區域法院（刑事）Deputy District Judge K Lo20/11/2023[2023] HKDC 1700
DCCC1146/2022
A A
B B
DCCC 1146/2022
C [2023] HKDC 1700 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1146 OF 2022
F F
G ---------------------------- G
HKSAR
H H
v
I LIANG ZEQIANG I
----------------------------
J J
K Before: Deputy District Judge K Lo K
Date: 21 November 2023
L L
Present: Mr Sammy Hui, Counsel on Fiat, for HKSAR
M Mr Boey Chung, instructed by K M Tang & Co, assigned by M
the Director of Legal Aid, for the Defendant
N N
Offences: [1] Assisting the passage to Hong Kong of unauthorised
O entrants (協助未獲授權進境者前來香港的旅程) O
P [2] Endangering the safety of others at sea (危害他人在海上 P
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 is convicted of assisting the passage to Hong
C Kong of unauthorised entrants, contrary to section 37D(1)(a) of the C
st
Immigration Ordinance, Cap 115 (1 charge) and endangering the safety
D D
of others at sea, contrary to section 72 of the Shipping and Port Control
E Ordinance, Cap 313 (2nd charge) on his own plea and agreement to the E
Summary of Facts.
F F
G Facts G
H H
2. On 30 August 2022 at around 6 pm, police spotted a motorised
I sampan (the “Vessel”) sailing towards Hong Kong. They kept it under I
observation. Later, the Vessel entered Hong Kong waters.
J J
K 3. At around 10:23 pm, police spotted the Vessel with the K
defendant and another male (a PRC citizen) (“Subject”) 100 metres off
L L
Tsang Tsui with no navigation lights on. They kept the Vessel under
M supervision. M
N N
4. At around 10:56 pm, police saw the Vessel anchored next to
O an oyster raft and the defendant and Subject stayed at the oyster raft. At O
around 00:04 am on 31 August 2022, the defendant and Subject left the
P P
oyster raft and boarded the Vessel.
Q Q
R
5. The Vessel was later intercepted by police vessel at around R
00:06 am at 100 metres off Tai Shui Hang near Nim Wan Road with the
S S
defendant and Subject found on board.
T T
U U
V V
-3-
A A
B B
6. Upon enquiries by police, the defendant could not produce
C any valid document or provide any legitimate reasons for their presence in C
Hong Kong. Therefore, police arrested the defendant for “arranging
D D
passage to Hong Kong of unauthorised entrants”. Subject could not
E produce any valid HKID or entry documents either. E
F F
7. Under caution upon arrest, the defendant claimed that he came
G to Hong Kong for fishing. He also said that they arrived at an unknown G
oyster raft in Hong Kong where they stayed there for 30 minutes but they
H H
could not harvest any oyster.
I I
8. He also said that they were intercepted by police when the
J J
Vessel was on the way back to mainland and that he himself was the
K coxswain of the Vessel. He said he did not know the ownership of the K
oyster raft and whether the oyster raft was licensed, and he did not possess
L L
any coxswain or engine operator licence.
M M
9. Pursuant to the inspection report on the Vessel prepared by a
N N
senior ship inspector of Marine Department, it was noted that:
O O
(a) There were no fire-fighting appliances equipped on
P P
board.
Q Q
R
(b) 2 life vests found on the Vessel but they did not comply R
with the safety standards.
S S
T
(c) There were not enough life-saving appliances equipped T
on board.
U U
V V
-4-
A A
B B
C (d) There were no navigation lights fitted on board for C
night operation.
D D
E 10. Inspection report concluded that the Vessel was seaworthy but E
not suitable for operation.
F F
G Criminal Record G
H H
11. The defendant has a clear record in Hong Kong.
I I
Mitigation
J J
K 12. The defendant is a fisherman in the mainland. He is now aged K
38. He is married with a son aged 15 and a daughter aged 1.
L L
M 13. Before his arrest, his family and parents all relied on the M
defendant’s financial support. It was said that the defendant’s parents both
N N
have ill health.
O O
14. The defendant started his job as a fisherman, assisted his
P P
father after he completed Form 1. It was said that in order to make ends
Q Q
meet, he worked two jobs. Apart from being a fisherman, he also worked
R
in an air-conditioning parts factory as a driver. R
S S
15. It was also said that he suffered two epileptic fits while in
T
custody for this case as he has epilepsy from the age of 12. It was also said T
that the defendant is a man of clear record in Hong Kong.
U U
V V
-5-
A A
B B
C 16. Defence counsel refers this court to the cases of HKSAR v C
Wong Chi Kin, CACC 357/2004, where the Court of Appeal stated that
D D
when the accused was a captain of the vessel or the person in charge, the
E appropriate sentencing starting point is 5 years’ imprisonment. The Court E
of Appeal also set out certain situations which constitute aggravating
F F
features in sentencing.
G G
17. Defence counsel said that in the case of R v Lo Shui Lun,
H H
CACC 109/1995, the Court of Appeal made the observation that the
I absence of fire-fighting equipment was probably of relatively little I
significance. The court takes the same stance for the absence of
J J
navigational lights. It is also said, however, that the absence of life-saving
K equipment stands at a different position. K
L L
18. Defence counsel also refers this court to the case of HKSAR v
M Zhong Ming Jing, CACC 180/2010, where a different constituted division M
of the Court of Appeal regarded the absence of life-saving equipment or
N N
absence of fire-fighting equipment as an aggravating factor.
O O
19. Defence counsel submitted that in the present case there were
P P
actually 2 life vests on the Vessel.
Q Q
R
20. He also said there is no evidence to show that the defendant R
or the passenger had intended to land and remain in Hong Kong. He said
S S
that the police observation showed the defendant and passenger boarded
T
and stayed at the oyster raft for slightly over an hour, and that had they T
intended to land in Hong Kong, they would not have spent such a long time
U U
V V
-6-
A A
B B
at the raft. He urged this court not to adopt the usual sentencing starting
C point in view of this rather unusual feature. C
D D
21. He submitted that the culpability of the defendant in relation
E to the 2nd charge in the present case is far less than the appellant in the E
HKSAR v Tang Zhuyan [2011] 1 HKLRD 447, as there was no attempt to
F F
escape and as a result no chase had ever occurred.
G G
22. Defence counsel submitted that the particular facts of the
H H
present case placed the defendant’s culpability at the lowest end of the
I spectrum. I
J J
23. He submitted that as this court must have taken into account
K the observations by the senior ship inspector when arriving at an K
appropriate sentencing starting point for the 1st charge, this court ought to
L L
impose a concurrent sentence for the two charges.
M M
24. He also urged this court to give the defendant a full one-third
N N
sentencing discount by reason of the defendant’s guilty plea. It is said that
O the defendant now feels deeply remorseful as to what he has done which O
caused trouble and anxiety to his family. He wishes the court to deal with
P P
him with leniency.
Q Q
R
Discussion R
S S
25. This court has carefully considered mitigation submissions
T
from defence counsel as well as the cited authorities and the mitigation T
letters from the defendant and his wife.
U U
V V
-7-
A A
B B
C 1st Charge C
D D
26. On conviction upon indictment of this charge, a person is
E liable to a fine of HK$5 million and to imprisonment for 14 years. E
F F
27. This court does not see any valid reason to depart from the
G sentencing guideline in Wong Chi Kin case. The defendant being the G
coxswain of the vessel in question, the appropriate sentencing starting
H H
point would be 5 years’ imprisonment.
I I
28. According to examination report of the senior ship inspector,
J J
the vessel in question was seaworthy but not suitable for operation as there
K is an absence of fire-fighting apparatus on board, insufficient life-saving K
appliances and no navigation lights for night sailing. Further, the defendant
L L
said under caution that he had no coxswain or engine operator licence.
M M
29. The condition of the vessel, as observed by the ship inspector,
N N
exposed the passenger of the vessel to extra and unreasonable risk at sea.
O The same amounts to an aggravating feature in sentencing as stated in Tang O
Zhuyan case.
P P
Q Q
30. Having regard to the fact that only one passenger was on
R
board at the time, the sentencing starting point is enhanced by 3 months’ R
imprisonment.
S S
T
31. The defendant said he did not know about the ownership of T
the oyster raft but it was submitted and agreed that he and the Subject
U U
V V
-8-
A A
B B
stayed at the oyster raft for quite a long time, although at the end of which
C they were not able to harvest. C
D D
32. It is clear to this court they came to Hong Kong for the
E purpose of harvesting or attempting to harvest from oyster rafts within the E
jurisdiction. It matters not whether at the end of the day they did harvest.
F F
This again constitute an aggravating feature in sentencing for this charge.
G The sentencing starting point is further enhanced by 3 months’ G
imprisonment.
H H
I 33. The defendant has a clear record in Hong Kong. But as a I
mainland resident, having a clear record in Hong Kong do not carry as
J J
much weight as a Hong Kong resident for obvious reasons.
K K
34. The most valid mitigating factor is obviously his guilty plea
L L
for which he is entitled to full one-third sentencing discount.
M M
35. Accordingly, he is sentenced to 44 months’ imprisonment for
N N
st
the 1 charge.
O O
2nd Charge
P P
Q Q
36. On conviction upon indictment of this charge, a person is
R
liable to a fine of HK$200,000 and to imprisonment for 4 years. R
S S
37. Having regard to the said factors which endanger the safety of
T
one passenger on board, the court considers 9 months’ imprisonment is an T
appropriate sentencing starting point for this charge.
U U
V V
-9-
A A
B B
C 38. The defendant has pleaded guilty and is therefore entitled to C
full one-third sentencing discount. He is therefore sentenced to 6 months’
D D
imprisonment.
E E
Totality
F F
G 39. Having regard to the totality principle and the overall G
culpability of the defendant in this case, the court considers that a total
H H
sentence of 44 months’ imprisonment is just and appropriate.
I I
40. Further, as the aggravating features have been considered in
J J
the sentencing process of the 1st charge, the court orders that the sentence
K of the 2nd charge is to run totally concurrent to the sentence of the 1st charge. K
L L
41. The defendant is therefore sentenced to a total of 44 months
M in this case. M
N N
O O
P ( K Lo ) P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1146/2022
C [2023] HKDC 1700 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1146 OF 2022
F F
G ---------------------------- G
HKSAR
H H
v
I LIANG ZEQIANG I
----------------------------
J J
K Before: Deputy District Judge K Lo K
Date: 21 November 2023
L L
Present: Mr Sammy Hui, Counsel on Fiat, for HKSAR
M Mr Boey Chung, instructed by K M Tang & Co, assigned by M
the Director of Legal Aid, for the Defendant
N N
Offences: [1] Assisting the passage to Hong Kong of unauthorised
O entrants (協助未獲授權進境者前來香港的旅程) O
P [2] Endangering the safety of others at sea (危害他人在海上 P
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 is convicted of assisting the passage to Hong
C Kong of unauthorised entrants, contrary to section 37D(1)(a) of the C
st
Immigration Ordinance, Cap 115 (1 charge) and endangering the safety
D D
of others at sea, contrary to section 72 of the Shipping and Port Control
E Ordinance, Cap 313 (2nd charge) on his own plea and agreement to the E
Summary of Facts.
F F
G Facts G
H H
2. On 30 August 2022 at around 6 pm, police spotted a motorised
I sampan (the “Vessel”) sailing towards Hong Kong. They kept it under I
observation. Later, the Vessel entered Hong Kong waters.
J J
K 3. At around 10:23 pm, police spotted the Vessel with the K
defendant and another male (a PRC citizen) (“Subject”) 100 metres off
L L
Tsang Tsui with no navigation lights on. They kept the Vessel under
M supervision. M
N N
4. At around 10:56 pm, police saw the Vessel anchored next to
O an oyster raft and the defendant and Subject stayed at the oyster raft. At O
around 00:04 am on 31 August 2022, the defendant and Subject left the
P P
oyster raft and boarded the Vessel.
Q Q
R
5. The Vessel was later intercepted by police vessel at around R
00:06 am at 100 metres off Tai Shui Hang near Nim Wan Road with the
S S
defendant and Subject found on board.
T T
U U
V V
-3-
A A
B B
6. Upon enquiries by police, the defendant could not produce
C any valid document or provide any legitimate reasons for their presence in C
Hong Kong. Therefore, police arrested the defendant for “arranging
D D
passage to Hong Kong of unauthorised entrants”. Subject could not
E produce any valid HKID or entry documents either. E
F F
7. Under caution upon arrest, the defendant claimed that he came
G to Hong Kong for fishing. He also said that they arrived at an unknown G
oyster raft in Hong Kong where they stayed there for 30 minutes but they
H H
could not harvest any oyster.
I I
8. He also said that they were intercepted by police when the
J J
Vessel was on the way back to mainland and that he himself was the
K coxswain of the Vessel. He said he did not know the ownership of the K
oyster raft and whether the oyster raft was licensed, and he did not possess
L L
any coxswain or engine operator licence.
M M
9. Pursuant to the inspection report on the Vessel prepared by a
N N
senior ship inspector of Marine Department, it was noted that:
O O
(a) There were no fire-fighting appliances equipped on
P P
board.
Q Q
R
(b) 2 life vests found on the Vessel but they did not comply R
with the safety standards.
S S
T
(c) There were not enough life-saving appliances equipped T
on board.
U U
V V
-4-
A A
B B
C (d) There were no navigation lights fitted on board for C
night operation.
D D
E 10. Inspection report concluded that the Vessel was seaworthy but E
not suitable for operation.
F F
G Criminal Record G
H H
11. The defendant has a clear record in Hong Kong.
I I
Mitigation
J J
K 12. The defendant is a fisherman in the mainland. He is now aged K
38. He is married with a son aged 15 and a daughter aged 1.
L L
M 13. Before his arrest, his family and parents all relied on the M
defendant’s financial support. It was said that the defendant’s parents both
N N
have ill health.
O O
14. The defendant started his job as a fisherman, assisted his
P P
father after he completed Form 1. It was said that in order to make ends
Q Q
meet, he worked two jobs. Apart from being a fisherman, he also worked
R
in an air-conditioning parts factory as a driver. R
S S
15. It was also said that he suffered two epileptic fits while in
T
custody for this case as he has epilepsy from the age of 12. It was also said T
that the defendant is a man of clear record in Hong Kong.
U U
V V
-5-
A A
B B
C 16. Defence counsel refers this court to the cases of HKSAR v C
Wong Chi Kin, CACC 357/2004, where the Court of Appeal stated that
D D
when the accused was a captain of the vessel or the person in charge, the
E appropriate sentencing starting point is 5 years’ imprisonment. The Court E
of Appeal also set out certain situations which constitute aggravating
F F
features in sentencing.
G G
17. Defence counsel said that in the case of R v Lo Shui Lun,
H H
CACC 109/1995, the Court of Appeal made the observation that the
I absence of fire-fighting equipment was probably of relatively little I
significance. The court takes the same stance for the absence of
J J
navigational lights. It is also said, however, that the absence of life-saving
K equipment stands at a different position. K
L L
18. Defence counsel also refers this court to the case of HKSAR v
M Zhong Ming Jing, CACC 180/2010, where a different constituted division M
of the Court of Appeal regarded the absence of life-saving equipment or
N N
absence of fire-fighting equipment as an aggravating factor.
O O
19. Defence counsel submitted that in the present case there were
P P
actually 2 life vests on the Vessel.
Q Q
R
20. He also said there is no evidence to show that the defendant R
or the passenger had intended to land and remain in Hong Kong. He said
S S
that the police observation showed the defendant and passenger boarded
T
and stayed at the oyster raft for slightly over an hour, and that had they T
intended to land in Hong Kong, they would not have spent such a long time
U U
V V
-6-
A A
B B
at the raft. He urged this court not to adopt the usual sentencing starting
C point in view of this rather unusual feature. C
D D
21. He submitted that the culpability of the defendant in relation
E to the 2nd charge in the present case is far less than the appellant in the E
HKSAR v Tang Zhuyan [2011] 1 HKLRD 447, as there was no attempt to
F F
escape and as a result no chase had ever occurred.
G G
22. Defence counsel submitted that the particular facts of the
H H
present case placed the defendant’s culpability at the lowest end of the
I spectrum. I
J J
23. He submitted that as this court must have taken into account
K the observations by the senior ship inspector when arriving at an K
appropriate sentencing starting point for the 1st charge, this court ought to
L L
impose a concurrent sentence for the two charges.
M M
24. He also urged this court to give the defendant a full one-third
N N
sentencing discount by reason of the defendant’s guilty plea. It is said that
O the defendant now feels deeply remorseful as to what he has done which O
caused trouble and anxiety to his family. He wishes the court to deal with
P P
him with leniency.
Q Q
R
Discussion R
S S
25. This court has carefully considered mitigation submissions
T
from defence counsel as well as the cited authorities and the mitigation T
letters from the defendant and his wife.
U U
V V
-7-
A A
B B
C 1st Charge C
D D
26. On conviction upon indictment of this charge, a person is
E liable to a fine of HK$5 million and to imprisonment for 14 years. E
F F
27. This court does not see any valid reason to depart from the
G sentencing guideline in Wong Chi Kin case. The defendant being the G
coxswain of the vessel in question, the appropriate sentencing starting
H H
point would be 5 years’ imprisonment.
I I
28. According to examination report of the senior ship inspector,
J J
the vessel in question was seaworthy but not suitable for operation as there
K is an absence of fire-fighting apparatus on board, insufficient life-saving K
appliances and no navigation lights for night sailing. Further, the defendant
L L
said under caution that he had no coxswain or engine operator licence.
M M
29. The condition of the vessel, as observed by the ship inspector,
N N
exposed the passenger of the vessel to extra and unreasonable risk at sea.
O The same amounts to an aggravating feature in sentencing as stated in Tang O
Zhuyan case.
P P
Q Q
30. Having regard to the fact that only one passenger was on
R
board at the time, the sentencing starting point is enhanced by 3 months’ R
imprisonment.
S S
T
31. The defendant said he did not know about the ownership of T
the oyster raft but it was submitted and agreed that he and the Subject
U U
V V
-8-
A A
B B
stayed at the oyster raft for quite a long time, although at the end of which
C they were not able to harvest. C
D D
32. It is clear to this court they came to Hong Kong for the
E purpose of harvesting or attempting to harvest from oyster rafts within the E
jurisdiction. It matters not whether at the end of the day they did harvest.
F F
This again constitute an aggravating feature in sentencing for this charge.
G The sentencing starting point is further enhanced by 3 months’ G
imprisonment.
H H
I 33. The defendant has a clear record in Hong Kong. But as a I
mainland resident, having a clear record in Hong Kong do not carry as
J J
much weight as a Hong Kong resident for obvious reasons.
K K
34. The most valid mitigating factor is obviously his guilty plea
L L
for which he is entitled to full one-third sentencing discount.
M M
35. Accordingly, he is sentenced to 44 months’ imprisonment for
N N
st
the 1 charge.
O O
2nd Charge
P P
Q Q
36. On conviction upon indictment of this charge, a person is
R
liable to a fine of HK$200,000 and to imprisonment for 4 years. R
S S
37. Having regard to the said factors which endanger the safety of
T
one passenger on board, the court considers 9 months’ imprisonment is an T
appropriate sentencing starting point for this charge.
U U
V V
-9-
A A
B B
C 38. The defendant has pleaded guilty and is therefore entitled to C
full one-third sentencing discount. He is therefore sentenced to 6 months’
D D
imprisonment.
E E
Totality
F F
G 39. Having regard to the totality principle and the overall G
culpability of the defendant in this case, the court considers that a total
H H
sentence of 44 months’ imprisonment is just and appropriate.
I I
40. Further, as the aggravating features have been considered in
J J
the sentencing process of the 1st charge, the court orders that the sentence
K of the 2nd charge is to run totally concurrent to the sentence of the 1st charge. K
L L
41. The defendant is therefore sentenced to a total of 44 months
M in this case. M
N N
O O
P ( K Lo ) P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V