A A
DCCC780/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 780 OF 2009
C C
--------------------
D HKSAR D
v.
E E
Ye Kuan
F F
--------------------
G G
Before: Deputy District Judge A Kwok
Date: 24 August 2009 at 4.04 pm
H Present: Ms Mickey Fung, SPP of the Department of Justice, for H
HKSAR
I
Mr Ng Ge-bun of Messrs Tang Lai & Leung, assigned by I
the Director of Legal Aid, for the Defendant
Offence: (1) Assisting the passage within Hong Kong of a
J conveyance which carried unauthorised entrants (協 J
助載有未獲授權進境者的運輸工具在香港境內的旅程)
K (2) Failing to stop (沒有停船) K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. The following is the sentence and the reasons for it.
O The defendant appeared in the District Court before me and O
charged with two offences. Charge 1: assisting the passage
P within Hong Kong of a conveyance which carried unauthorised P
entrants contrary to section 37D(1)(a) of the Immigration
Q Q
Ordinance Cap.115. Charge 2,: failing to stop, contrary to
regulation 20(1) and (3) of the Shipping and Port Control
R R
Regulations made under the Shipping and Port Control Ordinance
S
Cap.313. S
T 2. He pleaded guilty to both charges and was represented T
by Mr Ng, solicitor assigned by the Director of Legal Aid.
U U
CRT26/24.8.2009 1 DCCC780/2009/Sentence
V V
A 3. According to the Summary of Facts which was admitted A
by the defendant, he was the coxswain of a vessel which at the
B material time was spotted by the Hong Kong Marine Police within B
the Hong Kong waters. When the police vessel 102 (”PV102”)
C C
turned on the blue siren, the defendant, however, did not stop
the vessel. One of the marine policemen shouted at him but he
D D
continued to drive the vessel heading towards Mainland China.
E Finally when PV102 stopped the vessel on its offside, the E
defendant jumped into the sea. However, he shortly swam back to
F the vessel. F
G G
4. Five PRC females particularised in Charge 1 were found
on board of the intercepted vessel. None of these ladies could
H H
produce any valid travel document and were therefore illegal
I
immigrants. I
J 5. Under verbal caution, defendant told police that he J
just wanted to earn money for the meal. Later in a video
K interview made at Tin Shui Wai Police Station, the defendant K
stated further under caution that it was his cousin who had
L L
introduced him to a man called “Long San” who asked him to go to
Hong Kong and bring a few people back to mainland for a reward
M M
of RMB1,000.
N N
6. A few hours before the offence, his cousin took him to
O Hou Hai Bridge in the mainland where he met “Long San” who took O
him to a beach and where he taught the defendant how to steer
P P
the vessel.
Q Q
7. According to the ship inspector’s report the
R followings were noted during the inspection: (1) the main hull R
structure was found in poor condition; (2) there was no fire-
S fighting appliances equipped on board; (3) there was no S
lifesaving appliances equipped on board; and (4) there was no
T T
navigation light fitted on board for night operation. All in
U U
CRT26/24.8.2009 2 DCCC780/2009/Sentence
V V
A all, the ship inspector concluded that the vessel was A
unseaworthy.
B B
8. Before convicting the defendant I have clarified with
C C
Mr Ng in relation to the defendant’s knowledge about the status
of the unauthorised entrants on board of the vessel and it was
D D
confirmed that although he did say under video caution that he
E did not know that these people were illegal immigrants or E
unauthorised entrants, “Long San” had told him that these people
F were illegal immigrants when he met “Long San” at the beach. F
G G
9. The defendant is now aged 34. He was born in Yangjiang
in China. He only received a primary education and he worked as
H H
a fisherman by occupation earning an income of about RMB5,000.
I
Although he was single but he had a girlfriend and they had a 2 I
years old daughter but the girlfriend had separated with him two
J years ago. The daughter, I was told, is now taken care of by the J
defendant’s younger sister. The defendant was now living
K together with his mother now aged 66 in a village house in Hong K
Kong.
L L
10. The defendant had a clear record in Hong Kong. In
M M
mitigation, I was shown a letter written by the senior medical
N officer of Lai Chi Kok Reception Centre which confirmed that N
according to the blood tests for the HIV which was conducted in
O June this year, positive result was received. According to the O
report, the defendant was subsequently referred to the Kowloon
P P
Bay Integrated Medical Centre for further medical follow-up and
he had altogether attended the centre for treatment twice
Q Q
already and his next follow-up appointment is scheduled in the
R end of August 2009. According to the same report, he was also an R
abuser of heroin for three years, but apart from his treatment
S for his withdrawal syndrome, during his stay in the Lai Chi Kok S
Reception Centre, his general health condition was considered to
T T
be stable.
U U
CRT26/24.8.2009 3 DCCC780/2009/Sentence
V V
A 11. Mr Ng has also submitted for my consideration a letter A
of mitigation written by the defendant and according to the
B letter, the defendant has stated his remorse for the offence and B
said that he committed the present offence for a reward of
C C
RMB1,000 because he had no money. The defendant told me that he
was told that he had only two years’ life expectancy and he
D D
wanted to take care of his mother and daughter before he passed
E away so he wanted the court to be as lenient as possible. E
F 12. In sentencing, I was referred to the case by Mr Ng of F
HKSAR v Li Chih Hui (CACC189/2008) where the Court of Appeal
G G
after reviewing the case authorities in relation to the
1st charge finally reduced the sentence of 6 years to 5 years as
H H
the proper starting point before the discount on account of the
I
defendant’s plea of guilty. I
J 13. It is accepted by Mr Ng that where the defendant was J
the captain of the vessel and in charge of the vessel the usual
K proper starting point is one of 5 years. It is also accepted by K
Mr Ng that in some cases the court, however, can give weight to
L L
the condition of the vessel and perhaps the number of the
illegal immigrants involved and increase the sentence.
M M
N 14. Each case has its own facts. In this case, while it is N
true that according to the ship inspector’s report there was no
O fire-fighting appliances as well as lifesaving appliances O
equipped on board but Mr Ng told the court that the destination
P P
of the vessel was only Shekou in Shenzhen where the total time
for the voyage is about 20 to 25 minutes only. Therefore, in the
Q Q
end, I decided not to increase the starting point in relation to
R the 1st charge and adopt a 5 year starting point. After a one- R
third discount of the defendant’s plea of guilty the sentence on
S this charge is reduced to 3 years and 4 months. S
T T
15. As to the 2nd charge, the failing to stop offence, I
adopt a 9 months’ imprisonment as a starting point and after
U U
CRT26/24.8.2009 4 DCCC780/2009/Sentence
V V
A giving the one-third discount on account of his plea the A
sentence on this charge is therefore one of 6 months’
B imprisonment. I take into account the fact that in most cases B
which involve the 1st charge, a captain of a vessel will not
C C
stop the vessel right away, and also because of the principle of
totality, I order finally that the sentences on both charges to
D D
run concurrently.
E E
16. Lastly, I was asked by Mr Ng to take into account the
F fact that the defendant was HIV positive and his reduced life F
expectancy and to reduce his sentence. In this connection, I
G G
need only repeat what I have mentioned in the letter which was
written by the senior medical officer of the Lai Chi Kok
H H
Reception Centre in relation to the stable health condition of
I
the defendant. I
J 17. I was also properly referred to the book, “Sentencing J
in Hong Kong” 5th edition by Miss Fung, the Senior Public
K Prosecutor. At page 347, the learned author of the book had K
referred to the case of R v Chan Kui Sheung [1996] 3 HKC 279-284
L L
where Yang CJ said that one of the principles in consideration
of the ill health of the defendant was that, “the fact that an
M M
offender was HIV positive or had a reduced life expectancy was
N not generally a reason which should affect sentence.” I am sure N
that whilst serving the sentence, the prison authority will see
O to it that the defendant receive all the proper medical O
attention because of his medical condition. If, unfortunately,
P P
the life expectancy of the defendant is cut short by his
deterioration of his health condition this is something which
Q Q
can be considered by the executive of the prerogative of mercy
R but it was not a reason for the court to interfere which is R
otherwise an appropriate sentence. I decided therefore not to
S reduce any sentence on account of the health condition of the S
defendant.
T T
U U
CRT26/24.8.2009 5 DCCC780/2009/Sentence
V V
A 18. For the two offences, the defendant will serve a total A
of 3 years and 4 months.
B B
C C
D D
(A. Kwok)
E Deputy District Judge E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/24.8.2009 6 DCCC780/2009/Sentence
V V
A A
DCCC780/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 780 OF 2009
C C
--------------------
D HKSAR D
v.
E E
Ye Kuan
F F
--------------------
G G
Before: Deputy District Judge A Kwok
Date: 24 August 2009 at 4.04 pm
H Present: Ms Mickey Fung, SPP of the Department of Justice, for H
HKSAR
I
Mr Ng Ge-bun of Messrs Tang Lai & Leung, assigned by I
the Director of Legal Aid, for the Defendant
Offence: (1) Assisting the passage within Hong Kong of a
J conveyance which carried unauthorised entrants (協 J
助載有未獲授權進境者的運輸工具在香港境內的旅程)
K (2) Failing to stop (沒有停船) K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. The following is the sentence and the reasons for it.
O The defendant appeared in the District Court before me and O
charged with two offences. Charge 1: assisting the passage
P within Hong Kong of a conveyance which carried unauthorised P
entrants contrary to section 37D(1)(a) of the Immigration
Q Q
Ordinance Cap.115. Charge 2,: failing to stop, contrary to
regulation 20(1) and (3) of the Shipping and Port Control
R R
Regulations made under the Shipping and Port Control Ordinance
S
Cap.313. S
T 2. He pleaded guilty to both charges and was represented T
by Mr Ng, solicitor assigned by the Director of Legal Aid.
U U
CRT26/24.8.2009 1 DCCC780/2009/Sentence
V V
A 3. According to the Summary of Facts which was admitted A
by the defendant, he was the coxswain of a vessel which at the
B material time was spotted by the Hong Kong Marine Police within B
the Hong Kong waters. When the police vessel 102 (”PV102”)
C C
turned on the blue siren, the defendant, however, did not stop
the vessel. One of the marine policemen shouted at him but he
D D
continued to drive the vessel heading towards Mainland China.
E Finally when PV102 stopped the vessel on its offside, the E
defendant jumped into the sea. However, he shortly swam back to
F the vessel. F
G G
4. Five PRC females particularised in Charge 1 were found
on board of the intercepted vessel. None of these ladies could
H H
produce any valid travel document and were therefore illegal
I
immigrants. I
J 5. Under verbal caution, defendant told police that he J
just wanted to earn money for the meal. Later in a video
K interview made at Tin Shui Wai Police Station, the defendant K
stated further under caution that it was his cousin who had
L L
introduced him to a man called “Long San” who asked him to go to
Hong Kong and bring a few people back to mainland for a reward
M M
of RMB1,000.
N N
6. A few hours before the offence, his cousin took him to
O Hou Hai Bridge in the mainland where he met “Long San” who took O
him to a beach and where he taught the defendant how to steer
P P
the vessel.
Q Q
7. According to the ship inspector’s report the
R followings were noted during the inspection: (1) the main hull R
structure was found in poor condition; (2) there was no fire-
S fighting appliances equipped on board; (3) there was no S
lifesaving appliances equipped on board; and (4) there was no
T T
navigation light fitted on board for night operation. All in
U U
CRT26/24.8.2009 2 DCCC780/2009/Sentence
V V
A all, the ship inspector concluded that the vessel was A
unseaworthy.
B B
8. Before convicting the defendant I have clarified with
C C
Mr Ng in relation to the defendant’s knowledge about the status
of the unauthorised entrants on board of the vessel and it was
D D
confirmed that although he did say under video caution that he
E did not know that these people were illegal immigrants or E
unauthorised entrants, “Long San” had told him that these people
F were illegal immigrants when he met “Long San” at the beach. F
G G
9. The defendant is now aged 34. He was born in Yangjiang
in China. He only received a primary education and he worked as
H H
a fisherman by occupation earning an income of about RMB5,000.
I
Although he was single but he had a girlfriend and they had a 2 I
years old daughter but the girlfriend had separated with him two
J years ago. The daughter, I was told, is now taken care of by the J
defendant’s younger sister. The defendant was now living
K together with his mother now aged 66 in a village house in Hong K
Kong.
L L
10. The defendant had a clear record in Hong Kong. In
M M
mitigation, I was shown a letter written by the senior medical
N officer of Lai Chi Kok Reception Centre which confirmed that N
according to the blood tests for the HIV which was conducted in
O June this year, positive result was received. According to the O
report, the defendant was subsequently referred to the Kowloon
P P
Bay Integrated Medical Centre for further medical follow-up and
he had altogether attended the centre for treatment twice
Q Q
already and his next follow-up appointment is scheduled in the
R end of August 2009. According to the same report, he was also an R
abuser of heroin for three years, but apart from his treatment
S for his withdrawal syndrome, during his stay in the Lai Chi Kok S
Reception Centre, his general health condition was considered to
T T
be stable.
U U
CRT26/24.8.2009 3 DCCC780/2009/Sentence
V V
A 11. Mr Ng has also submitted for my consideration a letter A
of mitigation written by the defendant and according to the
B letter, the defendant has stated his remorse for the offence and B
said that he committed the present offence for a reward of
C C
RMB1,000 because he had no money. The defendant told me that he
was told that he had only two years’ life expectancy and he
D D
wanted to take care of his mother and daughter before he passed
E away so he wanted the court to be as lenient as possible. E
F 12. In sentencing, I was referred to the case by Mr Ng of F
HKSAR v Li Chih Hui (CACC189/2008) where the Court of Appeal
G G
after reviewing the case authorities in relation to the
1st charge finally reduced the sentence of 6 years to 5 years as
H H
the proper starting point before the discount on account of the
I
defendant’s plea of guilty. I
J 13. It is accepted by Mr Ng that where the defendant was J
the captain of the vessel and in charge of the vessel the usual
K proper starting point is one of 5 years. It is also accepted by K
Mr Ng that in some cases the court, however, can give weight to
L L
the condition of the vessel and perhaps the number of the
illegal immigrants involved and increase the sentence.
M M
N 14. Each case has its own facts. In this case, while it is N
true that according to the ship inspector’s report there was no
O fire-fighting appliances as well as lifesaving appliances O
equipped on board but Mr Ng told the court that the destination
P P
of the vessel was only Shekou in Shenzhen where the total time
for the voyage is about 20 to 25 minutes only. Therefore, in the
Q Q
end, I decided not to increase the starting point in relation to
R the 1st charge and adopt a 5 year starting point. After a one- R
third discount of the defendant’s plea of guilty the sentence on
S this charge is reduced to 3 years and 4 months. S
T T
15. As to the 2nd charge, the failing to stop offence, I
adopt a 9 months’ imprisonment as a starting point and after
U U
CRT26/24.8.2009 4 DCCC780/2009/Sentence
V V
A giving the one-third discount on account of his plea the A
sentence on this charge is therefore one of 6 months’
B imprisonment. I take into account the fact that in most cases B
which involve the 1st charge, a captain of a vessel will not
C C
stop the vessel right away, and also because of the principle of
totality, I order finally that the sentences on both charges to
D D
run concurrently.
E E
16. Lastly, I was asked by Mr Ng to take into account the
F fact that the defendant was HIV positive and his reduced life F
expectancy and to reduce his sentence. In this connection, I
G G
need only repeat what I have mentioned in the letter which was
written by the senior medical officer of the Lai Chi Kok
H H
Reception Centre in relation to the stable health condition of
I
the defendant. I
J 17. I was also properly referred to the book, “Sentencing J
in Hong Kong” 5th edition by Miss Fung, the Senior Public
K Prosecutor. At page 347, the learned author of the book had K
referred to the case of R v Chan Kui Sheung [1996] 3 HKC 279-284
L L
where Yang CJ said that one of the principles in consideration
of the ill health of the defendant was that, “the fact that an
M M
offender was HIV positive or had a reduced life expectancy was
N not generally a reason which should affect sentence.” I am sure N
that whilst serving the sentence, the prison authority will see
O to it that the defendant receive all the proper medical O
attention because of his medical condition. If, unfortunately,
P P
the life expectancy of the defendant is cut short by his
deterioration of his health condition this is something which
Q Q
can be considered by the executive of the prerogative of mercy
R but it was not a reason for the court to interfere which is R
otherwise an appropriate sentence. I decided therefore not to
S reduce any sentence on account of the health condition of the S
defendant.
T T
U U
CRT26/24.8.2009 5 DCCC780/2009/Sentence
V V
A 18. For the two offences, the defendant will serve a total A
of 3 years and 4 months.
B B
C C
D D
(A. Kwok)
E Deputy District Judge E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/24.8.2009 6 DCCC780/2009/Sentence
V V