DCCC140/2020 HKSAR v. HUANG FAJIN

案件基本資料

案件名稱：HKSAR v HUANG Fajin
法院：區域法院 (District Court)
法官：G. Lam
判決日期：2020年10月16日

案情摘要

被告作為貨船「盛平501」的船長，於2020年1月3日從馬灣錨地出發前往香港石九龍公共貨運區卸貨。被告在未辦理入境手續的情況下，安排兩名同樣缺乏合法證件的船員（PANG及OU）一同進入香港水域。2020年1月4日凌晨，該船在青山電廠西面被海事處截獲，被告及兩名船員隨即被發現為 unauthorized entrants。

核心法律爭議

本案的核心 legal issue 在於被告是否違反了《入境條例》(Cap.115) 第37D(1)(a) 條，即「安排未獲授權進境者前來香港的旅程」。被告承認其行為，辯方則在 mitigation 階段強調被告並非意圖讓船員在港非法逗留，且其在港時間極短（僅4小時）且未上岸。

判決理由

法官在 sentencing 過程中參考了 HKSAR v Chow Kam Tai [2018] HKCA 496 的 sentencing principles。法官認為雖然被告沒有讓船員非法逗留的意圖，且船隻並無不適航（unseaworthy）或危及生命的情況，但仍須根據上訴法院的指引設定 starting point。考慮到被告先前紀錄清白（clear record）及及時認罪（guilty plea），法官將刑期由4年下調至32個月。

引用案例與條文

HKSAR v Chow Kam Tai [2018] HKCA 496：法官引用此案作為量刑指引，以確定本案的 starting point 為4年監禁。

裁決與命令

被告被裁定罪名成立，被判處監禁32個月。

判決啟示

本案顯示法院在處理安排 unauthorized entrants 進境的案件時，會參考上訴法院確立的量刑基準。即便被告能證明並無長期非法逗留之意圖且未上岸，亦不能免除刑事責任，僅能作為量刑時的考慮因素。

免責聲明

本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。

由此 A A B DCCC 140/2020 B [2020] HKDC 937 C C IN THE DISTRICT COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO. 140 OF 2020 E F ____________ F G HKSAR G H v H HUANG Fajin I I ____________ J J K Before : H.H. Judge G. Lam K Date : 16 October 2020 Present : Mr. Newman Wong, counsel on fiat, for HKSAR. L L Mr. Gordon Wong instructed by M/s Foo & Li, assigned by the Director of Legal Aid, for the M M defendant. Offence : Arranging the passage to Hong Kong of N unauthorized entrants（安排未獲授權進境者前 N 來香港的旅程） O O P REASONS FOR SENTENCE P Q Q The defendant pleaded guilty to a charge of "Arranging the R R passage to Hong Kong of unauthorized entrants1". S S T T 1 Contrary to section 37D(1)(a) of the Immigration Ordinance (Cap.115). U U V V 由此 - 2 - A A Summary of Facts B B C 2. About 4:00 a.m. on 4 January 2020, a cargo vessel named C D Sheng Ping 501 ("the Boat") was intercepted by the Marine Department at D E the west of Castle Peak Power Station for inspection. The defendant and the E 2 persons named in the Charge (PANG and OU) were found on board. F F G G 3. The defendant, PANG and OU could only produce their H H mainland identity cards. According to the records of the Immigration I I Department, they did not perform any immigration clearance for entering J J Hong Kong. Both PANG and OU were unauthorized entrants for the K K purpose of this case. L L M 4. In his video recorded interviews, the defendant admitted, inter M N alia, that he was the captain of the Boat. He started the voyage from Mawan N Anchorage around 10:00 p.m. on 3 January 2020 and arrived at Hong Kong O O about 2 hours later. The Boat unloaded goods at the Stonecutters Island P P Public Cargo Working Area. The defendant employed PANG and OU to Q Q work on the Boat. He knew that they did not have the seaman qualification R R certificate or other crew documents. He also knew that he could not enter S S Hong Kong by his PRC identity card. The defendant claimed that he did not T T U U V V 由此 - 3 - A A have sufficient time to process the formalities for coming to Hong Kong B B since the trip was urgent. He just tried his luck of not getting caught. C C D D Mitigation & Sentence E E 7. The defendant is 48 and has a clear record. Defence counsel F F Mr. Wong informed me that the defendant is divorced with 3 children (aged G G 22, 14 and 12). He is not in contact with his ex-wife. H H I I 8. In mitigation, Mr. Wong submitted that the defendant has been J J a seaman for over 20 years. He purchased the Boat in October 2019 at the K K price of RMB650,000, of which about RMB400,000 were borrowed from L relatives. He intended to use her to deliver goods to make a living. Having L M spent about 2 months on repair works, the defendant first used the Boat on 3 M N January 2020. Mr. Wong also mentioned the defendant's health issues; N surgery was postponed due to lack of financial ability. O O P P 9. Mr. Wong stressed that the defendant and his crew were in Q Q Hong Kong for only 4 hours. They did not go ashore and had no plans to R R remain in Hong Kong or to seek employment as illegal immigrants. They S S were stopped on their way back to the mainland. Finally, Mr. Wong stated T T that for reasons unknown, the Boat disappeared from the Tuen Mun U U V V 由此 - 4 - A A Immigration Anchorage on 8 January 2020 whilst she was in the custody of B B the HKSAR Government. The defendant is extremely concerned with her C C whereabouts. Prosecuting counsel Mr. Wong confirmed that the Boat is D D missing, but is unable to offer any further information or explanation. E E F 9. In respect of sentencing principles and guidelines, counsel for F G both sides have drawn my attention to HKSAR v Chow Kam Tai [2018] G HKCA 496 (Chinese judgment), the facts of which are similar to those in the H H present case. I accept the mitigation put forward by Mr. Wong. The I I defendant had no intention for PANG and OU to remain in Hong Kong as J J illegal immigrants. They stayed in Hong Kong for only 4 hours and did not K K go ashore. They were leaving Hong Kong waters when stopped for L L inspection. There is also no evidence suggesting that the Boat was M M unseaworthy or any lives on board were endangered. N N O 10. Based on the Court of Appeal's decision in Chow Kam Tai, I O P consider a starting point of 4 years' imprisonment just and appropriate since P Q the defendant has a clear record. With his timely guilty plea, the sentence is Q reduced to 32 months. Apart from this, I see no other mitigating factors R R which warrant any further reduction. I sentence the defendant to 32 months' S S T T U U V V 由此 - 5 - A A imprisonment. Regarding the disappearance of the Boat, Mr. Wong B B informed me that he has duly advised the defendant of his rights. C C D D E E F F (G. Lam) G District Judge G 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

DCCC140/2020

相關條例 (1)

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