區域法院（刑事）Deputy District Judge Colin Wong17/11/2020[2020] HKDC 1197
DCCC403/2020
A A
B B
DCCC 403/2020
C [2020] HKDC 1197 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 403 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I MD Hashem Ali I
-----------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 18 November 2020
L L
Present: Mr. LEE Pak Chau, Counsel-on-fiat, for HKSAR
M Mr. Trevor BEEL, instructed by Messrs. Choy Yung & Co., M
assigned by the Director of Legal Aid for the defendant
N N
Offence: Assisting the passage within Hong Kong of an unauthorized
O entrant (協助未獲授權進境者在香港境內的旅程) O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
--------------------------------------
E E
1. Defendant pleaded guilty to one charge of “Assisting the
F F
passage within Hong Kong of an unauthorized entrant”, contrary to section
G 37D(1)(a) of the Immigration Ordinance, Cap. 115. G
H H
Admitted Facts
I I
2. On 27th January 2020, at around 8:27 a.m., the Defendant
J J
boarded Mr. Mok Pui-sun’s taxi and requested Mr. Mok to drive to Kai
K Kuk Shue Ha near Sha Tau Kok. The Defendant showed Mr. Mok a photo K
of his intended destination that was on his mobile phone.
L L
M 3. The taxi arrived at Kai Kuk Shue Ha at around 9:00 a.m. on M
the same day, at which another South East Asian male, Mohammad Motiar
N N
Rahman (“Rahman”). The Defendant then requested Mr. Mok to drive
O both him and Rahman to Fanling MTR station. At the same time, there O
were four other South East Asian males who also wanted to get on board
P P
but the Defendant refused.
Q Q
4. At around 9:13 a.m. on the same day, PC 16832, PC 8257 and
R R
a team of police officers intercepted the taxi at the junction of Sha Tau Kok
S Road and Luk Keng Road (“the Location”). S
T T
U U
2
V V
A A
B B
5. Upon enquiries, the Defendant was found to be a Form 8
C holder and he stated that he boarded the taxi from Hung Shui Kiu to Kai C
Kok Shue Ha to pick up his nephew (“Rahman”). Rahman’s clothes and
D D
his rucksack were wet and dirty. A large amount of clothing was inside the
E rucksack. A Bangladeshi passport was found on Rahman which contained E
an immigration arrival stamp of China dated 23rd January 2019 but no
F F
Hong Kong immigration stamps were found.
G G
6. Upon further enquiries, it is confirmed that Rahman was an
H H
unauthorized entrant.
I I
7. The Defendant stated, inter alia, the following in his
J J
cautioned Record of Interview:-
K K
i) He received a call from an unknown male called
L L
“Sumon” and a photo showing a location. Sumon told him
M that the location was where his nephew was and which was M
why he rode a taxi from Hung Shui Kiu to the said location to
N N
pick his nephew up. He does not personally know Sumon.
O O
ii) Sumon is named “Sumon Miah” in his mobile
P P
phone application “IMO”. Sumon first contacted him on
Q around 24th December 2019 and told him about the political Q
situation in Bangladesh. On 27th January 2020, Sumon sent
R R
him a photo and told him to pick up his nephew at the location
S as shown in the photo. S
T T
U U
3
V V
A A
B B
iii) When he arrived at the photographed location,
C he saw 5 males including his nephew. He does not know the C
other 4 males. At that time, he believed that his nephew is an
D D
illegal immigrant so he wanted to pick him up to surrender
E himself to the Immigration Department. However, they were E
arrested on their way.
F F
G iv) He came to Hong Kong in July 2009 to apply for G
torture claim. He now lives in Kwai Chung. His nephew is the
H H
grandson of his father’s elder brother.
I I
8. The Defendant’s mobile phone was manually searched with
J J
his consent. In the application “IMO”:
K K
i) A conversation thread with a “Billal” was found
L L
which showed a photo with a road sign of Kai Kok Shue Ha
M (timestamp 27 Jan 07:47 hours) and a photo of No.1A, Kai M
Kuk Shue Ha (timestamp 27 Jan 08.05 hours).
N N
O ii) A conversation thread with “Sumon Miah” was O
found and they started contacting each other at timestamp 25
P P
Dec 2019 09:29 hours. The conversation thread up till
Q timestamp 27 Jan 14:26 hours consisted of missed audio calls Q
and deleted messages.
R R
S 9. Rahman’s mobile phone was manually searched with his S
consent. A photo with a road sign of Kai Kok Shue Ha and a photo of
T T
U U
4
V V
A A
B B
No.1A, Kai Kuk Shue Ha were found and these were the same photos
C found on the Defendant’s phone. C
D D
Defendant’s Background
E E
10. Defendant is 38 years of age having been born in Bangladesh
F F
on the 1st May 1982. He is married with three daughters aged 21, 18 and 13
G years of age. His wife and children reside in Bangladesh. Defendant came G
to Hong Kong around June 2009 and was arrested at the border whereupon
H H
he made a claim of asylum. He is a Form 8 holder. Prior to coming to Hong
I Kong Defendant had run a shop selling garments. I
J J
11. Defendant had received a limited education up to the age of
K 11 and cannot speak English or Cantonese. Defendant cannot write K
Bengali and has a limited ability to read Bengali.
L L
M 12. He has a clear criminal record. M
N N
Mitigation
O O
13. There is a familial relationship between Defendant and the
P P
unauthorized entrant; Defendant is the Rahman’s uncle. Rahman had spent
Q HK$60,000 to a syndicate to arrange for his passage to Hong Kong. One of Q
the syndicate, a person called Sumon who was based in Hong Kong, was to
R R
arrange collection and transportation once Rahman arrived in Hong Kong.
S S
14. Suman was supposed to meet them but by 7:00 a.m. Sumon
T T
had not arrived. Rahman managed to contact Sumon who said that he could
U U
5
V V
A A
B B
not come as he had difficulty in finding a taxi. Rahman then made contact
C with Defendant for assistance. C
D D
15. Defendant had earlier received contact from Sumon in the
E form of voice messages and was aware that his nephew would be coming E
to Hong Kong. Prior to 27th January 2020 Defendant was not aware that
F F
Defendant would be entering Hong Kong illegally.
G G
16. On the morning of the 27th January 2020 Defendant received a
H H
photograph of a road sign1 from Sumon as well as a voice message to
I inform him that was the location for his nephew. Defendant sent the same I
photograph to his nephew to confirm where upon Defendant received a
J J
photograph from his nephew as to his location2.
K K
17. Defendant was unable to communicate with the taxi driver
L L
and instead showed the taxi driver the #12 photo and on the way also
M showed the taxi driver #13. Defendant then realised from the area that his M
nephew must have landed in Hong Kong illegally. Defendant though
N N
intended to take his nephew to surrender to the Immigration at Kowloon
O Bay. Although Defendant had sufficient money for the taxi to go to O
Kowloon Bay, Defendant was unable to communicate that to the driver, so
P P
instead Defendant asked the driver to go to the Fanling railway station.
Q Q
18. Defendant intended to take his nephew to surrender to the
R R
Immigration authorities. Defendant was aware, just as in his case, after
S processing by the Immigration Department, Defendant’s nephew would be S
released with a Form 8 and able to freely move around Hong Kong. There
T T
1
Photo album #12
2
U Photo album #13 U
6
V V
A A
B B
would be no benefit for Defendant’s nephew to remain on the streets
C illegally without documentation. Defendant’s nephew was issued a Form 8 C
th
and released on recognizance on the 28 February 2020.
D D
The Law
E E
F 19. Defence submitted the following authorities in mitigation: F
G G
20. The following cases are commended to the Court for
H assistance in considering an appropriate sentence: H
I I
i) Lee Kin Ming CACC 536/1991: The defendant
J pleaded guilty to seven separate charges under s.37D(1)(a) J
and received a concurrent sentence of 2½ years. The
K K
defendant had assisted the movement of seven illegal
L immigrants, who all possessed forged ID cards, within Hong L
Kong and had been paid $1,000 per person.
M M
N N
ii) Wong Fu Keung CACC 158/1996: The
O
defendant assisted in the trafficking of two women who were O
unauthorized entrants from the mainland who entered for the
P P
purpose of prostitution. The defendant’s role was to meet the
Q women who had arrived by boat, provide them with forged Q
identity cards and take them to the urban area. After trial, on
R R
the s.37D(1)(a) charge he was convicted and sentenced to 3
S years’ imprisonment. S
T T
iii) Chan Lai Choi CACC 166/1997: The defendant
U was convicted on one charge under s.37D(1)(a) in assisting U
7
V V
A A
B B
the passage of five unlawful entrants and sentenced to four
C years’ imprisonment. The judge had taken a starting point of C
five years but as this assistance was on land rather than sea
D D
deducted 4 months and a further 8 months for having a clear
E record. On appeal the CA referred to the case of Wong Ying E
Lung CACC 52/1994 in which the starting point for sentence
F F
for a captain of a vessel bringing in unauthorized entrants
G should be 5 years. The CA found that as the defendant had G
just used a taxi to transport the entrants from one part of the
H H
territory to another the defendant’s culpability cannot be
I compared to that of a captain of a vessel bringing I
unauthorized entrants into Hong Kong. In the circumstances
J J
of this case a starting point of three years would be
K appropriate. The CA though at the end imposed a sentence of K
2½ years.
L L
M iv) Sarfraz & Others CACC 381/2017 [2018] M
HKCA 517: “S” was the 2nd Applicant in this application for
N N
leave to appeal from his sentence upon a plea of guilty to a
O charge under s.37D(1)(a). S disputed the fact that he was the O
central organiser in receiving unauthorized entrants and
P P
accordingly a Newton hearing was held. The trial court, in
Q rejecting S’s contention that he was only receiving his brother Q
and derived no commercial benefit, found that S was the
R R
central organiser in that there were a series of messages on his
S phone which were concerned with the payments and S
arrangements for the transportation and arrival of
T T
st rd
unauthorized entrants. Further, S had engaged the 1 and 3
U U
8
V V
A A
B B
Applicant’s to assist in this endeavour. The trial judge
C adopted a SP of 45 months (33 months for the 1st and 3rd C
Applicants) which was enhanced by 15% under the
D D
provisions of s.27 OSCO as it was shown to be an organised
E crime (But not for the 1st and 3rd Applicants) and a further 2 E
months’ enhancement as a Form 8 holder. For the failed
F F
Newton hearing only 20% was reduced for the plea of guilty.
G Leave to appeal sentence was dismissed. G
H H
v) Chan Shing CACC 573/1980: Defendant was
I convicted of his plea of guilty to a charge of aiding and I
abetting two illegal immigrants to remain in Hong Kong and
J J
was sentenced to 12 months’ imprisonment. The CA found
K that Defendant only became involved due to the fact that he K
was helping a relative in circumstances where he felt a
L L
familial obligation and there was no consideration of any
M financial reward. The sentence was reduced by 50% to one of M
6 months’ imprisonment.
N N
O 21. I have also considered more recent authorities. In Wong Chi O
Kin CACC 357/2004 and Ko King Hung CACC 41/2004, the court of
P P
appeal after considering earlier authorities, reaffirmed that for this offence,
Q the generally applicable tariff is 4 years’ imprisonment. Where the accused Q
was the captain of the vessel or the person in charge or assisting in the
R R
operation of the venture, the appropriate starting point is 5 years’
S imprisonment. This case relates to bringing unauthorized entrants into S
Hong Kong on a vessel. (See also HKSAR v Sze Yu CACC 143/2003.)
T T
U U
9
V V
A A
B B
22. Despite the authority of Chan Lai Choi is made before Wong
C Chi Kin, Ko King Hung and Sze Yu, the principles in Chan Lai Choi must C
still apply. Culpability of a defendant using a taxi to transport unlawful
D D
entrants cannot be compared to that of a captain of a vessel bringing
E unauthorized entrants into Hong Kong. Starting point in the present case E
should be lower.
F F
G 23. I have considered Defendant’s mitigation. There is no G
evidence to contradict his allegation that Rahman Mohammad Motiar is in
H H
fact his nephew. According to the taxi driver’s evidence, after picking up
I Rahman, four other south Asian males asked to be picked up but was I
refused by Defendant. From the mobile phone records, there is no evidence
J J
that Defendant was involved in the organizing of Rahman’s entrants. His
K explanations in the cautioned Record of Interview were also consistent K
with his mitigation.
L L
M 24. Therefore, I accept that: M
N N
i) This offence arose out of the familial
O relationship between Defendant and the unauthorized entrant, O
P P
ii) Defendant intended to bring Rahman to
Q surrender to Immigration Department in Kowloon Bay, Q
R R
iii) there was no financial benefit to Defendant and
S S
iv) Defendant did not take part in organizing the
T T
unauthorized entrant’s passage to Hong Kong.
U U
10
V V
A A
B B
25. In such case, Defendant’s culpability is lower than the
C appellant in Chan Lai Choi, who was seen talking multiple trips to pick up C
unauthorized entrants.
D D
E 26. Having considered all of the above, I am of the view the E
appropriate starting point is 2 years’ imprisonment. Defendant pleaded
F F
guilty not at the earliest opportunity but prior to the commencement of trial,
G a 25% discount is appropriate. There are no other mitigating factors which G
warrant a reduction in sentence. Therefore, the Defendant is sentenced to
H H
18 months’ imprisonment.
I I
J J
K K
L L
M M
N ( Colin Wong ) N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
11
V V
A A
B B
DCCC 403/2020
C [2020] HKDC 1197 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 403 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I MD Hashem Ali I
-----------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 18 November 2020
L L
Present: Mr. LEE Pak Chau, Counsel-on-fiat, for HKSAR
M Mr. Trevor BEEL, instructed by Messrs. Choy Yung & Co., M
assigned by the Director of Legal Aid for the defendant
N N
Offence: Assisting the passage within Hong Kong of an unauthorized
O entrant (協助未獲授權進境者在香港境內的旅程) O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
--------------------------------------
E E
1. Defendant pleaded guilty to one charge of “Assisting the
F F
passage within Hong Kong of an unauthorized entrant”, contrary to section
G 37D(1)(a) of the Immigration Ordinance, Cap. 115. G
H H
Admitted Facts
I I
2. On 27th January 2020, at around 8:27 a.m., the Defendant
J J
boarded Mr. Mok Pui-sun’s taxi and requested Mr. Mok to drive to Kai
K Kuk Shue Ha near Sha Tau Kok. The Defendant showed Mr. Mok a photo K
of his intended destination that was on his mobile phone.
L L
M 3. The taxi arrived at Kai Kuk Shue Ha at around 9:00 a.m. on M
the same day, at which another South East Asian male, Mohammad Motiar
N N
Rahman (“Rahman”). The Defendant then requested Mr. Mok to drive
O both him and Rahman to Fanling MTR station. At the same time, there O
were four other South East Asian males who also wanted to get on board
P P
but the Defendant refused.
Q Q
4. At around 9:13 a.m. on the same day, PC 16832, PC 8257 and
R R
a team of police officers intercepted the taxi at the junction of Sha Tau Kok
S Road and Luk Keng Road (“the Location”). S
T T
U U
2
V V
A A
B B
5. Upon enquiries, the Defendant was found to be a Form 8
C holder and he stated that he boarded the taxi from Hung Shui Kiu to Kai C
Kok Shue Ha to pick up his nephew (“Rahman”). Rahman’s clothes and
D D
his rucksack were wet and dirty. A large amount of clothing was inside the
E rucksack. A Bangladeshi passport was found on Rahman which contained E
an immigration arrival stamp of China dated 23rd January 2019 but no
F F
Hong Kong immigration stamps were found.
G G
6. Upon further enquiries, it is confirmed that Rahman was an
H H
unauthorized entrant.
I I
7. The Defendant stated, inter alia, the following in his
J J
cautioned Record of Interview:-
K K
i) He received a call from an unknown male called
L L
“Sumon” and a photo showing a location. Sumon told him
M that the location was where his nephew was and which was M
why he rode a taxi from Hung Shui Kiu to the said location to
N N
pick his nephew up. He does not personally know Sumon.
O O
ii) Sumon is named “Sumon Miah” in his mobile
P P
phone application “IMO”. Sumon first contacted him on
Q around 24th December 2019 and told him about the political Q
situation in Bangladesh. On 27th January 2020, Sumon sent
R R
him a photo and told him to pick up his nephew at the location
S as shown in the photo. S
T T
U U
3
V V
A A
B B
iii) When he arrived at the photographed location,
C he saw 5 males including his nephew. He does not know the C
other 4 males. At that time, he believed that his nephew is an
D D
illegal immigrant so he wanted to pick him up to surrender
E himself to the Immigration Department. However, they were E
arrested on their way.
F F
G iv) He came to Hong Kong in July 2009 to apply for G
torture claim. He now lives in Kwai Chung. His nephew is the
H H
grandson of his father’s elder brother.
I I
8. The Defendant’s mobile phone was manually searched with
J J
his consent. In the application “IMO”:
K K
i) A conversation thread with a “Billal” was found
L L
which showed a photo with a road sign of Kai Kok Shue Ha
M (timestamp 27 Jan 07:47 hours) and a photo of No.1A, Kai M
Kuk Shue Ha (timestamp 27 Jan 08.05 hours).
N N
O ii) A conversation thread with “Sumon Miah” was O
found and they started contacting each other at timestamp 25
P P
Dec 2019 09:29 hours. The conversation thread up till
Q timestamp 27 Jan 14:26 hours consisted of missed audio calls Q
and deleted messages.
R R
S 9. Rahman’s mobile phone was manually searched with his S
consent. A photo with a road sign of Kai Kok Shue Ha and a photo of
T T
U U
4
V V
A A
B B
No.1A, Kai Kuk Shue Ha were found and these were the same photos
C found on the Defendant’s phone. C
D D
Defendant’s Background
E E
10. Defendant is 38 years of age having been born in Bangladesh
F F
on the 1st May 1982. He is married with three daughters aged 21, 18 and 13
G years of age. His wife and children reside in Bangladesh. Defendant came G
to Hong Kong around June 2009 and was arrested at the border whereupon
H H
he made a claim of asylum. He is a Form 8 holder. Prior to coming to Hong
I Kong Defendant had run a shop selling garments. I
J J
11. Defendant had received a limited education up to the age of
K 11 and cannot speak English or Cantonese. Defendant cannot write K
Bengali and has a limited ability to read Bengali.
L L
M 12. He has a clear criminal record. M
N N
Mitigation
O O
13. There is a familial relationship between Defendant and the
P P
unauthorized entrant; Defendant is the Rahman’s uncle. Rahman had spent
Q HK$60,000 to a syndicate to arrange for his passage to Hong Kong. One of Q
the syndicate, a person called Sumon who was based in Hong Kong, was to
R R
arrange collection and transportation once Rahman arrived in Hong Kong.
S S
14. Suman was supposed to meet them but by 7:00 a.m. Sumon
T T
had not arrived. Rahman managed to contact Sumon who said that he could
U U
5
V V
A A
B B
not come as he had difficulty in finding a taxi. Rahman then made contact
C with Defendant for assistance. C
D D
15. Defendant had earlier received contact from Sumon in the
E form of voice messages and was aware that his nephew would be coming E
to Hong Kong. Prior to 27th January 2020 Defendant was not aware that
F F
Defendant would be entering Hong Kong illegally.
G G
16. On the morning of the 27th January 2020 Defendant received a
H H
photograph of a road sign1 from Sumon as well as a voice message to
I inform him that was the location for his nephew. Defendant sent the same I
photograph to his nephew to confirm where upon Defendant received a
J J
photograph from his nephew as to his location2.
K K
17. Defendant was unable to communicate with the taxi driver
L L
and instead showed the taxi driver the #12 photo and on the way also
M showed the taxi driver #13. Defendant then realised from the area that his M
nephew must have landed in Hong Kong illegally. Defendant though
N N
intended to take his nephew to surrender to the Immigration at Kowloon
O Bay. Although Defendant had sufficient money for the taxi to go to O
Kowloon Bay, Defendant was unable to communicate that to the driver, so
P P
instead Defendant asked the driver to go to the Fanling railway station.
Q Q
18. Defendant intended to take his nephew to surrender to the
R R
Immigration authorities. Defendant was aware, just as in his case, after
S processing by the Immigration Department, Defendant’s nephew would be S
released with a Form 8 and able to freely move around Hong Kong. There
T T
1
Photo album #12
2
U Photo album #13 U
6
V V
A A
B B
would be no benefit for Defendant’s nephew to remain on the streets
C illegally without documentation. Defendant’s nephew was issued a Form 8 C
th
and released on recognizance on the 28 February 2020.
D D
The Law
E E
F 19. Defence submitted the following authorities in mitigation: F
G G
20. The following cases are commended to the Court for
H assistance in considering an appropriate sentence: H
I I
i) Lee Kin Ming CACC 536/1991: The defendant
J pleaded guilty to seven separate charges under s.37D(1)(a) J
and received a concurrent sentence of 2½ years. The
K K
defendant had assisted the movement of seven illegal
L immigrants, who all possessed forged ID cards, within Hong L
Kong and had been paid $1,000 per person.
M M
N N
ii) Wong Fu Keung CACC 158/1996: The
O
defendant assisted in the trafficking of two women who were O
unauthorized entrants from the mainland who entered for the
P P
purpose of prostitution. The defendant’s role was to meet the
Q women who had arrived by boat, provide them with forged Q
identity cards and take them to the urban area. After trial, on
R R
the s.37D(1)(a) charge he was convicted and sentenced to 3
S years’ imprisonment. S
T T
iii) Chan Lai Choi CACC 166/1997: The defendant
U was convicted on one charge under s.37D(1)(a) in assisting U
7
V V
A A
B B
the passage of five unlawful entrants and sentenced to four
C years’ imprisonment. The judge had taken a starting point of C
five years but as this assistance was on land rather than sea
D D
deducted 4 months and a further 8 months for having a clear
E record. On appeal the CA referred to the case of Wong Ying E
Lung CACC 52/1994 in which the starting point for sentence
F F
for a captain of a vessel bringing in unauthorized entrants
G should be 5 years. The CA found that as the defendant had G
just used a taxi to transport the entrants from one part of the
H H
territory to another the defendant’s culpability cannot be
I compared to that of a captain of a vessel bringing I
unauthorized entrants into Hong Kong. In the circumstances
J J
of this case a starting point of three years would be
K appropriate. The CA though at the end imposed a sentence of K
2½ years.
L L
M iv) Sarfraz & Others CACC 381/2017 [2018] M
HKCA 517: “S” was the 2nd Applicant in this application for
N N
leave to appeal from his sentence upon a plea of guilty to a
O charge under s.37D(1)(a). S disputed the fact that he was the O
central organiser in receiving unauthorized entrants and
P P
accordingly a Newton hearing was held. The trial court, in
Q rejecting S’s contention that he was only receiving his brother Q
and derived no commercial benefit, found that S was the
R R
central organiser in that there were a series of messages on his
S phone which were concerned with the payments and S
arrangements for the transportation and arrival of
T T
st rd
unauthorized entrants. Further, S had engaged the 1 and 3
U U
8
V V
A A
B B
Applicant’s to assist in this endeavour. The trial judge
C adopted a SP of 45 months (33 months for the 1st and 3rd C
Applicants) which was enhanced by 15% under the
D D
provisions of s.27 OSCO as it was shown to be an organised
E crime (But not for the 1st and 3rd Applicants) and a further 2 E
months’ enhancement as a Form 8 holder. For the failed
F F
Newton hearing only 20% was reduced for the plea of guilty.
G Leave to appeal sentence was dismissed. G
H H
v) Chan Shing CACC 573/1980: Defendant was
I convicted of his plea of guilty to a charge of aiding and I
abetting two illegal immigrants to remain in Hong Kong and
J J
was sentenced to 12 months’ imprisonment. The CA found
K that Defendant only became involved due to the fact that he K
was helping a relative in circumstances where he felt a
L L
familial obligation and there was no consideration of any
M financial reward. The sentence was reduced by 50% to one of M
6 months’ imprisonment.
N N
O 21. I have also considered more recent authorities. In Wong Chi O
Kin CACC 357/2004 and Ko King Hung CACC 41/2004, the court of
P P
appeal after considering earlier authorities, reaffirmed that for this offence,
Q the generally applicable tariff is 4 years’ imprisonment. Where the accused Q
was the captain of the vessel or the person in charge or assisting in the
R R
operation of the venture, the appropriate starting point is 5 years’
S imprisonment. This case relates to bringing unauthorized entrants into S
Hong Kong on a vessel. (See also HKSAR v Sze Yu CACC 143/2003.)
T T
U U
9
V V
A A
B B
22. Despite the authority of Chan Lai Choi is made before Wong
C Chi Kin, Ko King Hung and Sze Yu, the principles in Chan Lai Choi must C
still apply. Culpability of a defendant using a taxi to transport unlawful
D D
entrants cannot be compared to that of a captain of a vessel bringing
E unauthorized entrants into Hong Kong. Starting point in the present case E
should be lower.
F F
G 23. I have considered Defendant’s mitigation. There is no G
evidence to contradict his allegation that Rahman Mohammad Motiar is in
H H
fact his nephew. According to the taxi driver’s evidence, after picking up
I Rahman, four other south Asian males asked to be picked up but was I
refused by Defendant. From the mobile phone records, there is no evidence
J J
that Defendant was involved in the organizing of Rahman’s entrants. His
K explanations in the cautioned Record of Interview were also consistent K
with his mitigation.
L L
M 24. Therefore, I accept that: M
N N
i) This offence arose out of the familial
O relationship between Defendant and the unauthorized entrant, O
P P
ii) Defendant intended to bring Rahman to
Q surrender to Immigration Department in Kowloon Bay, Q
R R
iii) there was no financial benefit to Defendant and
S S
iv) Defendant did not take part in organizing the
T T
unauthorized entrant’s passage to Hong Kong.
U U
10
V V
A A
B B
25. In such case, Defendant’s culpability is lower than the
C appellant in Chan Lai Choi, who was seen talking multiple trips to pick up C
unauthorized entrants.
D D
E 26. Having considered all of the above, I am of the view the E
appropriate starting point is 2 years’ imprisonment. Defendant pleaded
F F
guilty not at the earliest opportunity but prior to the commencement of trial,
G a 25% discount is appropriate. There are no other mitigating factors which G
warrant a reduction in sentence. Therefore, the Defendant is sentenced to
H H
18 months’ imprisonment.
I I
J J
K K
L L
M M
N ( Colin Wong ) N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
11
V V