DCCC953/2021 HKSAR v. LO CHUN-MAN a.k.a. LO CHUN and OTHERS - LawHero
DCCC953/2021
區域法院（刑事）HH Judge Stanley Chan28/12/2022[2022] HKDC 1527
DCCC953/2021
A A
DCCC 953/2021
[2022] HKDC 1527
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 953 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Lo Chun-man also (D1) F
known as Lo Chun
Cho Chun-wai (D2)
G G
Wu Chi-wai (D3)
Chan Yiu-chung (D4)
H Yung Yung-fat (D5) H
Wong Ka-sing (D6)
Cheung Man-ho (D7)
I I
----------------------
J J
Before: HH Judge Stanley Chan
Date: 29 December 2022
K Present: - Mr Jackson Poon, counsel on fiat, for HKSAR K
- Mr Selwyn K.M. So, instructed by Messrs Solomon C.
Chong & Co, assigned by DLA, for the 1st defendant
L - Mr Kevin Chan, instructed by Messrs Cheung & Liu, L
assigned by DLA, for the 2 nd defendant
- Ms Anna Y.H. Ho, instructed by Messrs Ng, Au Yeung &
M M
Partners, assigned by DLA, for the 3rd defendant
- Mr Jasper H.F. Kwan, instructed by Messrs M.C.A. Lai
N Solicitors LLP, assigned by DLA, for the 4 th defendant N
- Mr Chau Hing-pang, instructed by Messrs Morley Chow
Seto, assigned by DLA, for the 5 th defendant
O - Mr Roy K.Y. Lau, instructed by Messrs Benjamin Au & O
Billy Chan, assigned by DLA, for the 6 th defendant
P
- Mr Lawton Leung, instructed by Messrs Raymond T.M. Lau P
& Co, for the 7th defendant
Q Offences: (1) Conspiracy to assist the passage to and within Hong Q
Kong of unauthorised entrants (串謀協助未獲授權進境者前來香
港及在香港境內的旅程) (against the 1st and 5th defendants
R R
only)
(2) Conspiracy to assist the passage within Hong Kong
S of unauthorised entrants (串謀協助未獲授權進境者在香港境內的 S
旅程) (against all defendants)
T (3) Possession of offensive weapons (管有攻擊性武器) T
(against the 1st defendant only)
U U
CRT32/29.12.2022/LS 1 DCCC 953/2021(1)/Sentence
V V
A A
---------------------
B Reasons for Sentence B
---------------------
C C
I. The Charges
D D
1. D1 and D5 were charged with one count of conspiracy to
E E
assist the passage to and within Hong Kong of unauthorised
F entrants, contrary to s.37D(1)(a) of the Immigration Ordinance, F
Cap. 115, and s.159A and 159C of the Crimes Ordinance, Cap. 200.
G All 7 defendants were charged with one count of conspiracy to G
assist the passage within Hong Kong of unauthorised entrants. D1
H H
was additionally charged with one count of possession of offensive
weapons, contrary to s.17 of the Summary Offences Ordinance, Cap.
I I
228.
J J
2. They pleaded guilty to the charges and were convicted
accordingly.
K K
L L
II. Brief Facts
M M
3. In the early hours of 9 May 2021, the police mounted a
N joint operation with the Immigration Department in the vicinity of N
Sham Shui Drive, Tung Chung.
O O
4. At about 2:25 am on the day, a private car with the
P registration mark PA9697 (V4) was seen driving into Sham Shui Drive P
from Cheung Tung Road towards Siu Ho Wan Depot (“the Depot”). At
Q Q
about 2:55 am, 4 more private cars (V1, V2, V3 and V5) entered
Sham Shui Drive towards the Depot.
R R
5. At 2:59 am, a 7-seater private car (believed to be V1)
S S
and a private car (believed to be V4) parked at the Depot, which
T
is the dead-end of Sham Shui Drive. T
6. At about 3 am, a 30-foot long sampan, without any light,
U U
approached the shore outside the Depot. A few people got off V3
CRT32/29.12.2022/LS 2 DCCC 953/2021(1)/Sentence
V V
A A
and ran towards the shore. Shortly afterwards, a group of about 10
persons ran out from the shore. They boarded V3 and the 7-seater
B B
van. At about 3:02 am, the sampan steered off without any light,
C and V3 and 2 other vehicles also drove off. At about the same time, C
V5 was seen driving from Sham Shui Drive towards Cheung Tung Road.
D V5 stopped at the roadside for a short while. The police took D
action to intercept V1 to V5.
E E
F F
Interception of V1 and the arrest of D2
G 7. At about 3:03 am, V1 was intercepted at Sham Shui Drive. G
D2 was the driver, with 2 male and 2 female unauthorised entrants
H H
as the passengers. Under caution, D2 admitted that he was
instructed by one ‘Ah Chung’ to drive some Mainlanders to Cheung
I I
Fat Estate for a reward of HK$800 per trip.
J J
8. Police found one mobile phone, cash in the sum of
K HK$28,340 and that of RMB675 on D2. 2 more mobile phones and a K
dashboard camcorder were also seized from V1.
L L
9. In the video-recorded interview, D2 admitted the
M following:- M
i. At about 7 or 8 pm on the day before, he received
N N
a phone call from Ah Chung who asked him to pick
O up some people from Tung Chung and commuted them O
to Cheung Fat Estate.
P P
ii. Ah Chung told him to wait near a tree, and each of
Q the 4 passengers would pay him HK$200. Q
R R
Interception of V2 and the arrest of D3
S S
10. At about 3 am on the same day, V2 was intercepted at
T Sham Shui Drive near the MTR railway emergency gate. D3 was the T
driver of V2. Two male unauthorised entrants were found sitting at
U U
the rear passenger seats.
CRT32/29.12.2022/LS 3 DCCC 953/2021(1)/Sentence
V V
A A
11. Under caution, D3 admitted that a male had approached
him in Mongkok the night before, and asked D3 to drive 2
B B
Mainlanders from Tung Chung to Mongkok for a reward of HK$300.
C The police found one iPhone, HK$590 and RMB500 on D3. C
12. In the video-recorded interview, D3 admitted the
D D
following:-
E E
i. At about 6:30 pm on 8 May 2021, a person named as
F
‘Zhi Lung’ in a chat group on the app ‘Zello’ asked F
D3 to pick up some illegal immigrants from Olympian
G City and from a hotel at Prince Edward Road. He had G
met Zhi Lung through his friend ‘Ka Sing’ who has
H the same phone number as D6. D3 had been asked to H
assist in commuting illegal immigrants in early
I I
April 2021.
J J
ii. There were 5 people in the Zello chat group,
including Zhi Lung, one ‘Siu Chun’ and a person
K K
called ‘Brother Wai’who has the same phone number
L
as D2. The chat group was for discussions on picking L
up illegal immigrants. D3 also had a WhatsApp chat
M group with them. M
N iii. At about 7 pm or 8 pm on 8 May, D3 drove his private N
car V2 to pick up 2 females from Olympian City and
O 2 more females from a hotel at Prince Edward Road. O
He then drove them to Tung Chung while waiting for
P further instructions. P
Q iv. After the females left D3’s car and walked towards Q
the shore, D3 waited at the scene and soon 2 males
R R
boarded his car. D3 would receive HK$200 per
passenger from Zhi Lung.
S S
v. D3 understood that there were 3 cars, including
T T
his, involved on the day.
U U
CRT32/29.12.2022/LS 4 DCCC 953/2021(1)/Sentence
V V
A A
Interception of V3 and the arrest of D4
B 13. At about 3 am on the day, V3 was intercepted at Sham B
Shui Drive near the Depot. D4 was the driver of V3. Two males and
C C
3 females, all of them are unauthorised entrants, were passengers
of V3. Under caution, D4 admitted that one of his friends ‘Ah Ho’
D D
asked him to pick up some illegal immigrants for a reward of
E HK$2,000. E
F
14. The police found 2 mobile phones and HK$740 on D4. F
15. In the video-recorded interview, D4 admitted the
G G
following:-
H H
i. On 8 May 2021, Ah Ho (who is D7 in this case)
contacted him via a WhatsApp chat group and asked
I I
D4 to commute some illegal immigrants from China
J who would come to Hong Kong by boat. D4 would be J
rewarded for HK$2,000. The WhatsApp chat group
K included Ah Wai (believed to be D2) and 2 others K
(with D3 and D6’s phone numbers respectively).
L L
ii. D4 drove to Tsuen Wan at about 7 pm on the day and
M waited till 10:50 pm to get further instructions M
from D7. D4 was told to move around near Chek Lap
N N
Kok and eventually was instructed to go to Tung
Chung at about 2 am on the following day. D4
O O
followed the other 3 cars. D7 was acting as a
P lookout at the time while D2 was the driver of P
another car. D4 said D7 was responsible for
Q arranging all the vehicles. Q
R iii. Later some people ran out from the shore and 5 of R
them boarded D4’s car, V3. D4 knew that they are
S illegal immigrants from Mainland. D4 knew that the S
illegal immigrants would only know their
T T
destinations after turning on their respective
mobile phones. Soon after, they were intercepted.
U U
D4 did not get his reward.
CRT32/29.12.2022/LS 5 DCCC 953/2021(1)/Sentence
V V
A A
iv. D4 used his black phone to join the WhatsApp chat
group. D7 would call D4’s another phone to give
B B
instructions. D4 had to wait because the boat could
C not reach the shore. C
v. At about 1:22 am, D7 sent a message to the chat
D D
group (with D2, D3, D4, D6 and D7 as members) and
E instructed them to collect a total of HK$32,800 E
from 2 illegal immigrants with the phone number
F 15202011252 if it happened that these 2 illegal F
immigrants boarded one of the cars. The drivers
G G
were told to make a call to the said phone number
to ascertain the location of these 2 illegal
H H
immigrants.
I I
J Interception of V4 and the arrest of D5 and D7 J
K 16. At about 3 am on the day, V4 was also intercepted at K
Sham Shui Drive near the Depot. D5 was the driver of V4 and D7 was
L the front passenger. There were no other passengers in the car. L
M 17. D5 admitted that he had done this before and would charge M
HK$500 each time. D5 was found to have HK$1,790 and 6 mobile
N phones. The police seized a dashboard camcorder from the car. N
O 18. D7 admitted that D5, also called ‘Uncle Fat’, asked him O
to drive somebody. D7 possessed 2 mobile phones, HK$5,107 and the
P ignition key of V5. P
Q 19. In the video-recorded interview, D5 admitted the Q
following:-
R R
i. In the afternoon of 8 May 2021, he got a call from
S a person called ‘Ah Luk’ who asked him to do a job S
for him. Later, he got a call from another person
T called ‘Ah Fook’ who asked him to be a lookout in T
areas in Tung Chung, Sham Tseng and Tsing Lung Tau.
U U
CRT32/29.12.2022/LS 6 DCCC 953/2021(1)/Sentence
V V
A A
D5 did so in his car V4. Ah Fook gave him
instructions via WhatsApp.
B B
ii. At about 2.30 am on 9 May 2021, D5 drove to Sham
C C
Shui Drive and, as instructed, used his phone’s
light device to flash towards the sea three times.
D D
He then waited inside V4. Later, D7 boarded his car
E but soon they were intercepted and arrested. E
F
iii. He acted as a lookout only, and would receive $500 F
as a reward. He learned from Ah Fook that 11 people
G would be sneaking into Hong Kong on this occasion. G
H iv. Ah Fook gave him the silver mobile phone saying H
that he would call D5 if there was any job for D5.
I I
20. D7, in the video-recorded interview, made the following
J admissions:- J
i. On 8 May 2021, his uncle D5 gave him a call asking
K K
for help to commute some illegal immigrants. D7 was
L asked to wait at Man Tung Road Park at about 8 pm L
that day.
M M
ii. At about 8 to 9 pm, D5 picked him up, and drove
N around Tung Chung and Tuen Mun areas to check for N
police presence. Later, they reached Sham Shui
O Drive, and D7 alighted from V4. D7 saw around 10 O
illegal immigrants coming out from the shore and
P P
boarded 2 to 3 private cars. D7 returned to V4 and
got arrested soon after.
Q Q
R R
Interception of V5 and the arrest of D6
S S
21. At about 3 am on the same day, police officers pursued
T V5 from Cheung Tung Road to Tsing Yi North Coastal Road whereby V5 T
was finally intercepted. D6 was the driver and there was no
U U
passenger.
CRT32/29.12.2022/LS 7 DCCC 953/2021(1)/Sentence
V V
A A
22. Under caution, D6 admitted that he acted as a lookout.
The police found 2 phones and $18,838.9 on D6. The dashboard
B B
camcorder of the car was seized. D7’s passport and some other
C documents relating to D7 were found. D7’s father was the registered C
owner of V5.
D D
E 23. In the video-recorded interview, D6 admitted the E
following:-
F F
i. At about 5 pm on 8 May 2021, D7 called him and later
G drove V5 to pick D6 up at about 7 pm. D7 told D6 G
that some Mainlanders would be smuggled to Hong
H H
Kong and invited D6 to act as a lookout.
I I
ii. They went to Tsing Yi area to check for police
presence. D7 told D6 to drive the car. D6 drove D7
J J
to Sham Shui Drive at about 2 am. D7 got off the
K car saying that he would look around and help those K
illegal immigrants.
L L
iii. D7 told D6 to continue driving around and alert him
M if he saw any police officers. D6 drove around Tsing M
Yi without D7. D6 was intercepted by police later.
N N
O The arrest of D1 O
P 24. At about 3:10 am on the same day, police officers raided P
D1’s residence at Tin Yuet Estate in Tin Shui Wai. The police had
Q to break into the flat, and D1 was found in his bedroom. Under Q
caution, D1 admitted that he was responsible for arranging 4
R R
females to sneak into Hong Kong from China that night.
S 25. Upon house search, police found 2 beef knives (each of S
44 cm long), 4 extendable batons (each of 65 cm long) and 4 mobile
T T
phones. Under caution, D1 admitted that the batons and beef knives
were for self-defence. D1 confirmed that he owned the batons and
U U
CRT32/29.12.2022/LS 8 DCCC 953/2021(1)/Sentence
V V
A A
knives in the video-recorded interview. D1 was also found to have
$200 and one iPhone.
B B
C C
Chat Records on WhatsApp and Zello
D D
26. WhatsApp exchanges between D1 and D5 on 8 to 9 May 2021
E revealed that they discussed about transporting some females. D5 E
gave frequent updates to D1 starting from the evening of 8 May
F until D5’s arrest. D5 told D1 about the police presence and said F
the situation in Tung Chung was bad. D1 suggested to check the
G position in Tuen Mun, Sham Tseng and Tsing Lung Tau but D5 said G
there were police presence too. D1 asked D5 to collect money from
H H
2 females. Later, D5 told D1 that he had picked up ‘the goods’ at
about 3 am.
I I
27. There were WhatsApp communications at the material time
J J
between D5 and a person called ‘Ah Fook’. They discussed about the
K landing points, and D5 told Ah Fook that there were police presence K
everywhere. At about 1 am on 9 May, D5 indicated his position in
L Sham Tseng, and told him that their cars had arrived. Ah Fook told L
D5 that he would get there in about 15 to 20 minutes. About 45
M minutes later, D5 told Ah Fook that there were many people, and M
their cars had arrived. D5 told Ah Fook that he would ask drivers
N N
to hide their cars. At about 2:23 am, Ah Fook told D5 to go to the
Depot. Later Ah Fook told D5 to get a car to block the small path
O O
and find someone to act as a lookout at and near the shore. He
P told D5 to walk to the shore and flash lights thrice when he saw P
a boat approaching. At about 3 am, D5 said the ‘trade’ was
Q complete, and Ah Fook told D5 to leave the spot. Q
R 28. In addition, there were also WhatsApp exchanges amongst R
D5, D6 and D7 in the chat group called ‘Company’ from 7 to 9 May
S 2021. S
T 29. D5 told the group they had to work the next day. In the T
evening of 8 May 2021, D5 gave instructions to D6 and D7 relating
U U
to the landing point. Police presence in the area was reported.
CRT32/29.12.2022/LS 9 DCCC 953/2021(1)/Sentence
V V
A A
At about 11 pm on 8 May, D6 told them to tell others to hide
somewhere in Sham Tseng, and not to have 3 cars gathered together.
B B
D5 sent many messages to tell the recipients that he failed to
C find a good spot. At one point, D5 said he had found a construction C
site with a private pier but later learnt that boats cannot stop
D there. At about 1:14 am on 9 May, D5 told D7 to drive to Sham D
Tseng, and that each car should pick up 4 people. D5 would position
E E
himself at the pier. D5 told members of the group to decide where
to alight the 11 girls. D5 also told D7 to collect $32,800 from 2
F F
people. At about 2:37 am, D5 indicated the location near Sham Shui
G Drive and told D6 and D7 to go there. G
30. The Zello conversations amongst D2, D3, D4, D6 and D7 in
H H
the chat group were found in D3, D6 and D7’s phones. Although the
I relevant conversations could not be found in D2 and D4’s phones, I
their phones were all logged into the relevant Zello accounts and
J had joined the chat group. It is believed that certain relevant J
messages were deleted. The following messages were found in the
K K
chat group:-
L i. Throughout the evening of 8 May, D2, D3, D4, D6 and L
D7 kept updating each other about police presence.
M M
D7 kept asking the others for an update.
N ii. At about 10:46 pm on 8 May, D6 told them to drive N
to Sham Tseng and hide somewhere. They were reminded
O O
to drive slowly and separately.
P iii. At about 1:05 am on 9 May, D7 said he would lead P
the way and the cars were to stop at a bus stop
Q Q
opposite to a toilet. D7 said that each car should
R
take 4 passengers and they should collect $32,800 R
from 2 of the 12 passengers.
S S
iv. At about 1:39 am, D7 told others that ‘the sea was
T dirty’, and that at about 2 am, D7 gave them T
directions to go to Tung Chung and told them to
U park somewhere with the cars’ lights off. U
CRT32/29.12.2022/LS 10 DCCC 953/2021(1)/Sentence
V V
A A
v. At about 2:54 am, D7 told them to drive directly to
‘Cheung Fat’ once they unloaded the ‘goods’. He
B B
also asked D3 to pick up 3 passengers in his car
C while the other 2 cars would pick up 4 passengers. C
He asked them to inform him once the ‘goods’ were
D loaded. D
E vi. At about 3 am, D7 kept repeating that the ‘goods’ E
were being delivered. A minute later, D2 said he
F was being intercepted. D7 told them to disperse. F
G G
Dashboard camcorders of V1, V4 and V5
H H
31. The camcorders of these vehicles were seized. The various
I I
screenshots were marked as MFI-2 to 4 and the disc as MFI-5. At
the material time, V1 was driven by D2, V4 by D5 and V5 by D6.
J J
The camcorder in V4 has audio-recording function and it captured
K D5 and D7’s voice messages on the WhatsApp and Zello. K
L L
III. Mitigation
M M
(1) D1’s mitigation
N N
32. Defence counsel prepared a 12-page mitigation
O submission, together with 4 authorities. It was submitted that D1 O
was aged 23 at the time of the offence, and had been cooperative
P P
with the police. D1 pleaded guilty at the first opportunity. It
was submitted that the 2 conspiracy charges can be grouped into
Q Q
one as a global conspiracy.
R R
33. The Defence accepted that the defendants had been in
communication with each other via the chat groups.
S S
34. There is no sentencing guideline for this kind of
T T
offence, but D1’s counsel listed out a few authorities to suggest
the range of sentence from 5 years to 3 years. It was submitted
U U
that it is appropriate to take 4 years as the starting point for
CRT32/29.12.2022/LS 11 DCCC 953/2021(1)/Sentence
V V
A A
Charge 1 and 3 years for Charge 2 (D1’s mitigation submission,
para. 28).
B B
35. For Charge 3, it was urged that a starting point of 3
C C
months is appropriate as the weapons were found at D1’s house.
D D
E (2) D2’s mitigation E
36. D2 faced one count of conspiracy to assist passage within
F F
Hong Kong of unauthorised entrants.
G G
37. D2 is aged 41 and was born in Hong Kong. He is married
with one son. D2 is an experienced mechanic in motor repair, and
H H
is the breadwinner of the family. It was submitted that D2 is a
I responsible son, a giving husband and a caring father. D2 has been I
taking part in various community services. D2 had a clear record.
J J
38. Because of the financial difficulty, D2 agreed to be a
K driver in the present case for a meagre reward of $800. It was K
said there was no premeditation on the part of D2. It was a one-
L off incident and D2 is truly remorseful. L
M 39. It was submitted that D2 was only responsible for M
transporting the unauthorised entrants on land upon the latter’s
N arrival in Hong Kong. D2 had no role to play in bringing the N
unauthorised entrants from Mainland China to Hong Kong. D2 was not
O O
involved in the sea journey of those unauthorised entrants. D2 had
a minor and passive role in this case. The Defence said the offence
P P
was committed out of character and under severe financial pressure.
Q As such, this is a proper case for the Court to show mercy (para. Q
26 of the mitigation submission).
R R
40. The Defence submitted several mitigation letters written
S by D2, D2’s wife, D2’s son and D2’s mother, etc. S
T T
(3) D3’s mitigation
U U
CRT32/29.12.2022/LS 12 DCCC 953/2021(1)/Sentence
V V
A A
41. D3 is aged 44 and has 2 kids. He studied up to Form 3
and has been working as a delivery driver for over 3 to 4 years.
B B
He got divorced in 2020. D3 pleaded guilty timely and is
C remorseful. D3 had a clear record. C
42. The Defence submitted the mitigation letters prepared by
D D
D3, D3’s parents, and D3’s former employer.
E E
F F
(4) D4’s mitigation
G 43. D4 is aged 40. He studied up to Form 3 level, and worked G
as a garage worker. His parents divorced when D4 was 2 years old.
H H
D4 was raised by his aunt and his grandmother. His grandmother
passed away lately. D4 had a clear record.
I I
44. The Defence submitted that D4 was only the “small fish
J J
in the front scene” and he did not involve in any planning and the
coordination of the whole operation. He was only responsible for
K K
driving and commuting the unauthorised entrants once they landed.
L D4 was offered $2,000 to do this job, but he did not receive any L
reward upon his arrest. D4 only gave a ride to 5 passengers and
M the passengers were not placed in any danger. M
N 45. D4 regretted what he did and asked for a lenient N
sentence. The Defence wished the court will give D4 a sentence of
O less than 3 years. A total of 9 mitigation letters were tendered, O
including one written by D4.
P P
Q Q
(5) D5’s mitigation
R R
46. D5 pleaded to 2 conspiracy charges. D5 was born in Hong
Kong and is aged 52. He received education up to Form 5. He became
S S
a sole proprietor of a company with business in transportation of
T import and export of goods. At one stage, D5 owned 4 goods vans. T
U U
CRT32/29.12.2022/LS 13 DCCC 953/2021(1)/Sentence
V V
A A
47. D5 had 2 criminal records and the last one was back in
2006. D5 was married and has one son, but got divorced in 2008.
B B
He was re-married in 2012. D5 is enthusiastic in lion dancing and
C has helped building up a lion dance squad on a voluntary basis. C
48. Because of the pandemic, D5’s business collapsed and he
D D
worked as a part-time taxi driver. In early 2021, he came to know
E a person called Ah Fook who eventually asked D5 to be a lookout E
when some people from Mainland China were being commuted. The
F reward was $500. F
G 49. D5 is remorseful. The Defence tendered a few mitigation G
letters, including those written by D5, D5’s wife, D5’s son and
H D5’s brother. The Defence accepted that D5 was clearly a helping H
hand, being a lookout, and a starting point of 4 years is
I I
appropriate (para. 19 of D5’s mitigation submission).
J J
K (6) D6’s mitigation K
50. He faced one count of conspiracy charge. D6 is aged 44
L L
and had a clear record. Before his arrest, he operated a fruit
M stall in Yuen Long. It was submitted that D6 played a relatively M
minor role in this case. He was the driver of V5 (FL130) and acted
N as a lookout as arranged by D7. When V5 was intercepted, there was N
no passenger on board. The Defence tendered 3 mitigation letters,
O O
including one written by D6.
P P
(7) D7’s mitigation
Q Q
51. He was charged with one count of conspiracy. He was aged
R R
22 at the time of the offence. He finished his secondary education
in 2019, and then worked as a fruit merchandiser and from 2021,
S S
also as a tyre repairer. D7 had a clear record.
T T
52. It was submitted that D7’s role was to assist those
unauthorised entrants already entered Hong Kong to go to the urban
U U
area. From the WhatsApp messages, the Defence submitted that D5
CRT32/29.12.2022/LS 14 DCCC 953/2021(1)/Sentence
V V
A A
was the one who gave instructions to D6 and D7. The chat group of
Zello revealed the conversations amongst D2, D3, D4, D6 and D7
B B
relating to the updates of police presence. The Defence submitted
C that D7 committed the present offence under the influence of D5, C
one of his family friends. D7 respected D5 and acted as a lookout.
D It was further submitted that, ‘Although the Prosecution case may D
indicate that D7 did play a leading role in the offence, D7 was in
E E
fact only ensuring D5’s instructions are conveyed to others.’
(para. 28 of the mitigation submission). The Defence said ‘actually
F F
D5, but not D7, was the organiser and initiator of the venture.’
G (para. 32 of the mitigation submission). D7 should be considered G
as an assistant to D5.
H H
53. The Defence tendered 2 mitigation letters, including one
I written by D7. I
J J
IV. Sentence
K K
54. It is trite law that the admission of one defendant
L L
cannot be used to incriminate the other co-defendants. It is also
settled that for a conspiracy charge, the co-defendants can join
M M
the criminal agreement at different stages. As such, I can
N understand the rationale of D1’s counsel that it suffices to lay N
one global conspiracy against all defendants. That said, I can
O also understand that the Prosecution was being cautious and tried O
to avoid the existence of sub-conspiracy. Hence, two conspiracy
P charges were laid. I cannot say the Prosecution was wrong to take P
such course of action. But, ultimately, it is the sentence in total
Q Q
that matters.
R R
55. In HKSAR v Chan Lai-choi CACC 166/1997, the Court of
Appeal distinguished offences involving the carriage of
S S
unauthorised entrants into Hong Kong from cases of assisting the
T passage of unauthorised entrants who have already entered Hong T
Kong.
U U
CRT32/29.12.2022/LS 15 DCCC 953/2021(1)/Sentence
V V
A A
56. In the present case, there were about 11 unauthorised
entrants, including females, and 5 vehicles were involved.
B B
57. Without doubt, this was a well-planned and organised
C C
criminal activity whereby a chat group was formed partly for the
purpose of smuggling unauthorised entrants from Mainland China
D D
into Hong Kong. Some defendants were rewarded with a lump sum while
E some charged $200 for each passenger. D5 occupied a more E
significant role in this incident. As accepted by D7’s counsel, D7
F did assist D5 in conveying instructions to other culprits. F
Although some defendants were not involved in the sneaking in of
G G
the unauthorised entrants into Hong Kong, it is obvious that there
was a syndicate behind the whole operation. Transportation and
H H
various arrangements were made in advance.
I I
58. I will not reiterate the contents of all mitigation
letters. Suffice for me to outline certain mitigation letters
J J
written by the respective defendants.
K K
L (1) D1’s sentence L
M 59. D1 is aged 24. Since June 2013, D1 had 7 convictions M
with the latest in May 2020 when he was convicted of 5 counts of
N theft and one count of possession of offensive weapon in a public N
place. For the latter offence, D1 was sentenced to 2 months’
O O
imprisonment, concurrent with other sentences.
P 60. There is no mitigation letter tendered on behalf of D1. P
D1 was not arrested at the scene but was arrested in his residence
Q Q
at about 3 am on 9 May 2021. He made certain admissions and claimed
that he arranged for 4 females to sneak into Hong Kong. That
R R
indicated that D1 was involved in the passage of unauthorised
S entrants to and within Hong Kong. S
61. The main mitigation for D1 is his timely guilty plea for
T T
which he will get one-third discount. For Charge 1, I will adopt
U a starting point of 4 years and, with his plea, the sentence is U
CRT32/29.12.2022/LS 16 DCCC 953/2021(1)/Sentence
V V
A A
reduced to 32 months. For Charge 2, D1 was not one of the drivers
and the charge specified that the unauthorised entrants were
B B
already in Hong Kong. As such, I would adopt a starting point of
C 3 years, and with discount, it is reduced to 2 years. I will order C
that these two sentences be served concurrently.
D D
62. As regards to Charge 3, it was laid under the Summary
E Offences Ordinance, not the Public Order Ordinance. The weapons E
include 2 long beef knives, were found in D1’s residence. The
F weapons were hidden. I would take 6 months as the starting point, F
and reduce it to 4 months. As the nature of the offence is different
G G
from the two conspiracy charges, I order that 2 months of the third
sentence is to be served consecutively with the other sentences.
H H
63. As such, I sentence D1 to 34 months’ imprisonment.
I I
J J
(2) D2’s Sentence
K K
64. D2 is now aged 42 and had a clear record.
L 65. D2 in his mitigation letter said that he committed the L
present offence because of financial pressure and debts. He felt
M M
sorry for his wife and son. With the counselling and assistance
from officers of CSD, he could now face the hardship. He is truly
N N
remorseful and will act as a good husband and a good father when
O discharged. O
66. When D2 was intercepted, he was the driver of V1 with 4
P P
unauthorised entrants on board. He would be rewarded for $800 per
Q trip. D2 was one of the members of the Zello chat group. Q
R 67. I have considered those authorities tendered by the R
defence. I will adopt a starting point of 3 years. It is a wise
S move for D2 to plead guilty to the charge, hence he can get one- S
third discount. I will sentence D2 to 2 years’ imprisonment.
T T
U U
(3) D3’s sentence
CRT32/29.12.2022/LS 17 DCCC 953/2021(1)/Sentence
V V
A A
68. D3 is now aged 44 and had a clear record. He has a son
who is being taken care of by his former wife. In his mitigation
B B
letter, D3 said he has to take care of his parents and his brother
C who is a mentally handicapped person. His former employer agreed C
to hire D3 again upon his discharge from prison. He urges the court
D to pass a lenient sentence so that he can reintegrate into society D
and look after his family.
E E
69. At the time D3 was arrested, he was the driver of V2 and
F 2 male unauthorised entrants were sitting at the rear passenger F
seats. He would be rewarded $300. D3 admitted that he had picked
G G
up 2 female illegal immigrants from Olympian City and 2 females
from a hotel on Prince Edward Road. D3 drove them to Tung Chung
H H
and they alighted the car and walked towards the shore. D3 was
I offered to receive $200 per passenger. I
70. In this regard, D3’s culpability is a bit different from
J J
others as he managed to commute 2 groups of people on 8 and 9 May.
K K
71. I would adopt a starting point of 3½ years, and with his
L
guilty plea, the sentence is reduced to 28 months. L
M M
(4) D4’s Sentence
N N
72. The 40-year-old D4 did not have a happy childhood as his
O parents got divorced when D4 was aged 2. He had a clear record and O
worked as a garage worker. The Defence said D4 was just a ‘small
P fish’ in the front scene, but in my view, without ‘small fish’ P
working, the syndicate could not operate effectively, just like
Q Q
big drug traffickers need small fish to sell small packets of drugs
to those customers. D4 would be rewarded $2,000 for this operation.
R R
73. In his mitigation letter, D4 said that he was a man of
S S
good character and conduct before this incident. He deeply
regretted that he committed this crime. He blamed his friend on
T T
whom he had placed his trust. He was exploited by his friend.
U U
CRT32/29.12.2022/LS 18 DCCC 953/2021(1)/Sentence
V V
A A
74. At the material time, D4 was the driver of V3. The police
found 5 unauthorised entrants in the car. He would be paid $2,000
B B
for picking up these illegal immigrants.
C C
75. Taking all factors into account, I adopt a starting point
of 3 years, and with his guilty plea, the sentence is reduced to
D D
2 years.
E E
F (5) D5’s Sentence F
G 76. D5 is now aged 52, just past his birthday. He operated G
a firm to do transportation of goods. He was married with a son,
H but now divorced. In May 2021, he was contacted to act as a lookout H
and to commute those unauthorised entrants with a reward of $500.
I I
D5 is remorseful and he cooperated with the police upon arrest.
J 77. In his mitigation letter, D5 said he committed the crime J
because of the financial pressure. He is remorseful and hopes the
K K
court can pass a lenient sentence.
L 78. D5 faces 2 conspiracy charges, and was the driver of V4 L
when he was intercepted. D7 was sitting at the front passenger
M M
seat. There was no other passenger. Apparently, D5’s role was
heavier than others and he gave instructions to others including
N N
his cousin D7. He also liaised with Ah Fook in advance.
O O
79. I do not accept that D5 was only acting as a lookout at
the time. He knew that there would be 11 unauthorised entrants
P P
sneaking into Hong Kong on this occasion. D5 had 2 convictions
Q since May 2000, and the latest one in 2006 was one of AOABH whereby Q
he was fined $5,000.
R R
80. Taking all factors into account, for both charges
S (Charges 1 and 2), I would adopt a starting point of 4 years, and S
with his plea, the sentence is reduced to 32 months, to be served
T concurrently. T
U U
CRT32/29.12.2022/LS 19 DCCC 953/2021(1)/Sentence
V V
A A
(6) D6’s Sentence
B 81. D6 is aged 44 and operated a fruit shop in Yuen Long. D6 B
said that he acted as a lookout and was to update police presence
C C
in the area.
D D
82. In his mitigation letter, D6 confessed that he was stupid
to commit the present crime. During his remand, his fruit shop had
E E
to be assigned to others. He got support from his mother and
F
fiancée. He pleads for leniency and promises to be a law-abiding F
citizen upon discharge from prison.
G G
83. D6 was the driver of V5 when intercepted. There was no
H passenger in the car. D6 claimed that he got instructions from his H
friend, D7. D7’s father was the registered owner of V5.
I I
84. I accept that D6 occupied a relatively minor role in
J this operation, but he was still one of the members of the gang J
and did what he was told. Taking all factors into account, I adopt
K a starting point of 3 years and, with his guilty plea, the sentence K
is reduced to 2 years.
L L
M M
(7) D7’s Sentence
N 85. D7 is aged 23 and is the cousin of D5. He had completed N
the DSE course in 2019. D7 had no criminal record. D7 acted as a
O O
lookout and assisted D5 in this operation.
P P
86. In his mitigation letter, D7 said he was remorseful and
felt sad to see his parents coming to visit him at the remand
Q Q
centre. He promised to turn a new leaf upon discharge.
R R
87. At the material time, D7 was the front seat passenger in
V4 while D5 was the driver. D7 assisted D5 and saw at least 10
S S
unauthorised entrants leaving the shore and boarding 2 to 3 private
T cars. T
U U
CRT32/29.12.2022/LS 20 DCCC 953/2021(1)/Sentence
V V
A A
88. From the Zello conversations, D7 also assumed a
relatively leading role in giving or passing instructions to others
B B
(re para. 32 of the Summary of Facts).
C C
89. Taking all factors into consideration, I would adopt a
starting point of 3½ years, and with his guilty plea, the sentence
D D
is reduced to 28 months.
E E
F V. Conclusion F
G 90. In gist, I sentence the 7 defendants to the following G
imprisonment terms respectively:-
H H
– D1 to 34 months;
I I
– D2 to 24 months;
J – D3 to 28 months; J
– D4 to 24 months;
K K
– D5 to 32 months;
L L
– D6 to 24 months;
M M
– D7 to 28 months.
N N
O O
P P
(Stanley Chan)
Q Q
District Judge
R R
S S
T T
U U
CRT32/29.12.2022/LS 21 DCCC 953/2021(1)/Sentence
V V
A A
DCCC 953/2021
[2022] HKDC 1527
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 953 OF 2021 C
D
---------------------- D
HKSAR
E E
v
F Lo Chun-man also (D1) F
known as Lo Chun
Cho Chun-wai (D2)
G G
Wu Chi-wai (D3)
Chan Yiu-chung (D4)
H Yung Yung-fat (D5) H
Wong Ka-sing (D6)
Cheung Man-ho (D7)
I I
----------------------
J J
Before: HH Judge Stanley Chan
Date: 29 December 2022
K Present: - Mr Jackson Poon, counsel on fiat, for HKSAR K
- Mr Selwyn K.M. So, instructed by Messrs Solomon C.
Chong & Co, assigned by DLA, for the 1st defendant
L - Mr Kevin Chan, instructed by Messrs Cheung & Liu, L
assigned by DLA, for the 2 nd defendant
- Ms Anna Y.H. Ho, instructed by Messrs Ng, Au Yeung &
M M
Partners, assigned by DLA, for the 3rd defendant
- Mr Jasper H.F. Kwan, instructed by Messrs M.C.A. Lai
N Solicitors LLP, assigned by DLA, for the 4 th defendant N
- Mr Chau Hing-pang, instructed by Messrs Morley Chow
Seto, assigned by DLA, for the 5 th defendant
O - Mr Roy K.Y. Lau, instructed by Messrs Benjamin Au & O
Billy Chan, assigned by DLA, for the 6 th defendant
P
- Mr Lawton Leung, instructed by Messrs Raymond T.M. Lau P
& Co, for the 7th defendant
Q Offences: (1) Conspiracy to assist the passage to and within Hong Q
Kong of unauthorised entrants (串謀協助未獲授權進境者前來香
港及在香港境內的旅程) (against the 1st and 5th defendants
R R
only)
(2) Conspiracy to assist the passage within Hong Kong
S of unauthorised entrants (串謀協助未獲授權進境者在香港境內的 S
旅程) (against all defendants)
T (3) Possession of offensive weapons (管有攻擊性武器) T
(against the 1st defendant only)
U U
CRT32/29.12.2022/LS 1 DCCC 953/2021(1)/Sentence
V V
A A
---------------------
B Reasons for Sentence B
---------------------
C C
I. The Charges
D D
1. D1 and D5 were charged with one count of conspiracy to
E E
assist the passage to and within Hong Kong of unauthorised
F entrants, contrary to s.37D(1)(a) of the Immigration Ordinance, F
Cap. 115, and s.159A and 159C of the Crimes Ordinance, Cap. 200.
G All 7 defendants were charged with one count of conspiracy to G
assist the passage within Hong Kong of unauthorised entrants. D1
H H
was additionally charged with one count of possession of offensive
weapons, contrary to s.17 of the Summary Offences Ordinance, Cap.
I I
228.
J J
2. They pleaded guilty to the charges and were convicted
accordingly.
K K
L L
II. Brief Facts
M M
3. In the early hours of 9 May 2021, the police mounted a
N joint operation with the Immigration Department in the vicinity of N
Sham Shui Drive, Tung Chung.
O O
4. At about 2:25 am on the day, a private car with the
P registration mark PA9697 (V4) was seen driving into Sham Shui Drive P
from Cheung Tung Road towards Siu Ho Wan Depot (“the Depot”). At
Q Q
about 2:55 am, 4 more private cars (V1, V2, V3 and V5) entered
Sham Shui Drive towards the Depot.
R R
5. At 2:59 am, a 7-seater private car (believed to be V1)
S S
and a private car (believed to be V4) parked at the Depot, which
T
is the dead-end of Sham Shui Drive. T
6. At about 3 am, a 30-foot long sampan, without any light,
U U
approached the shore outside the Depot. A few people got off V3
CRT32/29.12.2022/LS 2 DCCC 953/2021(1)/Sentence
V V
A A
and ran towards the shore. Shortly afterwards, a group of about 10
persons ran out from the shore. They boarded V3 and the 7-seater
B B
van. At about 3:02 am, the sampan steered off without any light,
C and V3 and 2 other vehicles also drove off. At about the same time, C
V5 was seen driving from Sham Shui Drive towards Cheung Tung Road.
D V5 stopped at the roadside for a short while. The police took D
action to intercept V1 to V5.
E E
F F
Interception of V1 and the arrest of D2
G 7. At about 3:03 am, V1 was intercepted at Sham Shui Drive. G
D2 was the driver, with 2 male and 2 female unauthorised entrants
H H
as the passengers. Under caution, D2 admitted that he was
instructed by one ‘Ah Chung’ to drive some Mainlanders to Cheung
I I
Fat Estate for a reward of HK$800 per trip.
J J
8. Police found one mobile phone, cash in the sum of
K HK$28,340 and that of RMB675 on D2. 2 more mobile phones and a K
dashboard camcorder were also seized from V1.
L L
9. In the video-recorded interview, D2 admitted the
M following:- M
i. At about 7 or 8 pm on the day before, he received
N N
a phone call from Ah Chung who asked him to pick
O up some people from Tung Chung and commuted them O
to Cheung Fat Estate.
P P
ii. Ah Chung told him to wait near a tree, and each of
Q the 4 passengers would pay him HK$200. Q
R R
Interception of V2 and the arrest of D3
S S
10. At about 3 am on the same day, V2 was intercepted at
T Sham Shui Drive near the MTR railway emergency gate. D3 was the T
driver of V2. Two male unauthorised entrants were found sitting at
U U
the rear passenger seats.
CRT32/29.12.2022/LS 3 DCCC 953/2021(1)/Sentence
V V
A A
11. Under caution, D3 admitted that a male had approached
him in Mongkok the night before, and asked D3 to drive 2
B B
Mainlanders from Tung Chung to Mongkok for a reward of HK$300.
C The police found one iPhone, HK$590 and RMB500 on D3. C
12. In the video-recorded interview, D3 admitted the
D D
following:-
E E
i. At about 6:30 pm on 8 May 2021, a person named as
F
‘Zhi Lung’ in a chat group on the app ‘Zello’ asked F
D3 to pick up some illegal immigrants from Olympian
G City and from a hotel at Prince Edward Road. He had G
met Zhi Lung through his friend ‘Ka Sing’ who has
H the same phone number as D6. D3 had been asked to H
assist in commuting illegal immigrants in early
I I
April 2021.
J J
ii. There were 5 people in the Zello chat group,
including Zhi Lung, one ‘Siu Chun’ and a person
K K
called ‘Brother Wai’who has the same phone number
L
as D2. The chat group was for discussions on picking L
up illegal immigrants. D3 also had a WhatsApp chat
M group with them. M
N iii. At about 7 pm or 8 pm on 8 May, D3 drove his private N
car V2 to pick up 2 females from Olympian City and
O 2 more females from a hotel at Prince Edward Road. O
He then drove them to Tung Chung while waiting for
P further instructions. P
Q iv. After the females left D3’s car and walked towards Q
the shore, D3 waited at the scene and soon 2 males
R R
boarded his car. D3 would receive HK$200 per
passenger from Zhi Lung.
S S
v. D3 understood that there were 3 cars, including
T T
his, involved on the day.
U U
CRT32/29.12.2022/LS 4 DCCC 953/2021(1)/Sentence
V V
A A
Interception of V3 and the arrest of D4
B 13. At about 3 am on the day, V3 was intercepted at Sham B
Shui Drive near the Depot. D4 was the driver of V3. Two males and
C C
3 females, all of them are unauthorised entrants, were passengers
of V3. Under caution, D4 admitted that one of his friends ‘Ah Ho’
D D
asked him to pick up some illegal immigrants for a reward of
E HK$2,000. E
F
14. The police found 2 mobile phones and HK$740 on D4. F
15. In the video-recorded interview, D4 admitted the
G G
following:-
H H
i. On 8 May 2021, Ah Ho (who is D7 in this case)
contacted him via a WhatsApp chat group and asked
I I
D4 to commute some illegal immigrants from China
J who would come to Hong Kong by boat. D4 would be J
rewarded for HK$2,000. The WhatsApp chat group
K included Ah Wai (believed to be D2) and 2 others K
(with D3 and D6’s phone numbers respectively).
L L
ii. D4 drove to Tsuen Wan at about 7 pm on the day and
M waited till 10:50 pm to get further instructions M
from D7. D4 was told to move around near Chek Lap
N N
Kok and eventually was instructed to go to Tung
Chung at about 2 am on the following day. D4
O O
followed the other 3 cars. D7 was acting as a
P lookout at the time while D2 was the driver of P
another car. D4 said D7 was responsible for
Q arranging all the vehicles. Q
R iii. Later some people ran out from the shore and 5 of R
them boarded D4’s car, V3. D4 knew that they are
S illegal immigrants from Mainland. D4 knew that the S
illegal immigrants would only know their
T T
destinations after turning on their respective
mobile phones. Soon after, they were intercepted.
U U
D4 did not get his reward.
CRT32/29.12.2022/LS 5 DCCC 953/2021(1)/Sentence
V V
A A
iv. D4 used his black phone to join the WhatsApp chat
group. D7 would call D4’s another phone to give
B B
instructions. D4 had to wait because the boat could
C not reach the shore. C
v. At about 1:22 am, D7 sent a message to the chat
D D
group (with D2, D3, D4, D6 and D7 as members) and
E instructed them to collect a total of HK$32,800 E
from 2 illegal immigrants with the phone number
F 15202011252 if it happened that these 2 illegal F
immigrants boarded one of the cars. The drivers
G G
were told to make a call to the said phone number
to ascertain the location of these 2 illegal
H H
immigrants.
I I
J Interception of V4 and the arrest of D5 and D7 J
K 16. At about 3 am on the day, V4 was also intercepted at K
Sham Shui Drive near the Depot. D5 was the driver of V4 and D7 was
L the front passenger. There were no other passengers in the car. L
M 17. D5 admitted that he had done this before and would charge M
HK$500 each time. D5 was found to have HK$1,790 and 6 mobile
N phones. The police seized a dashboard camcorder from the car. N
O 18. D7 admitted that D5, also called ‘Uncle Fat’, asked him O
to drive somebody. D7 possessed 2 mobile phones, HK$5,107 and the
P ignition key of V5. P
Q 19. In the video-recorded interview, D5 admitted the Q
following:-
R R
i. In the afternoon of 8 May 2021, he got a call from
S a person called ‘Ah Luk’ who asked him to do a job S
for him. Later, he got a call from another person
T called ‘Ah Fook’ who asked him to be a lookout in T
areas in Tung Chung, Sham Tseng and Tsing Lung Tau.
U U
CRT32/29.12.2022/LS 6 DCCC 953/2021(1)/Sentence
V V
A A
D5 did so in his car V4. Ah Fook gave him
instructions via WhatsApp.
B B
ii. At about 2.30 am on 9 May 2021, D5 drove to Sham
C C
Shui Drive and, as instructed, used his phone’s
light device to flash towards the sea three times.
D D
He then waited inside V4. Later, D7 boarded his car
E but soon they were intercepted and arrested. E
F
iii. He acted as a lookout only, and would receive $500 F
as a reward. He learned from Ah Fook that 11 people
G would be sneaking into Hong Kong on this occasion. G
H iv. Ah Fook gave him the silver mobile phone saying H
that he would call D5 if there was any job for D5.
I I
20. D7, in the video-recorded interview, made the following
J admissions:- J
i. On 8 May 2021, his uncle D5 gave him a call asking
K K
for help to commute some illegal immigrants. D7 was
L asked to wait at Man Tung Road Park at about 8 pm L
that day.
M M
ii. At about 8 to 9 pm, D5 picked him up, and drove
N around Tung Chung and Tuen Mun areas to check for N
police presence. Later, they reached Sham Shui
O Drive, and D7 alighted from V4. D7 saw around 10 O
illegal immigrants coming out from the shore and
P P
boarded 2 to 3 private cars. D7 returned to V4 and
got arrested soon after.
Q Q
R R
Interception of V5 and the arrest of D6
S S
21. At about 3 am on the same day, police officers pursued
T V5 from Cheung Tung Road to Tsing Yi North Coastal Road whereby V5 T
was finally intercepted. D6 was the driver and there was no
U U
passenger.
CRT32/29.12.2022/LS 7 DCCC 953/2021(1)/Sentence
V V
A A
22. Under caution, D6 admitted that he acted as a lookout.
The police found 2 phones and $18,838.9 on D6. The dashboard
B B
camcorder of the car was seized. D7’s passport and some other
C documents relating to D7 were found. D7’s father was the registered C
owner of V5.
D D
E 23. In the video-recorded interview, D6 admitted the E
following:-
F F
i. At about 5 pm on 8 May 2021, D7 called him and later
G drove V5 to pick D6 up at about 7 pm. D7 told D6 G
that some Mainlanders would be smuggled to Hong
H H
Kong and invited D6 to act as a lookout.
I I
ii. They went to Tsing Yi area to check for police
presence. D7 told D6 to drive the car. D6 drove D7
J J
to Sham Shui Drive at about 2 am. D7 got off the
K car saying that he would look around and help those K
illegal immigrants.
L L
iii. D7 told D6 to continue driving around and alert him
M if he saw any police officers. D6 drove around Tsing M
Yi without D7. D6 was intercepted by police later.
N N
O The arrest of D1 O
P 24. At about 3:10 am on the same day, police officers raided P
D1’s residence at Tin Yuet Estate in Tin Shui Wai. The police had
Q to break into the flat, and D1 was found in his bedroom. Under Q
caution, D1 admitted that he was responsible for arranging 4
R R
females to sneak into Hong Kong from China that night.
S 25. Upon house search, police found 2 beef knives (each of S
44 cm long), 4 extendable batons (each of 65 cm long) and 4 mobile
T T
phones. Under caution, D1 admitted that the batons and beef knives
were for self-defence. D1 confirmed that he owned the batons and
U U
CRT32/29.12.2022/LS 8 DCCC 953/2021(1)/Sentence
V V
A A
knives in the video-recorded interview. D1 was also found to have
$200 and one iPhone.
B B
C C
Chat Records on WhatsApp and Zello
D D
26. WhatsApp exchanges between D1 and D5 on 8 to 9 May 2021
E revealed that they discussed about transporting some females. D5 E
gave frequent updates to D1 starting from the evening of 8 May
F until D5’s arrest. D5 told D1 about the police presence and said F
the situation in Tung Chung was bad. D1 suggested to check the
G position in Tuen Mun, Sham Tseng and Tsing Lung Tau but D5 said G
there were police presence too. D1 asked D5 to collect money from
H H
2 females. Later, D5 told D1 that he had picked up ‘the goods’ at
about 3 am.
I I
27. There were WhatsApp communications at the material time
J J
between D5 and a person called ‘Ah Fook’. They discussed about the
K landing points, and D5 told Ah Fook that there were police presence K
everywhere. At about 1 am on 9 May, D5 indicated his position in
L Sham Tseng, and told him that their cars had arrived. Ah Fook told L
D5 that he would get there in about 15 to 20 minutes. About 45
M minutes later, D5 told Ah Fook that there were many people, and M
their cars had arrived. D5 told Ah Fook that he would ask drivers
N N
to hide their cars. At about 2:23 am, Ah Fook told D5 to go to the
Depot. Later Ah Fook told D5 to get a car to block the small path
O O
and find someone to act as a lookout at and near the shore. He
P told D5 to walk to the shore and flash lights thrice when he saw P
a boat approaching. At about 3 am, D5 said the ‘trade’ was
Q complete, and Ah Fook told D5 to leave the spot. Q
R 28. In addition, there were also WhatsApp exchanges amongst R
D5, D6 and D7 in the chat group called ‘Company’ from 7 to 9 May
S 2021. S
T 29. D5 told the group they had to work the next day. In the T
evening of 8 May 2021, D5 gave instructions to D6 and D7 relating
U U
to the landing point. Police presence in the area was reported.
CRT32/29.12.2022/LS 9 DCCC 953/2021(1)/Sentence
V V
A A
At about 11 pm on 8 May, D6 told them to tell others to hide
somewhere in Sham Tseng, and not to have 3 cars gathered together.
B B
D5 sent many messages to tell the recipients that he failed to
C find a good spot. At one point, D5 said he had found a construction C
site with a private pier but later learnt that boats cannot stop
D there. At about 1:14 am on 9 May, D5 told D7 to drive to Sham D
Tseng, and that each car should pick up 4 people. D5 would position
E E
himself at the pier. D5 told members of the group to decide where
to alight the 11 girls. D5 also told D7 to collect $32,800 from 2
F F
people. At about 2:37 am, D5 indicated the location near Sham Shui
G Drive and told D6 and D7 to go there. G
30. The Zello conversations amongst D2, D3, D4, D6 and D7 in
H H
the chat group were found in D3, D6 and D7’s phones. Although the
I relevant conversations could not be found in D2 and D4’s phones, I
their phones were all logged into the relevant Zello accounts and
J had joined the chat group. It is believed that certain relevant J
messages were deleted. The following messages were found in the
K K
chat group:-
L i. Throughout the evening of 8 May, D2, D3, D4, D6 and L
D7 kept updating each other about police presence.
M M
D7 kept asking the others for an update.
N ii. At about 10:46 pm on 8 May, D6 told them to drive N
to Sham Tseng and hide somewhere. They were reminded
O O
to drive slowly and separately.
P iii. At about 1:05 am on 9 May, D7 said he would lead P
the way and the cars were to stop at a bus stop
Q Q
opposite to a toilet. D7 said that each car should
R
take 4 passengers and they should collect $32,800 R
from 2 of the 12 passengers.
S S
iv. At about 1:39 am, D7 told others that ‘the sea was
T dirty’, and that at about 2 am, D7 gave them T
directions to go to Tung Chung and told them to
U park somewhere with the cars’ lights off. U
CRT32/29.12.2022/LS 10 DCCC 953/2021(1)/Sentence
V V
A A
v. At about 2:54 am, D7 told them to drive directly to
‘Cheung Fat’ once they unloaded the ‘goods’. He
B B
also asked D3 to pick up 3 passengers in his car
C while the other 2 cars would pick up 4 passengers. C
He asked them to inform him once the ‘goods’ were
D loaded. D
E vi. At about 3 am, D7 kept repeating that the ‘goods’ E
were being delivered. A minute later, D2 said he
F was being intercepted. D7 told them to disperse. F
G G
Dashboard camcorders of V1, V4 and V5
H H
31. The camcorders of these vehicles were seized. The various
I I
screenshots were marked as MFI-2 to 4 and the disc as MFI-5. At
the material time, V1 was driven by D2, V4 by D5 and V5 by D6.
J J
The camcorder in V4 has audio-recording function and it captured
K D5 and D7’s voice messages on the WhatsApp and Zello. K
L L
III. Mitigation
M M
(1) D1’s mitigation
N N
32. Defence counsel prepared a 12-page mitigation
O submission, together with 4 authorities. It was submitted that D1 O
was aged 23 at the time of the offence, and had been cooperative
P P
with the police. D1 pleaded guilty at the first opportunity. It
was submitted that the 2 conspiracy charges can be grouped into
Q Q
one as a global conspiracy.
R R
33. The Defence accepted that the defendants had been in
communication with each other via the chat groups.
S S
34. There is no sentencing guideline for this kind of
T T
offence, but D1’s counsel listed out a few authorities to suggest
the range of sentence from 5 years to 3 years. It was submitted
U U
that it is appropriate to take 4 years as the starting point for
CRT32/29.12.2022/LS 11 DCCC 953/2021(1)/Sentence
V V
A A
Charge 1 and 3 years for Charge 2 (D1’s mitigation submission,
para. 28).
B B
35. For Charge 3, it was urged that a starting point of 3
C C
months is appropriate as the weapons were found at D1’s house.
D D
E (2) D2’s mitigation E
36. D2 faced one count of conspiracy to assist passage within
F F
Hong Kong of unauthorised entrants.
G G
37. D2 is aged 41 and was born in Hong Kong. He is married
with one son. D2 is an experienced mechanic in motor repair, and
H H
is the breadwinner of the family. It was submitted that D2 is a
I responsible son, a giving husband and a caring father. D2 has been I
taking part in various community services. D2 had a clear record.
J J
38. Because of the financial difficulty, D2 agreed to be a
K driver in the present case for a meagre reward of $800. It was K
said there was no premeditation on the part of D2. It was a one-
L off incident and D2 is truly remorseful. L
M 39. It was submitted that D2 was only responsible for M
transporting the unauthorised entrants on land upon the latter’s
N arrival in Hong Kong. D2 had no role to play in bringing the N
unauthorised entrants from Mainland China to Hong Kong. D2 was not
O O
involved in the sea journey of those unauthorised entrants. D2 had
a minor and passive role in this case. The Defence said the offence
P P
was committed out of character and under severe financial pressure.
Q As such, this is a proper case for the Court to show mercy (para. Q
26 of the mitigation submission).
R R
40. The Defence submitted several mitigation letters written
S by D2, D2’s wife, D2’s son and D2’s mother, etc. S
T T
(3) D3’s mitigation
U U
CRT32/29.12.2022/LS 12 DCCC 953/2021(1)/Sentence
V V
A A
41. D3 is aged 44 and has 2 kids. He studied up to Form 3
and has been working as a delivery driver for over 3 to 4 years.
B B
He got divorced in 2020. D3 pleaded guilty timely and is
C remorseful. D3 had a clear record. C
42. The Defence submitted the mitigation letters prepared by
D D
D3, D3’s parents, and D3’s former employer.
E E
F F
(4) D4’s mitigation
G 43. D4 is aged 40. He studied up to Form 3 level, and worked G
as a garage worker. His parents divorced when D4 was 2 years old.
H H
D4 was raised by his aunt and his grandmother. His grandmother
passed away lately. D4 had a clear record.
I I
44. The Defence submitted that D4 was only the “small fish
J J
in the front scene” and he did not involve in any planning and the
coordination of the whole operation. He was only responsible for
K K
driving and commuting the unauthorised entrants once they landed.
L D4 was offered $2,000 to do this job, but he did not receive any L
reward upon his arrest. D4 only gave a ride to 5 passengers and
M the passengers were not placed in any danger. M
N 45. D4 regretted what he did and asked for a lenient N
sentence. The Defence wished the court will give D4 a sentence of
O less than 3 years. A total of 9 mitigation letters were tendered, O
including one written by D4.
P P
Q Q
(5) D5’s mitigation
R R
46. D5 pleaded to 2 conspiracy charges. D5 was born in Hong
Kong and is aged 52. He received education up to Form 5. He became
S S
a sole proprietor of a company with business in transportation of
T import and export of goods. At one stage, D5 owned 4 goods vans. T
U U
CRT32/29.12.2022/LS 13 DCCC 953/2021(1)/Sentence
V V
A A
47. D5 had 2 criminal records and the last one was back in
2006. D5 was married and has one son, but got divorced in 2008.
B B
He was re-married in 2012. D5 is enthusiastic in lion dancing and
C has helped building up a lion dance squad on a voluntary basis. C
48. Because of the pandemic, D5’s business collapsed and he
D D
worked as a part-time taxi driver. In early 2021, he came to know
E a person called Ah Fook who eventually asked D5 to be a lookout E
when some people from Mainland China were being commuted. The
F reward was $500. F
G 49. D5 is remorseful. The Defence tendered a few mitigation G
letters, including those written by D5, D5’s wife, D5’s son and
H D5’s brother. The Defence accepted that D5 was clearly a helping H
hand, being a lookout, and a starting point of 4 years is
I I
appropriate (para. 19 of D5’s mitigation submission).
J J
K (6) D6’s mitigation K
50. He faced one count of conspiracy charge. D6 is aged 44
L L
and had a clear record. Before his arrest, he operated a fruit
M stall in Yuen Long. It was submitted that D6 played a relatively M
minor role in this case. He was the driver of V5 (FL130) and acted
N as a lookout as arranged by D7. When V5 was intercepted, there was N
no passenger on board. The Defence tendered 3 mitigation letters,
O O
including one written by D6.
P P
(7) D7’s mitigation
Q Q
51. He was charged with one count of conspiracy. He was aged
R R
22 at the time of the offence. He finished his secondary education
in 2019, and then worked as a fruit merchandiser and from 2021,
S S
also as a tyre repairer. D7 had a clear record.
T T
52. It was submitted that D7’s role was to assist those
unauthorised entrants already entered Hong Kong to go to the urban
U U
area. From the WhatsApp messages, the Defence submitted that D5
CRT32/29.12.2022/LS 14 DCCC 953/2021(1)/Sentence
V V
A A
was the one who gave instructions to D6 and D7. The chat group of
Zello revealed the conversations amongst D2, D3, D4, D6 and D7
B B
relating to the updates of police presence. The Defence submitted
C that D7 committed the present offence under the influence of D5, C
one of his family friends. D7 respected D5 and acted as a lookout.
D It was further submitted that, ‘Although the Prosecution case may D
indicate that D7 did play a leading role in the offence, D7 was in
E E
fact only ensuring D5’s instructions are conveyed to others.’
(para. 28 of the mitigation submission). The Defence said ‘actually
F F
D5, but not D7, was the organiser and initiator of the venture.’
G (para. 32 of the mitigation submission). D7 should be considered G
as an assistant to D5.
H H
53. The Defence tendered 2 mitigation letters, including one
I written by D7. I
J J
IV. Sentence
K K
54. It is trite law that the admission of one defendant
L L
cannot be used to incriminate the other co-defendants. It is also
settled that for a conspiracy charge, the co-defendants can join
M M
the criminal agreement at different stages. As such, I can
N understand the rationale of D1’s counsel that it suffices to lay N
one global conspiracy against all defendants. That said, I can
O also understand that the Prosecution was being cautious and tried O
to avoid the existence of sub-conspiracy. Hence, two conspiracy
P charges were laid. I cannot say the Prosecution was wrong to take P
such course of action. But, ultimately, it is the sentence in total
Q Q
that matters.
R R
55. In HKSAR v Chan Lai-choi CACC 166/1997, the Court of
Appeal distinguished offences involving the carriage of
S S
unauthorised entrants into Hong Kong from cases of assisting the
T passage of unauthorised entrants who have already entered Hong T
Kong.
U U
CRT32/29.12.2022/LS 15 DCCC 953/2021(1)/Sentence
V V
A A
56. In the present case, there were about 11 unauthorised
entrants, including females, and 5 vehicles were involved.
B B
57. Without doubt, this was a well-planned and organised
C C
criminal activity whereby a chat group was formed partly for the
purpose of smuggling unauthorised entrants from Mainland China
D D
into Hong Kong. Some defendants were rewarded with a lump sum while
E some charged $200 for each passenger. D5 occupied a more E
significant role in this incident. As accepted by D7’s counsel, D7
F did assist D5 in conveying instructions to other culprits. F
Although some defendants were not involved in the sneaking in of
G G
the unauthorised entrants into Hong Kong, it is obvious that there
was a syndicate behind the whole operation. Transportation and
H H
various arrangements were made in advance.
I I
58. I will not reiterate the contents of all mitigation
letters. Suffice for me to outline certain mitigation letters
J J
written by the respective defendants.
K K
L (1) D1’s sentence L
M 59. D1 is aged 24. Since June 2013, D1 had 7 convictions M
with the latest in May 2020 when he was convicted of 5 counts of
N theft and one count of possession of offensive weapon in a public N
place. For the latter offence, D1 was sentenced to 2 months’
O O
imprisonment, concurrent with other sentences.
P 60. There is no mitigation letter tendered on behalf of D1. P
D1 was not arrested at the scene but was arrested in his residence
Q Q
at about 3 am on 9 May 2021. He made certain admissions and claimed
that he arranged for 4 females to sneak into Hong Kong. That
R R
indicated that D1 was involved in the passage of unauthorised
S entrants to and within Hong Kong. S
61. The main mitigation for D1 is his timely guilty plea for
T T
which he will get one-third discount. For Charge 1, I will adopt
U a starting point of 4 years and, with his plea, the sentence is U
CRT32/29.12.2022/LS 16 DCCC 953/2021(1)/Sentence
V V
A A
reduced to 32 months. For Charge 2, D1 was not one of the drivers
and the charge specified that the unauthorised entrants were
B B
already in Hong Kong. As such, I would adopt a starting point of
C 3 years, and with discount, it is reduced to 2 years. I will order C
that these two sentences be served concurrently.
D D
62. As regards to Charge 3, it was laid under the Summary
E Offences Ordinance, not the Public Order Ordinance. The weapons E
include 2 long beef knives, were found in D1’s residence. The
F weapons were hidden. I would take 6 months as the starting point, F
and reduce it to 4 months. As the nature of the offence is different
G G
from the two conspiracy charges, I order that 2 months of the third
sentence is to be served consecutively with the other sentences.
H H
63. As such, I sentence D1 to 34 months’ imprisonment.
I I
J J
(2) D2’s Sentence
K K
64. D2 is now aged 42 and had a clear record.
L 65. D2 in his mitigation letter said that he committed the L
present offence because of financial pressure and debts. He felt
M M
sorry for his wife and son. With the counselling and assistance
from officers of CSD, he could now face the hardship. He is truly
N N
remorseful and will act as a good husband and a good father when
O discharged. O
66. When D2 was intercepted, he was the driver of V1 with 4
P P
unauthorised entrants on board. He would be rewarded for $800 per
Q trip. D2 was one of the members of the Zello chat group. Q
R 67. I have considered those authorities tendered by the R
defence. I will adopt a starting point of 3 years. It is a wise
S move for D2 to plead guilty to the charge, hence he can get one- S
third discount. I will sentence D2 to 2 years’ imprisonment.
T T
U U
(3) D3’s sentence
CRT32/29.12.2022/LS 17 DCCC 953/2021(1)/Sentence
V V
A A
68. D3 is now aged 44 and had a clear record. He has a son
who is being taken care of by his former wife. In his mitigation
B B
letter, D3 said he has to take care of his parents and his brother
C who is a mentally handicapped person. His former employer agreed C
to hire D3 again upon his discharge from prison. He urges the court
D to pass a lenient sentence so that he can reintegrate into society D
and look after his family.
E E
69. At the time D3 was arrested, he was the driver of V2 and
F 2 male unauthorised entrants were sitting at the rear passenger F
seats. He would be rewarded $300. D3 admitted that he had picked
G G
up 2 female illegal immigrants from Olympian City and 2 females
from a hotel on Prince Edward Road. D3 drove them to Tung Chung
H H
and they alighted the car and walked towards the shore. D3 was
I offered to receive $200 per passenger. I
70. In this regard, D3’s culpability is a bit different from
J J
others as he managed to commute 2 groups of people on 8 and 9 May.
K K
71. I would adopt a starting point of 3½ years, and with his
L
guilty plea, the sentence is reduced to 28 months. L
M M
(4) D4’s Sentence
N N
72. The 40-year-old D4 did not have a happy childhood as his
O parents got divorced when D4 was aged 2. He had a clear record and O
worked as a garage worker. The Defence said D4 was just a ‘small
P fish’ in the front scene, but in my view, without ‘small fish’ P
working, the syndicate could not operate effectively, just like
Q Q
big drug traffickers need small fish to sell small packets of drugs
to those customers. D4 would be rewarded $2,000 for this operation.
R R
73. In his mitigation letter, D4 said that he was a man of
S S
good character and conduct before this incident. He deeply
regretted that he committed this crime. He blamed his friend on
T T
whom he had placed his trust. He was exploited by his friend.
U U
CRT32/29.12.2022/LS 18 DCCC 953/2021(1)/Sentence
V V
A A
74. At the material time, D4 was the driver of V3. The police
found 5 unauthorised entrants in the car. He would be paid $2,000
B B
for picking up these illegal immigrants.
C C
75. Taking all factors into account, I adopt a starting point
of 3 years, and with his guilty plea, the sentence is reduced to
D D
2 years.
E E
F (5) D5’s Sentence F
G 76. D5 is now aged 52, just past his birthday. He operated G
a firm to do transportation of goods. He was married with a son,
H but now divorced. In May 2021, he was contacted to act as a lookout H
and to commute those unauthorised entrants with a reward of $500.
I I
D5 is remorseful and he cooperated with the police upon arrest.
J 77. In his mitigation letter, D5 said he committed the crime J
because of the financial pressure. He is remorseful and hopes the
K K
court can pass a lenient sentence.
L 78. D5 faces 2 conspiracy charges, and was the driver of V4 L
when he was intercepted. D7 was sitting at the front passenger
M M
seat. There was no other passenger. Apparently, D5’s role was
heavier than others and he gave instructions to others including
N N
his cousin D7. He also liaised with Ah Fook in advance.
O O
79. I do not accept that D5 was only acting as a lookout at
the time. He knew that there would be 11 unauthorised entrants
P P
sneaking into Hong Kong on this occasion. D5 had 2 convictions
Q since May 2000, and the latest one in 2006 was one of AOABH whereby Q
he was fined $5,000.
R R
80. Taking all factors into account, for both charges
S (Charges 1 and 2), I would adopt a starting point of 4 years, and S
with his plea, the sentence is reduced to 32 months, to be served
T concurrently. T
U U
CRT32/29.12.2022/LS 19 DCCC 953/2021(1)/Sentence
V V
A A
(6) D6’s Sentence
B 81. D6 is aged 44 and operated a fruit shop in Yuen Long. D6 B
said that he acted as a lookout and was to update police presence
C C
in the area.
D D
82. In his mitigation letter, D6 confessed that he was stupid
to commit the present crime. During his remand, his fruit shop had
E E
to be assigned to others. He got support from his mother and
F
fiancée. He pleads for leniency and promises to be a law-abiding F
citizen upon discharge from prison.
G G
83. D6 was the driver of V5 when intercepted. There was no
H passenger in the car. D6 claimed that he got instructions from his H
friend, D7. D7’s father was the registered owner of V5.
I I
84. I accept that D6 occupied a relatively minor role in
J this operation, but he was still one of the members of the gang J
and did what he was told. Taking all factors into account, I adopt
K a starting point of 3 years and, with his guilty plea, the sentence K
is reduced to 2 years.
L L
M M
(7) D7’s Sentence
N 85. D7 is aged 23 and is the cousin of D5. He had completed N
the DSE course in 2019. D7 had no criminal record. D7 acted as a
O O
lookout and assisted D5 in this operation.
P P
86. In his mitigation letter, D7 said he was remorseful and
felt sad to see his parents coming to visit him at the remand
Q Q
centre. He promised to turn a new leaf upon discharge.
R R
87. At the material time, D7 was the front seat passenger in
V4 while D5 was the driver. D7 assisted D5 and saw at least 10
S S
unauthorised entrants leaving the shore and boarding 2 to 3 private
T cars. T
U U
CRT32/29.12.2022/LS 20 DCCC 953/2021(1)/Sentence
V V
A A
88. From the Zello conversations, D7 also assumed a
relatively leading role in giving or passing instructions to others
B B
(re para. 32 of the Summary of Facts).
C C
89. Taking all factors into consideration, I would adopt a
starting point of 3½ years, and with his guilty plea, the sentence
D D
is reduced to 28 months.
E E
F V. Conclusion F
G 90. In gist, I sentence the 7 defendants to the following G
imprisonment terms respectively:-
H H
– D1 to 34 months;
I I
– D2 to 24 months;
J – D3 to 28 months; J
– D4 to 24 months;
K K
– D5 to 32 months;
L L
– D6 to 24 months;
M M
– D7 to 28 months.
N N
O O
P P
(Stanley Chan)
Q Q
District Judge
R R
S S
T T
U U
CRT32/29.12.2022/LS 21 DCCC 953/2021(1)/Sentence
V V