DCCC813/2013 HKSAR v. LIU JINGFENG AND ANOTHER - LawHero
DCCC813/2013
HKSAR v. LIU JINGFENG AND ANOTHER
區域法院（刑事）HH Judge A Kwok10/10/2013
DCCC813/2013
A A
B B
DCCC 813/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 813 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
LIU JINGFENG (D1)
I CEN JIBAO (D2) I
--------------------------
J J
K Before: HH Judge A Kwok K
Date: 11 October 2013 at 3.55 pm
L L
Present: Ms Peggy Leung, SPP of the Department of Justice, for
M HKSAR M
Mr Joseph Chan, of Chan & Tsu, assigned by the Director of
N N
Legal Aid, for both defendants
O Offence: (1) Attempting to land in Hong Kong without permission O
（未經准許而企圖在香港入境）
P P
(2) Endangering the safety of others at sea (D1 only)
Q Q
（危害他人在海上的安全）
R R
----------------------------
S S
Reasons for Sentence
T ---------------------------- T
U U
V V
-2-
A A
B B
1. D1 and D2 were jointly charged “Attempting to land in Hong
C Kong without permission”, contrary to section 38(1)(a) of the Immigration C
Ordinance, Cap 115, section 159G of the Crimes Ordinance, Cap 200 and
D D
section 89 of the Criminal Procedure Ordinance, Cap 221 (charge 1) .
E E
2. The particulars of the offence are that both defendants on 17
F F
June 2013 in Hong Kong aided and abetted five Pakistanis, as named in the
G charge, who by virtue of section 7 of the Immigration Ordinance may not G
land in Hong Kong without the permission of an Immigration Officer or
H H
Immigration Assistant to attempt to land in Hong Kong without such
I permission. I
J J
3. D1 is also additionally charged with “Endangering the safety
K of others at sea”, contrary to section 72 of the Shipping and Port Control K
Ordinance, Cap 313 (charge 2). The particulars of this offence are that on
L L
17 June 2013, without reasonable excuse, D1 endangered or caused to be
M endangered the safety of the five Pakistanis conveyed in his sampan by M
navigating the said sampan which was unseaworthy in that:-
N N
O (1) There was no fire fighting appliance equipped on O
board;
P P
Q (2) There were only three life jackets on board; and Q
R R
(3) There was no navigation light fitted on board for night
S operations. S
T T
U U
V V
-3-
A A
B B
4. According to the amended summary of facts which has been
C admitted by both defendants, at around 7.35 am of 17 June 2013, police C
officers who were on board of a police vessel found a suspicious sampan in
D D
Hong Kong waters. The police officers then approached the sampan and
E saw D1 and D2. D1 was the coxswain and was operating the engine. Upon E
seeing the police, the sampan suddenly turned to the right and sped up. As
F F
a result, the police vessel had to slow down to avoid the collision. The
G sampan then fled towards Chinese waters. The police vessel then G
immediately gave chase after the sampan and during the chase, the
H H
policemen spotted five passengers on board. The passengers were seen
I holding up their hands and they were yelling loudly. At the same time, D2 I
kept on telling the passengers to sit down. After chasing for about
J J
10 minutes, D1 eventually followed the policemen’s command and
K stopped the sampan voluntarily. K
L L
5. Upon investigation, there were five Pakistani males on the
M sampan. They only possessed their respective passports and did not have M
valid visas to enter into Hong Kong. They further revealed that they had
N N
paid a middleman in Pakistan and Hong Kong to convey them to Hong
O Kong for seeking asylum and that they boarded the sampan in China. O
P P
6. Both defendants had admitted their offences under caution.
Q D1 said that he committed the offence because he was promised a reward Q
of $5,000 and then he asked D2 to assist him and they together with the
R R
five males departed Guangdong for Hong Kong.
S S
7. As far as D2 was concerned, he admitted that he was friends
T T
with D1 and he would be paid RMB1,500 as reward.
U U
V V
-4-
A A
B B
8. The sampan was later examined. It was found that:-
C C
(a) Fire extinguishers should be provided for oil or engine
D D
fire but no fire-fighting appliances were equipped on
E the sampan; E
F F
(b) One life jacket should be provided to each person on
G board but there were only three life jackets on board; G
H H
(c) There was no navigation light fitted on board for night
I operation; and I
J J
(d) The sampan was unseaworthy.
K K
9. Both prosecution and defence agreed that at the material time,
L L
the sky was clear, visibility was high, the sea was calm, wind speed was
M low and the traffic was light. M
N N
10. Both defendants were residents of mainland China. They
O both have a clear record. They were both in their mid-thirties. I was told O
that D1 was born in China and educated to Secondary Form 3 level. His
P P
father died when he was young and he now resided together with his
Q mother, who is now aged 70. He was married. His wife is aged 28 who is Q
a housewife and they have a son now aged 6 who is a kindergarten student.
R R
S 11. D1 was a farmer at home and before that he had worked as a S
sailor for a brief period. Mr Joseph Chan, the solicitor appearing for D1,
T T
told the court that it was financial reasons for D1 to commit the offence to
U U
V V
-5-
A A
B B
give a better life for his family and to pay for the school fee for his son. In
C mitigation, Mr Chan also submitted a letter of mitigation written by D1 C
himself. Basically it confirmed what Mr Chan had told the court. In the
D D
letter, D1 had expressed remorse and he asked for a chance to be treated as
E leniently as possible so that he can go back to his age-old mother and also E
the young son.
F F
G 12. D2 was educated to primary school level. He was also G
married and have two sons now aged 10 and 15, and both are students. He
H H
also had parents to support who were aged 71 and 72. He was a watchman
I by occupation. Mr Chan also told me that it was because of financial I
reasons that D2 committed the offence. He wanted to give a better life for
J J
his family and particularly for his children.
K K
Mitigations
L L
M 13. Mr Chan prefaced the mitigation by pointing out that in this M
case, after defendants were arrested they have fully cooperated with the
N N
police and had pleaded guilty to the offences at the earliest opportunity
O indicating that they are extremely remorseful. Needless to say, both O
defendants had clear conviction records.
P P
Q 14. Mr Chan also pointed out to me that luckily in this incident no Q
collision was involved and no one was injured. The vessel is not in a
R R
dilapidated state. There were no children or women on board and there
S was no hidden compartment. In the end, D1 eventually followed the police S
command and stopped the vessel voluntarily, albeit after a 10 minutes
T T
U U
V V
-6-
A A
B B
chase. Mr Chan urged the court to consider these factors which are
C favourable to the defendants. C
D D
15. In relation to charge 1, Mr Chan relied on the case of HKSAR
E v Tseung Yim Kwan CACC531/2005, in which the Court of Appeal had E
dealt with a case involving the same offence which is “Attempting to land
F F
in Hong Kong without permission”. In that case, the court below adopted a
G sentence of 18 months’ imprisonment and the prosecution submitted that G
the sentence of 18 months’ imprisonment which was imposed after trial
H H
was not in any sense excessive. In dealing with this submission, the Court
I of Appeal had expressed that the guideline tariff as laid down in the case of I
R v So Man King & Others [1989] 1 HKLR 142 which is for “Unlawfully
J J
remaining in Hong Kong” contrary to section 38(1)(b) of the Immigration
K Ordinance is equally applicable to this offence. In the end, the Court K
accepted the prosecution submission and did not disturb the starting point
L L
taken by the Judge below for this offence.
M M
16. In relation to charge 2, Mr Chan relied on another case laid
N N
down by the Court of Appeal and that is HKSAR v Tang Zhu Yan
O CACC223/2010. In that case, the court below had adopted a starting point O
of 18 months’ imprisonment. In the end, the court allowed the appeal and
P P
reduced the starting point from 18 months to 12 months’ imprisonment. In
Q so deciding, the Court of Appeal had said that:- Q
R R
“24. Given the absence in this case of aggravating features of
danger, either deliberately caused by the coxswain of the
S S
escaping sampan or as a consequence of the state of the
sea, the overloading of the vessel and its condition, the
T starting point of 18 months’ imprisonment is manifestly T
excessive. In our judgment, the appropriate starting
point for sentence is 12 months’ imprisonment.”
U U
V V
-7-
A A
B B
Mr Chan urged this court to follow this decision and to adopt a similar
C starting point of 12 months’ imprisonment for charge 2 and also give full C
discount to D1’s guilty plea.
D D
E 17. Finally, Mr Chan submitted that because of the totality E
principle, he urged the court to consider passing at least a partly
F F
consecutive sentence in relation to the sentences of both charges.
G G
Sentencing considerations
H H
I 18. In relation to charge 1, the maximum sentence is only 3 years’ I
imprisonment. I should say in the beginning that both defendants should
J J
consider themselves very lucky in that the passengers on board of the
K sampan at this time were Pakistanis and as such were not “unauthorised K
entrants” as defined by the Immigration Ordinance. Had those persons on
L L
board the vessel been Mainlanders, the prosecution would no doubt have
M been under section 37D of the Immigration Ordinance and the usual M
starting point of sentence would have been 5 years’ imprisonment.
N N
O 19. This discrepancy has already caused considerable concern to O
the court before. In DCCC1411/2009, His Honour Judge Browne had
P P
already expressed that there was a discrepancy in the treatment of the
Q people bringing unauthorised entrants from the Mainland and people who Q
are unauthorised from elsewhere. Judge Browne had already urged that
R R
there should be an amendment of the law either to reform the definition of
S “unauthorised entrant” or simply to increase the maximum sentence under S
section 38. The case was decided in March 2010. More than three years
T T
had elapsed since but unfortunately nothing was done so far to remedy the
U U
V V
-8-
A A
B B
situation and instead in the last three years, we saw the growing numbers of
C the influx of people, particularly South East Asians, from China to Hong C
Kong to seek political asylum. Once again, I can only adopt what Judge
D D
Browne had said in that case and urge the authority to remedy the situation
E without delay. E
F F
20. Coming back to charge 1, I accept the usual sentencing tariff
G guideline in So Man King (supra) which is 15 months on a plea should be G
equally applicable to section 38(1)(a) of the Immigration Ordinance but in
H H
this present case, we are not dealing with a single Pakistani, but five
I Pakistanis who intended to come to Hong Kong to be asylum-seekers. I
J J
21. Also, there are additional aggravating features in that there
K was lack of fire-fighting equipment and there was insufficient lifesaving K
equipment. In HKSAR v Zhong Ming Jing (unreported) CACC180/2010,
L L
the Court of Appeal had already said that in the future, those were matters
M that should be regarded as factors of aggravation. While Zhong Ming Jing M
was decided in relation to “unauthorised entrants” but I judge that the
N N
nature of the two offences are the same and I see no reason why the Court
O of Appeal’s comment in relation to the aggravating factors which are O
applied to the section 37D offence should not equally apply to the present
P P
offence. For this reason and because this case involved altogether five
Q Pakistanis, another 6 months should be added to the notional starting point Q
of 22½ months.
R R
S 22. After giving the defendant the one-third discount, the S
sentence should be reduced to 19 months’ imprisonment but because I
T T
accept that D2 assumed a lesser role than D1 in this case, I would reduce a
U U
V V
-9-
A A
B B
further 2 months in his case. In the end, D1 is sentenced to 19 months’ and
C D2 17 months’ imprisonment. C
D D
23. Insofar as charge 2 is concerned, Mr Chan had urged the court
E to impose a 12 month starting point instead but in this case there are some E
factors present which are aggravating factors in that when the police vessel
F F
approached the sampan, the sampan suddenly turned to the right and sped
G up, the police vessel had to slow down to avoid the collision. Thus, unlike G
the decision relied on by Mr Chan, I judge that there are some aggravating
H H
features in this case and for these reasons, the appropriate starting point
I should be 15 months imprisonment. I
J J
24. Because of the D1’s plea, in this charge, the sentence should
K be 10 months’ imprisonment. K
L L
25. Finally it is the matter of totality. D1 faces two sentences, 19
M months and 10 months respectively. There are authorities which says that M
the two sentences can run wholly consecutively.
N N
O 26. However, because of the principle of totality, I decide that I O
will order 5 months out of charge 2 to run consecutive to charge 1 and the
P P
balance to run concurrently. In the end, for the two offences, D1 would
Q receive a total of 24 months’ imprisonment. Q
R R
S S
( A Kwok )
T T
District Judge
U U
V V
A A
B B
DCCC 813/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 813 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
LIU JINGFENG (D1)
I CEN JIBAO (D2) I
--------------------------
J J
K Before: HH Judge A Kwok K
Date: 11 October 2013 at 3.55 pm
L L
Present: Ms Peggy Leung, SPP of the Department of Justice, for
M HKSAR M
Mr Joseph Chan, of Chan & Tsu, assigned by the Director of
N N
Legal Aid, for both defendants
O Offence: (1) Attempting to land in Hong Kong without permission O
（未經准許而企圖在香港入境）
P P
(2) Endangering the safety of others at sea (D1 only)
Q Q
（危害他人在海上的安全）
R R
----------------------------
S S
Reasons for Sentence
T ---------------------------- T
U U
V V
-2-
A A
B B
1. D1 and D2 were jointly charged “Attempting to land in Hong
C Kong without permission”, contrary to section 38(1)(a) of the Immigration C
Ordinance, Cap 115, section 159G of the Crimes Ordinance, Cap 200 and
D D
section 89 of the Criminal Procedure Ordinance, Cap 221 (charge 1) .
E E
2. The particulars of the offence are that both defendants on 17
F F
June 2013 in Hong Kong aided and abetted five Pakistanis, as named in the
G charge, who by virtue of section 7 of the Immigration Ordinance may not G
land in Hong Kong without the permission of an Immigration Officer or
H H
Immigration Assistant to attempt to land in Hong Kong without such
I permission. I
J J
3. D1 is also additionally charged with “Endangering the safety
K of others at sea”, contrary to section 72 of the Shipping and Port Control K
Ordinance, Cap 313 (charge 2). The particulars of this offence are that on
L L
17 June 2013, without reasonable excuse, D1 endangered or caused to be
M endangered the safety of the five Pakistanis conveyed in his sampan by M
navigating the said sampan which was unseaworthy in that:-
N N
O (1) There was no fire fighting appliance equipped on O
board;
P P
Q (2) There were only three life jackets on board; and Q
R R
(3) There was no navigation light fitted on board for night
S operations. S
T T
U U
V V
-3-
A A
B B
4. According to the amended summary of facts which has been
C admitted by both defendants, at around 7.35 am of 17 June 2013, police C
officers who were on board of a police vessel found a suspicious sampan in
D D
Hong Kong waters. The police officers then approached the sampan and
E saw D1 and D2. D1 was the coxswain and was operating the engine. Upon E
seeing the police, the sampan suddenly turned to the right and sped up. As
F F
a result, the police vessel had to slow down to avoid the collision. The
G sampan then fled towards Chinese waters. The police vessel then G
immediately gave chase after the sampan and during the chase, the
H H
policemen spotted five passengers on board. The passengers were seen
I holding up their hands and they were yelling loudly. At the same time, D2 I
kept on telling the passengers to sit down. After chasing for about
J J
10 minutes, D1 eventually followed the policemen’s command and
K stopped the sampan voluntarily. K
L L
5. Upon investigation, there were five Pakistani males on the
M sampan. They only possessed their respective passports and did not have M
valid visas to enter into Hong Kong. They further revealed that they had
N N
paid a middleman in Pakistan and Hong Kong to convey them to Hong
O Kong for seeking asylum and that they boarded the sampan in China. O
P P
6. Both defendants had admitted their offences under caution.
Q D1 said that he committed the offence because he was promised a reward Q
of $5,000 and then he asked D2 to assist him and they together with the
R R
five males departed Guangdong for Hong Kong.
S S
7. As far as D2 was concerned, he admitted that he was friends
T T
with D1 and he would be paid RMB1,500 as reward.
U U
V V
-4-
A A
B B
8. The sampan was later examined. It was found that:-
C C
(a) Fire extinguishers should be provided for oil or engine
D D
fire but no fire-fighting appliances were equipped on
E the sampan; E
F F
(b) One life jacket should be provided to each person on
G board but there were only three life jackets on board; G
H H
(c) There was no navigation light fitted on board for night
I operation; and I
J J
(d) The sampan was unseaworthy.
K K
9. Both prosecution and defence agreed that at the material time,
L L
the sky was clear, visibility was high, the sea was calm, wind speed was
M low and the traffic was light. M
N N
10. Both defendants were residents of mainland China. They
O both have a clear record. They were both in their mid-thirties. I was told O
that D1 was born in China and educated to Secondary Form 3 level. His
P P
father died when he was young and he now resided together with his
Q mother, who is now aged 70. He was married. His wife is aged 28 who is Q
a housewife and they have a son now aged 6 who is a kindergarten student.
R R
S 11. D1 was a farmer at home and before that he had worked as a S
sailor for a brief period. Mr Joseph Chan, the solicitor appearing for D1,
T T
told the court that it was financial reasons for D1 to commit the offence to
U U
V V
-5-
A A
B B
give a better life for his family and to pay for the school fee for his son. In
C mitigation, Mr Chan also submitted a letter of mitigation written by D1 C
himself. Basically it confirmed what Mr Chan had told the court. In the
D D
letter, D1 had expressed remorse and he asked for a chance to be treated as
E leniently as possible so that he can go back to his age-old mother and also E
the young son.
F F
G 12. D2 was educated to primary school level. He was also G
married and have two sons now aged 10 and 15, and both are students. He
H H
also had parents to support who were aged 71 and 72. He was a watchman
I by occupation. Mr Chan also told me that it was because of financial I
reasons that D2 committed the offence. He wanted to give a better life for
J J
his family and particularly for his children.
K K
Mitigations
L L
M 13. Mr Chan prefaced the mitigation by pointing out that in this M
case, after defendants were arrested they have fully cooperated with the
N N
police and had pleaded guilty to the offences at the earliest opportunity
O indicating that they are extremely remorseful. Needless to say, both O
defendants had clear conviction records.
P P
Q 14. Mr Chan also pointed out to me that luckily in this incident no Q
collision was involved and no one was injured. The vessel is not in a
R R
dilapidated state. There were no children or women on board and there
S was no hidden compartment. In the end, D1 eventually followed the police S
command and stopped the vessel voluntarily, albeit after a 10 minutes
T T
U U
V V
-6-
A A
B B
chase. Mr Chan urged the court to consider these factors which are
C favourable to the defendants. C
D D
15. In relation to charge 1, Mr Chan relied on the case of HKSAR
E v Tseung Yim Kwan CACC531/2005, in which the Court of Appeal had E
dealt with a case involving the same offence which is “Attempting to land
F F
in Hong Kong without permission”. In that case, the court below adopted a
G sentence of 18 months’ imprisonment and the prosecution submitted that G
the sentence of 18 months’ imprisonment which was imposed after trial
H H
was not in any sense excessive. In dealing with this submission, the Court
I of Appeal had expressed that the guideline tariff as laid down in the case of I
R v So Man King & Others [1989] 1 HKLR 142 which is for “Unlawfully
J J
remaining in Hong Kong” contrary to section 38(1)(b) of the Immigration
K Ordinance is equally applicable to this offence. In the end, the Court K
accepted the prosecution submission and did not disturb the starting point
L L
taken by the Judge below for this offence.
M M
16. In relation to charge 2, Mr Chan relied on another case laid
N N
down by the Court of Appeal and that is HKSAR v Tang Zhu Yan
O CACC223/2010. In that case, the court below had adopted a starting point O
of 18 months’ imprisonment. In the end, the court allowed the appeal and
P P
reduced the starting point from 18 months to 12 months’ imprisonment. In
Q so deciding, the Court of Appeal had said that:- Q
R R
“24. Given the absence in this case of aggravating features of
danger, either deliberately caused by the coxswain of the
S S
escaping sampan or as a consequence of the state of the
sea, the overloading of the vessel and its condition, the
T starting point of 18 months’ imprisonment is manifestly T
excessive. In our judgment, the appropriate starting
point for sentence is 12 months’ imprisonment.”
U U
V V
-7-
A A
B B
Mr Chan urged this court to follow this decision and to adopt a similar
C starting point of 12 months’ imprisonment for charge 2 and also give full C
discount to D1’s guilty plea.
D D
E 17. Finally, Mr Chan submitted that because of the totality E
principle, he urged the court to consider passing at least a partly
F F
consecutive sentence in relation to the sentences of both charges.
G G
Sentencing considerations
H H
I 18. In relation to charge 1, the maximum sentence is only 3 years’ I
imprisonment. I should say in the beginning that both defendants should
J J
consider themselves very lucky in that the passengers on board of the
K sampan at this time were Pakistanis and as such were not “unauthorised K
entrants” as defined by the Immigration Ordinance. Had those persons on
L L
board the vessel been Mainlanders, the prosecution would no doubt have
M been under section 37D of the Immigration Ordinance and the usual M
starting point of sentence would have been 5 years’ imprisonment.
N N
O 19. This discrepancy has already caused considerable concern to O
the court before. In DCCC1411/2009, His Honour Judge Browne had
P P
already expressed that there was a discrepancy in the treatment of the
Q people bringing unauthorised entrants from the Mainland and people who Q
are unauthorised from elsewhere. Judge Browne had already urged that
R R
there should be an amendment of the law either to reform the definition of
S “unauthorised entrant” or simply to increase the maximum sentence under S
section 38. The case was decided in March 2010. More than three years
T T
had elapsed since but unfortunately nothing was done so far to remedy the
U U
V V
-8-
A A
B B
situation and instead in the last three years, we saw the growing numbers of
C the influx of people, particularly South East Asians, from China to Hong C
Kong to seek political asylum. Once again, I can only adopt what Judge
D D
Browne had said in that case and urge the authority to remedy the situation
E without delay. E
F F
20. Coming back to charge 1, I accept the usual sentencing tariff
G guideline in So Man King (supra) which is 15 months on a plea should be G
equally applicable to section 38(1)(a) of the Immigration Ordinance but in
H H
this present case, we are not dealing with a single Pakistani, but five
I Pakistanis who intended to come to Hong Kong to be asylum-seekers. I
J J
21. Also, there are additional aggravating features in that there
K was lack of fire-fighting equipment and there was insufficient lifesaving K
equipment. In HKSAR v Zhong Ming Jing (unreported) CACC180/2010,
L L
the Court of Appeal had already said that in the future, those were matters
M that should be regarded as factors of aggravation. While Zhong Ming Jing M
was decided in relation to “unauthorised entrants” but I judge that the
N N
nature of the two offences are the same and I see no reason why the Court
O of Appeal’s comment in relation to the aggravating factors which are O
applied to the section 37D offence should not equally apply to the present
P P
offence. For this reason and because this case involved altogether five
Q Pakistanis, another 6 months should be added to the notional starting point Q
of 22½ months.
R R
S 22. After giving the defendant the one-third discount, the S
sentence should be reduced to 19 months’ imprisonment but because I
T T
accept that D2 assumed a lesser role than D1 in this case, I would reduce a
U U
V V
-9-
A A
B B
further 2 months in his case. In the end, D1 is sentenced to 19 months’ and
C D2 17 months’ imprisonment. C
D D
23. Insofar as charge 2 is concerned, Mr Chan had urged the court
E to impose a 12 month starting point instead but in this case there are some E
factors present which are aggravating factors in that when the police vessel
F F
approached the sampan, the sampan suddenly turned to the right and sped
G up, the police vessel had to slow down to avoid the collision. Thus, unlike G
the decision relied on by Mr Chan, I judge that there are some aggravating
H H
features in this case and for these reasons, the appropriate starting point
I should be 15 months imprisonment. I
J J
24. Because of the D1’s plea, in this charge, the sentence should
K be 10 months’ imprisonment. K
L L
25. Finally it is the matter of totality. D1 faces two sentences, 19
M months and 10 months respectively. There are authorities which says that M
the two sentences can run wholly consecutively.
N N
O 26. However, because of the principle of totality, I decide that I O
will order 5 months out of charge 2 to run consecutive to charge 1 and the
P P
balance to run concurrently. In the end, for the two offences, D1 would
Q receive a total of 24 months’ imprisonment. Q
R R
S S
( A Kwok )
T T
District Judge
U U
V V