A A
DCCC 874/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 874 OF 2013
C C
----------------------
D D
HKSAR
E v E
Guo Canhui (郭燦輝)
F F
----------------------
G G
Before: HH Judge C P Pang
Date: 5 November 2013
H Present: Mr Vincent Lee, PP of the Department of Justice, for H
HKSAR
Mr Lee Man-kin, of Patrick Mak & Tse, assigned by the
I I
Director of Legal Aid, for the defendant
Offence: (1) Attempting to land in Hong Kong without permission
J (未經准許而企圖在香港入境) 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 N
1. The defendant pleads guilty to two charges. The
O
1st charge is aiding and abetting the attempt to land in O
Hong Kong without the permission of an immigration officer. The
P 2nd charge is endangering the safety of the seven persons named P
in the charge at sea.
Q Q
2. The facts are quite simple and typical. At about 8 pm
R R
on 11 July 2013, police found a motorised sampan entered the
waters of Hong Kong from the mainland at a speed of about
S S
6.5 knots. The sampan was intercepted. It did not have
T navigation light. The defendant was the coxswain. Seven other T
persons named in the charges were on board, squatting or lying
U on the deck. They were illegal immigrants. U
CRT24/5.11.2013/SC 1 DCCC 874/2013/Sentence
V V
A A
3. It can be seen by their names that they are not of
B B
Chinese origin. The defendant admitted that a person known as
C Lik Gor gave him a reward of $3,000 to take the seven illegal C
immigrants from a pier in Dongguan to Hong Kong. The sampan was
D owned by Lik Gor. The defendant did not check the safety D
facility or the structure of the sampan. He did not have any
E E
certificate to navigate a sampan in the mainland.
F F
4. The sampan was later examined. Its size is about
G 1.8 metres by 5.8 metres. The sampan was unseaworthy in that the G
main hull structure was in poor condition. It had an outboard
H engine of 40 horsepower. There was no fire-fighting appliance H
equipped and only three working lifejackets on board. It had no
I I
navigation light for night operation. The maximum passenger
capacity for a sampan sailing in Hong Kong is five persons,
J J
including the coxswain.
K K
The Court’s Concern as to Appropriateness of the 1st Charge
L 5. Concerns of the judges of the District Court have been L
expressed over the discrepancy of treatment of people being
M unauthorised entrants from the mainland and people who are M
unlawful entrants from elsewhere.
N N
6. In respect of the 1st charge under section 38(1)(a) of
O O
the Immigration Ordinance, the maximum sentence is 3 years’
P imprisonment. However, if the defendant is charged under P
section 37D of the Immigration Ordinance for carrying Chinese
Q citizens falling within the definition of “unauthorised Q
entrants,” the maximum sentence is 14 years’ imprisonment.
R R
Absent any aggravating features, a usual starting point for
sentence would be 5 years’ imprisonment.
S S
T 7. The great disparity in the maximum sentences cannot be T
justified simply because of the ethnic origin of the people
U being brought into Hong Kong unlawfully. Moreover, for cases U
CRT24/5.11.2013/SC 2 DCCC 874/2013/Sentence
V V
A A
where a large number of unauthorised persons are brought into
Hong Kong unlawfully, 3 years’ imprisonment as the maximum
B B
sentence is clearly inadequate. Such concerns of the court have
C been raised as early as 2010 by Her Honour Judge Yuen in C
DCCC 1289 of 2009 and by His Honour Judge Browne in DCCC 1411 of
D 2009. D
E E
8. The Court of Appeal shared those concerns in HKSAR v
Tang Zhuyan (唐珠炎) CACC 223 of 2010 (see paragraph 12 of the
F F
judgment). Yet, nothing has been done by the Secretary of
G Justice for remedy. G
H 9. Before plea is taken in this case, this court raised H
the same issue again with the prosecution and asked if they
I I
would consider laying a charge under section 38(4) of the
Immigration Ordinance. Section 38(4) provides that:
J J
K “(4) If a person lands from a ship in contravention of K
subsection (1)(a)-
L (a) the captain of the ship; and L
(b) (skipped)
shall be guilty of an offence and shall be liable-
M M
(i) on conviction on indictment, to a fine of
N $600,000 and to imprisonment for 7 years; N
and
(ii) (skipped)
O unless he proves that all reasonable steps O
had been taken to ensure that persons did
not land from the ship in contravention of
P P
subsection (1).”
Q Q
10. Mr Lee, public prosecutor for the prosecution, having
taken instructions, did not indicate whether the Department of
R R
Justice agreed that section 38(4) is also an appropriate charge.
S He said, however, that the prosecution would not amend the S
charge at this late stage. He undertook to pass the court’s
T observations to the Department of Justice, and his department T
would consider the option in the future prosecution.
U U
CRT24/5.11.2013/SC 3 DCCC 874/2013/Sentence
V V
A A
11. Mr Lee further concedes that the maximum sentence
under section 38(1)(a) cannot be enhanced under section 38(4) as
B B
they are different offences.
C C
12. The right to prefer charges rests with the Secretary
D of Justice. Section 38(4) may or may not be a correct charge. D
Regrettably, the prosecution do not seek to explore this
E E
possibility in this case. As there is no charge under
section 38(4) before this court, I will not proceed to discuss
F F
the appropriateness of laying charge under that section. It can
G only be an academic and unfruitful exercise for this court to G
interpret the ambit of section 38(4) without proper argument of
H both parties. H
I I
13. I now come back to the sentence in this case.
J J
The Defendant’s Background and Mitigation
K
14. According to the undisputed antecedent statement of K
the defendant, he is a 19-year-old single young man. He
L completed junior secondary education in China and was a vehicle L
maintenance worker in the mainland. He lives with his parents
M who are both fishermen and a 14-year-old younger brother in M
Dongguan. He has no criminal record in Hong Kong.
N N
15. In mitigation, Mr Lee, solicitor for the defendant,
O O
submits to the court two cases: HKSAR v Tseung Yim Kwan (蔣艷群)
P CACC 531 of 2005 and HKSAR v Tang Zhuyan which I referred to P
earlier. It is submitted that the defendant did not escape or
Q Q
resist. He also made frank admissions at a very early stage.
Relying on paragraph 22 of the judgment in HKSAR v
R R
Tseung Yim Kwan (蔣艷群), Mr Lee submits that the proper sentence
S on Charge 1 is 15 months’ imprisonment on a plea of guilty. S
T 16. For the 2nd charge, it is submitted that the defendant T
in Tang Zhuyan escaped to resist the police, there was a pursuit
U U
for 21 minutes and there were children of young age on board.
CRT24/5.11.2013/SC 4 DCCC 874/2013/Sentence
V V
A A
Even in such circumstances, the Court of Appeal regarded that
12 months was the correct starting point. In this case, however,
B B
there are no young children on board and the defendant did not
C escape. It is submitted that the starting point in this case C
should therefore be less than 12 months.
D D
17. Mr Lee also asks that the sentences in the two charges
E E
be served concurrently.
F F
Reasons for Sentence
G The 1st Charge G
18. The maximum sentence for Charge 1 is 3 years’
H imprisonment. Paragraph 22 of the judgment in HKSAR v H
Tseung Yim Kwan (蔣艷群), relied upon by Mr Lee, is concerned
I I
with the sentence of the illegal immigrant herself on appeal.
Here, however, we are dealing with a defendant who aided and
J J
abetted seven illegal immigrants.
K K
19. Her Honour Judge Yuen in DCCC 1289 of 2009 used
L two and a half years’ imprisonment as the starting point for L
this charge involving eight illegal immigrants, whereas His
M M
Honour Judge Browne adopted 27 months for a case involving
20 illegal immigrants.
N N
O 20. In HKSAR v Wu Zhi Chao (吳志超) CACC 208 of 2013, the O
sentencing judge adopted 2 years as the starting point for four
P Pakistani illegal immigrants. While the starting point was not P
the subject matter of the appeal against sentence, the Court of
Q Q
Appeal made no criticism of the starting point.
R R
21. The present case involved seven illegal immigrants.
S Bearing in mind the maximum sentence of 3 years should be S
imposed only for the most serious scenario, I adopt two and a
T half years as a starting point for the 1st charge. T
U U
CRT24/5.11.2013/SC 5 DCCC 874/2013/Sentence
V V
A A
22. I notice the defendant’s relatively young age but, in
my view, it cannot be a mitigating factor. There are no
B B
mitigating factors in favour of the defendant except his plea of
C guilty, for which he will get one-third reduction of the C
sentence. He is therefore sentenced to 20 months’ imprisonment.
D D
The 2nd Charge
E E
23. The maximum sentence is 4 years’ imprisonment. Mr Lee
relies on Tang Zhuyan. He has probably misread the facts of the
F F
case in saying that young children were carried on board. There
G was only one illegal immigrant on board the sampan, and there is G
no evidence that the II was of young age. There was indeed a
H chase of 21 minutes in that case. However, that was not a factor H
taken into account in sentencing the defendant in Tang Zhuyan
I I
(see paragraph 14 of the judgment in Wu Zhi Chao).
J J
24. The aggravating features of dangers were discussed in
K
HKSAR v Yeung Wui CACC 415 of 2004, HKSAR v Chow Tin Shing CACC K
85 of 2007 and HKSAR v Zhong Ming Jing CACC 180 of 2010. The
L manner the vessel being manoeuvred, its conditions, its safety L
appliance and how it was maintained are the main factors in
M sentencing. M
N N
25. In the present case, there was no fire-fighting
appliance equipped on board. There were only three lifejackets
O O
for eight persons on board. No navigation light was fitted on
P board. The defendant did not even have any certificate for P
navigation in the mainland. It was an open sampan of small size
Q with an outboard engine of 40 horsepower. The defendant did not Q
check the safety facilities or the structure of the sampan at
R R
all.
S S
26. On the other hand, I accept that the defendant did not
T escape. There was no evidence of dangerous manoeuvres of the T
sampan.
U U
CRT24/5.11.2013/SC 6 DCCC 874/2013/Sentence
V V
A A
27. In Zhong Ming Jing, eight passengers were on board the
sampan. There was apparent aggravating feature in that on
B B
numerous occasions, the defendant deliberately altered the
C course of the sampan to put it directly in the path of the C
police vessel during its flights. By comparison, I would regard
D the circumstances in Zhong Ming Jing more serious than the D
present case. The Court of Appeal identified that 18 months’
E E
imprisonment was the appropriate starting point in that case.
F F
28. In Tang Zhuyan, there was only one illegal immigrant
G on board the sampan. Absent any aggravating features of dangers, G
the Court of Appeal adopted 12 months as the starting point.
H H
29. Given the number of passengers whose lives were
I I
endangered in the present case, I would adopt 15 months as the
starting point for the 2nd charge. It is reduced to 10 months to
J J
reflect the guilty plea.
K K
Concurrent or Consecutive Sentences?
L 30. In R v Chan Siu Yun CAAR 9 of 1995, the Court of L
Appeal was satisfied that the sentence for the additional
M offence of endangering the safety of others at sea should have M
been consecutive. This approach was followed in HKSAR v Sze Yu
N N
CACC 143 of 2003, Zhong Ming Jing (above) and Wu Zhi Chao
(above).
O O
P 31. I have considered totality and still come to the P
conclusion that the sentences in the two charges should run
Q consecutively. The total term of sentence is therefore two and a Q
half years’ imprisonment.
R R
S S
T T
(C.P. Pang)
District Judge
U U
CRT24/5.11.2013/SC 7 DCCC 874/2013/Sentence
V V
A A
DCCC 874/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 874 OF 2013
C C
----------------------
D D
HKSAR
E v E
Guo Canhui (郭燦輝)
F F
----------------------
G G
Before: HH Judge C P Pang
Date: 5 November 2013
H Present: Mr Vincent Lee, PP of the Department of Justice, for H
HKSAR
Mr Lee Man-kin, of Patrick Mak & Tse, assigned by the
I I
Director of Legal Aid, for the defendant
Offence: (1) Attempting to land in Hong Kong without permission
J (未經准許而企圖在香港入境) 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 N
1. The defendant pleads guilty to two charges. The
O
1st charge is aiding and abetting the attempt to land in O
Hong Kong without the permission of an immigration officer. The
P 2nd charge is endangering the safety of the seven persons named P
in the charge at sea.
Q Q
2. The facts are quite simple and typical. At about 8 pm
R R
on 11 July 2013, police found a motorised sampan entered the
waters of Hong Kong from the mainland at a speed of about
S S
6.5 knots. The sampan was intercepted. It did not have
T navigation light. The defendant was the coxswain. Seven other T
persons named in the charges were on board, squatting or lying
U on the deck. They were illegal immigrants. U
CRT24/5.11.2013/SC 1 DCCC 874/2013/Sentence
V V
A A
3. It can be seen by their names that they are not of
B B
Chinese origin. The defendant admitted that a person known as
C Lik Gor gave him a reward of $3,000 to take the seven illegal C
immigrants from a pier in Dongguan to Hong Kong. The sampan was
D owned by Lik Gor. The defendant did not check the safety D
facility or the structure of the sampan. He did not have any
E E
certificate to navigate a sampan in the mainland.
F F
4. The sampan was later examined. Its size is about
G 1.8 metres by 5.8 metres. The sampan was unseaworthy in that the G
main hull structure was in poor condition. It had an outboard
H engine of 40 horsepower. There was no fire-fighting appliance H
equipped and only three working lifejackets on board. It had no
I I
navigation light for night operation. The maximum passenger
capacity for a sampan sailing in Hong Kong is five persons,
J J
including the coxswain.
K K
The Court’s Concern as to Appropriateness of the 1st Charge
L 5. Concerns of the judges of the District Court have been L
expressed over the discrepancy of treatment of people being
M unauthorised entrants from the mainland and people who are M
unlawful entrants from elsewhere.
N N
6. In respect of the 1st charge under section 38(1)(a) of
O O
the Immigration Ordinance, the maximum sentence is 3 years’
P imprisonment. However, if the defendant is charged under P
section 37D of the Immigration Ordinance for carrying Chinese
Q citizens falling within the definition of “unauthorised Q
entrants,” the maximum sentence is 14 years’ imprisonment.
R R
Absent any aggravating features, a usual starting point for
sentence would be 5 years’ imprisonment.
S S
T 7. The great disparity in the maximum sentences cannot be T
justified simply because of the ethnic origin of the people
U being brought into Hong Kong unlawfully. Moreover, for cases U
CRT24/5.11.2013/SC 2 DCCC 874/2013/Sentence
V V
A A
where a large number of unauthorised persons are brought into
Hong Kong unlawfully, 3 years’ imprisonment as the maximum
B B
sentence is clearly inadequate. Such concerns of the court have
C been raised as early as 2010 by Her Honour Judge Yuen in C
DCCC 1289 of 2009 and by His Honour Judge Browne in DCCC 1411 of
D 2009. D
E E
8. The Court of Appeal shared those concerns in HKSAR v
Tang Zhuyan (唐珠炎) CACC 223 of 2010 (see paragraph 12 of the
F F
judgment). Yet, nothing has been done by the Secretary of
G Justice for remedy. G
H 9. Before plea is taken in this case, this court raised H
the same issue again with the prosecution and asked if they
I I
would consider laying a charge under section 38(4) of the
Immigration Ordinance. Section 38(4) provides that:
J J
K “(4) If a person lands from a ship in contravention of K
subsection (1)(a)-
L (a) the captain of the ship; and L
(b) (skipped)
shall be guilty of an offence and shall be liable-
M M
(i) on conviction on indictment, to a fine of
N $600,000 and to imprisonment for 7 years; N
and
(ii) (skipped)
O unless he proves that all reasonable steps O
had been taken to ensure that persons did
not land from the ship in contravention of
P P
subsection (1).”
Q Q
10. Mr Lee, public prosecutor for the prosecution, having
taken instructions, did not indicate whether the Department of
R R
Justice agreed that section 38(4) is also an appropriate charge.
S He said, however, that the prosecution would not amend the S
charge at this late stage. He undertook to pass the court’s
T observations to the Department of Justice, and his department T
would consider the option in the future prosecution.
U U
CRT24/5.11.2013/SC 3 DCCC 874/2013/Sentence
V V
A A
11. Mr Lee further concedes that the maximum sentence
under section 38(1)(a) cannot be enhanced under section 38(4) as
B B
they are different offences.
C C
12. The right to prefer charges rests with the Secretary
D of Justice. Section 38(4) may or may not be a correct charge. D
Regrettably, the prosecution do not seek to explore this
E E
possibility in this case. As there is no charge under
section 38(4) before this court, I will not proceed to discuss
F F
the appropriateness of laying charge under that section. It can
G only be an academic and unfruitful exercise for this court to G
interpret the ambit of section 38(4) without proper argument of
H both parties. H
I I
13. I now come back to the sentence in this case.
J J
The Defendant’s Background and Mitigation
K
14. According to the undisputed antecedent statement of K
the defendant, he is a 19-year-old single young man. He
L completed junior secondary education in China and was a vehicle L
maintenance worker in the mainland. He lives with his parents
M who are both fishermen and a 14-year-old younger brother in M
Dongguan. He has no criminal record in Hong Kong.
N N
15. In mitigation, Mr Lee, solicitor for the defendant,
O O
submits to the court two cases: HKSAR v Tseung Yim Kwan (蔣艷群)
P CACC 531 of 2005 and HKSAR v Tang Zhuyan which I referred to P
earlier. It is submitted that the defendant did not escape or
Q Q
resist. He also made frank admissions at a very early stage.
Relying on paragraph 22 of the judgment in HKSAR v
R R
Tseung Yim Kwan (蔣艷群), Mr Lee submits that the proper sentence
S on Charge 1 is 15 months’ imprisonment on a plea of guilty. S
T 16. For the 2nd charge, it is submitted that the defendant T
in Tang Zhuyan escaped to resist the police, there was a pursuit
U U
for 21 minutes and there were children of young age on board.
CRT24/5.11.2013/SC 4 DCCC 874/2013/Sentence
V V
A A
Even in such circumstances, the Court of Appeal regarded that
12 months was the correct starting point. In this case, however,
B B
there are no young children on board and the defendant did not
C escape. It is submitted that the starting point in this case C
should therefore be less than 12 months.
D D
17. Mr Lee also asks that the sentences in the two charges
E E
be served concurrently.
F F
Reasons for Sentence
G The 1st Charge G
18. The maximum sentence for Charge 1 is 3 years’
H imprisonment. Paragraph 22 of the judgment in HKSAR v H
Tseung Yim Kwan (蔣艷群), relied upon by Mr Lee, is concerned
I I
with the sentence of the illegal immigrant herself on appeal.
Here, however, we are dealing with a defendant who aided and
J J
abetted seven illegal immigrants.
K K
19. Her Honour Judge Yuen in DCCC 1289 of 2009 used
L two and a half years’ imprisonment as the starting point for L
this charge involving eight illegal immigrants, whereas His
M M
Honour Judge Browne adopted 27 months for a case involving
20 illegal immigrants.
N N
O 20. In HKSAR v Wu Zhi Chao (吳志超) CACC 208 of 2013, the O
sentencing judge adopted 2 years as the starting point for four
P Pakistani illegal immigrants. While the starting point was not P
the subject matter of the appeal against sentence, the Court of
Q Q
Appeal made no criticism of the starting point.
R R
21. The present case involved seven illegal immigrants.
S Bearing in mind the maximum sentence of 3 years should be S
imposed only for the most serious scenario, I adopt two and a
T half years as a starting point for the 1st charge. T
U U
CRT24/5.11.2013/SC 5 DCCC 874/2013/Sentence
V V
A A
22. I notice the defendant’s relatively young age but, in
my view, it cannot be a mitigating factor. There are no
B B
mitigating factors in favour of the defendant except his plea of
C guilty, for which he will get one-third reduction of the C
sentence. He is therefore sentenced to 20 months’ imprisonment.
D D
The 2nd Charge
E E
23. The maximum sentence is 4 years’ imprisonment. Mr Lee
relies on Tang Zhuyan. He has probably misread the facts of the
F F
case in saying that young children were carried on board. There
G was only one illegal immigrant on board the sampan, and there is G
no evidence that the II was of young age. There was indeed a
H chase of 21 minutes in that case. However, that was not a factor H
taken into account in sentencing the defendant in Tang Zhuyan
I I
(see paragraph 14 of the judgment in Wu Zhi Chao).
J J
24. The aggravating features of dangers were discussed in
K
HKSAR v Yeung Wui CACC 415 of 2004, HKSAR v Chow Tin Shing CACC K
85 of 2007 and HKSAR v Zhong Ming Jing CACC 180 of 2010. The
L manner the vessel being manoeuvred, its conditions, its safety L
appliance and how it was maintained are the main factors in
M sentencing. M
N N
25. In the present case, there was no fire-fighting
appliance equipped on board. There were only three lifejackets
O O
for eight persons on board. No navigation light was fitted on
P board. The defendant did not even have any certificate for P
navigation in the mainland. It was an open sampan of small size
Q with an outboard engine of 40 horsepower. The defendant did not Q
check the safety facilities or the structure of the sampan at
R R
all.
S S
26. On the other hand, I accept that the defendant did not
T escape. There was no evidence of dangerous manoeuvres of the T
sampan.
U U
CRT24/5.11.2013/SC 6 DCCC 874/2013/Sentence
V V
A A
27. In Zhong Ming Jing, eight passengers were on board the
sampan. There was apparent aggravating feature in that on
B B
numerous occasions, the defendant deliberately altered the
C course of the sampan to put it directly in the path of the C
police vessel during its flights. By comparison, I would regard
D the circumstances in Zhong Ming Jing more serious than the D
present case. The Court of Appeal identified that 18 months’
E E
imprisonment was the appropriate starting point in that case.
F F
28. In Tang Zhuyan, there was only one illegal immigrant
G on board the sampan. Absent any aggravating features of dangers, G
the Court of Appeal adopted 12 months as the starting point.
H H
29. Given the number of passengers whose lives were
I I
endangered in the present case, I would adopt 15 months as the
starting point for the 2nd charge. It is reduced to 10 months to
J J
reflect the guilty plea.
K K
Concurrent or Consecutive Sentences?
L 30. In R v Chan Siu Yun CAAR 9 of 1995, the Court of L
Appeal was satisfied that the sentence for the additional
M offence of endangering the safety of others at sea should have M
been consecutive. This approach was followed in HKSAR v Sze Yu
N N
CACC 143 of 2003, Zhong Ming Jing (above) and Wu Zhi Chao
(above).
O O
P 31. I have considered totality and still come to the P
conclusion that the sentences in the two charges should run
Q consecutively. The total term of sentence is therefore two and a Q
half years’ imprisonment.
R R
S S
T T
(C.P. Pang)
District Judge
U U
CRT24/5.11.2013/SC 7 DCCC 874/2013/Sentence
V V