A A
B B
DCCC 62/2020
C [2020] HKDC 940 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 62 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I XIAO ZHENSHENG I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 17 September 2020
L L
Present: Mr Dick Lee, Counsel on fiat, for HKSAR
M Mr Chau Hing Pang, instructed by K H Yuen & David M
Cheung, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: Arranging the passage to Hong Kong of unauthorised entrants O
(安排未獲授權進境者前來香港的旅程)
P P
Q Q
--------------------------------------
R
REASONS FOR SENTENCE R
--------------------------------------
S S
1. Defendant is convicted on his own plea and agreement to
T T
Summary of Facts to a charge of arranging the passage to Hong Kong of
U U
V V
-2-
A A
B B
unauthorised entrants, contrary to sections 37D(1)(a) of the Immigration
C Ordinance, Cap 115. C
D D
Facts
E E
2. At about 1:18 am on 18 November 2019, PW1, an
F F
Immigration officer, boarded a vessel (“V”) at Yau Ma Tei Typhoon
G Shelter to conduct a check. Upon check, the defendant and two crew G
members (“S2” and “S3”) were found on V.
H H
I 3. D, S2 and S3 (“the party”) were asked by PW1 to present their I
identity proof. In reply, the party presented their Mainland ID cards and
J J
claimed that they did not have any other identity proof.
K K
4. Body search was conducted on the party and the rooms of the
L L
party on V was also searched. No other identity proof of the party could
M be found. M
N N
5. Records of Immigration Department showed that the party
O had not performed any Immigration clearance for entering Hong Kong. O
P P
6. In the cautioned interview, defendant claimed that:-
Q (i) he was the captain of V; Q
(ii) he steered V and came to Hong Kong from Dongguan
R R
on 17 November 2019 and V arrived at Hong Kong at
S 11 pm on the same day; S
(iii) he knew nothing about the immigration clearance for
T T
entering Hong Kong;
U U
V V
-3-
A A
B B
(iv) he did not perform any immigration clearance for V to
C enter Hong Kong and he did not prepare any documents. C
(v) he came to Hong Kong to get some goods and deliver
D D
them back to Mainland;
E (vi) he came with two crew members, namely S2 and S3; E
(vii) the party did not have any travelling documents with
F F
them;
G (viii) the party did not have Seafarer’s Passport; G
(ix) he did not know what requirements one should comply
H H
with for leaving Mainland; and
I (x) the party did not go ashore. I
J J
Criminal record
K K
7. Defendant has a clear record in Hong Kong.
L L
M Mitigation M
N N
8. Defendant was born in the Mainland.
O O
9. He is now aged 35.
P P
Q 10. He has a clear record in Hong Kong. He was educated up to Q
Form 3. He previously got married but divorced in 2018 and he has
R R
custody of a baby boy now aged 3.
S S
11. His mother is over the age of 70 and is suffering from diabetes
T and high blood pressure and the defendant lives with her and help her T
U U
V V
-4-
A A
B B
getting regular medical checks and medication. He was upset that he has
C not been able to get into contact with his mother nor his son since his arrest. C
D D
12. Defendant says that since the year 2008, he worked as a sailor,
E and from the year 2019 his wage was raised to about 7,000 to 8,000 E
Renminbi a month.
F F
G 13. He said that in the morning of 17 November 2019, his boss G
promoted him to the rank of captain with a monthly salary of 12,000
H H
Renminbi and also ordered him to immediately take the vessel V to Yau
I Ma Tei Typhoon Shelter in Hong Kong and fetch and bring back some I
goods to Mainland later on. Defendant’s boss also mentioned that there
J J
would be two sailors on board to assist the defendant.
K K
14. Defendant has said that he never knew that there are necessary
L procedure and documents for driving a boat into Hong Kong and he never L
knew that one needed necessary documentation for sailors to enter Hong
M M
Kong waters.
N N
15. Defendant said only when he was arrested, did he come to
O O
know that he had violated the Immigration laws of Hong Kong and he is
P worried and lost. P
Q 16. Defendant also says that he is now helpless and scared, Q
worried about his aged mother and infant son as he has not been able to get
R R
into contact with them.
S S
17. Defendant said he did not know that the three of them need to
T T
go through clearance procedure when entering Hong Kong waters. He also
U U
V V
-5-
A A
B B
wrote a mitigation letter to this court and urged this court to be as lenient
C as possible on him as he has committed the offence out of ignorance. C
D D
18. Defence counsel cited the case of HKSAR v Hui Kin Kwan
E [2008] 1 HKLRD 188 and asked this court to adopt a sentencing starting E
point of 4 years’ imprisonment for this charge.
F F
19. Defence counsel also asked this court to give the defendant
G G
the one-third sentencing discount by reason of defendant’s guilty plea.
H H
Discussion
I I
J 20. Before sentencing, this court has considered fully the written J
submission by defence counsel and his oral submission in court, the
K K
mitigation letter written by the defendant as well as the authorities cited.
L L
21. As said earlier, this court does not accept the ignorance of
M M
the defendant in the need for clearance both for the vessel and the persons
N N
on board of the vessel when entering Hong Kong waters as defendant is
O
experienced. O
P 22. Defendant has said that on his own admission that he has been P
at sea since year 2008.
Q Q
23. Section 37D(1)(a) of the Immigration Ordinance, Cap 115
R R
reads:-
S S
“Arranging passage to Hong Kong of unauthorised entrants.
T Subject to subsection (2), any person who, on his behalf or on T
behalf of any other person, whether or not such person is in Hong
U U
V V
-6-
A A
B Kong, arranges or assists the passage to, or within, Hong Kong B
of a person who is, or of a conveyance which carries, an
C unauthorised entrant, commits an offence, is liable to, on C
conviction on indictment to a fine of 5 million and to
imprisonment for 14 years.”
D D
24. In this case, the defendant was the captain of the vessel which
E E
brought himself and the other two passengers into Hong Kong waters.
F F
G
25. The entry to Hong Kong waters was committed in the evening G
time.
H H
26. It is said that the defendant is a man of clear record but as he
I I
is not a Hong Kong resident, not much weight can be attached to this
J background of the defendant. J
K 27. In the case of HKSAR v Wong Chi Kin, CACC 357/2004, Woo K
VP said in the judgment that,
L L
M “The generally applicable tariff is 4 years’ imprisonment: the M
cases R v Ho Siu Lun and Others [1987] HKLR 1086, R v Chan
N Kwok Keung and Another [1988] 1 HKLR 273(279?), R v Lam N
Kon Man, Crim App No 329/1990. Where the accused was the
captain of the vessel or the person in charge or assisting in the
O operation of the organisation of the venture, the appropriate O
starting point is 5 years’ imprisonment: R v Wong Yin Lung
[1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC
P P
624 at 626H and 627A...”
Q Q
28. And later on in the judgment he also sets out a list of
R aggravating factors which increases the sentence from 5 years’ R
imprisonment starting point.
S S
T 29. The applicable tariff was later applied in the case of T
U U
V V
-7-
A A
B B
HKSAR v Yeung Wui and Others, CACC 415/2004 (see paragraphs 26 and
C 27 ). C
D D
30. In our case here, the defendant is the captain of the vessel and
E he brought into Hong Kong also two unlawful entrants. This court sees no E
reason to depart from the tariff guideline and will therefore adopt the 5
F F
years’ imprisonment as the sentencing starting point in this case.
G G
31. Having considered all that was said on the defendant’s behalf,
H H
including the mitigation letters from the defendant, this court finds that the
I only and the most useful mitigating factor is the defendant’s own timely I
guilty plea of which he is entitled to a full one-third sentencing discount.
J J
32. Accordingly, for the present offence, the defendant is
K K
sentenced to 40 months’ imprisonment.
L L
M M
N N
O
( K Lo ) O
District Judge
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 62/2020
C [2020] HKDC 940 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 62 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I XIAO ZHENSHENG I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 17 September 2020
L L
Present: Mr Dick Lee, Counsel on fiat, for HKSAR
M Mr Chau Hing Pang, instructed by K H Yuen & David M
Cheung, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: Arranging the passage to Hong Kong of unauthorised entrants O
(安排未獲授權進境者前來香港的旅程)
P P
Q Q
--------------------------------------
R
REASONS FOR SENTENCE R
--------------------------------------
S S
1. Defendant is convicted on his own plea and agreement to
T T
Summary of Facts to a charge of arranging the passage to Hong Kong of
U U
V V
-2-
A A
B B
unauthorised entrants, contrary to sections 37D(1)(a) of the Immigration
C Ordinance, Cap 115. C
D D
Facts
E E
2. At about 1:18 am on 18 November 2019, PW1, an
F F
Immigration officer, boarded a vessel (“V”) at Yau Ma Tei Typhoon
G Shelter to conduct a check. Upon check, the defendant and two crew G
members (“S2” and “S3”) were found on V.
H H
I 3. D, S2 and S3 (“the party”) were asked by PW1 to present their I
identity proof. In reply, the party presented their Mainland ID cards and
J J
claimed that they did not have any other identity proof.
K K
4. Body search was conducted on the party and the rooms of the
L L
party on V was also searched. No other identity proof of the party could
M be found. M
N N
5. Records of Immigration Department showed that the party
O had not performed any Immigration clearance for entering Hong Kong. O
P P
6. In the cautioned interview, defendant claimed that:-
Q (i) he was the captain of V; Q
(ii) he steered V and came to Hong Kong from Dongguan
R R
on 17 November 2019 and V arrived at Hong Kong at
S 11 pm on the same day; S
(iii) he knew nothing about the immigration clearance for
T T
entering Hong Kong;
U U
V V
-3-
A A
B B
(iv) he did not perform any immigration clearance for V to
C enter Hong Kong and he did not prepare any documents. C
(v) he came to Hong Kong to get some goods and deliver
D D
them back to Mainland;
E (vi) he came with two crew members, namely S2 and S3; E
(vii) the party did not have any travelling documents with
F F
them;
G (viii) the party did not have Seafarer’s Passport; G
(ix) he did not know what requirements one should comply
H H
with for leaving Mainland; and
I (x) the party did not go ashore. I
J J
Criminal record
K K
7. Defendant has a clear record in Hong Kong.
L L
M Mitigation M
N N
8. Defendant was born in the Mainland.
O O
9. He is now aged 35.
P P
Q 10. He has a clear record in Hong Kong. He was educated up to Q
Form 3. He previously got married but divorced in 2018 and he has
R R
custody of a baby boy now aged 3.
S S
11. His mother is over the age of 70 and is suffering from diabetes
T and high blood pressure and the defendant lives with her and help her T
U U
V V
-4-
A A
B B
getting regular medical checks and medication. He was upset that he has
C not been able to get into contact with his mother nor his son since his arrest. C
D D
12. Defendant says that since the year 2008, he worked as a sailor,
E and from the year 2019 his wage was raised to about 7,000 to 8,000 E
Renminbi a month.
F F
G 13. He said that in the morning of 17 November 2019, his boss G
promoted him to the rank of captain with a monthly salary of 12,000
H H
Renminbi and also ordered him to immediately take the vessel V to Yau
I Ma Tei Typhoon Shelter in Hong Kong and fetch and bring back some I
goods to Mainland later on. Defendant’s boss also mentioned that there
J J
would be two sailors on board to assist the defendant.
K K
14. Defendant has said that he never knew that there are necessary
L procedure and documents for driving a boat into Hong Kong and he never L
knew that one needed necessary documentation for sailors to enter Hong
M M
Kong waters.
N N
15. Defendant said only when he was arrested, did he come to
O O
know that he had violated the Immigration laws of Hong Kong and he is
P worried and lost. P
Q 16. Defendant also says that he is now helpless and scared, Q
worried about his aged mother and infant son as he has not been able to get
R R
into contact with them.
S S
17. Defendant said he did not know that the three of them need to
T T
go through clearance procedure when entering Hong Kong waters. He also
U U
V V
-5-
A A
B B
wrote a mitigation letter to this court and urged this court to be as lenient
C as possible on him as he has committed the offence out of ignorance. C
D D
18. Defence counsel cited the case of HKSAR v Hui Kin Kwan
E [2008] 1 HKLRD 188 and asked this court to adopt a sentencing starting E
point of 4 years’ imprisonment for this charge.
F F
19. Defence counsel also asked this court to give the defendant
G G
the one-third sentencing discount by reason of defendant’s guilty plea.
H H
Discussion
I I
J 20. Before sentencing, this court has considered fully the written J
submission by defence counsel and his oral submission in court, the
K K
mitigation letter written by the defendant as well as the authorities cited.
L L
21. As said earlier, this court does not accept the ignorance of
M M
the defendant in the need for clearance both for the vessel and the persons
N N
on board of the vessel when entering Hong Kong waters as defendant is
O
experienced. O
P 22. Defendant has said that on his own admission that he has been P
at sea since year 2008.
Q Q
23. Section 37D(1)(a) of the Immigration Ordinance, Cap 115
R R
reads:-
S S
“Arranging passage to Hong Kong of unauthorised entrants.
T Subject to subsection (2), any person who, on his behalf or on T
behalf of any other person, whether or not such person is in Hong
U U
V V
-6-
A A
B Kong, arranges or assists the passage to, or within, Hong Kong B
of a person who is, or of a conveyance which carries, an
C unauthorised entrant, commits an offence, is liable to, on C
conviction on indictment to a fine of 5 million and to
imprisonment for 14 years.”
D D
24. In this case, the defendant was the captain of the vessel which
E E
brought himself and the other two passengers into Hong Kong waters.
F F
G
25. The entry to Hong Kong waters was committed in the evening G
time.
H H
26. It is said that the defendant is a man of clear record but as he
I I
is not a Hong Kong resident, not much weight can be attached to this
J background of the defendant. J
K 27. In the case of HKSAR v Wong Chi Kin, CACC 357/2004, Woo K
VP said in the judgment that,
L L
M “The generally applicable tariff is 4 years’ imprisonment: the M
cases R v Ho Siu Lun and Others [1987] HKLR 1086, R v Chan
N Kwok Keung and Another [1988] 1 HKLR 273(279?), R v Lam N
Kon Man, Crim App No 329/1990. Where the accused was the
captain of the vessel or the person in charge or assisting in the
O operation of the organisation of the venture, the appropriate O
starting point is 5 years’ imprisonment: R v Wong Yin Lung
[1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC
P P
624 at 626H and 627A...”
Q Q
28. And later on in the judgment he also sets out a list of
R aggravating factors which increases the sentence from 5 years’ R
imprisonment starting point.
S S
T 29. The applicable tariff was later applied in the case of T
U U
V V
-7-
A A
B B
HKSAR v Yeung Wui and Others, CACC 415/2004 (see paragraphs 26 and
C 27 ). C
D D
30. In our case here, the defendant is the captain of the vessel and
E he brought into Hong Kong also two unlawful entrants. This court sees no E
reason to depart from the tariff guideline and will therefore adopt the 5
F F
years’ imprisonment as the sentencing starting point in this case.
G G
31. Having considered all that was said on the defendant’s behalf,
H H
including the mitigation letters from the defendant, this court finds that the
I only and the most useful mitigating factor is the defendant’s own timely I
guilty plea of which he is entitled to a full one-third sentencing discount.
J J
32. Accordingly, for the present offence, the defendant is
K K
sentenced to 40 months’ imprisonment.
L L
M M
N N
O
( K Lo ) O
District Judge
P P
Q Q
R R
S S
T T
U U
V V