A A
B B
DCCC 1168/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1168 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
DING QIJING
I -------------------------- I
J J
Before: HH Judge A Kwok
K Date: 26 February 2014 at 12.35 pm K
Present: Mr Manuel Chong, Counsel on fiat, for HKSAR
L L
Mr Chain Shun Woo, Benjamin, instructed by Lee & Co,
M assigned by the Director of Legal Aid, for the defendant M
Offence: (1) Being the captain of a ship with persons on board
N N
seeking to land unlawfully in Hong Kong (船隻上載有
O O
尋求在香港非法入境的人時身為船長)
P (3) Endangering the safety of others at sea (危害他人在海 P
上的安全)
Q Q
R ----------------------------------- R
REASONS FOR SENTENCE
S S
-----------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant appeared before me this morning and pleaded
C guilty to one charge of “Being the captain of a ship with persons on board C
seeking to land unlawfully in Hong Kong”, contrary to section 39 of the
D D
Immigration Ordinance, Cap 115 (Charge 1) and also another charge of
E “Endangering the safety of others at sea”, contrary to section 72 of the E
Shipping and Port Control Ordinance, Cap 313 (Charge 3).
F F
G 2. Charge 1 avers that on 7 November 2013, the defendant, G
being the captain of a motorised sampan, in Hong Kong had on board the
H H
said sampan seven persons seeking to land from the said sampan in
I contravention of section 38(1)(a) of the Immigration Ordinance, Cap 115. I
The seven persons as named in the charge were all Pakistanis with no valid
J J
travel documents and they had not obtained permission to enter Hong
K Kong. K
L L
3. Charge 3 avers that the defendant, as the coxswain of the
M motorised sampan which was underway, without reasonable excuse, M
endangered or caused to be endangered the safety of other persons
N N
conveyed in the said sampan by navigating the said sampan which was
O unseaworthy in that:- O
P P
(i) the main hull structure was found in unacceptable
Q condition due to remove the bottom buoyancy Q
chamber;
R R
S (ii) there was no fire-fighting appliance equipped on board; S
T T
(iii) there was no life-jacket on board; and
U U
V V
-3-
A A
B B
C (iv) there was no navigation light fitted on board for night C
operation.
D D
E The Facts E
F F
4. According to the Summary of Facts, at the time of the
G offence, the defendant, being the coxswain of the motorised sampan, was G
intercepted by two police vessels, PV 31 and PV 37 at about 0.7 nautical
H H
miles off Black Point, Tuen Mun. While the sampan was underway, there
I was no illumination or navigation light. I
J J
5. At the time of the interception, the defendant was seen
K controlling the sampan at the stern. Seven males as named in Charge 1 K
were found on board of the sampan.
L L
M 6. Police inquiries revealed that the defendant had used the M
sampan to convey those seven males from Xi-xiang, Shenzhen to
N N
Hong Kong. Under caution, defendant said that he conveyed the seven
O males to come to Hong Kong to play and that he had not received any O
money.
P P
Q 7. The sampan was later sent to Marine Department for Q
examination, and according to the ship inspector’s opinion, it was
R R
confirmed that the main hull structure was found in an unacceptable
S condition due to the removal of the bottom buoyancy chamber and there S
was no fire-fighting appliance equipped on board; there was no life-jacket
T T
U U
V V
-4-
A A
B B
on board; there was no navigation light fitted on board for night operation.
C All in all, the vessel was found to be not seaworthy. C
D D
The criminal record and the background of the defendant
E E
8. The defendant is 38 years old. He is a mainlander and is an
F F
odd-job worker. He is married with two children.
G G
9. His counsel, Mr Chain, told the court that the defendant, his
H H
wife and the daughter are found to be HIV-positive. The defendant is an
I AIDS disease carrier since 2007 and because of this, he was unable to find I
a stable job.
J J
K 10. In mitigation, Mr Chain reiterated the fact that the defendant K
had no record in Hong Kong and he had pleaded guilty in the first
L L
opportunity and had made full and frank confession to the police. Mr
M Chain also properly pointed out that at the time of the offence, there were M
no children or old people found on board of the sampan. All the seven
N N
males were grown-up males. There was no attempt by the defendant to
O avoid the apprehension and interception by the police. There was no O
dangerous manoeuvre on the part of the defendant when the police
P P
attempted to stop the defendant’s vessel. Mr Chain asked the court to be as
Q lenient as possible. Q
R R
Sentencing consideration
S S
11. In sentencing, I took into account the nature of the offence,
T T
the circumstances of the events, the defendant’s personal background, his
U U
V V
-5-
A A
B B
clear criminal record, his plea of guilty and also the authorities by the
C Court of Appeal in relation to these charges. C
D D
12. I have much sympathy for the predicament of the defendant,
E especially the fact that both he and his loved ones, including his wife and E
his daughter, have contracted AIDS but I am sure he will be properly taken
F F
care of by the prison authorities when he serves his time in Hong Kong.
G G
13. The defence has not provided any reason why he had
H H
committed an offence like this but in any event, the court cannot accept any
I reason albeit economic to commit crimes in order to earn his living even I
though he was unable to gain a gainful employment because of his illness.
J J
K 14. I note that in Charge 1, the prosecution has seen fit to charge K
the defendant as the captain of a motorised sampan, under section 39 of the
L L
Immigration Ordinance (“the ordinance”). Section 37 of the ordinance is
M not applicable as the persons on board of the sampan were people from M
South Asia and as such, they are therefore not caught within the definition
N N
of “illegal entrants” under section 37.
O O
15. Under section 37C or 37D of the ordinance, the prescribed
P P
maximum imprisonment is one of 14 years. I note, however, under
Q section 39 of the same ordinance, the maximum sentence is only one of Q
7 years. Previously, in relation to persons on board a motorised vehicle,
R R
when they were not illegal entrants as defined in section 37, the
S prosecution had charged the person in charge of the vessel under S
section 38 of the ordinance for “Attempting to land in Hong Kong without
T T
U U
V V
-6-
A A
B B
permission”. However, it is undesirable as in that particular section under
C section 38, the maximum sentence is only one of 3 years. C
D D
16. In the past, the court had on numerous occasions expressed
E concern over the fact that different defendants carrying different categories E
of people were treated differently under different sections of the ordinance
F F
albeit that the criminality are basically and generally the same. The
G discrepancy of the treatment and as a result the sentences in relation to the G
defendant in these categories are to a large extent now remedied by the
H H
prosecution’s decision to choose instead to charge the defendant under
I section 39 of the ordinance. I
J J
17. It should be noted that in a number of authorities, the Court of
K Appeal had already decided that an appropriate starting point for an K
accused who was in charge of a vessel carrying unlawful entrants to Hong
L L
Kong is 5 years under section 37C or 37D of the ordinance. Although as I
M have pointed out, under section 37 and under 39 there is still a difference M
between the prescribed maximum imprisonment term, one of 14 and one of
N N
7 years, I judge that the criminality involved in these two sections, being
O emphasis on the role of the defendant as the person in charge of the vessel, O
are in fact exactly the same. In the end, I come to the conclusion that I see
P P
there is no logic or reason why I shall not follow the Court of Appeal’s
Q usual sentencing guideline or practice insofar as section 37 offence is Q
concerned when I come to deal with a similar section 39 offence.
R R
S 18. In a more recent case by the Court of Appeal, HKSAR v S
T Tang Zhuyan (唐珠炎) [2011] 1 HKLRD 447, the Court of Appeal has T
U U
V V
-7-
A A
B B
specifically referred to the case of HKSAR v Zhong Ming Jing (鐘明青)
C C
CACC 180/2010 and said that public expectation of safety at sea had
D
moved on and expressed disagreement with it’s earlier observation in D
respect of fire-fighting and life-saving equipment and said that henceforth,
E E
those were matters that should be regarded as factors of aggravation. (see
F paragraph 18) F
G G
19. In relation to Charge 3, the Court of Appeal has also said in
H paragraph 22 of the judgment that after reviewing the facts of that H
particular case, it came to the conclusion that given that there is absence of
I I
aggravating features of danger because there was no collision, no attempt
J to escape or dangerous manoeuvre, the District judge’s decision to use 18 J
months’ imprisonment as a starting point is said to be manifestly
K K
excessive. The Court of Appeal considered that in these circumstances, the
L appropriate starting point for sentence would therefore be 12 months’ L
imprisonment.
M M
N 20. Coming back to this case, in Charge 1, as said, I accept that N
the usual starting point in this case should be one of 5 years. Because of
O O
what the Court of Appeal has said in Zhong Ming Jing as just pointed out, I
P found that there were some aggravating features in that there was no P
fire-fighting and life-saving equipment on board of the vessel in the
Q Q
present case. Because of that, I will add another 3 months to the 5-year
R starting point. For Charge 1, therefore the appropriate starting point is 63 R
months.
S S
T 21. In relation to Charge 3, there was no attempt to accelerate or T
making a sharp turn by the defendant to avoid the police vessel when the
U U
V V
-8-
A A
B B
police vessel attempted to intercept the sampan. There was no collision.
C Therefore, there were no additional aggravating factor in this charge. I will C
therefore just follow what the Court of Appeal had done in the case of Tang
D D
Zhuyan and adopt a 12-month starting point.
E E
22. Affording the defendant the discount of one-third from the
F F
starting point, which is the only and effective mitigating factor, the
G appropriate sentences are:- G
H Charge 1: 42 months’ imprisonment; H
Charge 3: 8 months’ imprisonment.
I I
J 23. Because of the principle of totality, I order that 2 months of J
the sentence imposed in respect of Charge 3 to run consecutively to the
K K
sentence of Charge 1, making the total sentence of the two charges one of
L 44 months’ imprisonment. L
M M
N N
O O
( A Kwok )
P District Judge P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1168/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1168 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
DING QIJING
I -------------------------- I
J J
Before: HH Judge A Kwok
K Date: 26 February 2014 at 12.35 pm K
Present: Mr Manuel Chong, Counsel on fiat, for HKSAR
L L
Mr Chain Shun Woo, Benjamin, instructed by Lee & Co,
M assigned by the Director of Legal Aid, for the defendant M
Offence: (1) Being the captain of a ship with persons on board
N N
seeking to land unlawfully in Hong Kong (船隻上載有
O O
尋求在香港非法入境的人時身為船長)
P (3) Endangering the safety of others at sea (危害他人在海 P
上的安全)
Q Q
R ----------------------------------- R
REASONS FOR SENTENCE
S S
-----------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant appeared before me this morning and pleaded
C guilty to one charge of “Being the captain of a ship with persons on board C
seeking to land unlawfully in Hong Kong”, contrary to section 39 of the
D D
Immigration Ordinance, Cap 115 (Charge 1) and also another charge of
E “Endangering the safety of others at sea”, contrary to section 72 of the E
Shipping and Port Control Ordinance, Cap 313 (Charge 3).
F F
G 2. Charge 1 avers that on 7 November 2013, the defendant, G
being the captain of a motorised sampan, in Hong Kong had on board the
H H
said sampan seven persons seeking to land from the said sampan in
I contravention of section 38(1)(a) of the Immigration Ordinance, Cap 115. I
The seven persons as named in the charge were all Pakistanis with no valid
J J
travel documents and they had not obtained permission to enter Hong
K Kong. K
L L
3. Charge 3 avers that the defendant, as the coxswain of the
M motorised sampan which was underway, without reasonable excuse, M
endangered or caused to be endangered the safety of other persons
N N
conveyed in the said sampan by navigating the said sampan which was
O unseaworthy in that:- O
P P
(i) the main hull structure was found in unacceptable
Q condition due to remove the bottom buoyancy Q
chamber;
R R
S (ii) there was no fire-fighting appliance equipped on board; S
T T
(iii) there was no life-jacket on board; and
U U
V V
-3-
A A
B B
C (iv) there was no navigation light fitted on board for night C
operation.
D D
E The Facts E
F F
4. According to the Summary of Facts, at the time of the
G offence, the defendant, being the coxswain of the motorised sampan, was G
intercepted by two police vessels, PV 31 and PV 37 at about 0.7 nautical
H H
miles off Black Point, Tuen Mun. While the sampan was underway, there
I was no illumination or navigation light. I
J J
5. At the time of the interception, the defendant was seen
K controlling the sampan at the stern. Seven males as named in Charge 1 K
were found on board of the sampan.
L L
M 6. Police inquiries revealed that the defendant had used the M
sampan to convey those seven males from Xi-xiang, Shenzhen to
N N
Hong Kong. Under caution, defendant said that he conveyed the seven
O males to come to Hong Kong to play and that he had not received any O
money.
P P
Q 7. The sampan was later sent to Marine Department for Q
examination, and according to the ship inspector’s opinion, it was
R R
confirmed that the main hull structure was found in an unacceptable
S condition due to the removal of the bottom buoyancy chamber and there S
was no fire-fighting appliance equipped on board; there was no life-jacket
T T
U U
V V
-4-
A A
B B
on board; there was no navigation light fitted on board for night operation.
C All in all, the vessel was found to be not seaworthy. C
D D
The criminal record and the background of the defendant
E E
8. The defendant is 38 years old. He is a mainlander and is an
F F
odd-job worker. He is married with two children.
G G
9. His counsel, Mr Chain, told the court that the defendant, his
H H
wife and the daughter are found to be HIV-positive. The defendant is an
I AIDS disease carrier since 2007 and because of this, he was unable to find I
a stable job.
J J
K 10. In mitigation, Mr Chain reiterated the fact that the defendant K
had no record in Hong Kong and he had pleaded guilty in the first
L L
opportunity and had made full and frank confession to the police. Mr
M Chain also properly pointed out that at the time of the offence, there were M
no children or old people found on board of the sampan. All the seven
N N
males were grown-up males. There was no attempt by the defendant to
O avoid the apprehension and interception by the police. There was no O
dangerous manoeuvre on the part of the defendant when the police
P P
attempted to stop the defendant’s vessel. Mr Chain asked the court to be as
Q lenient as possible. Q
R R
Sentencing consideration
S S
11. In sentencing, I took into account the nature of the offence,
T T
the circumstances of the events, the defendant’s personal background, his
U U
V V
-5-
A A
B B
clear criminal record, his plea of guilty and also the authorities by the
C Court of Appeal in relation to these charges. C
D D
12. I have much sympathy for the predicament of the defendant,
E especially the fact that both he and his loved ones, including his wife and E
his daughter, have contracted AIDS but I am sure he will be properly taken
F F
care of by the prison authorities when he serves his time in Hong Kong.
G G
13. The defence has not provided any reason why he had
H H
committed an offence like this but in any event, the court cannot accept any
I reason albeit economic to commit crimes in order to earn his living even I
though he was unable to gain a gainful employment because of his illness.
J J
K 14. I note that in Charge 1, the prosecution has seen fit to charge K
the defendant as the captain of a motorised sampan, under section 39 of the
L L
Immigration Ordinance (“the ordinance”). Section 37 of the ordinance is
M not applicable as the persons on board of the sampan were people from M
South Asia and as such, they are therefore not caught within the definition
N N
of “illegal entrants” under section 37.
O O
15. Under section 37C or 37D of the ordinance, the prescribed
P P
maximum imprisonment is one of 14 years. I note, however, under
Q section 39 of the same ordinance, the maximum sentence is only one of Q
7 years. Previously, in relation to persons on board a motorised vehicle,
R R
when they were not illegal entrants as defined in section 37, the
S prosecution had charged the person in charge of the vessel under S
section 38 of the ordinance for “Attempting to land in Hong Kong without
T T
U U
V V
-6-
A A
B B
permission”. However, it is undesirable as in that particular section under
C section 38, the maximum sentence is only one of 3 years. C
D D
16. In the past, the court had on numerous occasions expressed
E concern over the fact that different defendants carrying different categories E
of people were treated differently under different sections of the ordinance
F F
albeit that the criminality are basically and generally the same. The
G discrepancy of the treatment and as a result the sentences in relation to the G
defendant in these categories are to a large extent now remedied by the
H H
prosecution’s decision to choose instead to charge the defendant under
I section 39 of the ordinance. I
J J
17. It should be noted that in a number of authorities, the Court of
K Appeal had already decided that an appropriate starting point for an K
accused who was in charge of a vessel carrying unlawful entrants to Hong
L L
Kong is 5 years under section 37C or 37D of the ordinance. Although as I
M have pointed out, under section 37 and under 39 there is still a difference M
between the prescribed maximum imprisonment term, one of 14 and one of
N N
7 years, I judge that the criminality involved in these two sections, being
O emphasis on the role of the defendant as the person in charge of the vessel, O
are in fact exactly the same. In the end, I come to the conclusion that I see
P P
there is no logic or reason why I shall not follow the Court of Appeal’s
Q usual sentencing guideline or practice insofar as section 37 offence is Q
concerned when I come to deal with a similar section 39 offence.
R R
S 18. In a more recent case by the Court of Appeal, HKSAR v S
T Tang Zhuyan (唐珠炎) [2011] 1 HKLRD 447, the Court of Appeal has T
U U
V V
-7-
A A
B B
specifically referred to the case of HKSAR v Zhong Ming Jing (鐘明青)
C C
CACC 180/2010 and said that public expectation of safety at sea had
D
moved on and expressed disagreement with it’s earlier observation in D
respect of fire-fighting and life-saving equipment and said that henceforth,
E E
those were matters that should be regarded as factors of aggravation. (see
F paragraph 18) F
G G
19. In relation to Charge 3, the Court of Appeal has also said in
H paragraph 22 of the judgment that after reviewing the facts of that H
particular case, it came to the conclusion that given that there is absence of
I I
aggravating features of danger because there was no collision, no attempt
J to escape or dangerous manoeuvre, the District judge’s decision to use 18 J
months’ imprisonment as a starting point is said to be manifestly
K K
excessive. The Court of Appeal considered that in these circumstances, the
L appropriate starting point for sentence would therefore be 12 months’ L
imprisonment.
M M
N 20. Coming back to this case, in Charge 1, as said, I accept that N
the usual starting point in this case should be one of 5 years. Because of
O O
what the Court of Appeal has said in Zhong Ming Jing as just pointed out, I
P found that there were some aggravating features in that there was no P
fire-fighting and life-saving equipment on board of the vessel in the
Q Q
present case. Because of that, I will add another 3 months to the 5-year
R starting point. For Charge 1, therefore the appropriate starting point is 63 R
months.
S S
T 21. In relation to Charge 3, there was no attempt to accelerate or T
making a sharp turn by the defendant to avoid the police vessel when the
U U
V V
-8-
A A
B B
police vessel attempted to intercept the sampan. There was no collision.
C Therefore, there were no additional aggravating factor in this charge. I will C
therefore just follow what the Court of Appeal had done in the case of Tang
D D
Zhuyan and adopt a 12-month starting point.
E E
22. Affording the defendant the discount of one-third from the
F F
starting point, which is the only and effective mitigating factor, the
G appropriate sentences are:- G
H Charge 1: 42 months’ imprisonment; H
Charge 3: 8 months’ imprisonment.
I I
J 23. Because of the principle of totality, I order that 2 months of J
the sentence imposed in respect of Charge 3 to run consecutively to the
K K
sentence of Charge 1, making the total sentence of the two charges one of
L 44 months’ imprisonment. L
M M
N N
O O
( A Kwok )
P District Judge P
Q Q
R R
S S
T T
U U
V V