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DCCC 143/2020
[2020] HKDC 650
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 143 OF 2020
E ____________ E
HKSAR
F v F
SO LAU FAT D1
G G
____________
H H
Before: HH Judge Dufton
I Date: 14 August 2020 I
Present: Ms Vivian Yeung, counsel on fiat, for HKSAR
J Mr Paul Kwong of Paul Kwong & Co, for D1 J
Offences: (1) Assisting the passage within Hong Kong of unauthorized
K
entrants K
(協助未獲授權進境者在香港境內的旅程)
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(2) Endangering the safety of others at sea L
(危及他人在海上的安全)
M M
REASONS FOR SENTENCE
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1. D1 pleads guilty to one charge of assisting the passage within
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Hong Kong of unauthorized entrants, contrary to section 37D (1) (a) of the
P Immigration Ordinance1and one charge of endangering the safety of others P
at sea, contrary to section 32 of the Merchant Shipping (Local Vessels)
Q Q
Ordinance2.
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2. Full particulars of the offences are set out in the amended
S summary of facts admitted by D1 on 7 August 2020. S
T 1
T
Cap 115.
2
Cap 548.
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3. In summary in the evening of 2 August 2019 PC 19953 was
C deployed to watch out for suspicious vessels at the breakwater of Shuen C
Wan Typhoon Shelter in Tai Po. At 1915 hours PC 19953 saw a local
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vessel bearing registration number 707513 (“the vessel”) navigating
E towards Sam Mun Tsai Road. E
F 4. No particulars of the type of vessel were included in the F
summary of facts. In the application for disposal of exhibits the vessel is
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referred to as a local pleasure vessel. A photograph of the vessel has been
H submitted to court3. H
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5. D1 and a female were on board the vessel 4 . The vessel
J stopped beside a mariculture raft near the middle of the breakwater. J
Another boat stopped near the vessel. No particulars of this boat or
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photographs have been supplied to the court.
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6. Ten unauthorized entrants from Vietnam got off the boat and
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boarded the vessel. D1 then navigated the vessel towards a staircase at the
N breakwater where the vessel docked. The ten unauthorized entrants then N
disembarked from the vessel.
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7. After the unauthorized entrants had disembarked D1
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navigated the vessel away from the breakwater.
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R R
S S
3
MFI-4.
T 4
The female has also been charged and will stand trial in November 2020. I agreed to sentence D1 T
first because he may well have served a substantial part of his sentence by the time the trial of D2
is concluded.
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B B
8. At 1924 hours the unauthorized entrants were seen boarding a
C taxi and a private car which were parked along Sam Mun Tsai Road and C
driving off in the direction of Yu On Street.
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9. At 2005 hours the police arrested D1 and the female near Lam
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Tsuen River in Tai Po. The police found the vessel docked at Lam Tsuen
F River underneath the flyover of Nam Wan Road. F
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10. D1 was found in possession of HK$69,896.50, CNY 4,309
H and some licence and insurance documents relating to the vessel. H
I 11. In a video recorded interview when asked about what I
happened that night and the money found in his possession D1 refused to
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answer any questions.
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12. In a later video recorded interview, D1, inter alia, stated that
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he used the vessel for fishing; that several days before he had left the vessel
M in Nan’ao in Mainland China for repair and that he had picked up the vessel M
together with his girlfriend from Nan’ao at around 5 p.m. on 2 August 2019.
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O 13. Upon inspection the vessel was found not suitable for O
operation having a fire extinguisher which was expired; only four life
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jackets when there should have been ten and insufficient navigation lights
Q for night operation. The vessel was however found to be seaworthy. Q
R 14. PC 19953 identified D1 in an identification parade held on 27 R
September 2019 as the coxswain of the vessel on 2 August 2019.
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Mitigation
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15. In passing sentence, I have carefully considered the oral and
D written submissions of Mr Kwong. D
E E
16. I take into account that D1 has no similar previous convictions.
F D1 cannot be given credit for a clear record having previous convictions F
dating back to 1989 for which he has received probation, community
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service and short terms of imprisonment. D1 last appeared in court in 2016
H when he was sentenced to 3 months’ imprisonment for exporting H
unmanifested cargo.
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Charge 1
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K 17. The correct starting point after trial for assisting in the passage K
within Hong Kong where the defendant is a crew member is 4 years
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imprisonment and where the defendant is the captain of the vessel or the
M person in charge or assisting in the operation or organisation of the passage M
a sentence of 5 years’ imprisonment is appropriate5.
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O 18. D1 was in charge of the vessel being the coxswain who O
navigated the vessel.
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19. Mr Kwong submitted that a lower starting point was
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appropriate by reason of the fact that the unauthorized entrants had already
R entered Hong Kong when they boarded the vessel; the vessel only R
transported the unauthorized entrants a very short distance, about five
S S
T T
5
See for example HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v Tang Zhuyan [2011] 1
HKLRD 447 and HKSAR v Zhong Ming Jing CACC 180/2010.
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vessel lengths or about 36 meters, to the staircase of the breakwater; and
C the passage being within the breakwater near a typhoon shelter, the sea was C
calm and the water shallow, the risk to the unauthorized entrants was
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minimal6.
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20. No photographs of the scene were submitted to court by the
F prosecution. Mr Kwong submitted a map of the area7. At the request of F
the court Mr Kwong marked on a copy of the map where the defence say
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the mariculture raft was and where the staircase was .
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21. The prosecution accepted that the map showed the scene and
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the accuracy of the markings made by Mr Kwong. The prosecution did not
J dispute the matters put forward by Mr Kwong with regard to the passage J
from the mariculture raft to the staircase.
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L
22. In support of a lower starting point Mr Kwong refers the court L
to HKSAR v Chan Lai Choi where the Court of Appeal held that a
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distinction should be drawn between offences involving the carriage of
N unlawful entrants from another country into Hong Kong and offences where N
the assistance is provided to unauthorized entrants who have already
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entered Hong Kong9.
P P
23. In Chan Lai Choi the applicant, a taxi driver, had transported
Q unauthorized entrants in his taxi from Wong Shek Pier. The Court of Q
Appeal in considering that a starting point of 3 years’ imprisonment was
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S S
6
See §2 c) – f) of the written mitigating statement made for D1.
7
See §2 c) of the written mitigating statement made for D1 (MFI-3).
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T
MFI-3A.
9
CACC 166/1997. Also see §2 g) – i) of the written mitigating statement made for D1.
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appropriate emphasised that the applicant had no part in the bringing of the
C unauthorized entrants from China into Hong Kong and was not involved in C
any carriage by sea and therefore his culpability could not be equated with
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that of a captain of a vessel bringing unlawful entrants into Hong Kong.
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24. Whilst suspicion attaches from the fact that D1 had picked up
F the vessel from Mainland China that very evening and was found in F
possession of a substantial amount of cash, there is no direct evidence that
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D1 was involved in the arrangement to bring the unauthorized entrants into
H Hong Kong. H
I I
25. D1 is to be sentenced on his role in transporting the
J unauthorized entrants within Hong Kong the short distance from the J
mariculture raft to the staircase. I am satisfied in these circumstances a
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lower starting point is appropriate.
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26. The passage was however clearly part of a well-planned
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operation to bring unauthorized entrants into Hong Kong requiring
N coordination between the boat, the vessel and the land transport. As can be N
seen from the summary of facts the vessel was first seen at 1915 hours and
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at 1924 hours, nine minutes later, the unauthorized entrants were being
P driven away in a taxi and a private car. P
Q 27. Albeit the passage was short and posed minimal risk to the Q
unauthorized entrants, the role of D1 was essential. Clearly the only
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inference to draw is that the boat was unable to dock by the staircase and
S therefore the assistance of D1 was required for this part of the sea passage. S
T T
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28. Taking into account all the circumstances, including that D1
C was the owner of the vessel and navigated the unauthorized entrants to the C
staircase, I am satisfied the appropriate starting point is 3 years and 6
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months’ imprisonment.
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29. Although the absence of fire-fighting appliances and sufficient
F life-saving equipment can be an aggravating factor, by reason of the short F
distance the vessel travelled with the unauthorized entrants on board, I do
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not enhance the starting point.
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30. Giving D1 full credit for his plea of guilty he is convicted and
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sentenced to 2 years and 4 months’ imprisonment.
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Charge 2
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31. D1 navigated the vessel which was not suitable for operation
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by reason of an expired fire extinguisher, insufficient life jackets and
M navigation light for night operation. M
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32. Taking into account that the vessel was found seaworthy
O together with the short distance in calm shallow water, I am satisfied a O
starting point of 9 months’ imprisonment is appropriate. Giving D1 full
P P
credit for his plea of guilty he is convicted and sentenced to 6 months’
Q imprisonment. Q
R 33. Although in many cases a partly consecutive sentence is R
imposed, I am satisfied in the circumstances of the case, in particular the
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short distance the vessel travelled with the unauthorized entrants on board,
T this charge does not add to the culpability of D1. T
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34. I order concurrent sentences. D1 will serve a total sentence of
C 2 years and 4 months’ imprisonment. C
D D
E (D. J. DUFTON) E
District Judge
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