A A
B B
DCCC 746/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 746 OF 2013 E
F F
---------------------------
G HKSAR G
v
H H
XIE Rujian
I --------------------------- I
J J
Coram: Deputy District Judge A. Yim
K Date: 18th September 2013 K
Present: Miss Monica Chan, Public Prosecutor for HKSAR.
L L
Ms Liang Pui Saw Kian Susan of Messrs Yip, Tse & Tang
M assigned by the Director of Legal Aid for the Defendant. M
Offences: (1) Attempting to land in Hong Kong without permission (未
N N
經准許而企圖在香港入境)
O O
(2) Endangering the safety of others at sea (危害他人在海上
P 的安全) P
Q Q
-------------------------------
R Reasons for Sentence R
-------------------------------
S S
T T
1. The defendant is charged for :-
U U
V V
- 2 -
A A
B B
C (i) Attempting to land in Hong Kong without permission, contrary C
to section 38(1)(a) of the Immigration Ordinance, Cap.115,
D D
section 159G of the Crimes Ordinance, Cap.200 and section 89
E of the Criminal Procedure Ordinance, Cap.221. E
F F
(ii) Endangering the safety of others at sea, contrary to section 72
G of the Shipping and Port Control Ordinance, Cap.313. G
H H
2. The defendant pleaded to the charges and admitted the facts, he is
I convicted accordingly. I
J J
The Facts
K K
3. At about 2:24 a.m. on 11 June 2013, the defendant, a Mainland
L L
resident, used an unlit motorized sampan to convey 4 Pakistani males to
M Hong Kong. The defendant was aware of the illegal status of his M
passengers. Near southeast of “B” Beacon Pole, the Police intercepted him.
N N
The defendant was arrested for the offences charged, under caution, the
O defendant admitted the offences. O
P P
4. In a subsequent video-recorded interview, the defendant stated
Q that on 10 June 2013, he was offered ¥2,000 to convey persons to Hong Q
Kong by vessel, and at around 2:00 a.m. on 11 June he picked up the 4
R R
Pakistani males at Shenzhen Bay by wooden sampan, and was intercepted
S by police about half an hour later. He knew that there were no life jackets S
or navigation lights on board, he did not hold any licence for navigating
T T
vessels but he knew how to navigate vessels because he was an employed
U U
V V
- 3 -
A A
B B
fisherman. He did not possess any valid documents for entering Hong
C Kong. C
D D
5. The 4 Pakistani males on board the sampan were all confirmed to
E be illegal immigrants and were handed over to the Immigration E
Department on 12 June 2013 for repatriation.
F F
G 6. The main hull structure and watertight integrity of the sampan G
were found in poor condition, there were no fire-fighting appliances
H H
equipped on board, there were only two life jackets on board, no
I navigation light was fitted on board for night navigation, and no buoyancy I
chambers constructed on board, so that it was unseaworthy.
J J
K Mitigation K
L L
7. The defendant aged 39, a Mainland resident. He lives with his
M aged parents and elder brother, and he used to be a fisherman and qualified M
to navigate vessels. The defendant has two previous convictions in Hong
N N
Kong, and was last released on 12 January 2012, since his last remand in
O jail, he has got rid of drugs. O
P P
8. There were two life jackets found on board, but the defendant
Q told the Police during interview that there was no life jacket, as to whether Q
he was aware of the existence of the life jackets, the defendant told me he
R R
just forgot the matter during the interview, I gave the benefit of doubt to the
S defendant on this matter. S
T T
U U
V V
- 4 -
A A
B B
9. It is submitted on his behalf that he pleaded guilty at the earliest
C opportunity, and he made no attempt to escape at the material time, all C
illegal immigrants were adult, no one were injured, the weather was clam,
D D
though the sampan was unseaworthy it was not depleted as shown in the
E photos. He is unemployed and the aged parents are depending on him, he E
is yet to receive the ¥2,000 offered to him. The defence urged the court to
F F
make the sentence of both charges to run concurrently.
G G
Sentencing
H H
I 10. Charge 1 carries a maximum sentence of 3 years’ imprisonment I
and Charge 2 a maximum sentence of 4 years’ imprisonment. The
J J
defendant was first convicted for illegal remaining in August 1991 and
K sentenced for 12 months when he was 18 years old; he was convicted again K
in November 2009 for assisting the passage to/within Hong Kong of
L L
unauthorized entrants contrary to section 37D(1)(a) of Cap.115 and
M sentenced for 44 months. These are similar offences, the section 37D M
concerned with illegal immigrant with Chinese and Vietnamese nationality
N N
and attracts a much higher sentence.
O O
11. The prosecution and the defence referred to a number of
P P
authority related to charge one (HKSAR v TSE Chi Hei CACC 393/2009;
Q The Queen v SO Man King & Others HCMA 408/1988; AG v NG Kin Q
Hung & Others [1991] 1 HKLR 81), the prosecution submitted that
R R
starting point of 27 months has been approved by the Court of Appeal,
S while the defence submitted that all depend on the circumstances and S
urged the court to consider a starting point between 15 months to 27
T T
months.
U U
V V
- 5 -
A A
B B
C 12. Illegal remaining is taken serious in Hong Kong, for those who C
convicted upon plea for illegal remaining would be facing a sentence of 15
D D
months imprisonment, in the present case the defendant aided and abetted
E 4 illegal immigrants to attempt to land in Hong Kong without permission, E
and this is the second time he committed a similar offence I consider the
F F
appropriate starting point for charge 1 would be one of 27 months. I give
G full credit for his plea and reduce the term to 18 months’ imprisonment. G
H H
13. For charge 2 both parties refer me to Tang Zhuyan CACC
I 223/2010, in that case the Court of Appeal in considering the endangering I
the safety of others at sea, referring to the particular of the charge faced by
J J
the appellant, being, the vessel was not seaworthy, it carried no
K fire-fighting appliances and navigation lights and it carried insufficient life K
saving appliance; stated that in the absence of aggravating features of
L L
danger, either deliberately caused by the coxswain of the escaping sampan
M or as a consequence of the state of the sea, the overloading of the vessel and M
its condition, regarded the starting point of 18 months’ imprisonment
N N
adopted by the judge below as manifestly excessive and substituted it with
O a starting point of 12 months’ imprisonment. I consider the facts of the O
present case is similar to that of Tang Zhuyan, and adopt 12 months’
P P
imprisonment as the starting point, again I give full credit for his plea and
Q reduce the term to 8 months’ imprisonment. Q
R R
14. I do not consider there to be any mitigating factor that call for
S further deduction. The defence urged me to consider a concurrent sentence. S
However, although the two charges are part and partial of the same
T T
incident, they are of different nature; after considering the totality principle,
U U
V V
- 6 -
A A
B B
I order 4 months of charge 2 to run consecutively to that of charge 1
C making a total of 22 months’ imprisonment. C
D D
Order
E E
15. Charge 1 – sentenced to 18 months’ imprisonment.
F F
G 16. Charge 2 – sentenced to 8 months’ imprisonment, 4 months of G
which to run consecutively to charge 1, making a total of 22 months’
H H
imprisonment.
I I
J J
K K
A. Yim
L 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 B
DCCC 746/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 746 OF 2013 E
F F
---------------------------
G HKSAR G
v
H H
XIE Rujian
I --------------------------- I
J J
Coram: Deputy District Judge A. Yim
K Date: 18th September 2013 K
Present: Miss Monica Chan, Public Prosecutor for HKSAR.
L L
Ms Liang Pui Saw Kian Susan of Messrs Yip, Tse & Tang
M assigned by the Director of Legal Aid for the Defendant. M
Offences: (1) Attempting to land in Hong Kong without permission (未
N N
經准許而企圖在香港入境)
O O
(2) Endangering the safety of others at sea (危害他人在海上
P 的安全) P
Q Q
-------------------------------
R Reasons for Sentence R
-------------------------------
S S
T T
1. The defendant is charged for :-
U U
V V
- 2 -
A A
B B
C (i) Attempting to land in Hong Kong without permission, contrary C
to section 38(1)(a) of the Immigration Ordinance, Cap.115,
D D
section 159G of the Crimes Ordinance, Cap.200 and section 89
E of the Criminal Procedure Ordinance, Cap.221. E
F F
(ii) Endangering the safety of others at sea, contrary to section 72
G of the Shipping and Port Control Ordinance, Cap.313. G
H H
2. The defendant pleaded to the charges and admitted the facts, he is
I convicted accordingly. I
J J
The Facts
K K
3. At about 2:24 a.m. on 11 June 2013, the defendant, a Mainland
L L
resident, used an unlit motorized sampan to convey 4 Pakistani males to
M Hong Kong. The defendant was aware of the illegal status of his M
passengers. Near southeast of “B” Beacon Pole, the Police intercepted him.
N N
The defendant was arrested for the offences charged, under caution, the
O defendant admitted the offences. O
P P
4. In a subsequent video-recorded interview, the defendant stated
Q that on 10 June 2013, he was offered ¥2,000 to convey persons to Hong Q
Kong by vessel, and at around 2:00 a.m. on 11 June he picked up the 4
R R
Pakistani males at Shenzhen Bay by wooden sampan, and was intercepted
S by police about half an hour later. He knew that there were no life jackets S
or navigation lights on board, he did not hold any licence for navigating
T T
vessels but he knew how to navigate vessels because he was an employed
U U
V V
- 3 -
A A
B B
fisherman. He did not possess any valid documents for entering Hong
C Kong. C
D D
5. The 4 Pakistani males on board the sampan were all confirmed to
E be illegal immigrants and were handed over to the Immigration E
Department on 12 June 2013 for repatriation.
F F
G 6. The main hull structure and watertight integrity of the sampan G
were found in poor condition, there were no fire-fighting appliances
H H
equipped on board, there were only two life jackets on board, no
I navigation light was fitted on board for night navigation, and no buoyancy I
chambers constructed on board, so that it was unseaworthy.
J J
K Mitigation K
L L
7. The defendant aged 39, a Mainland resident. He lives with his
M aged parents and elder brother, and he used to be a fisherman and qualified M
to navigate vessels. The defendant has two previous convictions in Hong
N N
Kong, and was last released on 12 January 2012, since his last remand in
O jail, he has got rid of drugs. O
P P
8. There were two life jackets found on board, but the defendant
Q told the Police during interview that there was no life jacket, as to whether Q
he was aware of the existence of the life jackets, the defendant told me he
R R
just forgot the matter during the interview, I gave the benefit of doubt to the
S defendant on this matter. S
T T
U U
V V
- 4 -
A A
B B
9. It is submitted on his behalf that he pleaded guilty at the earliest
C opportunity, and he made no attempt to escape at the material time, all C
illegal immigrants were adult, no one were injured, the weather was clam,
D D
though the sampan was unseaworthy it was not depleted as shown in the
E photos. He is unemployed and the aged parents are depending on him, he E
is yet to receive the ¥2,000 offered to him. The defence urged the court to
F F
make the sentence of both charges to run concurrently.
G G
Sentencing
H H
I 10. Charge 1 carries a maximum sentence of 3 years’ imprisonment I
and Charge 2 a maximum sentence of 4 years’ imprisonment. The
J J
defendant was first convicted for illegal remaining in August 1991 and
K sentenced for 12 months when he was 18 years old; he was convicted again K
in November 2009 for assisting the passage to/within Hong Kong of
L L
unauthorized entrants contrary to section 37D(1)(a) of Cap.115 and
M sentenced for 44 months. These are similar offences, the section 37D M
concerned with illegal immigrant with Chinese and Vietnamese nationality
N N
and attracts a much higher sentence.
O O
11. The prosecution and the defence referred to a number of
P P
authority related to charge one (HKSAR v TSE Chi Hei CACC 393/2009;
Q The Queen v SO Man King & Others HCMA 408/1988; AG v NG Kin Q
Hung & Others [1991] 1 HKLR 81), the prosecution submitted that
R R
starting point of 27 months has been approved by the Court of Appeal,
S while the defence submitted that all depend on the circumstances and S
urged the court to consider a starting point between 15 months to 27
T T
months.
U U
V V
- 5 -
A A
B B
C 12. Illegal remaining is taken serious in Hong Kong, for those who C
convicted upon plea for illegal remaining would be facing a sentence of 15
D D
months imprisonment, in the present case the defendant aided and abetted
E 4 illegal immigrants to attempt to land in Hong Kong without permission, E
and this is the second time he committed a similar offence I consider the
F F
appropriate starting point for charge 1 would be one of 27 months. I give
G full credit for his plea and reduce the term to 18 months’ imprisonment. G
H H
13. For charge 2 both parties refer me to Tang Zhuyan CACC
I 223/2010, in that case the Court of Appeal in considering the endangering I
the safety of others at sea, referring to the particular of the charge faced by
J J
the appellant, being, the vessel was not seaworthy, it carried no
K fire-fighting appliances and navigation lights and it carried insufficient life K
saving appliance; stated that in the absence of aggravating features of
L L
danger, either deliberately caused by the coxswain of the escaping sampan
M or as a consequence of the state of the sea, the overloading of the vessel and M
its condition, regarded the starting point of 18 months’ imprisonment
N N
adopted by the judge below as manifestly excessive and substituted it with
O a starting point of 12 months’ imprisonment. I consider the facts of the O
present case is similar to that of Tang Zhuyan, and adopt 12 months’
P P
imprisonment as the starting point, again I give full credit for his plea and
Q reduce the term to 8 months’ imprisonment. Q
R R
14. I do not consider there to be any mitigating factor that call for
S further deduction. The defence urged me to consider a concurrent sentence. S
However, although the two charges are part and partial of the same
T T
incident, they are of different nature; after considering the totality principle,
U U
V V
- 6 -
A A
B B
I order 4 months of charge 2 to run consecutively to that of charge 1
C making a total of 22 months’ imprisonment. C
D D
Order
E E
15. Charge 1 – sentenced to 18 months’ imprisonment.
F F
G 16. Charge 2 – sentenced to 8 months’ imprisonment, 4 months of G
which to run consecutively to charge 1, making a total of 22 months’
H H
imprisonment.
I I
J J
K K
A. Yim
L L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V