A A
DCCC 231/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 231 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Luo Qian F
G ---------------------- G
Before: HH Judge Woodcock
H Date: 25 April 2014 at 3.16 pm H
Present: Mr Karl Chu, PP of the DOJ, for HKSAR
Miss Lai Nga-man Louisa, of Raymond T Y Chan, Victoria
I Chan & Co, assigned by the Director of Legal Aid, for I
the defendant
J Offence: (1) Assisting the passage to Hong Kong of unauthorised J
entrants (協助未獲授權進境者前來香港的旅程)
(2) Endangering the safety of others at sea (危害他人在
K K
海上的安全)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. The defendant has pleaded guilty to two charges today,
the first being assisting the passage to Hong Kong of
O O
unauthorised entrants, contrary to Section 37D(1)(a) of the
P Immigration Ordinance, Cap. 115, and the second charge being P
endangering the safety of others at sea, contrary to Section 72
Q of the Shipping and Port Control Ordinance, Cap. 313. Q
R R
2. The defendant admits he was the coxswain of a sampan
and assisted the passage of seven unauthorised entrants into
S S
Hong Kong, those being seven Vietnamese adults. He also agrees
T that the vessel he was in charge of was not seaworthy, hence T
Charge 2.
U U
CRT25/25.4.2014/ML 1 DCCC 231/2014/Sentence
V V
A A
3. The facts of this case are that on 11 January this
year, in the early evening, the defendant’s vessel was spotted
B B
on the radar. The marine police then sent two police vessels to
C investigate and, if necessary, intercept the vessel. C
D 4. Not long after, the defendant’s vessel was seen moving D
near Cheung Chau, without navigational lights. At all times the
E E
defendant was seen driving this vessel.
F F
5. The first police vessel approached the defendant and
G the defendant changed directions to evade it. The second vessel G
approached from a different direction and again the defendant
H tried to evade this vessel, but within minutes, the defendant’s H
vessel was successfully intercepted and stopped.
I I
6. What officers saw were three Vietnamese adults sitting
J J
near the defendant at the control console, whilst another four
K
were discovered inside closed cabins of the sampan. All seven K
admit entering Hong Kong in the defendant’s vessel without
L authority. They boarded his vessel in the Mainland and headed L
for Hong Kong.
M M
7. The defendant and the seven Vietnamese adults were
N N
arrested.
O O
8. The defendant admitted to the police under caution
P that he had set off from China and had been promised RMB300 to P
drive this group from Dangan Island to Guishan.
Q Q
9. This boat was examined by a ship inspector, who
R R
determined it was unseaworthy. He found the hull was in poor
condition, there was no fire-fighting equipment on board, there
S S
were no lifejackets and there was no navigational light for
T night-time driving. Two adults were, in fact, wearing T
lifejackets, but they were not deemed to be sufficient under the
U definition of a “life-saving appliance”. U
CRT25/25.4.2014/ML 2 DCCC 231/2014/Sentence
V V
A A
10. I have seen photographs of the vessel and I have heard
B B
no evidence that, although it was in poor condition and
C unseaworthy, it was about to sink imminently. C
D 11. The defendant’s plea today is his best mitigation. D
E E
12. He is a young man of 23 years old, comes originally
from Hunan. In Hong Kong he has a clear record. He was from a
F F
farming background in Hunan, but in September last year his
G father had an accident, which required hospitalisation. In order G
to help with the medical bills, the defendant moved to Guangdong
H to look for work. He worked as a transportation worker, but when H
he was offered this job to drive this vessel for $300 he took
I I
the job, hoping to earn extra money. He committed this offence
for financial reasons.
J J
K
13. There are guidelines that exist for these offences. K
L 14. Where Charge 1 is concerned, I have referred myself to L
two authorities, in particular, HKSAR v Yeung Wui [2005] 1 HKC
M 646 and HKSAR v Wong Chi Kin, CACC 357/2004. M
N N
15. In that authority, a 5-year starting point was deemed
appropriate for this offence, in particular, where the defendant
O O
was the coxswain.
P P
16. The authority goes on to highlight if aggravating
Q factors exist, this starting point should be increased. The Q
Court of Appeal in Wong Chi Kin set out examples of aggravating
R R
factors and the relevant ones to this case is where the vessel
is unseaworthy due to age or poor maintenance, therefore
S S
creating a risk of endangering passengers.
T T
17. I take note of the defendant’s age, and youth was
U referred to in another authority, R v Wong Yin Long [1995] 1 U
CRT25/25.4.2014/ML 3 DCCC 231/2014/Sentence
V V
A A
HKCLR 151 and the Court of Appeal was of the view that discounts
for youth would not be appropriate, as that would only encourage
B B
organisers to employ young men as crew or coxswain.
C C
18. From his plea to Charge 2, the defendant admits his
D vessel is unseaworthy by definition, so I cannot ignore this D
aggravating factor. In fact, in HKSAR v Zhong Ming Jing, CACC
E E
180/2010, the court made it clear that where there is no fire-
fighting equipment and lifesaving equipment, these facts would
F F
be considered aggravating and serious.
G G
19. I will bear in mind, however, that the basis for
H Charge 2 is that the vessel was unseaworthy, so I will, when H
considering the totality of the sentence, consider this. In my
I I
view, it would not be fair to punish the defendant twice for the
same set of facts or the same particulars.
J J
K
20. I have had a letter from the defendant explaining why K
he committed these offences and asking for leniency.
L L
21. I have also heard all that can be said on behalf of
M the defendant by Miss Lai. M
N N
22. I will take into consideration for Charge 1 the
authorities that I have just referred to as well as the
O O
mitigation I have heard and the facts of the case.
P P
23. I will take, as deemed appropriate by the Court of
Q Appeal, a starting point of initially 5 years. Q
R R
24. I will add, for what are aggravating factors, 6 months
to this 5 years.
S S
T 25. That would be a total starting point for Charge 1 of 5 T
years and 6 months.
U U
CRT25/25.4.2014/ML 4 DCCC 231/2014/Sentence
V V
A A
26. For Charge 2, I take a starting point of 15 months, to
reflect the state of the vessel and the lack of equipment that
B B
is normally required in case any accident or fire occurs.
C C
27. Defendant is entitled to a discount of one-third for
D his plea today. After that discount, for Charge 1, the defendant D
is sentenced to 3 years and 8 months’ imprisonment. For Charge
E E
2, the defendant is sentenced to 10 months’ imprisonment.
F F
28. I will make both sentences concurrent to reflect the
G fact that I have taken into account the unseaworthiness of the G
vessel when I increased the starting point of Charge 1.
H H
29. Accordingly, the defendant is sentenced to 3 years and
I I
8 months.
J J
COURT: Do you understand that sentence?
K
DEFENDANT: Understood. K
L L
M M
N N
O A. J. Woodcock O
District Judge
P P
Q Q
R R
S S
T T
U U
CRT25/25.4.2014/ML 5 DCCC 231/2014/Sentence
V V
A A
DCCC 231/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 231 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Luo Qian F
G ---------------------- G
Before: HH Judge Woodcock
H Date: 25 April 2014 at 3.16 pm H
Present: Mr Karl Chu, PP of the DOJ, for HKSAR
Miss Lai Nga-man Louisa, of Raymond T Y Chan, Victoria
I Chan & Co, assigned by the Director of Legal Aid, for I
the defendant
J Offence: (1) Assisting the passage to Hong Kong of unauthorised J
entrants (協助未獲授權進境者前來香港的旅程)
(2) Endangering the safety of others at sea (危害他人在
K K
海上的安全)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. The defendant has pleaded guilty to two charges today,
the first being assisting the passage to Hong Kong of
O O
unauthorised entrants, contrary to Section 37D(1)(a) of the
P Immigration Ordinance, Cap. 115, and the second charge being P
endangering the safety of others at sea, contrary to Section 72
Q of the Shipping and Port Control Ordinance, Cap. 313. Q
R R
2. The defendant admits he was the coxswain of a sampan
and assisted the passage of seven unauthorised entrants into
S S
Hong Kong, those being seven Vietnamese adults. He also agrees
T that the vessel he was in charge of was not seaworthy, hence T
Charge 2.
U U
CRT25/25.4.2014/ML 1 DCCC 231/2014/Sentence
V V
A A
3. The facts of this case are that on 11 January this
year, in the early evening, the defendant’s vessel was spotted
B B
on the radar. The marine police then sent two police vessels to
C investigate and, if necessary, intercept the vessel. C
D 4. Not long after, the defendant’s vessel was seen moving D
near Cheung Chau, without navigational lights. At all times the
E E
defendant was seen driving this vessel.
F F
5. The first police vessel approached the defendant and
G the defendant changed directions to evade it. The second vessel G
approached from a different direction and again the defendant
H tried to evade this vessel, but within minutes, the defendant’s H
vessel was successfully intercepted and stopped.
I I
6. What officers saw were three Vietnamese adults sitting
J J
near the defendant at the control console, whilst another four
K
were discovered inside closed cabins of the sampan. All seven K
admit entering Hong Kong in the defendant’s vessel without
L authority. They boarded his vessel in the Mainland and headed L
for Hong Kong.
M M
7. The defendant and the seven Vietnamese adults were
N N
arrested.
O O
8. The defendant admitted to the police under caution
P that he had set off from China and had been promised RMB300 to P
drive this group from Dangan Island to Guishan.
Q Q
9. This boat was examined by a ship inspector, who
R R
determined it was unseaworthy. He found the hull was in poor
condition, there was no fire-fighting equipment on board, there
S S
were no lifejackets and there was no navigational light for
T night-time driving. Two adults were, in fact, wearing T
lifejackets, but they were not deemed to be sufficient under the
U definition of a “life-saving appliance”. U
CRT25/25.4.2014/ML 2 DCCC 231/2014/Sentence
V V
A A
10. I have seen photographs of the vessel and I have heard
B B
no evidence that, although it was in poor condition and
C unseaworthy, it was about to sink imminently. C
D 11. The defendant’s plea today is his best mitigation. D
E E
12. He is a young man of 23 years old, comes originally
from Hunan. In Hong Kong he has a clear record. He was from a
F F
farming background in Hunan, but in September last year his
G father had an accident, which required hospitalisation. In order G
to help with the medical bills, the defendant moved to Guangdong
H to look for work. He worked as a transportation worker, but when H
he was offered this job to drive this vessel for $300 he took
I I
the job, hoping to earn extra money. He committed this offence
for financial reasons.
J J
K
13. There are guidelines that exist for these offences. K
L 14. Where Charge 1 is concerned, I have referred myself to L
two authorities, in particular, HKSAR v Yeung Wui [2005] 1 HKC
M 646 and HKSAR v Wong Chi Kin, CACC 357/2004. M
N N
15. In that authority, a 5-year starting point was deemed
appropriate for this offence, in particular, where the defendant
O O
was the coxswain.
P P
16. The authority goes on to highlight if aggravating
Q factors exist, this starting point should be increased. The Q
Court of Appeal in Wong Chi Kin set out examples of aggravating
R R
factors and the relevant ones to this case is where the vessel
is unseaworthy due to age or poor maintenance, therefore
S S
creating a risk of endangering passengers.
T T
17. I take note of the defendant’s age, and youth was
U referred to in another authority, R v Wong Yin Long [1995] 1 U
CRT25/25.4.2014/ML 3 DCCC 231/2014/Sentence
V V
A A
HKCLR 151 and the Court of Appeal was of the view that discounts
for youth would not be appropriate, as that would only encourage
B B
organisers to employ young men as crew or coxswain.
C C
18. From his plea to Charge 2, the defendant admits his
D vessel is unseaworthy by definition, so I cannot ignore this D
aggravating factor. In fact, in HKSAR v Zhong Ming Jing, CACC
E E
180/2010, the court made it clear that where there is no fire-
fighting equipment and lifesaving equipment, these facts would
F F
be considered aggravating and serious.
G G
19. I will bear in mind, however, that the basis for
H Charge 2 is that the vessel was unseaworthy, so I will, when H
considering the totality of the sentence, consider this. In my
I I
view, it would not be fair to punish the defendant twice for the
same set of facts or the same particulars.
J J
K
20. I have had a letter from the defendant explaining why K
he committed these offences and asking for leniency.
L L
21. I have also heard all that can be said on behalf of
M the defendant by Miss Lai. M
N N
22. I will take into consideration for Charge 1 the
authorities that I have just referred to as well as the
O O
mitigation I have heard and the facts of the case.
P P
23. I will take, as deemed appropriate by the Court of
Q Appeal, a starting point of initially 5 years. Q
R R
24. I will add, for what are aggravating factors, 6 months
to this 5 years.
S S
T 25. That would be a total starting point for Charge 1 of 5 T
years and 6 months.
U U
CRT25/25.4.2014/ML 4 DCCC 231/2014/Sentence
V V
A A
26. For Charge 2, I take a starting point of 15 months, to
reflect the state of the vessel and the lack of equipment that
B B
is normally required in case any accident or fire occurs.
C C
27. Defendant is entitled to a discount of one-third for
D his plea today. After that discount, for Charge 1, the defendant D
is sentenced to 3 years and 8 months’ imprisonment. For Charge
E E
2, the defendant is sentenced to 10 months’ imprisonment.
F F
28. I will make both sentences concurrent to reflect the
G fact that I have taken into account the unseaworthiness of the G
vessel when I increased the starting point of Charge 1.
H H
29. Accordingly, the defendant is sentenced to 3 years and
I I
8 months.
J J
COURT: Do you understand that sentence?
K
DEFENDANT: Understood. K
L L
M M
N N
O A. J. Woodcock O
District Judge
P P
Q Q
R R
S S
T T
U U
CRT25/25.4.2014/ML 5 DCCC 231/2014/Sentence
V V