DCCC91/2015 HKSAR v. LIANG ZHIKUN AND ANOTHER - LawHero
DCCC91/2015
HKSAR v. LIANG ZHIKUN AND ANOTHER
區域法院（刑事）HH Judge A Kwok6/5/2015
DCCC91/2015
A A
B B
DCCC 91/2015
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 91 OF 2015 E
F F
--------------------------
G HKSAR G
v
H H
LIANG ZHIKUN (D1)
I CHEN DAWEI (D2) I
--------------------------
J J
K Before: HH Judge A Kwok K
Date: 7 May 2015 at 11 am
L L
Present: Mr Matthew Chong, Counsel on fiat, for HKSAR
M Mr Yuen Hsi Carl, instructed by Hampton, Winter & Glynn, M
assigned by the Director of Legal Aid, for both defendants
N N
Offence: [1] Assisting the passage within Hong Kong of an unauthorised
O entrant (協助未獲授權進境者在香港境內的旅程) O
P
[2] Assisting in export of unmanifested cargoes (協助輸出未列 P
艙單貨物)
Q Q
[3] Endangering the safety of others at sea (危害他人在海上的
R R
安全)
S S
T T
U U
V V
-2-
A A
B B
-------------------------------------
C REASONS FOR SENTENCE C
-------------------------------------
D D
E The charges E
F F
1. The defendants appeared before me this morning and pleaded
G guilty to all of their respective charges. G
H H
2. D1 faces three charges:-
I I
(1) assisting the passage within Hong Kong of an
J J
unauthorised entrant, contrary to section 37D(1)(a) of
K the Immigration Ordinance, Cap 115 (Charge 1); K
L L
(2) assisting in export of unmanifested cargoes, contrary to
M section 18A(1)(b) of the Import and Export Ordinance, M
Cap 60 (Charge 2); and
N N
O (3) endangering the safety of others at sea, contrary to O
section 72 of the Shipping & Port Control Ordinance,
P P
Cap 313 (Charge 3).
Q Q
3. D2 was jointly charged with D1 in Charge 2.
R R
S 4. Charge 1 avers that on 1 December 2014, D1, being the S
coxswain of a motorised sampan in Hong Kong, assisted the passage
T T
within Hong Kong of D2, an unauthorised entrant.
U U
V V
-3-
A A
B B
C 5. Charge 2 avers that D1 and D2 knowingly assisted with the C
carrying of cargoes, namely, 54 bags of herbal medicine and 22 bags of
D D
wood logs, with intent to export the said cargoes without a manifest or with
E intent to assist another person to export the said cargoes without a E
manifest.
F F
G 6. Charge 3 avers that D1, without reasonable excuse, G
endangered or caused to be endangered the safety of other persons
H H
(namely, D2 and police officers on board Police Vessel 31 and police
I vessel 33), in that being the coxswain of the sampan which was underway:- I
J J
(1) navigated the sampan which was unseaworthy, namely,
K the main hull structure was in poor condition and with K
no firefighting appliance, lifesaving appliance and
L L
navigation light on board; and
M M
(2) made sudden and dangerous manoeuvres of the sampan
N N
and caused collisions between the sampan and the said
O Police Vessels 31 and 33 respectively, so as to evade O
interception by the said police vessels, and there was no
P P
fire-fighting appliance equipped on board.
Q Q
The facts
R R
S 7. According to the summary of facts, at 0029 hours on 1 S
December 2014, D1, being the coxswain of the motorised sampan, was
T T
intercepted by two police vessels (PV 31 and PV 33) near Tai A Chau,
U U
V V
-4-
A A
B B
when the sampan was on the way of leaving Hong Kong at 40 knots/hr.
C While the sampan was underway, there was no illumination or navigation C
light.
D D
E 8. The police directed the sampan to stop by light signal but D1 E
did not comply with the direction and kept fleeing from the vicinity.
F F
G 9. In the course of chasing the sampan, suddenly the sampan G
swerved to the starboard side and collided with PV 31. The sampan also
H H
later bumped at PV 33.
I I
10. As the sampan was damaged and its speed was lowered, the
J J
police made a forced boarding and discovered that D1 was the coxswain
K with a male D2, a Mainland resident, on board. K
L L
11. Upon search by the police, 54 bags of herbal medicine and 22
M bags of wood logs were seized from the sampan. The total estimated value M
of the seized exhibits is HK$1.25 million.
N N
O 12. Under caution, D1 admitted that he was instructed by a male O
surnamed Chan to navigate the sampan so as to smuggle cargoes from
P P
Hong Kong to PRC and he would receive RMB1,000 as reward. He met
Q D2 in PRC and they boarded the sampan and he brought D2 to go to Hong Q
Kong for smuggling.
R R
S 13. In Hong Kong water, they approached a fishing vessel with S
red light signal. Two crew members moved the cargoes from the fishing
T T
vessel to the sampan. D1 and D2 later met the police when they were
U U
V V
-5-
A A
B B
heading back to China but D1 did not stop and kept fleeing from the
C vicinity. He had made several sharp turns and, as a result, the sampan C
bumped onto the police vessels.
D D
E 14. Under caution, D2 admitted that he was instructed by the E
same male to smuggle cargoes from Hong Kong to PRC and for that he
F F
would also receive HK$1,000 as reward. They met a fishing vessel in
G Hong Kong water and D1 stopped the sampan besides the vessel. The G
crew members in the vessel put the cargoes to the sampan. He said he had
H H
no knowledge about the nature of the cargoes.
I I
15. The sampan was later sent to the Marine Department for
J J
examination. According to the ship inspector’s opinion, it was confirmed
K that the main hull structure was found in a poor condition. There was no K
fire-fighting appliance equipped on board. There were only two
L L
substandard lifejackets on board and there was no navigation light fitted on
M board for night operation. The vessel was thus found to be unseaworthy M
and not suitable for navigation.
N N
O The criminal record and the background of the defendants O
P P
16. Both defendants are residents from the Mainland and they
Q each had a clear record in Hong Kong. Q
R R
17. D1 is aged 43. He is a farmer by occupation and he also
S worked as an odd-job labourer. He only had an education of Primary 3 S
level. D1 is married with two children: the daughter is 18 years old and the
T T
son is 13 years old.
U U
V V
-6-
A A
B B
18. D2 is aged 26. He was a factory worker and also a labourer.
C He only received Primary 1 education. He is married with a 3-year-old son C
and they live together with his parents.
D D
E Mitigations E
F F
19. In mitigation, Mr Carl Yuen, counsel for both defendants,
G emphasised the fact that the two defendants have pleaded guilty to the G
charges and were all very co-operative with the police after arrest. They
H H
have disclosed everything they knew to the police during the cautioned
I interviews and they were now very remorseful. I
J J
20. Mr Yuen said both defendants understand the gravity of the
K offences but they still plead for leniency. The reason why they agreed to K
enter into Hong Kong to smuggle the goods was purely greed and they
L L
intended to earn quick money.
M M
21. Mr Yuen pointed out that in Charge 1, there is only one
N N
unauthorised entrant on board of the sampan and D2 was not travelling
O inside a hidden compartment. O
P P
22. In Charge 2, Mr Yuen said the smuggled goods were found
Q not to be endangered species in Hong Kong and the value of the goods is Q
not that much, approximately HK$1.25 million, in comparison with other
R R
more serious smuggling cases.
S S
T T
U U
V V
-7-
A A
B B
23. In Charge 3, Mr Yuen said that, firstly, there were still two
C lifejackets on board of the sampan, albeit they were not up to the safety C
standard in Hong Kong.
D D
E 24. Secondly, D1 was not a fisherman by training and he was just E
unfortunate enough to be put in a position to be in charge of the sampan
F F
after being given only brief instructions to operate the sampan and that was
G why D1 had no knowledge of the light signals when he was stopped by the G
police and he committed Charge 3 just out of panic.
H H
I 25. Mr Yuen further added that D1 was living with an elderly I
mother who is now 82 and is suffering from Alzheimer disease.
J J
K 26. He further handed up two medical certificates in respect of the K
parents of D2 to confirm that D2’s father has been paralysed after a stroke
L L
attack and D2’s mother is also suffering from a spinal disease which
M affected her mobility seriously. M
N N
27. D2 also wrote a letter himself and expressed that he worried
O so much about the family situation after his arrest and promised not to O
break the law in the future. He asked the court to consider passing him a
P P
lenient sentence so as to let him go back to his family as soon as possible.
Q Q
Sentencing considerations
R R
S 28. In sentencing, I took into account the nature of the offences, S
the circumstances of the case, the defendants’ personal background, their
T T
U U
V V
-8-
A A
B B
pleas of guilty and also the authorities by the Court of Appeal in relation to
C those charges. C
D D
29. Both defendants have clear record but it carries little weight in
E mitigation, as they are all Mainland residents. E
F F
30. I do have sympathy for the family members of both
G defendants but the Court of Appeal has made it clear that family G
circumstances virtually play no part in mitigation. If the defendants really
H H
care for their family members, they should really think twice before
I accepting the offer to enter into Hong Kong waters to commit offences. I
J J
31. Both defendants admitted that they committed the offence for
K a monetary reward of RMB1,000. The court must also make it clear that it K
would and can never accept any reason, not to mention economic pressure,
L L
to commit crimes.
M M
32. Amongst the three charges faced by D1, Charge 1 is most
N N
serious and the maximum sentence is 14 years upon a conviction on
O indictment. O
P P
33. The Court of Appeal had already decided that an appropriate
Q starting point for an accused who was in charge of a vessel carrying Q
unauthorised entrants to Hong Kong is 5 years under section 37D of the
R R
Immigration Ordinance.
S S
34. In HKSAR v Tang Zhuyan [2001] HKLRD 447, the Court of
T T
Appeal said, in paragraph 16:-
U U
V V
-9-
A A
B B
“As this court noted in HKSAR v Wong Chi Kin, the appropriate
C C
starting point for sentence after trial for an offence under section
37D(1) of the Immigration Ordinance, where the accused is the
D captain or the person in charge of the vessel, is 5 years’ D
imprisonment. The court went on to give a non-definitive list of
aggravating factors relevant to sentence. Those factors included
E the fact that ‘the vessel concerned was unseaworthy by reason of E
poor maintenance or age, with the risk of endangering
F passengers’.” F
G 35. In paragraph 18 of Tang Zhuyan (supra), the Court of Appeal G
has specifically also referred to another case, HKSAR v Zhong Ming Jing
H H
(unreported) CACC 180/2010 and said that public expectations of safety at
I sea had moved on and expressed disagreement with its earlier observation I
in respect of fire-fighting and lifesaving equipment and said that
J J
henceforth, those were matters that should be regarded as factors of
K aggravation. K
L L
36. In relation to Charge 2, “exporting unmanifested cargoes” or
M what is more commonly known as “smuggling” is also serious. There are M
however no guideline for offences of this kind but it is worth recalling that
N N
the legislation provides a maximum sentence of 7 years’ imprisonment for
O O
such offences when they are tried on indictment. The scale and
P
organisation of the smuggling operation as well as the nature and the value P
of the unmanifested cargoes are obviously factors for consideration.
Q Q
R 37. In sentencing Charge 2, I have referred myself to HKSAR v So R
Sung Loi & Ors (unreported), CACC 115/2007. The defendants in that
S S
case were convicted in the District Court for the same offence as in Charge
T 2 in this case, namely, “assisting in the export of unmanifested cargoes”, T
and they were sentenced to 2 years’ imprisonment after trial.
U U
V V
- 10 -
A A
B B
C 38. In So Sung Loi (supra), the defendants were seen removing C
cartons of goods from a lorry to a sampan in a ferry pier. There were
D D
altogether 83 cartons of assorted electrical goods and computer parts, and
E 40 ingots of silver. Their total value exceeded $6 million. There was no E
manifest for the goods.
F F
G 39. The application for appeal against sentence by the coxswain G
of the sampan and the driver of the lorry were eventually dismissed by the
H H
Court of Appeal.
I I
40. Whilst dismissing the appeal, the Court of Appeal did not
J J
however agree with the sentences imposed by the court below and
K commented that:- K
L L
“…the sentences for those in this case who played a role which
was more than that of a mere labourer could be described as
M having veered on the side of leniency”. (see paragraph 17) M
N N
41. In relation to Charge 3, the Court of Appeal has said in
O paragraph 22 of Tang Zhuyan (supra) that, after reviewing the facts of that O
particular case, it came to the conclusion that given that there is absence of
P P
aggravating features of danger because there was no collision, no attempt
Q to escape or dangerous manoeuvre, the District Court’s decision to use 18 Q
months’ imprisonment as a starting point was said to be manifestly
R R
excessive. The Court of Appeal considered that, in those circumstances,
S an appropriate starting point for sentence would therefore be 12 months’ S
imprisonment.
T T
U U
V V
- 11 -
A A
B B
42. Applying the above decisions to the particular facts of this
C case, in Charge 1, I accept that the usual starting point in this charge should C
be one of 5 years.
D D
E 43. Because of what the Court of Appeal has said in Zhong Ming E
Jing (supra), I cannot overlook the aggravating features in the charge in
F F
that there was no fire-fighting and also substandard lifejackets on board of
G the sampan in the present case. G
H H
44. I will therefore add another 3 months to the 5-year starting
I point. I
J J
45. For Charge 1, therefore, the appropriate starting point is 63
K months. K
L L
46. For Charge 2, it is a smuggling case where the two defendants
M from the Mainland were recruited by the ringleader to carry the valuable M
herbal medicine and wood logs from Hong Kong and smuggle to the
N N
Mainland. Each defendant played a different role in this operation but was
O well aware that he was dealing in a cargo without a manifest. O
P P
47. In terms of the criminality between the two defendants, D1
Q obviously played a more major role than D2, although their monetary Q
rewards were said to be the same. As the operator of the sampan, D1 was
R R
more than a mere labourer played by D2.
S S
48. After considering the size of the operation as well as the value
T T
of the goods, for this offence, I consider that the appropriate starting point
U U
V V
- 12 -
A A
B B
for a coxswain such as D1 in a smuggling operation should be 21 months,
C whereas for a mere labourer such as D2, it should be 18 months. C
D D
49. The starting point for D1 and D2 is therefore 21 months and
E 18 months respectively. E
F F
50. In relation to Charge 3, there were attempts by D1 to flee in
G order to avoid the police vessels when the police attempted to intercept the G
sampan. There was also bumping and collision with the two police vessels
H H
in the course of the pursuit by the police vessels. Therefore, there were
I additional aggravating factors in this charge. I
J J
51. Based on the sentiment expressed by the Court of Appeal in
K paragraph 22 of Tang Zhuyan (supra) as cited above, I shall still adopt an K
18 months’ starting point.
L L
M 52. Affording the defendants the discount for one-third from the M
starting points, which is the only and effective mitigating factor in their
N N
case, the appropriate sentence for each offence for each defendant is as
O follows:- O
P P
53. D1:-
Q Q
(1) Charge 1: 42 months’ imprisonment;
R R
S (2) Charge 2: 14 months’ imprisonment; S
T T
(3) Charge 3: 12 months’ imprisonment.
U U
V V
- 13 -
A A
B B
54. D2:-
C C
(1) Charge 2: 12 months’ imprisonment.
D D
E Total sentence for D1 E
F F
55. In D1’s case, the total sentences for the three charges will be
G 68 months’ imprisonment, if the sentence for each offence is to be served G
wholly consecutively to each other.
H H
I 56. Clearly, there should be a further adjustment of the sentences I
because of the principle of totality and also because there were some
J J
overlapping of the facts between Charge 1 and Charge 2 as well as Charge
K 1 and Charge 3. K
L L
57. As a result, I order that 6 months of the sentence imposed in
M respect of Charge 2 to run consecutively to the sentence of Charge 1, and 3 M
months in respect of Charge 3 to run consecutively to the sentences on both
N N
Charge 1 and Charge 2, making the total sentence of the three charges
O against D1 one of 51 months’ imprisonment (42 + 6 + 3 = 51). O
P P
Q Q
R R
S ( A Kwok ) S
District Judge
T T
U U
V V
A A
B B
DCCC 91/2015
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 91 OF 2015 E
F F
--------------------------
G HKSAR G
v
H H
LIANG ZHIKUN (D1)
I CHEN DAWEI (D2) I
--------------------------
J J
K Before: HH Judge A Kwok K
Date: 7 May 2015 at 11 am
L L
Present: Mr Matthew Chong, Counsel on fiat, for HKSAR
M Mr Yuen Hsi Carl, instructed by Hampton, Winter & Glynn, M
assigned by the Director of Legal Aid, for both defendants
N N
Offence: [1] Assisting the passage within Hong Kong of an unauthorised
O entrant (協助未獲授權進境者在香港境內的旅程) O
P
[2] Assisting in export of unmanifested cargoes (協助輸出未列 P
艙單貨物)
Q Q
[3] Endangering the safety of others at sea (危害他人在海上的
R R
安全)
S S
T T
U U
V V
-2-
A A
B B
-------------------------------------
C REASONS FOR SENTENCE C
-------------------------------------
D D
E The charges E
F F
1. The defendants appeared before me this morning and pleaded
G guilty to all of their respective charges. G
H H
2. D1 faces three charges:-
I I
(1) assisting the passage within Hong Kong of an
J J
unauthorised entrant, contrary to section 37D(1)(a) of
K the Immigration Ordinance, Cap 115 (Charge 1); K
L L
(2) assisting in export of unmanifested cargoes, contrary to
M section 18A(1)(b) of the Import and Export Ordinance, M
Cap 60 (Charge 2); and
N N
O (3) endangering the safety of others at sea, contrary to O
section 72 of the Shipping & Port Control Ordinance,
P P
Cap 313 (Charge 3).
Q Q
3. D2 was jointly charged with D1 in Charge 2.
R R
S 4. Charge 1 avers that on 1 December 2014, D1, being the S
coxswain of a motorised sampan in Hong Kong, assisted the passage
T T
within Hong Kong of D2, an unauthorised entrant.
U U
V V
-3-
A A
B B
C 5. Charge 2 avers that D1 and D2 knowingly assisted with the C
carrying of cargoes, namely, 54 bags of herbal medicine and 22 bags of
D D
wood logs, with intent to export the said cargoes without a manifest or with
E intent to assist another person to export the said cargoes without a E
manifest.
F F
G 6. Charge 3 avers that D1, without reasonable excuse, G
endangered or caused to be endangered the safety of other persons
H H
(namely, D2 and police officers on board Police Vessel 31 and police
I vessel 33), in that being the coxswain of the sampan which was underway:- I
J J
(1) navigated the sampan which was unseaworthy, namely,
K the main hull structure was in poor condition and with K
no firefighting appliance, lifesaving appliance and
L L
navigation light on board; and
M M
(2) made sudden and dangerous manoeuvres of the sampan
N N
and caused collisions between the sampan and the said
O Police Vessels 31 and 33 respectively, so as to evade O
interception by the said police vessels, and there was no
P P
fire-fighting appliance equipped on board.
Q Q
The facts
R R
S 7. According to the summary of facts, at 0029 hours on 1 S
December 2014, D1, being the coxswain of the motorised sampan, was
T T
intercepted by two police vessels (PV 31 and PV 33) near Tai A Chau,
U U
V V
-4-
A A
B B
when the sampan was on the way of leaving Hong Kong at 40 knots/hr.
C While the sampan was underway, there was no illumination or navigation C
light.
D D
E 8. The police directed the sampan to stop by light signal but D1 E
did not comply with the direction and kept fleeing from the vicinity.
F F
G 9. In the course of chasing the sampan, suddenly the sampan G
swerved to the starboard side and collided with PV 31. The sampan also
H H
later bumped at PV 33.
I I
10. As the sampan was damaged and its speed was lowered, the
J J
police made a forced boarding and discovered that D1 was the coxswain
K with a male D2, a Mainland resident, on board. K
L L
11. Upon search by the police, 54 bags of herbal medicine and 22
M bags of wood logs were seized from the sampan. The total estimated value M
of the seized exhibits is HK$1.25 million.
N N
O 12. Under caution, D1 admitted that he was instructed by a male O
surnamed Chan to navigate the sampan so as to smuggle cargoes from
P P
Hong Kong to PRC and he would receive RMB1,000 as reward. He met
Q D2 in PRC and they boarded the sampan and he brought D2 to go to Hong Q
Kong for smuggling.
R R
S 13. In Hong Kong water, they approached a fishing vessel with S
red light signal. Two crew members moved the cargoes from the fishing
T T
vessel to the sampan. D1 and D2 later met the police when they were
U U
V V
-5-
A A
B B
heading back to China but D1 did not stop and kept fleeing from the
C vicinity. He had made several sharp turns and, as a result, the sampan C
bumped onto the police vessels.
D D
E 14. Under caution, D2 admitted that he was instructed by the E
same male to smuggle cargoes from Hong Kong to PRC and for that he
F F
would also receive HK$1,000 as reward. They met a fishing vessel in
G Hong Kong water and D1 stopped the sampan besides the vessel. The G
crew members in the vessel put the cargoes to the sampan. He said he had
H H
no knowledge about the nature of the cargoes.
I I
15. The sampan was later sent to the Marine Department for
J J
examination. According to the ship inspector’s opinion, it was confirmed
K that the main hull structure was found in a poor condition. There was no K
fire-fighting appliance equipped on board. There were only two
L L
substandard lifejackets on board and there was no navigation light fitted on
M board for night operation. The vessel was thus found to be unseaworthy M
and not suitable for navigation.
N N
O The criminal record and the background of the defendants O
P P
16. Both defendants are residents from the Mainland and they
Q each had a clear record in Hong Kong. Q
R R
17. D1 is aged 43. He is a farmer by occupation and he also
S worked as an odd-job labourer. He only had an education of Primary 3 S
level. D1 is married with two children: the daughter is 18 years old and the
T T
son is 13 years old.
U U
V V
-6-
A A
B B
18. D2 is aged 26. He was a factory worker and also a labourer.
C He only received Primary 1 education. He is married with a 3-year-old son C
and they live together with his parents.
D D
E Mitigations E
F F
19. In mitigation, Mr Carl Yuen, counsel for both defendants,
G emphasised the fact that the two defendants have pleaded guilty to the G
charges and were all very co-operative with the police after arrest. They
H H
have disclosed everything they knew to the police during the cautioned
I interviews and they were now very remorseful. I
J J
20. Mr Yuen said both defendants understand the gravity of the
K offences but they still plead for leniency. The reason why they agreed to K
enter into Hong Kong to smuggle the goods was purely greed and they
L L
intended to earn quick money.
M M
21. Mr Yuen pointed out that in Charge 1, there is only one
N N
unauthorised entrant on board of the sampan and D2 was not travelling
O inside a hidden compartment. O
P P
22. In Charge 2, Mr Yuen said the smuggled goods were found
Q not to be endangered species in Hong Kong and the value of the goods is Q
not that much, approximately HK$1.25 million, in comparison with other
R R
more serious smuggling cases.
S S
T T
U U
V V
-7-
A A
B B
23. In Charge 3, Mr Yuen said that, firstly, there were still two
C lifejackets on board of the sampan, albeit they were not up to the safety C
standard in Hong Kong.
D D
E 24. Secondly, D1 was not a fisherman by training and he was just E
unfortunate enough to be put in a position to be in charge of the sampan
F F
after being given only brief instructions to operate the sampan and that was
G why D1 had no knowledge of the light signals when he was stopped by the G
police and he committed Charge 3 just out of panic.
H H
I 25. Mr Yuen further added that D1 was living with an elderly I
mother who is now 82 and is suffering from Alzheimer disease.
J J
K 26. He further handed up two medical certificates in respect of the K
parents of D2 to confirm that D2’s father has been paralysed after a stroke
L L
attack and D2’s mother is also suffering from a spinal disease which
M affected her mobility seriously. M
N N
27. D2 also wrote a letter himself and expressed that he worried
O so much about the family situation after his arrest and promised not to O
break the law in the future. He asked the court to consider passing him a
P P
lenient sentence so as to let him go back to his family as soon as possible.
Q Q
Sentencing considerations
R R
S 28. In sentencing, I took into account the nature of the offences, S
the circumstances of the case, the defendants’ personal background, their
T T
U U
V V
-8-
A A
B B
pleas of guilty and also the authorities by the Court of Appeal in relation to
C those charges. C
D D
29. Both defendants have clear record but it carries little weight in
E mitigation, as they are all Mainland residents. E
F F
30. I do have sympathy for the family members of both
G defendants but the Court of Appeal has made it clear that family G
circumstances virtually play no part in mitigation. If the defendants really
H H
care for their family members, they should really think twice before
I accepting the offer to enter into Hong Kong waters to commit offences. I
J J
31. Both defendants admitted that they committed the offence for
K a monetary reward of RMB1,000. The court must also make it clear that it K
would and can never accept any reason, not to mention economic pressure,
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to commit crimes.
M M
32. Amongst the three charges faced by D1, Charge 1 is most
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serious and the maximum sentence is 14 years upon a conviction on
O indictment. O
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33. The Court of Appeal had already decided that an appropriate
Q starting point for an accused who was in charge of a vessel carrying Q
unauthorised entrants to Hong Kong is 5 years under section 37D of the
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Immigration Ordinance.
S S
34. In HKSAR v Tang Zhuyan [2001] HKLRD 447, the Court of
T T
Appeal said, in paragraph 16:-
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A A
B B
“As this court noted in HKSAR v Wong Chi Kin, the appropriate
C C
starting point for sentence after trial for an offence under section
37D(1) of the Immigration Ordinance, where the accused is the
D captain or the person in charge of the vessel, is 5 years’ D
imprisonment. The court went on to give a non-definitive list of
aggravating factors relevant to sentence. Those factors included
E the fact that ‘the vessel concerned was unseaworthy by reason of E
poor maintenance or age, with the risk of endangering
F passengers’.” F
G 35. In paragraph 18 of Tang Zhuyan (supra), the Court of Appeal G
has specifically also referred to another case, HKSAR v Zhong Ming Jing
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(unreported) CACC 180/2010 and said that public expectations of safety at
I sea had moved on and expressed disagreement with its earlier observation I
in respect of fire-fighting and lifesaving equipment and said that
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henceforth, those were matters that should be regarded as factors of
K aggravation. K
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36. In relation to Charge 2, “exporting unmanifested cargoes” or
M what is more commonly known as “smuggling” is also serious. There are M
however no guideline for offences of this kind but it is worth recalling that
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the legislation provides a maximum sentence of 7 years’ imprisonment for
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such offences when they are tried on indictment. The scale and
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organisation of the smuggling operation as well as the nature and the value P
of the unmanifested cargoes are obviously factors for consideration.
Q Q
R 37. In sentencing Charge 2, I have referred myself to HKSAR v So R
Sung Loi & Ors (unreported), CACC 115/2007. The defendants in that
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case were convicted in the District Court for the same offence as in Charge
T 2 in this case, namely, “assisting in the export of unmanifested cargoes”, T
and they were sentenced to 2 years’ imprisonment after trial.
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A A
B B
C 38. In So Sung Loi (supra), the defendants were seen removing C
cartons of goods from a lorry to a sampan in a ferry pier. There were
D D
altogether 83 cartons of assorted electrical goods and computer parts, and
E 40 ingots of silver. Their total value exceeded $6 million. There was no E
manifest for the goods.
F F
G 39. The application for appeal against sentence by the coxswain G
of the sampan and the driver of the lorry were eventually dismissed by the
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Court of Appeal.
I I
40. Whilst dismissing the appeal, the Court of Appeal did not
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however agree with the sentences imposed by the court below and
K commented that:- K
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“…the sentences for those in this case who played a role which
was more than that of a mere labourer could be described as
M having veered on the side of leniency”. (see paragraph 17) M
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41. In relation to Charge 3, the Court of Appeal has said in
O paragraph 22 of Tang Zhuyan (supra) that, after reviewing the facts of that O
particular case, it came to the conclusion that given that there is absence of
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aggravating features of danger because there was no collision, no attempt
Q to escape or dangerous manoeuvre, the District Court’s decision to use 18 Q
months’ imprisonment as a starting point was said to be manifestly
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excessive. The Court of Appeal considered that, in those circumstances,
S an appropriate starting point for sentence would therefore be 12 months’ S
imprisonment.
T T
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A A
B B
42. Applying the above decisions to the particular facts of this
C case, in Charge 1, I accept that the usual starting point in this charge should C
be one of 5 years.
D D
E 43. Because of what the Court of Appeal has said in Zhong Ming E
Jing (supra), I cannot overlook the aggravating features in the charge in
F F
that there was no fire-fighting and also substandard lifejackets on board of
G the sampan in the present case. G
H H
44. I will therefore add another 3 months to the 5-year starting
I point. I
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45. For Charge 1, therefore, the appropriate starting point is 63
K months. K
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46. For Charge 2, it is a smuggling case where the two defendants
M from the Mainland were recruited by the ringleader to carry the valuable M
herbal medicine and wood logs from Hong Kong and smuggle to the
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Mainland. Each defendant played a different role in this operation but was
O well aware that he was dealing in a cargo without a manifest. O
P P
47. In terms of the criminality between the two defendants, D1
Q obviously played a more major role than D2, although their monetary Q
rewards were said to be the same. As the operator of the sampan, D1 was
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more than a mere labourer played by D2.
S S
48. After considering the size of the operation as well as the value
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of the goods, for this offence, I consider that the appropriate starting point
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A A
B B
for a coxswain such as D1 in a smuggling operation should be 21 months,
C whereas for a mere labourer such as D2, it should be 18 months. C
D D
49. The starting point for D1 and D2 is therefore 21 months and
E 18 months respectively. E
F F
50. In relation to Charge 3, there were attempts by D1 to flee in
G order to avoid the police vessels when the police attempted to intercept the G
sampan. There was also bumping and collision with the two police vessels
H H
in the course of the pursuit by the police vessels. Therefore, there were
I additional aggravating factors in this charge. I
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51. Based on the sentiment expressed by the Court of Appeal in
K paragraph 22 of Tang Zhuyan (supra) as cited above, I shall still adopt an K
18 months’ starting point.
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M 52. Affording the defendants the discount for one-third from the M
starting points, which is the only and effective mitigating factor in their
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case, the appropriate sentence for each offence for each defendant is as
O follows:- O
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53. D1:-
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(1) Charge 1: 42 months’ imprisonment;
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S (2) Charge 2: 14 months’ imprisonment; S
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(3) Charge 3: 12 months’ imprisonment.
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A A
B B
54. D2:-
C C
(1) Charge 2: 12 months’ imprisonment.
D D
E Total sentence for D1 E
F F
55. In D1’s case, the total sentences for the three charges will be
G 68 months’ imprisonment, if the sentence for each offence is to be served G
wholly consecutively to each other.
H H
I 56. Clearly, there should be a further adjustment of the sentences I
because of the principle of totality and also because there were some
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overlapping of the facts between Charge 1 and Charge 2 as well as Charge
K 1 and Charge 3. K
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57. As a result, I order that 6 months of the sentence imposed in
M respect of Charge 2 to run consecutively to the sentence of Charge 1, and 3 M
months in respect of Charge 3 to run consecutively to the sentences on both
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Charge 1 and Charge 2, making the total sentence of the three charges
O against D1 one of 51 months’ imprisonment (42 + 6 + 3 = 51). O
P P
Q Q
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S ( A Kwok ) S
District Judge
T T
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