A A
B B
DCCC 717/2016
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 717 OF 2016 D
____________
E HKSAR E
v
F F
SULEMAN MUHAMMAD
G ____________ G
H Before: HH Judge Dufton H
Date: 5 April 2017
I Present: Mr Kamlesh Sadhwani, counsel on fiat, for HKSAR I
Mr James Sherry, instructed by C.W. Heung & Partners,
J assigned by the Director of Legal Aid, for the defendant. J
Offences: (1) Assisting the passage within Hong Kong of unauthorized
K entrants (協助未獲授權進境者在香港境內的旅程) K
(2) Endangering the safety of others at sea
L
(危害他人在海上的安全) L
M REASONS FOR SENTENCE M
N 1. The defendant stands convicted after trial of one charge of N
assisting the passage within Hong Kong of unauthorized entrants, contrary
O O
to section 37D (1) (a) of the Immigration Ordinance1and one charge of
P endangering the safety of others at sea, contrary to section 72 of the P
Shipping and Port Control Ordinance2.
Q Q
R 2. Full particulars of the offences are set out in my verdict R
delivered earlier today. In summary on the morning of 25 May 2016 SPC
S S
T 1
T
Cap 115.
2
Cap 313.
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2
A A
B B
51123 detected two vessels on the digital radar security system, four
C nautical miles south of Neilingding Dao in China. One of the vessels (V1) C
remained there while the other vessel (V2) travelled in the direction of the
D D
Hong Kong International Airport. After V2 entered Hong Kong waters
E SPC 51123 notified Police Launch 5 (“PL5”) to intercept V2. PL5 E
intercepted V2, a sampan, which was being steered by the defendant in the
F F
direction of the Hong Kong International Airport.
G G
3. On board the sampan, including the defendant, were twenty-
H five persons. All twenty-five persons were holders of Pakistani passports H
and were unauthorized entrants. The defendant by steering the sampan
I I
within Hong Kong waters assisted the passage within Hong Kong of the
J J
unauthorized entrants.
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4. The sampan was unsuitable for sailing at sea because there
L was no fire extinguishing installation on board; twenty-three life jackets L
were not of the approved type; and there was no navigation light for night
M M
navigation. By steering the sampan, which was unsuitable for sailing, the
N defendant endangered or caused to be endangered the safety of the other N
persons on the sampan.
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P Mitigation P
Q 5. In passing sentence, I take into account everything said on Q
behalf of the defendant by Mr Sherry. I take into account the defendant
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has a clear record. This however carries little weight where the defendant
S is not a Hong Kong resident. S
T T
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3
A A
B B
6. Mr Sherry tells the court the defendant came to Hong Kong to
C avoid political problems in Pakistan. The defendant says he was shot in C
the leg which led to him going into hiding in 2011. When the defendant
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could no longer safely hide he left Pakistan. I note however in the video
E interview the defendant told the police he came to Hong Kong to work3. E
F Sentence F
G G
7. The correct starting point after trial for assisting in the passage
H within Hong Kong where the defendant is the captain of the vessel or the H
person in charge or assisting in the operation or organisation of the passage
I I
is 5 years imprisonment4. Mr Sherry submits a lower starting point of 4
J years is appropriate the defendant not being the captain or the person in J
charge or part of the organisation of the passage5.
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L
8. The passage to Hong Kong involved two distinct parts. First L
the passage close to the waters of Hong Kong and second the transfer to a
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sampan for the passage within Hong Kong waters. Whilst the defendant
N may not have been involved in the arrangements for the first part of the N
passage, he was the person in charge of the sampan for the passage in Hong
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Kong waters. I am satisfied a 5 year starting point is appropriate.
P P
Q Q
3
See counters 805-820.
R R
4
See for example R v Wong Yin Lung [1995] 1 HKCLR 151; HKSAR v Wong Chi Kin CACC
357/2004; HKSAR v Tang Zhuyan [2011] 1 HKLRD 447; HKSAR v Zhong Ming Jing CACC
S 180/2010 and HKSAR v Ding Qijing [2015] 1 HKC 233. S
5
Mr Sherry referred the court to the following cases R v Lam Kon Man CACC 1329/1990; HKSAR
T v Wong Chi Kin CACC 357/2004; R v Lo Shui Lun CACC 109/1995; HKSAR v Tang Zhuyan T
[2011] 1 HKLRD 447; HKSAR v Zhong Ming Jing CACC 180/2010 and HKSAR v Meng
Xiaodong DCCC 643/2012.
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4
A A
B B
9. The starting point should be increased in the absence of safety
C equipment6. I am satisfied that the sampan being unsuitable for sailing at C
sea because there was no fire extinguishing installation on board; and the
D D
twenty-three life jackets were not of the approved type, the starting point
E is to be increased by 3 months7. I do not increase the starting point for the E
lack of navigation light for night navigation as the passage was in the
F F
morning. The defendant is sentenced on charge 1 to 5 years and 3 months
G imprisonment. G
H Charge 2 H
I I
10. In respect of charge 2 there being no chasing of the sampan;
J the defendant stopping when signalled by PL5 to stop and that the general J
condition of the sampan was not said to be unseaworthy, I am satisfied the
K K
proper sentence is 9 months imprisonment. Having taken into account the
L sampan was unsuitable for sailing on charge 1, I order the sentence on L
charge 2 to be served concurrently with the sentence on charge 1.
M M
N N
O
(D. J. DUFTON)
O
District Judge
P P
Q Q
R R
S S
6
T See HKSAR v Zhong Ming Jing CACC 180/2010 at §§19-20; and HKSAR v Tang Zhuyan [2011] 1 T
HKLRD 447 at §18.
7
See HKSAR v Ding Qijing [2015] 1 HKC 233 at §28.
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