.
Q Q
R 2. You admitted the brief facts and I convicted you. R
S 3. What occurred is this. S
T T
U U
CRT31/27.8.2012/ML 1 DCCC643/2012/Sentence
V V
A 4. Around 8.14 am on 9 June last, police radar captured a A
suspicious object entering Hong Kong waters and heading towards
B Cheung Muk Tau at about 18 knots. B
C C
5. Sergeant 33911 (PW1), who was at an observation post
at Lo Kei Wan) Beach, saw a sampan steered by you. He instructed
D D
two vessels, namely, PV 15 and PV 16, to intercept you.
E E
6. At around 8.28 am, he saw it steer towards Lo Kei Wan
F Beach, where three males boarded it. F
G G
7. At about 8.31 am, the two police vessels arrived.
H H
8. The officers of the police vessels signalled you to
I
stop. However, you accelerated to 25 knots and zigzagged away. I
J 9. A pursuit lasting some nine minutes resulted with the J
sampan taking in water and sinking north of Tai A Chau. You and
K the three males fell into the sea and you were rescued by K
police. You were all found to be illegal immigrants.
L L
10. Upon subsequent investigation, you admitted you picked
M M
up the three Mainlanders at a beach of Hong Kong to go to Ling
N Ding Dao. N
O 11. You were arrested and cautioned. You claimed you were O
to be given half of the sea product as a reward.
P P
12. In a subsequent video recorded interview, you claimed,
Q Q
under caution, the following:
R R
(1) you came to collect your three friends from a beach
S in Lantau, where they had gone to collect conch to S
sell in Ling Ding Dao;
T T
U U
CRT31/27.8.2012/ML 2 DCCC643/2012/Sentence
V V
A (2) your friends had come to Hong Kong the previous A
day;
B B
(3) Huang called you that morning and asked that they
C C
be collected from Lantau;
D D
(4) you came alone from Ling Ding Dao;
E E
(5) the sampan belonged to your boss;
F F
(6) there was one life jacket, three net strings, one
G G
outboard motor and two barrels of fuel on the
sampan. There was no life buoyancy, navigation
H H
light, fire-fighting equipment or compass;
I I
(7) you did not hold a licence to navigate the vessel;
J J
(8) none of you were authorised to enter Hong Kong.
K K
13. The sunken sampan was never recovered.
L L
14. On 10 June, the three IIs were repatriated.
M M
N 15. You are of hitherto clear record. N
O 16. Mitigation was advanced on your behalf by Mr Chu. O
P P
17. He told me that you are of 20 years of age, educated
to primary level, and a fisherman by trade, earning some 1,500
Q Q
to 2,000 Renminbi per month.
R R
18. Each month you remit some 500 to 600 Renminbi to your
S grandfather, who was caring for your younger sister. Your S
grandfather is an ex-soldier in his 70s with a pension of
T T
$1,000 per month. It seems that the contribution that you make
is extremely helpful.
U U
CRT31/27.8.2012/ML 3 DCCC643/2012/Sentence
V V
A A
19. I am also told that your parents are now divorced.
B Your mother is remarried and your father is a drunkard who B
contributes nothing to the family.
C C
20. Mr Chu read to the court a letter which you had
D D
written, explaining the situation and apologising.
E E
21. Whilst I do not feel the need to repeat what you said,
F I have noted what was said and taken it into consideration. F
G G
22. Referring to the facts, Mr Chu asked me to consider
this to be a somewhat less serious case than many others.
H H
I
23. He put forward the following reasons: I
J (1) the incident took place in bright daylight at about J
8.14 am;
K K
(2) the weather was relatively good, there being little
L L
wind and a calm sea with good visibility;
M M
(3) also, the four men involved in this are all seamen,
N so are able to swim and used to the sea; N
O (4) although in your video recorded interview you had O
said there was only one lifejacket, there were, in
P P
fact, two, found at the scene and I was referred to
the statement of Police Sergeant 54633. I shall
Q Q
tell you that I am prepared to accept that was the
R case; R
S (5) also, there was no collision during the short S
pursuit and no one was injured.
T T
U U
CRT31/27.8.2012/ML 4 DCCC643/2012/Sentence
V V
A 24. Both prosecution and defence referred me to the case A
of HKSAR v Tang Zhuyan, CACC223/2010. There, the Court of Appeal
B laid down a starting point of some 5 years for the 1st defendant B
and 12 months for the 2nd. It was also entirely proper to make
C C
part of the second sentence concurrent.
D D
25. I did note that in that case, the situation was
E somewhat similar but not identical to the present case. E
F 26. Additionally, Ms Chan referred me to two cases heard F
together, namely, HKSAR v Wong Chi Kin and HKSAR v Ko King Hung,
G G
CACC357/2004.
H H
27. Whilst I have noted those cases, it is not necessary
I
to recite the facts. I
J 28. Mr Chu also made the point that the men were here to J
collect conch and harvest conch, not the more serious matter of
K stealing Buddhist pines. K
L L
29. He submitted that the taking of conch is not a crime,
whereas the taking of Buddhist pines is.
M M
N 30. He also made the point that, as the matters proceeded N
in daylight, the lack of navigation lights was of little
O significance. O
P P
The sentence itself
Q Q
31. These charges individually and together are always
R serious. R
S 32. I accept that in respect of the 1st charge, the S
evidence was that the men had not actually taken any conch, or
T T
more accurately, I should put it this way, that there is no
evidence that they had.
U U
CRT31/27.8.2012/ML 5 DCCC643/2012/Sentence
V V
A A
33. I also note that the purpose of your incursion was to
B remove the men from Hong Kong, not to bring them here. They were B
then to be restored to the Mainland.
C C
34. I note also that you are a relatively young man of
D D
clear record.
E E
35. Also, it is clear that it is a mitigating circumstance
F that these offences took place in bright daylight with good F
weather conditions and good visibility.
G G
36. It is also extremely significant that all four of you
H H
are fisherman, and therefore, men experienced in the ways of the
I
sea, and all able to swim. I
J 37. The vessel itself was clearly unseaworthy. I am J
satisfied it had only two lifejackets for four people; no
K navigation lights, though I do accept that that is less K
important in daylight; and no fire-fighting equipment.
L L
38. Danger was also caused by the fact that you do not
M M
hold the correct licence to drive such a vehicle and that you
N made an attempt to flee. Zigzagging is extremely dangerous in N
these conditions.
O O
39. I accept that there was no collision and no one was
P P
actually injured.
Q Q
40. I have also taken into account your personal
R circumstances and the reasons for which the men came to Hong R
Kong.
S S
41. I do find that a slightly lesser starting point can be
T T
adopted in the circumstances of this case.
U U
CRT31/27.8.2012/ML 6 DCCC643/2012/Sentence
V V
A 42. Stand up, please. A
B 43. In respect of the 1st charge, I take as a starting B
point 4½ years’ imprisonment, reduced to 3; you will go to
C C
prison for 3 years.
D D
44. In respect of the 2nd charge, I take as a starting
E point 9 months’ imprisonment, reduced to 6 months; you will go E
to prison for 6 months.
F F
45. However, applying the principle of totality, 2 months
G G
will be consecutive and 4 months will be concurrent.
H H
46. That is a total of 3 years and 2 months’ - 38 months’
I
- imprisonment. I
J J
Tallentire
K District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/27.8.2012/ML 7 DCCC643/2012/Sentence
V V