區域法院（刑事）Deputy District Judge Kathie Cheung24/2/2016
DCCC40/2016
A A
B B
DCCC 40/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 40 OF 2016 E
F F
----------------
G HKSAR G
v
H H
GUO ZIMING
I ---------------- I
J J
K Before: Deputy District Judge Kathie Cheung K
Date: 25 February 2016
L L
Present: Miss Lily Yip, Acting Senior Public Prosecutor, for HKSAR
M Mr Chan Kar Fung Peter of K F Chan & Co, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] Being the captain of a ship with persons on board
O seeking O
to land unlawfully in Hong Kong (身為船長而其船隻上載
P P
有尋求在香港非法入境的人）
Q Q
[2] Endangering the safety of others at sea
R (危害他人在海上的安全) R
S S
---------------------------------------
T REASONS FOR SENTENCE T
---------------------------------------
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one charge of “Being the B
captain of a ship with persons on board seeking to land unlawfully in
C C
Hong Kong”, contrary to section 39 of the Immigration Ordinance, Cap
D 115 (first charge) and one charge of “endangering the safety of others at D
sea”, contrary to section 72 of the Shipping and Port Control Ordinance,
E E
Cap 313 (second charge).
F F
Facts
G G
H 2. On 13th November 2015, at around 2:32 p.m., while Police H
officers were patrolling in the area near Lung Ku Tan, they intercepted an
I I
unlit wooden cargo vessel and found defendant as the coxswain. There
J was a piece of cloth covering 13 south Asian males on board. The J
defendant and 13 other males were therefore arrested.
K K
L L
3. In his video-recorded interview, the defendant admitted
M
under caution that on 12 November 2015, at about 9:00 pm, he started off M
from Nansha as a coxswain conveying that 13 other males to Hong Kong.
N N
He did not know how many people were on the vessel. He had never met
O the 13 other males before. He was responsible for sailing the vessel. He O
was not the owner of the vessel. He conveyed the 13 other males to Hong
P P
Kong for a reward of RMB5,000. He would be paid in cash if he returns
Q to Nansha successfully. He did not know if the males had identity/travel Q
documents. These males came to Hong Kong to seek political asylum.
R R
He did not possess a sailing license. No life-saving equipment or
S navigation lights were on board. There was a torch for lighting. There S
were three tanks of petrol on board.
T T
U U
V V
- 3 -
A A
B 4. A ship inspector of the Marine Department examined the B
vessel and opined that the vessel was seaworthy. The main hull structure
C C
was found in normal condition, but it was not suitable for operation in
D that it had no fire-fighting appliance or life-saving appliances on board. D
Further, there was no navigation lift fitted onboard for night operation.
E E
F Mitigation F
G G
5. The defendant is aged 44. He is a mainlander, single and
H lived with his parents in the Mainland prior to the arrest. Prior to the H
offence, he was unemployed. The defendant had no criminal conviction
I I
record in Hong Kong and the Mainland.
J J
6. In mitigation, Mr Chan told the court that the defendant’s
K K
parents were financially dependent on the defendant. The defendant
L L
committed the present offences due to economic stress. Mr Chan
M
submitted that all the South Asian males on board were adult, the vessel M
was seaworthy but not suitable for operation, there was no evidence that
N N
the sea was rough to cause additional hazard and that there was no
O attempt to escape or dangerous manoeuvre. Mr Chan also referred a few O
cases in his mitigation1. Mr Chan further submitted that the appropriate
P P
starting point for the first charge would be around 4½ years. He took no
Q issue that the starting point could be enhanced for the lack of fire-fighting Q
and life-saving equipment. However, he stressed that such an
R R
enhancement should be taken into consideration when the court decided
S the totality of the sentences for the two charges. S
T T
1
HK SAR v D ing Qijing, CAC C 75/2014; 香港特別行政區 訴 黃松 ，CAC C 82/2014;
HKSAR v Tang Zhuyan, CACC 223/2010 and HKSAR v Chu Shi Keung, CACC 520/1999
U U
V V
- 4 -
A A
B B
Sentence
C C
D 7. For the first charge, the maximum sentence of imprisonment D
is 7 years. For the second charge, the maximum sentence of
E E
imprisonment is 4 years.
F F
8. In HKSAR v Ding Qijing, CACC 75/2014, the applicant of
G G
that case was convicted of the same charges as the defendant in this case.
H The Court of Appeal held that both offences were serious offences. Facts H
of that case reveal that the applicant conveyed into Hong Kong in the
I I
middle of the night on open seas 7 passengers who were seeking to land
J in Hong Kong without permission on a vessel that was bereft of the J
requisite safety equipment. In that case, the Court of Appeal was
K K
satisfied that the appropriate starting point for the first charge was 4½
L L
years’ imprisonment. No issue was taken with the enhancement of 3
M
months’ imprisonment to reflect the aggravating factor of the absence on M
the vessel of the requisite fire-fighting and life-saving equipment. In that
N N
case, no issue was taken in respect of the 12 months’ starting point for the
O charge concerning the condition of the vessel, which is same as the O
second charge in the present case. To avoid double counting of the
P P
aggravating factor of absence of requisite fire-fighting and life-saving
Q equipment, the Court of Appeal held that it was appropriate to order part Q
of the sentence of the other charge to run consecutively to the sentence of
R R
the first charge.
S S
9. Similar to Ding Qijing, the defendant in this case conveyed
T T
into Hong Kong in the middle of the night on open seas 13 South Asian
U U
V V
- 5 -
A A
B males who were seeking to land in Hong Kong without permission. B
According to the defendant, these males came to Hong Kong intending to
C C
seek political asylum. The defendant would be paid RMB 5,000 upon
D returning to the Mainland successfully. Taking into consideration the D
defendant’s background, the facts of the present case and the judgment in
E E
Ding Qijing, I consider the appropriate starting point for the first charge
F is 4½ years’ imprisonment. Given the presence of aggravating factor, F
namely the absence of fire-fighting and life-saving equipment, I consider
G G
an enhancement of 3 months is appropriate (see HKSAR v Zhong Ming
H Jing, CACC 180/2010). Therefore, the total sentence for the first charge H
is 4 years and 9 months’ imprisonment. This sentence is reduced to 38
I I
months’ imprisonment for the defendant’s guilty plea.
J J
10. For the second charge, I note that there was no attempt to
K K
escape or dangerous manoeuvre by the defendant to avoid interception by
L the police. There was no collision. In the circumstances, I consider the L
appropriate starting point is 12 months’ imprisonment. Given the
M M
defendant’s plea, it is reduced to 8 months’ imprisonment.
N N
11. As I have already enhanced the starting point for the first
O O
charge to reflect the absence of the requisite fire-fighting and life-saving
P equipment on the vessel, which is the same subject matter of the second P
charge, I would therefore order that 2 months of the sentence of the
Q Q
second charge to be served consecutively to the sentence for the first
R charge. The total sentence is therefore 40 months’ imprisonment. I R
hereby sentence the defendant to 40 months’ imprisonment.
S S
T T
U U
V V
- 6 -
A A
B (Kathie Cheung) B
Deputy District Judge
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 40/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 40 OF 2016 E
F F
----------------
G HKSAR G
v
H H
GUO ZIMING
I ---------------- I
J J
K Before: Deputy District Judge Kathie Cheung K
Date: 25 February 2016
L L
Present: Miss Lily Yip, Acting Senior Public Prosecutor, for HKSAR
M Mr Chan Kar Fung Peter of K F Chan & Co, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] Being the captain of a ship with persons on board
O seeking O
to land unlawfully in Hong Kong (身為船長而其船隻上載
P P
有尋求在香港非法入境的人）
Q Q
[2] Endangering the safety of others at sea
R (危害他人在海上的安全) R
S S
---------------------------------------
T REASONS FOR SENTENCE T
---------------------------------------
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one charge of “Being the B
captain of a ship with persons on board seeking to land unlawfully in
C C
Hong Kong”, contrary to section 39 of the Immigration Ordinance, Cap
D 115 (first charge) and one charge of “endangering the safety of others at D
sea”, contrary to section 72 of the Shipping and Port Control Ordinance,
E E
Cap 313 (second charge).
F F
Facts
G G
H 2. On 13th November 2015, at around 2:32 p.m., while Police H
officers were patrolling in the area near Lung Ku Tan, they intercepted an
I I
unlit wooden cargo vessel and found defendant as the coxswain. There
J was a piece of cloth covering 13 south Asian males on board. The J
defendant and 13 other males were therefore arrested.
K K
L L
3. In his video-recorded interview, the defendant admitted
M
under caution that on 12 November 2015, at about 9:00 pm, he started off M
from Nansha as a coxswain conveying that 13 other males to Hong Kong.
N N
He did not know how many people were on the vessel. He had never met
O the 13 other males before. He was responsible for sailing the vessel. He O
was not the owner of the vessel. He conveyed the 13 other males to Hong
P P
Kong for a reward of RMB5,000. He would be paid in cash if he returns
Q to Nansha successfully. He did not know if the males had identity/travel Q
documents. These males came to Hong Kong to seek political asylum.
R R
He did not possess a sailing license. No life-saving equipment or
S navigation lights were on board. There was a torch for lighting. There S
were three tanks of petrol on board.
T T
U U
V V
- 3 -
A A
B 4. A ship inspector of the Marine Department examined the B
vessel and opined that the vessel was seaworthy. The main hull structure
C C
was found in normal condition, but it was not suitable for operation in
D that it had no fire-fighting appliance or life-saving appliances on board. D
Further, there was no navigation lift fitted onboard for night operation.
E E
F Mitigation F
G G
5. The defendant is aged 44. He is a mainlander, single and
H lived with his parents in the Mainland prior to the arrest. Prior to the H
offence, he was unemployed. The defendant had no criminal conviction
I I
record in Hong Kong and the Mainland.
J J
6. In mitigation, Mr Chan told the court that the defendant’s
K K
parents were financially dependent on the defendant. The defendant
L L
committed the present offences due to economic stress. Mr Chan
M
submitted that all the South Asian males on board were adult, the vessel M
was seaworthy but not suitable for operation, there was no evidence that
N N
the sea was rough to cause additional hazard and that there was no
O attempt to escape or dangerous manoeuvre. Mr Chan also referred a few O
cases in his mitigation1. Mr Chan further submitted that the appropriate
P P
starting point for the first charge would be around 4½ years. He took no
Q issue that the starting point could be enhanced for the lack of fire-fighting Q
and life-saving equipment. However, he stressed that such an
R R
enhancement should be taken into consideration when the court decided
S the totality of the sentences for the two charges. S
T T
1
HK SAR v D ing Qijing, CAC C 75/2014; 香港特別行政區 訴 黃松 ，CAC C 82/2014;
HKSAR v Tang Zhuyan, CACC 223/2010 and HKSAR v Chu Shi Keung, CACC 520/1999
U U
V V
- 4 -
A A
B B
Sentence
C C
D 7. For the first charge, the maximum sentence of imprisonment D
is 7 years. For the second charge, the maximum sentence of
E E
imprisonment is 4 years.
F F
8. In HKSAR v Ding Qijing, CACC 75/2014, the applicant of
G G
that case was convicted of the same charges as the defendant in this case.
H The Court of Appeal held that both offences were serious offences. Facts H
of that case reveal that the applicant conveyed into Hong Kong in the
I I
middle of the night on open seas 7 passengers who were seeking to land
J in Hong Kong without permission on a vessel that was bereft of the J
requisite safety equipment. In that case, the Court of Appeal was
K K
satisfied that the appropriate starting point for the first charge was 4½
L L
years’ imprisonment. No issue was taken with the enhancement of 3
M
months’ imprisonment to reflect the aggravating factor of the absence on M
the vessel of the requisite fire-fighting and life-saving equipment. In that
N N
case, no issue was taken in respect of the 12 months’ starting point for the
O charge concerning the condition of the vessel, which is same as the O
second charge in the present case. To avoid double counting of the
P P
aggravating factor of absence of requisite fire-fighting and life-saving
Q equipment, the Court of Appeal held that it was appropriate to order part Q
of the sentence of the other charge to run consecutively to the sentence of
R R
the first charge.
S S
9. Similar to Ding Qijing, the defendant in this case conveyed
T T
into Hong Kong in the middle of the night on open seas 13 South Asian
U U
V V
- 5 -
A A
B males who were seeking to land in Hong Kong without permission. B
According to the defendant, these males came to Hong Kong intending to
C C
seek political asylum. The defendant would be paid RMB 5,000 upon
D returning to the Mainland successfully. Taking into consideration the D
defendant’s background, the facts of the present case and the judgment in
E E
Ding Qijing, I consider the appropriate starting point for the first charge
F is 4½ years’ imprisonment. Given the presence of aggravating factor, F
namely the absence of fire-fighting and life-saving equipment, I consider
G G
an enhancement of 3 months is appropriate (see HKSAR v Zhong Ming
H Jing, CACC 180/2010). Therefore, the total sentence for the first charge H
is 4 years and 9 months’ imprisonment. This sentence is reduced to 38
I I
months’ imprisonment for the defendant’s guilty plea.
J J
10. For the second charge, I note that there was no attempt to
K K
escape or dangerous manoeuvre by the defendant to avoid interception by
L the police. There was no collision. In the circumstances, I consider the L
appropriate starting point is 12 months’ imprisonment. Given the
M M
defendant’s plea, it is reduced to 8 months’ imprisonment.
N N
11. As I have already enhanced the starting point for the first
O O
charge to reflect the absence of the requisite fire-fighting and life-saving
P equipment on the vessel, which is the same subject matter of the second P
charge, I would therefore order that 2 months of the sentence of the
Q Q
second charge to be served consecutively to the sentence for the first
R charge. The total sentence is therefore 40 months’ imprisonment. I R
hereby sentence the defendant to 40 months’ imprisonment.
S S
T T
U U
V V
- 6 -
A A
B (Kathie Cheung) B
Deputy District Judge
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V