DCCC887/2019 HKSAR v. YE HAOYUAN AND ANOTHER - LawHero
DCCC887/2019
HKSAR v. YE HAOYUAN AND ANOTHER
區域法院（刑事）HH Judge Sham17/5/2020[2020] HKDC 345
DCCC887/2019
A A
B B
DCCC 887/2019
C [2020] HKDC 345 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 887 OF 2019
F F
G ------------------------------ G
HKSAR
H H
v
I YE Haoyuan (1st Defendant) I
XU Xunhao (2nd Defendant)
J J
------------------------------
K K
Before: HH Judge Sham
L L
Date: 18 May 2020
M Present: Ms Susanna Ku, Counsel on fiat, for HKSAR M
Mr Freddy Woon of Messrs. Francis Kong & Co. assigned by
N N
the Director of Legal Aid for the 1st defendant.
O Mr Kenny Chan of Messrs. Lau & Ngan, Solicitors LLP O
assigned by the Director of Legal Aid for the 2 nd defendant.
P P
Offence: [1] Failing to stop (沒有停船)
Q Q
[2] Endangering the safety of others at sea (危害他人在海上
R 的安全) R
[3] Assisting the passage within Hong Kong of unauthorized
S S
entrants (協助未獲授權進境者在香港境內的旅程)
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. The two defendants in the present case, both Mainlanders, E
involved in the smuggling of migrants into Hong Kong from the Mainland
F F
on sea.
G G
2. Just before dawn on 26 July 2019, D1, being the coxswain
H H
together with his crew, D2, was steering a speedboat without any
I navigation lights off the East of Conic Island, which prompted the marine I
police to approach it for investigation. They made the international code
J J
signal “L” to the speedboat to stop, but instead it picked up speed to more
K than 40 nautical miles to escape. Two police vessels and a police launch K
gave chase and eventually intercepted it somewhere off Tai Long Tsui, Sai
L L
Kung without incident.
M M
3. On board the speedboat, aside from the two smugglers, the
N N
officers also found some illegal migrants-three Bangladeshi men; none of
O
them were wearing any lifesaving equipment. Consequently, both O
defendants were arrested for smuggling-related offences.
P P
4. A subsequent examination of the speedboat discovered that it
Q Q
had no firefighting appliances, no navigation lights and not enough
R lifesaving equipment. Mr. Wong, Senior Ship Inspector, was of the R
opinion that the boat was, albeit seaworthy, not suitable for operation
S S
because of the aforementioned deficiencies.
T T
5. D1 pleaded guilty to three counts of offence, namely,
U U
V V
-3-
A A
B B
Charge 1- Failing to stop, contrary to regulation 20(1) and (3) of the
C C
Shipping and Port Control Regulations, Cap 313A;
D (Maximum Term – 6 months’ imprisonment) D
E E
Charge 2-Endangering the safety of others at Sea, contrary to section
F 72 of the Shipping and Port Control Ordinance, Cap 313; F
(Maximum Term – 4 years’ imprisonment)
G G
H Charge 3- Assisting the passage within Hong Kong of unauthorised H
entrants, contrary to section 37D(1)(a) of the Immigration
I I
Ordinance, Cap 115.
J (Maximum Term – 14 years’ imprisonment) J
K K
D2 faced one offence only, i.e. charge 3 - he was jointly
L charged with D1 in respect of assisting the passage within Hong Kong of L
unauthorised entrants to which he pleaded guilty.
M M
N 6. D1, aged 32, married with two children, a daughter (11) and N
a son (2); he earns his living as a fisherman making about $2,000 and
O O
$3,000 RMB a month. His middle-aged parents are both a diabetic, father
P is retired and mother is a housewife, and both of them are dependent on P
D1.
Q Q
R 7. Counsel for D1 tells the court that D1 committed the offences R
solely for economic reasons. D1 was introduced to this criminal operation
S S
by a friend who promised him a reward of $3,000 RMB if he could
T transport some South Asians from the Mainland to Hong Kong on sea; T
U U
V V
-4-
A A
B B
given the fact that he had a family and parents to support, he foolishly
C agreed to the invitation. C
D 8. Counsel submitted that there was no evidence to suggest it D
was a dangerous manoeuvre when fleeing from the police, the officers said
E E
in their statement that there were no other vessels around during the course
F of the pursuit, and thus only the lives of the officers and the three F
passengers on board were at risk but fortunately no casualties were
G G
reported.
H H
9. Finally, counsel stressed that D1 was not the mastermind of
I I
this operation, and urged the court to consider concurrent sentences as it
J arose out of the same incidents. J
K 10. D2, aged 26, single, has two prior drug-related convictions K
back in 2012 and the matter was dealt with by way of fine. He worked as
L L
a salesman earning about $3,000 a month. His parents divorced when he
M was 11 and he was brought up by his grandfather. M
N N
11. Counsel for D2 put it down to momentary foolishness on the
O
part of D2 for the commission of the offence. He was only helping his O
friend, D1, and did not really appreciate the seriousness of what he was
P P
doing. He would be paid $1,000 RMB as a reward. During the remand
Q period, counsel continued, he has deeply reflected on his wrongdoing and Q
felt very remorseful. He promises that he will not re-offend again.
R R
12. Migrant smuggling is a dangerous operation which may in
S S
some cases result in the dead of those individuals being smuggled. This
T could arise from the unseaworthy conditions of the vessel on which they T
U U
V V
-5-
A A
B B
are travelling or collision between the vessel and police launch in the
C attempt to shake off the police chase or both. C
D 13. Here in the present case no details of the police chase were D
provided to the court, but it was clear that it occurred without incident – no
E E
collision, no casualties; counsel has urged the court to accept that the boat
F trip was not one putting the lives of the occupants of the speedboat at F
serious risk.
G G
H H
14. Turning to the conditions of the boat, there were three life-
I jackets and three lifebuoys on board but it had neither fire-fighting I
equipment nor navigation lights, the boat was nevertheless described as
J J
seaworthy.
K K
15. Speaking of the risk of endangering passengers, the Appellate
L Court has this to say in Tang Zhuyan CACC 223/2010: L
M M
“In respect of charge 1 (Equivalent to charge 3 in the present
N case), aggravating factors included a vessel which was N
“unseaworthy” by reason of poor maintenance or age, with the
risk of endangering passengers; one which was described as a
O “floating coffin” or “leaky tub”; and danger to human life O
inherent in the smuggling of human cargo. The absence of
P firefighting equipment and navigation lights was “of relatively P
little significance”. Although the absence of life-saving
equipment was to “stand differently”, nevertheless it brought
Q only some slight increase in the hazard over and above the sort Q
inherent to this kind of activity.”
R R
16. The speedboat in the instant case was not considered
S unseaworthy, the lifesaving equipment such as lifejackets and lifebuoys S
seemed enough to go round, the things lacking were firefighting equipment
T T
and navigation lights which were of little significance.
U U
V V
-6-
A A
B B
C 17. Having said that, however, it should be noted that those on C
board, in particular the migrants, were not wearing any lifejacket. If
D D
anything should go wrong, whether by way of collision with police vessel
E or otherwise, the passengers would likely fall overboard and could be E
drown to death.
F F
G 18. Coming back to the question of smuggling of migrants, the G
current authorities held that for those who are in charge of the vessel such
H H
as the captain or coxswain, in the absence of any aggravating features, it
I would normally attract a term of 5 years; while those simply giving a I
helping hand such as a crew member, a lighter sentence is appropriate.
J J
19. Given the facts of the case, for charge 1, I would take one and
K K
a half months as the starting point, for charge 2, 9 months and for charge
L 3, in the case of D1- 5 years and D2- 4 years. L
M M
20. Insofar as mitigation is concerned, apart from their guilty
N pleas, there aren’t anything of substance; their pleas are timely, so each N
defendant is entitled to a full 1/3 discount.
O O
21. Their final sentence is as follows:
P P
Q D1 : charge 1- one-month imprisonment; Q
charge 2- 6 months’ imprisonment;
R R
charge 3- 40 months’ imprisonment;
S D2 : D2- charge 3 – 32 months’ imprisonment. S
T T
U U
V V
-7-
A A
B B
22. Regarding D1, taking into account the totality principle,
C I order that 2 months of charge 2 be served consecutively to charge 3, the C
rest concurrently, total term is one of 42 months’ imprisonment.
D D
E E
F F
( Sham )
G G
District Judge
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
V V
A A
B B
DCCC 887/2019
C [2020] HKDC 345 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 887 OF 2019
F F
G ------------------------------ G
HKSAR
H H
v
I YE Haoyuan (1st Defendant) I
XU Xunhao (2nd Defendant)
J J
------------------------------
K K
Before: HH Judge Sham
L L
Date: 18 May 2020
M Present: Ms Susanna Ku, Counsel on fiat, for HKSAR M
Mr Freddy Woon of Messrs. Francis Kong & Co. assigned by
N N
the Director of Legal Aid for the 1st defendant.
O Mr Kenny Chan of Messrs. Lau & Ngan, Solicitors LLP O
assigned by the Director of Legal Aid for the 2 nd defendant.
P P
Offence: [1] Failing to stop (沒有停船)
Q Q
[2] Endangering the safety of others at sea (危害他人在海上
R 的安全) R
[3] Assisting the passage within Hong Kong of unauthorized
S S
entrants (協助未獲授權進境者在香港境內的旅程)
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. The two defendants in the present case, both Mainlanders, E
involved in the smuggling of migrants into Hong Kong from the Mainland
F F
on sea.
G G
2. Just before dawn on 26 July 2019, D1, being the coxswain
H H
together with his crew, D2, was steering a speedboat without any
I navigation lights off the East of Conic Island, which prompted the marine I
police to approach it for investigation. They made the international code
J J
signal “L” to the speedboat to stop, but instead it picked up speed to more
K than 40 nautical miles to escape. Two police vessels and a police launch K
gave chase and eventually intercepted it somewhere off Tai Long Tsui, Sai
L L
Kung without incident.
M M
3. On board the speedboat, aside from the two smugglers, the
N N
officers also found some illegal migrants-three Bangladeshi men; none of
O
them were wearing any lifesaving equipment. Consequently, both O
defendants were arrested for smuggling-related offences.
P P
4. A subsequent examination of the speedboat discovered that it
Q Q
had no firefighting appliances, no navigation lights and not enough
R lifesaving equipment. Mr. Wong, Senior Ship Inspector, was of the R
opinion that the boat was, albeit seaworthy, not suitable for operation
S S
because of the aforementioned deficiencies.
T T
5. D1 pleaded guilty to three counts of offence, namely,
U U
V V
-3-
A A
B B
Charge 1- Failing to stop, contrary to regulation 20(1) and (3) of the
C C
Shipping and Port Control Regulations, Cap 313A;
D (Maximum Term – 6 months’ imprisonment) D
E E
Charge 2-Endangering the safety of others at Sea, contrary to section
F 72 of the Shipping and Port Control Ordinance, Cap 313; F
(Maximum Term – 4 years’ imprisonment)
G G
H Charge 3- Assisting the passage within Hong Kong of unauthorised H
entrants, contrary to section 37D(1)(a) of the Immigration
I I
Ordinance, Cap 115.
J (Maximum Term – 14 years’ imprisonment) J
K K
D2 faced one offence only, i.e. charge 3 - he was jointly
L charged with D1 in respect of assisting the passage within Hong Kong of L
unauthorised entrants to which he pleaded guilty.
M M
N 6. D1, aged 32, married with two children, a daughter (11) and N
a son (2); he earns his living as a fisherman making about $2,000 and
O O
$3,000 RMB a month. His middle-aged parents are both a diabetic, father
P is retired and mother is a housewife, and both of them are dependent on P
D1.
Q Q
R 7. Counsel for D1 tells the court that D1 committed the offences R
solely for economic reasons. D1 was introduced to this criminal operation
S S
by a friend who promised him a reward of $3,000 RMB if he could
T transport some South Asians from the Mainland to Hong Kong on sea; T
U U
V V
-4-
A A
B B
given the fact that he had a family and parents to support, he foolishly
C agreed to the invitation. C
D 8. Counsel submitted that there was no evidence to suggest it D
was a dangerous manoeuvre when fleeing from the police, the officers said
E E
in their statement that there were no other vessels around during the course
F of the pursuit, and thus only the lives of the officers and the three F
passengers on board were at risk but fortunately no casualties were
G G
reported.
H H
9. Finally, counsel stressed that D1 was not the mastermind of
I I
this operation, and urged the court to consider concurrent sentences as it
J arose out of the same incidents. J
K 10. D2, aged 26, single, has two prior drug-related convictions K
back in 2012 and the matter was dealt with by way of fine. He worked as
L L
a salesman earning about $3,000 a month. His parents divorced when he
M was 11 and he was brought up by his grandfather. M
N N
11. Counsel for D2 put it down to momentary foolishness on the
O
part of D2 for the commission of the offence. He was only helping his O
friend, D1, and did not really appreciate the seriousness of what he was
P P
doing. He would be paid $1,000 RMB as a reward. During the remand
Q period, counsel continued, he has deeply reflected on his wrongdoing and Q
felt very remorseful. He promises that he will not re-offend again.
R R
12. Migrant smuggling is a dangerous operation which may in
S S
some cases result in the dead of those individuals being smuggled. This
T could arise from the unseaworthy conditions of the vessel on which they T
U U
V V
-5-
A A
B B
are travelling or collision between the vessel and police launch in the
C attempt to shake off the police chase or both. C
D 13. Here in the present case no details of the police chase were D
provided to the court, but it was clear that it occurred without incident – no
E E
collision, no casualties; counsel has urged the court to accept that the boat
F trip was not one putting the lives of the occupants of the speedboat at F
serious risk.
G G
H H
14. Turning to the conditions of the boat, there were three life-
I jackets and three lifebuoys on board but it had neither fire-fighting I
equipment nor navigation lights, the boat was nevertheless described as
J J
seaworthy.
K K
15. Speaking of the risk of endangering passengers, the Appellate
L Court has this to say in Tang Zhuyan CACC 223/2010: L
M M
“In respect of charge 1 (Equivalent to charge 3 in the present
N case), aggravating factors included a vessel which was N
“unseaworthy” by reason of poor maintenance or age, with the
risk of endangering passengers; one which was described as a
O “floating coffin” or “leaky tub”; and danger to human life O
inherent in the smuggling of human cargo. The absence of
P firefighting equipment and navigation lights was “of relatively P
little significance”. Although the absence of life-saving
equipment was to “stand differently”, nevertheless it brought
Q only some slight increase in the hazard over and above the sort Q
inherent to this kind of activity.”
R R
16. The speedboat in the instant case was not considered
S unseaworthy, the lifesaving equipment such as lifejackets and lifebuoys S
seemed enough to go round, the things lacking were firefighting equipment
T T
and navigation lights which were of little significance.
U U
V V
-6-
A A
B B
C 17. Having said that, however, it should be noted that those on C
board, in particular the migrants, were not wearing any lifejacket. If
D D
anything should go wrong, whether by way of collision with police vessel
E or otherwise, the passengers would likely fall overboard and could be E
drown to death.
F F
G 18. Coming back to the question of smuggling of migrants, the G
current authorities held that for those who are in charge of the vessel such
H H
as the captain or coxswain, in the absence of any aggravating features, it
I would normally attract a term of 5 years; while those simply giving a I
helping hand such as a crew member, a lighter sentence is appropriate.
J J
19. Given the facts of the case, for charge 1, I would take one and
K K
a half months as the starting point, for charge 2, 9 months and for charge
L 3, in the case of D1- 5 years and D2- 4 years. L
M M
20. Insofar as mitigation is concerned, apart from their guilty
N pleas, there aren’t anything of substance; their pleas are timely, so each N
defendant is entitled to a full 1/3 discount.
O O
21. Their final sentence is as follows:
P P
Q D1 : charge 1- one-month imprisonment; Q
charge 2- 6 months’ imprisonment;
R R
charge 3- 40 months’ imprisonment;
S D2 : D2- charge 3 – 32 months’ imprisonment. S
T T
U U
V V
-7-
A A
B B
22. Regarding D1, taking into account the totality principle,
C I order that 2 months of charge 2 be served consecutively to charge 3, the C
rest concurrently, total term is one of 42 months’ imprisonment.
D D
E E
F F
( Sham )
G G
District Judge
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
V V