DCCC1084/2016

DCCC1084/2016

A A B B DCCC 1084/2016 C C IN THE DISTRICT COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 1084 OF 2016 E F F --------------------- G HKSAR G v H H KHALID MANSOOR (D1) I SARFRAZ (D2) I JAWAD HUSSAIN (D3) J J --------------------- K K Before: Deputy District Judge A Yim in Court L L Date: 15 November 2017 M Present: Mr Ian Polson, Counsel on Fiat, for HKSAR M Mr Richard David Donald, instructed by LCP, assigned by the N N Director of Legal Aid, for the 1st defendant O Mr James H M McGowan, instructed by Oliver C M Chan & O Co, assigned by the Director of Legal Aid, for the P P nd 2 defendant Q Mr Cheung Yiu Leung, instructed by Kevin Ng & Co, Q assigned by the Director of Legal Aid, for the 3rd defendant R R Offences: Assisting the passage within Hong Kong of unauthorized S entrants（協助未獲授權進境者在香港境內的旅程） S T T U U V V  -2- A A B B -------------------------------------- C REASONS FOR SENTENCE C -------------------------------------- D D E 1. The defendants were jointly charged for one count of assisting E the passage within Hong Kong of unauthorized entrants, contrary to section F F 37D(1)(a) of the Immigration Ordinance, Cap 115. G G 2. D2 pleaded guilty but disputed the facts that he was the central H H organizer of the offence. The newton hearing of D2 was heard together I with the trial of D1 and D3. The prosecution has proved his case against I all the defendants. D1 and D3 were convicted after trial while D2 was J J found to be the leader of the three and in close communication with those K who arranged voyage for the UEs to Hong Kong. K L L FACTS M M 3. Some unknown people arranged a number of unauthorized N N entrant (UEs) sneaked into Hong Kong from Mainland by sea. On O 14 August 2016 at around 3 am, an object carried a number UEs entered O the Hong Kong Waters and the UEs on board, including the three UEs P P mentioned in the charge, landed at Nim Wan. Q Q 4. Later at about 7:55 am the three defendants hailed a taxi at R R Nai Wai, Tuen Mun and went to Nim Wan Landfill to pick up the three S UNs at about 8:22 am, with a view to convey the three UEs to Nai Wai. S The three defendants and the three UEs were apprehended by Police before T T U U V V  -3- A A B B the taxi pull away. The mobile phones of the defendants and the UEs were C seized. C D D 5. D2 was in close communication with those arranged the E voyage, he was not just concerned his brother Nawaz UE1 but also the E other UEs travelling with Nawaz. This illegal operation was carried by a F F syndicate to arrange and assist the passage of UEs to Hong Kong, to receive G the UEs upon their arrival in Hong Kong and then assist their onwards G movement within Hong Kong. D2 was the leader at the scene. This was a H H commercial transaction to the benefit of those involved. I I MITIGATION J J K D1 K L L 6. The defendant aged 26, a Pakistani, an asylum seeker in Hong M Kong. He has a clear record and was educated up to primary school level M in Pakistan. N N O D2 O P P 7. The defendant aged 29, a Pakistani, an asylum seeker in Hong Q Kong. His family is in Pakistan. He has a clear record and was educated Q up to primary school level in Pakistan. R R S S T T U U V V  -4- A A B B D3 C C 8. The defendant aged 26, a Pakistani, an asylum seeker in Hong D D Kong. He has a clear record and was educated up to secondary school level E in Pakistan. E F F SENTENCE G G 9. Section 37D(1) of the Immigration Ordinance Cap 115 H H provided that on conviction on indictment of an offence under this section I one is liable to a fine of $5,000,000 and to imprisonment for 14 years. I J J 10. There is no sentencing tariff, but there is a parity recognized K between passage at sea and on land. A person in charge of a vessel assisting K the passage faces a customary starting point of 5 years in the absence of L L aggravating features (R v Ng Kit Yuen [1992] 1 HKCLR 170; R v Wong Yin M Lung [1995] 1 HKCLR 151, at 153; R v Pang Wing [1996] 1 HKC 624, at M 626 and 627; HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v Yeung N N Wui CACC 415/2004). O O 11. The Defence referred me to HKSAR v Chan Lai Choi CACC P P 166/1997 where the Court of Appeal reduced the starting point to one of Q 3 years for passage on land and this was adopted in subsequent cases Q (HKSAR v Chung Kwok Wai & Ors DCCC 1128/2012; HKSAR v Tam Man R R Biu [2017] CHKEC 920; HKSAR v Cheng Chi Yung & Ors S CACC338/2003). S T T U U V V  -5- A A B B 12. In Chan Lai Choi the applicant was convicted after trial for C conveying in his taxi 5 UEs upon their arrival in Hong Kong. The trial C judge adopted a starting point of 5 years and reduced it by 4 months for D D reason that it was less dangerous for the passengers, and deducted a further E 8 months for his clear record. The sentence was based on a parity with E passage at sea. The Court of Appeal considered the applicant’s role F F different and less culpable from a captain at sea, thereby reducing the G starting point to 3 years. And the Court stated that “Although not bound to G do so, we will, so that no sense of grievance will be engendered in the H H applicant, follow the approach of the judge and give him credit for his clear I record. We do so by reducing the sentence of three years to one 2.5 years”. I J J 13. The 3 defendants in the present case made use of Mr Leung’s K taxi to convey 3 UEs upon their arrival in Hong Kong. The scale of K operation was bigger than that in the case of Chan Lai Choi. D2 was in L L close communication with those arranged the voyage for the UEs, he was M to arrange the passage within Hong Kong once the UEs landed and arrived M at the meeting point, he was the leader of the group of three at the scene, N N while the other two were acting according to D2’s instruction. O O 14. Mr McGowan representing D2 submitted that the main “evil” P P in the like offences have been exposure of the UEs to unseaworthy or Q overcrowded vessels, often without lifesaving equipment, nor dangerous Q navigation or driving. Those referred by Mr McGowan are aggravating R R features, it should be noted that the customary starting point of 5 years for S carriage by sea mentioned above is in the absence of aggravating features. S Although D2 was not the one in actual control of the vessel, he was in close T T U U V V  -6- A A B B communication with those arranged the voyage for the UEs and was part C of the whole arrangement. C D D 15. Mr Donald representing D1 submitted that the present case E was akin to that of Chan Lai Choi. Mr Cheung representing D3 submitted E that D3 has played an absolutely minor and passive role during the course F F of the offence and urged me to consider a lower starting point than 3 years. G G 16. I consider in the case of D2 the appropriate starting point is H H one of 45 months’ imprisonment, while that for D1 and D3 to be one of 33 I months’ imprisonment. I J J AGGRAVATING FEATURE K K 17. Prosecution seeks to enhance the sentence because of the L L immigration status of the defendants. Mr Polson referred me to the view M of the Court of Appeal in HKSAR v Khan CACC 116/2016 that “it was a M significant factor in aggravation of the offence that the applicant was a N N Form 8 recognizance holder and non-refoulment claimant at the time he O trafficked in 238.57 grammes of cocaine.” O P P 18. The fact that a person committed an offence whilst awaiting Q the processing of his immigration claim would amount to aggravating Q factor. In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 R R the sentence of a clear record defendant was enhanced by 3 months because S of his refugee claimant status. The Court of Appeal before up-holding the S enhancement has analysed the reasoning in Sandagdorj Altankhuyag & T T another [2014] 1 HKC 206 and stated that:- U U V V  -7- A A B B “Hong Kong does not keep imprisoned a person who remains in C C Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be D allowed to remain in Hong Kong pending the resolution of his D claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed. E E By allowing him his freedom, Hong Kong exposes its residents F to the risk that this person will not live a law abiding life whilst F he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be G exposed. There is also, as Macrae JA pointed out, a risk of G reputational damage to Hong Kong as a safe and orderly world H class city. H Analysed in this way, punishing this category of offender more I heavily than others is not to discriminate against him for being a I foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused J J harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in K Hong Kong, and at liberty, pending the determination of his K immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s L immigration status as a factor aggravating his culpability and L there is no infringement of the principle that everyone is equal M before the law.” M N 19. While acknowledge D3 is a Form 8 holder, Mr Cheung N submitted that the present offence did not have “any significant impact on O O Hong Kong’s reputation and referred me to another paragraph in the same P case:- P Q Q “We do not say that someone sharing the 2nd appellant’s status would aggravate his position in every case or in every crime. R Obviously, there are crimes committed by refugees or torture R claimants which do not affect the community at large or have S any significant impact on Hong Kong’s reputation.” S T 20. With respect I am not with Mr Cheung, it was my finding that T D3 was a knowing and willing party to the joint enterprise that assist the U U V V  -8- A A B B passage of the 3 UEs within Hong Kong. This kind of crime does affect C the community at large and have significant impact on Hong Kong’s C reputation. D D E 21. Mr McGowan submitted that even if the status of the E defendant amounted to an aggravated feature, as a matter of principle, any F F enhancement must be proportionate. The defendants committed the G offence whilst they were awaiting the processing of the respective G immigration claim, I consider this amounts to an aggravating factor and H H enhanced their sentence by 2 months. I I ENHANCEMENT OF SENTENCE UNDER OSCO J J K 22. My attention was drawn to section 27(4) and 27(7) of the K Ordinance by Mr Polson, that it is a condition precedent that the Court L L cannot make finding of organized crime until the Defence have been given M an opportunity to be heard on the matter and though the notice of request M for determination was made well before the trial, the Defence did not N N address on this point in their respective final submissions. As the Verdict O and Reasons are not final until the Order is sealed and filed, Mr Polson O suggested to re-open the matter and approach this with a fresh open mind. P P The Defence raised no objection to the approach suggested by the Q Prosecution. Q R R 23. I accepted I have made a procedural error on this, and I shall S re-open my determination on “organized crime” and re-determine the S matter after considering the Defence’s submissions specifically on the T T point. U U V V  -9- A A B B C 24. Section 2 of the Ordinance provided that “organized crime” C means a Schedule 1 offence that “(b) is related to the activities of 2 or more D D persons associated together solely or partly for the purpose of committing E 2 or more acts, each of which is a Schedule 1 offence and involves E substantial planning and organization”. F F G 25. Offence under section 37D(1) of the Immigration Ordinance G Cap 115 is an offence under Schedule 1 of the Ordinance Cap 455. Section H H 37D(1) provided that:- I I “Subject to subsection (2), any person who, on his own behalf J or on behalf of any other person, whether or not such other J person is in Hong Kong – K (a) Arranges or assists the passage to, or within, Hong Kong; K : L : L Of a person who is, or of a conveyance which carries, an M unauthorized entrant, commits an offence…” M N N 26. Mr McGowan submitted that the basis of the Prosecution’s O case does not allow an “organized crime” finding because D2 was only O charged for passage within Hong Kong and the prosecution case alleged P P against D2’s management position also confined to activities committed Q within Hong Kong. Yet it was the prosecution’s case that D2 was in close Q communication to those who arranged the voyage of UEs into Hong Kong R R and produced the WhatsApp messages to prove his case. S S 27. Mr Polson referred to my findings at para 93 and replied that T T the parties are now binding by the finding of facts, and it is not necessary U U V V  - 10 - A A B B to make the subject of two charges (ie brought into Hong Kong and within C Hong Kong), but to introduce evidence under one charge of the activities. C The section refers to the activities. The law allows the laying of one D D offence which related to two or more persons engaging in two or more E activities. The determination requested by the Prosecution was covered by E the court’s findings. F F G 28. It was my finding after trial that this illegal operation was G carried by a syndicate to arrange and assist the passage of UEs to Hong H H Kong, to receive the UEs upon their arrival in Hong Kong and then assisted I their onwards movement within Hong Kong. It was a commercial I transaction to the benefit of those involved. J J K 29. As far as D2 concerned, he was the one in close K communication with those arranged the UEs to sneak into Hong Kong by L L sea, he was to arrange the passage within Hong Kong once the UEs landed M and arrived at the meeting point. D2 was the one gave instructions to D1 M and D3 and the two acted as instructed. D1 and D3 were knowing and N N willing party to the joint enterprise of assisting passage within Hong Kong O while D2 was playing a leading role in that group of three. I am satisfied O beyond reasonable doubt that the offence was an organized crime involved P P substantial planning and organization. D2 was simply a member of this Q organized crime. Q R R 30. Mr Donald submitted that there is no evidence, or sufficient S evidence that, D1 was involved in the planning of the illegal entry of the S unauthorized entrants into Hong Kong. An enhancement of D1’s sentence T T on the ground of substantial planning and organization being involved U U V V  - 11 - A A B B would therefore result in grave injustice. Mr Cheung also submitted that C there is no evidence that D3 had assisted in any way whatsoever for the C passage of UEs to Hong Kong. D D E 31. I agree with Mr Donald and Mr Cheung that in the present E case, unlike the case of D2 who was in close communication with those F F assist the passage to Hong Kong and had full knowledge of the carriage by G sea, there is no evidence that D1 and D3 had any knowledge or role in the G voyage from Mainland into Hong Kong. Thus I do not consider that the H H prosecution has proved the offence was an organized crime in the case of I D1 and D3 and I refuse the prosecution’s application in regard to D1 and I D3 accordingly. J J K 32. Section 27(11) of the Ordinance Cap 455 provided that where K it is satisfied beyond reasonable doubt that the specified offence was an L L organized crime, the court shall have regard to such matter when it passes M a sentence on the person for the relevant specified offence and may, if it M thinks fit, pass a sentence on the person for that offence that is more severe N N than the sentence it would, in the absence of such matter, have passed. But O the sentence shall not exceed the maximum penalty permitted by law for O the offence (Section 27(13)). P P Q 33. In considering the extent of the enhancement in the case of Q D2, I bear in mind the view of the Court of Appeal on section 27(11) in R R Kong Wai Chun CACC 252/2009:- S S T T U U V V  - 12 - A A B “The provisions of s. 27(11) are specifically designed to add an B additional layer of deterrence over and above that normally C factored in to an appropriate sentence. In HKSAR v Wong Fung C Ming CACC 515/2001 the consequences of this section were considered:- D D We think the power given to a judge to add to the sentence he E has otherwise considered to be appropriate, which will often E already have incorporated an element for deterrence, can only have been intended to spell out to others who might otherwise F commit the same type of offence in the future that to do so will F entail a particularly severe penalty. Inevitably, it is a power which ought to be utilized sparingly.” G G H 34. Mr McGowan submitted that if the court is mind to enhanced H the sentence under section 27(11), given the severe potential sentence in I I any event the enhancement should be 10% and no more than 20%. After J considering the whole circumstances of the case, the overall scale of the J operation, I consider the basic starting point (45 months) of D2 should be K K enhanced by 15%. L L 35. D1 and D3 were convicted after trial, however, in view of M M their clear record, I reduce their respective sentences by 3 months and they N are sentenced to 32 months’ imprisonment (33 + 2 ̵ 3 = 32). N O O 36. Mr McGowan submitted that D2 has always indicated his plea. P Despite his “defeat” in the Newton, given that the evidence heard (stand P fast the WhatsApp, which were admitted by agreement) would have been Q Q called against the other two defendants, his discount should be at least 20%. R Taking into account the time spent on the Newton hearing and the clear R record of D2, I allow 20 % discount for his plea. S S T T U U V V  - 13 - A A B B 37. Mr McGowan further submitted that there is humanitarian C consideration as UE1 was subject to political persecution and D2 was C trying to help his brother, yet UE1 was not the only UE involved, there D D were two other UEs. It was my finding that it was a commercial transaction E to the benefit of those involved. I do not consider that one of the UEs was E D2’s brother amounts to a mitigating factor. D2 is sentenced to 43 months’ F F imprisonment [(45 × 115% + 2) × 80% = 43]. G G ORDER H H I 38. D1 is sentenced to 32 months’ imprisonment. I J J 39. D2 is sentenced to 43 months’ imprisonment. K K 40. D3 is sentenced to 32 months’ imprisonment. L L M M N N O O ( A Yim ) P P Deputy District Judge Q Q R R S S T T U U V V