A A
B B
DCCC 747/2019
C [2020] HKDC 188 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 747 OF 2019
F F
G --------------------------- G
HKSAR
H H
v
I YE FALU (D1) I
CHEN HONGJIAN (D2)
J J
----------------------------
K K
Before: His Honour Judge Ko
L L
Date: 6 April 2020
M Present: Ms Josephine Tjia L Y, Counsel on fiat, for HKSAR M
Mr David Cheung Chi Wai, instructed by S K Wong & Co,
N N
assigned by the Director of Legal Aid, for the 1st defendant
O Ms Money Lo, instructed by Eli K K Tsui & Co, assigned by O
the Director of Legal Aid, for the 2nd defendant
P P
Offence: [1] Assisting the passage to Hong Kong of unauthorised
Q entrants (協助未獲授權進境者前來香港的旅程) Q
R
[2] Endangering the safety of others at sea (危害他人在海上 R
的安全)
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendants pleaded guilty to and were convicted of the E
charges preferred against them.
F F
G The charges and the facts G
H H
2. In Charge 1, they were jointly charged with assisting the
I passage to Hong Kong of unauthorised entrants, contrary to section I
37D(1)(a) of the Immigration Ordinance, Cap 115.
J J
K 3. In Charge 2, the 1st defendant is also charged with K
endangering the safety of others at sea, contrary to section 72 of the
L L
Shipping and Port Control Ordinance, Cap 313.
M M
4. According to the summary of facts that they admitted:
N N
O (1) On 26 June 2019 at around 5:45 am, the police first O
detected on the digital radar system the sampan on
P P
which the defendants were travelling at about 0.6
Q nautical miles away from the west of Shekou, Shenzhen Q
outside the boundary of Hong Kong. The sampan
R R
entered Hong Kong waters at around 5:51 am and was
S spotted at 6:40 am navigating towards Black Point, S
Tuen Mun;
T T
U U
V V
-3-
A A
B B
(2) When the sampan was intercepted by the police at 0.5
C nautical miles west of Black Point, the 1st defendant C
was found to be the coxswain at the rear whilst the 2nd
D D
defendant was sitting at the front with eight
E unauthorised entrants in the middle of the sampan E
covered underneath a blue tarpaulin;
F F
G (3) No valid Immigration documents or crew permits were G
provided by the defendants;
H H
I (4) The unauthorised entrants were Pakistani passport I
holders who had no record of entry into Hong Kong.
J J
Their passports revealed that they had last landed in
K Guangzhou or Urumqi on 22 or 24 June 2019; K
L L
(5) The defendants were then arrested. Under caution, the
M 1st defendant admitted that he had received RMB300 M
per head for sending the eight unauthorised entrants to
N N
Hong Kong whilst the 2nd defendant admitted that he
O would receive RMB300 per head for sending the O
unauthorised entrants somewhere near a power plant
P P
for landing;
Q Q
(6) The 1st defendant later elaborated under caution in his
R R
video recorded interview that he knew how to navigate
S boats as he grew up by the sea but did not have a S
coxswain licence. He was asked by a friend called “Ah
T T
Leung” to help sneak people into Hong Kong and
U U
V V
-4-
A A
B B
agreed to do so for a reward of RMB300 per head. In
C the afternoon of 25 June 2019, he went to Shenzhen and C
met up with the 2nd defendant. He followed Ah
D D
Leung’s instructions and found the sampan by the sea.
E The 2nd defendant boarded the eight unauthorised E
entrants and covered them with a tarpaulin and the 1st
F F
defendant then navigated the sampan to Hong Kong.
G The 1st defendant had intended to drop the G
unauthorised entrants at a power plant inside Hong
H H
Kong and then navigate the sampan back to Shenzhen
I and receive the reward from Ah Leung. However, the I
sampan malfunctioned during the journey and drifted
J J
along the current until they were intercepted by the
K police; K
L L
(7) The 2nd defendant similarly elaborated under caution
M in his video recorded interview that he was asked by M
“Leung Kee” to help sneak Pakistani illegal immigrants
N N
into Hong Kong. He was in need of money to repay his
O wife’s debts and agreed to do so for a reward of O
RMB300 per head. On 25 June 2019, he and the 1st
P P
defendant went to Dachan Bay, Shenzhen where they
Q picked up the eight unauthorised entrants and set off for Q
Hong Kong. The 1st defendant was responsible for
R R
navigating the sampan, while the 2nd defendant was
S responsible for helping the unauthorised entrants board S
the sampan, cleaning up and refuelling the boat. After
T T
the sampan had entered Hong Kong waters, it
U U
V V
-5-
A A
B B
malfunctioned and was drifting along the current when
C they were intercepted by the police; C
D D
(8) The Marine Department inspected the sampan and
E found it to be seaworthy, but it was not suitable for E
operation as (i) there were no firefighting appliances
F F
equipped on board; (ii) there were insufficient
G lifesaving appliances equipped on board; and (iii) no G
navigation light was fitted on board for night operation.
H H
I The 1st defendant’s mitigation I
J J
5. The 1st defendant is 28 years old. He was educated to a
K secondary school standard. Prior to his arrest, he worked as a construction K
worker on a casual basis in Mainland China and earned roughly RMB3,000
L L
per month. He is single and residing with his parents and elder brother.
M His father is retired and his mother is receiving follow-up treatment for M
endometrial cancer and is unable to work. His brother also works in
N N
construction industry on a casual basis. The 1st defendant has a clear
O record. O
P P
6. In mitigation, Mr Cheung submitted that the 1st defendant had
Q acceded to his friend’s request and participated in the unlawful activity Q
because he wanted to raise money to supplement his mother’s medical
R R
expenses.
S S
7. He said that the 1st defendant is remorseful, as he had made
T T
frank admissions to the police and had pleaded guilty to the charges. The
U U
V V
-6-
A A
B B
1st defendant also articulated his remorse in a handwritten letter, in which
C he stated that life in prison is difficult and that he misses his mother and C
family day and night. I am also presented with the medical report of
D D
someone said to be the 1st defendant’s mother.
E E
The 2nd defendant’s mitigation
F F
G 8. Turning to the 2nd defendant, he has just turned 33. He came G
from a poor family and was educated up to Secondary 1 level. He is
H H
married to a kindergarten school teacher and the couple have a 12-year-old
I son. I
J J
9. In mitigation, Ms Lo submitted that the 2nd defendant
K (because of his poor family background) had developed the virtue of K
shouldering responsibility for the family since a very young age. He had
L L
been a factory worker and a construction worker. In 2015, he started to
M subcontract construction works in the hope of earning more money for the M
family. However, his business flopped and he had to borrow RMB170,000
N N
from finance companies to repay his workers. He was persuaded to commit
O the offence given his financial difficulty. Since his arrest, he has learnt that O
his parents and his wife in the Mainland had been harassed by dubious
P P
people as he had been unable to make monthly repayments towards his
Q debts. Q
R R
The Sentence
S S
10. Both counsel acknowledged the seriousness of the offences.
T T
U U
V V
-7-
A A
B B
11. In Wong Chi Kin (CACC 357/2004), the Court of Appeal went
C through a number of authorities relating to the offence of assisting the C
passage within Hong Kong of an unauthorised entrant and reiterated that
D D
the generally applicable tariff for the offence is 4 years’ imprisonment. The
E fact that the accused was the captain of the vessel or in charge of the E
operation warrants an even higher starting point of 5 years’ imprisonment.
F F
The Court of Appeal further identified a number of non-exhaustive
G aggravating factors. G
H H
12. For the offence of endangering the safety of others at sea, the
I Court of Appeal held in Tang Zhuyan (CACC 223/2010) that, in the I
absence of aggravating features of danger, either deliberately caused by the
J J
coxswain of the escaping sampan or as a consequence of the state of sea,
K the overloading of vessels and its condition, the appropriate starting point K
is a sentence of 12 months’ imprisonment.
L L
M 13. In sentencing the 1st defendant (who is convicted of the M
offence of assisting the passage to Hong Kong of unauthorised entrants and
N N
the offence of endangering the safety of others at sea), I shall adopt the
O approach advocated by McWalters JA in Wan Ruzhong (CACC 128/2016) O
to avoid the perception of punishing the defendant twice for the same
P P
conduct. In other words, I have decided not to enhance the sentence for
Q Charge 1 by reason of the aggravating features that formed the basis of Q
Charge 2 but simply punish the defendant for Charge 2 appropriately,
R R
including the ordering of wholly or partially consecutive sentence.
S S
14. Given the 1st defendant’s role as the coxswain of the sampan,
T T
I adopt a starting point of 5 years’ imprisonment for Charge 1. He is
U U
V V
-8-
A A
B B
entitled to a one-third discount of his sentence by reason of his guilty plea.
C Thus, he is sentenced to 40 months’ imprisonment for Charge 1. C
D D
15. Mr Cheung has submitted that the 1st defendant made no
E attempt to escape when intercepted by the police (which may be due to the E
fact that the sampan was malfunctioned at the time as the defendants have
F F
claimed), and there were no children, elderly or particular vulnerable
G passengers on board. In the circumstances, I adopt a starting point of 12 G
months’ imprisonment for Charge 2. The 1st defendant is also entitled to
H H
a one-third discount for pleading guilty. Thus, he is sentenced to 8 months’
I imprisonment for Charge 2. I
J J
16. I am entitled to order the sentences to run wholly
K consecutively as they relate to separate and distinct criminal conduct. On K
totality however, I shall only order 2 months of the sentence for Charge 2
L L
to run consecutively with the sentence for Charge 1. Thus, the 1st
M defendant is to serve a total term of 42 months’ imprisonment. M
N N
17. Turning to the 2nd defendant, I am not persuaded by Ms Lo’s
O submission to depart from the generally applicable tariff for Charge 1 O
(which is the only charge the 2nd defendant is convicted of) of 4 years’
P P
imprisonment. The fact that he had been naïve and did not appreciate the
Q consequences of his criminal activity and that he had not received his Q
promised reward did not really mitigate against the seriousness of the
R R
offence.
S S
18. The 2nd defendant is entitled to a one-third discount for
T T
pleading guilty and he is therefore sentenced to 32 months’ imprisonment.
U U
V V
-9-
A A
B B
19. Lastly, I note that the personal plights urged upon me in
C mitigation by the defendants are not on all fours with their admissions to C
the police under caution. The 1st defendant did not mention his mother’s
D D
medical condition to the police and the 2nd defendant claimed that he was
E covering for the debt of his wife. In any event, their family circumstances E
should be disregarded when sentences for serious offences such as the one
F F
they are convicted of are concerned, see the judgment in Tang Zhuyan
G (CACC 223/2010) at paragraph 14. G
H H
I I
J J
( Justin Ko )
Chief District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 747/2019
C [2020] HKDC 188 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 747 OF 2019
F F
G --------------------------- G
HKSAR
H H
v
I YE FALU (D1) I
CHEN HONGJIAN (D2)
J J
----------------------------
K K
Before: His Honour Judge Ko
L L
Date: 6 April 2020
M Present: Ms Josephine Tjia L Y, Counsel on fiat, for HKSAR M
Mr David Cheung Chi Wai, instructed by S K Wong & Co,
N N
assigned by the Director of Legal Aid, for the 1st defendant
O Ms Money Lo, instructed by Eli K K Tsui & Co, assigned by O
the Director of Legal Aid, for the 2nd defendant
P P
Offence: [1] Assisting the passage to Hong Kong of unauthorised
Q entrants (協助未獲授權進境者前來香港的旅程) Q
R
[2] Endangering the safety of others at sea (危害他人在海上 R
的安全)
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendants pleaded guilty to and were convicted of the E
charges preferred against them.
F F
G The charges and the facts G
H H
2. In Charge 1, they were jointly charged with assisting the
I passage to Hong Kong of unauthorised entrants, contrary to section I
37D(1)(a) of the Immigration Ordinance, Cap 115.
J J
K 3. In Charge 2, the 1st defendant is also charged with K
endangering the safety of others at sea, contrary to section 72 of the
L L
Shipping and Port Control Ordinance, Cap 313.
M M
4. According to the summary of facts that they admitted:
N N
O (1) On 26 June 2019 at around 5:45 am, the police first O
detected on the digital radar system the sampan on
P P
which the defendants were travelling at about 0.6
Q nautical miles away from the west of Shekou, Shenzhen Q
outside the boundary of Hong Kong. The sampan
R R
entered Hong Kong waters at around 5:51 am and was
S spotted at 6:40 am navigating towards Black Point, S
Tuen Mun;
T T
U U
V V
-3-
A A
B B
(2) When the sampan was intercepted by the police at 0.5
C nautical miles west of Black Point, the 1st defendant C
was found to be the coxswain at the rear whilst the 2nd
D D
defendant was sitting at the front with eight
E unauthorised entrants in the middle of the sampan E
covered underneath a blue tarpaulin;
F F
G (3) No valid Immigration documents or crew permits were G
provided by the defendants;
H H
I (4) The unauthorised entrants were Pakistani passport I
holders who had no record of entry into Hong Kong.
J J
Their passports revealed that they had last landed in
K Guangzhou or Urumqi on 22 or 24 June 2019; K
L L
(5) The defendants were then arrested. Under caution, the
M 1st defendant admitted that he had received RMB300 M
per head for sending the eight unauthorised entrants to
N N
Hong Kong whilst the 2nd defendant admitted that he
O would receive RMB300 per head for sending the O
unauthorised entrants somewhere near a power plant
P P
for landing;
Q Q
(6) The 1st defendant later elaborated under caution in his
R R
video recorded interview that he knew how to navigate
S boats as he grew up by the sea but did not have a S
coxswain licence. He was asked by a friend called “Ah
T T
Leung” to help sneak people into Hong Kong and
U U
V V
-4-
A A
B B
agreed to do so for a reward of RMB300 per head. In
C the afternoon of 25 June 2019, he went to Shenzhen and C
met up with the 2nd defendant. He followed Ah
D D
Leung’s instructions and found the sampan by the sea.
E The 2nd defendant boarded the eight unauthorised E
entrants and covered them with a tarpaulin and the 1st
F F
defendant then navigated the sampan to Hong Kong.
G The 1st defendant had intended to drop the G
unauthorised entrants at a power plant inside Hong
H H
Kong and then navigate the sampan back to Shenzhen
I and receive the reward from Ah Leung. However, the I
sampan malfunctioned during the journey and drifted
J J
along the current until they were intercepted by the
K police; K
L L
(7) The 2nd defendant similarly elaborated under caution
M in his video recorded interview that he was asked by M
“Leung Kee” to help sneak Pakistani illegal immigrants
N N
into Hong Kong. He was in need of money to repay his
O wife’s debts and agreed to do so for a reward of O
RMB300 per head. On 25 June 2019, he and the 1st
P P
defendant went to Dachan Bay, Shenzhen where they
Q picked up the eight unauthorised entrants and set off for Q
Hong Kong. The 1st defendant was responsible for
R R
navigating the sampan, while the 2nd defendant was
S responsible for helping the unauthorised entrants board S
the sampan, cleaning up and refuelling the boat. After
T T
the sampan had entered Hong Kong waters, it
U U
V V
-5-
A A
B B
malfunctioned and was drifting along the current when
C they were intercepted by the police; C
D D
(8) The Marine Department inspected the sampan and
E found it to be seaworthy, but it was not suitable for E
operation as (i) there were no firefighting appliances
F F
equipped on board; (ii) there were insufficient
G lifesaving appliances equipped on board; and (iii) no G
navigation light was fitted on board for night operation.
H H
I The 1st defendant’s mitigation I
J J
5. The 1st defendant is 28 years old. He was educated to a
K secondary school standard. Prior to his arrest, he worked as a construction K
worker on a casual basis in Mainland China and earned roughly RMB3,000
L L
per month. He is single and residing with his parents and elder brother.
M His father is retired and his mother is receiving follow-up treatment for M
endometrial cancer and is unable to work. His brother also works in
N N
construction industry on a casual basis. The 1st defendant has a clear
O record. O
P P
6. In mitigation, Mr Cheung submitted that the 1st defendant had
Q acceded to his friend’s request and participated in the unlawful activity Q
because he wanted to raise money to supplement his mother’s medical
R R
expenses.
S S
7. He said that the 1st defendant is remorseful, as he had made
T T
frank admissions to the police and had pleaded guilty to the charges. The
U U
V V
-6-
A A
B B
1st defendant also articulated his remorse in a handwritten letter, in which
C he stated that life in prison is difficult and that he misses his mother and C
family day and night. I am also presented with the medical report of
D D
someone said to be the 1st defendant’s mother.
E E
The 2nd defendant’s mitigation
F F
G 8. Turning to the 2nd defendant, he has just turned 33. He came G
from a poor family and was educated up to Secondary 1 level. He is
H H
married to a kindergarten school teacher and the couple have a 12-year-old
I son. I
J J
9. In mitigation, Ms Lo submitted that the 2nd defendant
K (because of his poor family background) had developed the virtue of K
shouldering responsibility for the family since a very young age. He had
L L
been a factory worker and a construction worker. In 2015, he started to
M subcontract construction works in the hope of earning more money for the M
family. However, his business flopped and he had to borrow RMB170,000
N N
from finance companies to repay his workers. He was persuaded to commit
O the offence given his financial difficulty. Since his arrest, he has learnt that O
his parents and his wife in the Mainland had been harassed by dubious
P P
people as he had been unable to make monthly repayments towards his
Q debts. Q
R R
The Sentence
S S
10. Both counsel acknowledged the seriousness of the offences.
T T
U U
V V
-7-
A A
B B
11. In Wong Chi Kin (CACC 357/2004), the Court of Appeal went
C through a number of authorities relating to the offence of assisting the C
passage within Hong Kong of an unauthorised entrant and reiterated that
D D
the generally applicable tariff for the offence is 4 years’ imprisonment. The
E fact that the accused was the captain of the vessel or in charge of the E
operation warrants an even higher starting point of 5 years’ imprisonment.
F F
The Court of Appeal further identified a number of non-exhaustive
G aggravating factors. G
H H
12. For the offence of endangering the safety of others at sea, the
I Court of Appeal held in Tang Zhuyan (CACC 223/2010) that, in the I
absence of aggravating features of danger, either deliberately caused by the
J J
coxswain of the escaping sampan or as a consequence of the state of sea,
K the overloading of vessels and its condition, the appropriate starting point K
is a sentence of 12 months’ imprisonment.
L L
M 13. In sentencing the 1st defendant (who is convicted of the M
offence of assisting the passage to Hong Kong of unauthorised entrants and
N N
the offence of endangering the safety of others at sea), I shall adopt the
O approach advocated by McWalters JA in Wan Ruzhong (CACC 128/2016) O
to avoid the perception of punishing the defendant twice for the same
P P
conduct. In other words, I have decided not to enhance the sentence for
Q Charge 1 by reason of the aggravating features that formed the basis of Q
Charge 2 but simply punish the defendant for Charge 2 appropriately,
R R
including the ordering of wholly or partially consecutive sentence.
S S
14. Given the 1st defendant’s role as the coxswain of the sampan,
T T
I adopt a starting point of 5 years’ imprisonment for Charge 1. He is
U U
V V
-8-
A A
B B
entitled to a one-third discount of his sentence by reason of his guilty plea.
C Thus, he is sentenced to 40 months’ imprisonment for Charge 1. C
D D
15. Mr Cheung has submitted that the 1st defendant made no
E attempt to escape when intercepted by the police (which may be due to the E
fact that the sampan was malfunctioned at the time as the defendants have
F F
claimed), and there were no children, elderly or particular vulnerable
G passengers on board. In the circumstances, I adopt a starting point of 12 G
months’ imprisonment for Charge 2. The 1st defendant is also entitled to
H H
a one-third discount for pleading guilty. Thus, he is sentenced to 8 months’
I imprisonment for Charge 2. I
J J
16. I am entitled to order the sentences to run wholly
K consecutively as they relate to separate and distinct criminal conduct. On K
totality however, I shall only order 2 months of the sentence for Charge 2
L L
to run consecutively with the sentence for Charge 1. Thus, the 1st
M defendant is to serve a total term of 42 months’ imprisonment. M
N N
17. Turning to the 2nd defendant, I am not persuaded by Ms Lo’s
O submission to depart from the generally applicable tariff for Charge 1 O
(which is the only charge the 2nd defendant is convicted of) of 4 years’
P P
imprisonment. The fact that he had been naïve and did not appreciate the
Q consequences of his criminal activity and that he had not received his Q
promised reward did not really mitigate against the seriousness of the
R R
offence.
S S
18. The 2nd defendant is entitled to a one-third discount for
T T
pleading guilty and he is therefore sentenced to 32 months’ imprisonment.
U U
V V
-9-
A A
B B
19. Lastly, I note that the personal plights urged upon me in
C mitigation by the defendants are not on all fours with their admissions to C
the police under caution. The 1st defendant did not mention his mother’s
D D
medical condition to the police and the 2nd defendant claimed that he was
E covering for the debt of his wife. In any event, their family circumstances E
should be disregarded when sentences for serious offences such as the one
F F
they are convicted of are concerned, see the judgment in Tang Zhuyan
G (CACC 223/2010) at paragraph 14. G
H H
I I
J J
( Justin Ko )
Chief District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V