A A
DCCC1082/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1082 OF 2009
C C
----------------------
D D
HKSAR
E v. E
Xie Rujian
F ---------------------- F
G Before: Deputy District Judge M. Chow G
Date: 5 November 2009 at 11.09 am
Present: Mr Ira Lui, PP of the Department of Justice, for HKSAR
H Mr Joseph Li, of Joseph Li & Co., for the Defendant H
Offence: Assisting the passage to Hong Kong of a conveyance
which carried unauthorised entrants (協助載有未獲授權進境
I I
者的運輸工具前來香港的旅程)
J J
---------------------
K Reasons for Sentence K
L --------------------- L
M 1. The defendant pleaded guilty to a charge of assisting M
the passage to Hong Kong of a conveyance which carried
N N
unauthorised entrants contrary to section 37D(1)(a) of the
Immigration Ordinance Cap.115.
O O
P Facts of the case P
2. At about 0040 hours on 15 August 2009 the marine
Q police spotted a suspicious vessel off Sha Kiu. Upon Q
interception, the defendant was the coxswain, whereas all the
R 11 passengers aged between 19 to 40 years old were lying in the R
cabin of the vessel. The defendant was arrested and under
S S
caution he asked for a chance. In a video interview the
defendant stated inter alia that on 14 August 2009, “Ah Ming”
T T
asked him to go to Shekou. Upon arrival at Shekou the defendant
U met a young male who escorted him to a motorised sampan. He was U
CRT24/5.11.2009/STW 1 DCCC1082/2009/Sentence
V V
A A
instructed to convey people to Hong Kong. He would expect a
reward of CNY$400 upon return back to Shekou.
B B
C 3. At 0010 hours on 15 August 2009 the defendant set off C
with 11 persons on board of the vessel. The young man asked him
D to sail to the other side of the shore and he knew that place D
was Hong Kong.
E E
Criminal Record
F F
4. The defendant has one previous of unlawful remaining
G in Hong Kong in 1991 and he was sentenced to 12 months’ G
imprisonment.
H H
Mitigation
I I
5. The defendant is 35 years of age. He used to be a
fisherman but wasn’t employed at the time of the offence. He
J J
lives with his parents and his daughter who is 10 years old,
K
attending primary school in China. The defence submitted to me K
that I should take a starting point of 4 years by referring me
L to Ng Kit Yuen Cr. App. 118 of 91. In fact, in Ng Kit Yuen the L
applicant was charged under section 37C(1) while the present
M case the defendant was charged under section 37D(1)(a). M
N N
6. According to the authority of Pang Wing CACC145/1995
the proper starting point for this offence should be 5 years. I
O O
also noted in the case of Pang Wing it involved two unauthorised
P entrants while in the present case there were 11. P
Q Sentence Q
7. In the present case the sampan as shown in the
R R
pictures was a small one measuring 6 metres in length, 2 metres
in breadth and 0.3 metres in depth. All the 11 persons were
S S
lying in the small space in the vessel to travel from China to
T Hong Kong when the main hull structure and the outbound engine T
were in poor condition. There was no fire-fighting or life-
U saving appliances equipped on board. There was no navigating U
CRT24/5.11.2009/STW 2 DCCC1082/2009/Sentence
V V
A A
light fitted on board. It was concluded by Senior Ship Inspector
Chan that the sampan was unseaworthy.
B B
C 8. Looking at the photo one can tell that it was just a C
simple sampan structure. For it to carry 12 persons, just the
D weight of the 12 persons on the sampan has safety issue. The D
fact that the defendant has not yet received the $400 reward is
E E
neither here nor there. It is obvious that for those who
organised and instructed him to carry the 11 unauthorised
F F
entrants to Hong Kong want to make sure that he successfully
G delivered them to Hong Kong so that they would at least not lose G
their $400.
H H
9. It is a serious offence and a sentence of deterrence
I I
and punishment is necessary to send out a message to the public.
In passing sentence I bear in mind the defendant’s guilty plea
J J
and all the mitigating factors put forward before me, and I also
K
bear in mind there were altogether 11 unauthorised entrants on K
the vessel.
L L
10. I adopt a starting point of 5½ years reduced to
M 44 months to reflect his guilty plea. M
N N
O O
P P
M. Chow
Q Deputy District Judge Q
R R
S S
T T
U U
CRT24/5.11.2009/STW 3 DCCC1082/2009/Sentence
V V