A A
B B
DCCC 910/2017
[2018] HKDC 154
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 910 OF 2017
E ____________ E
HKSAR
F v F
LUK FEI D1
G G
LO GUIMING D2
H ____________ H
I Before: HH Judge Dufton I
Date: 6 February 2018
J Present: Mr William Siu, SPP, of the Department of Justice, for J
HKSAR
K Mr Lee Man Kin of Patrick Man & Tse, K
assigned by the Director of Legal Aid, for the defendants
L Offences: (1) Assisting the passage within Hong Kong of an L
unauthorized entrant
M
(協助未獲授權進境者在香港境內的旅程) M
(2) Endangering the safety of others at sea
N
(危害他人在海上的安全) N
O REASONS FOR SENTENCE O
P 1. The defendants plead guilty to one charge of assisting the P
passage within Hong Kong of an unauthorized entrant, contrary to section
Q Q
1
37D (1) (a) of the Immigration Ordinance and one charge of endangering
R the safety of others at sea, contrary to section 72 of the Shipping and Port R
Control Ordinance2.
S S
T 1
T
Cap 115.
2
Cap 313.
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A A
B B
2. Full particulars of the offences are set out in the facts admitted
C by the defendants today. In summary on the morning of 30 May 2017 a C
sampan was seen on the radar within Hong Kong waters on the east side of
D D
Conic Island in Sai Kung. At the time visibility was good and the waves
E were about 1-2 meters in height. E
F 3. Police Vessel 21 which was in the area noticed the sampan. F
PV21 switched on the police blue flashing light and issued the
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‘International Signal “L” Stop Warning’ by horn and flash lights.
H H
4. D2 who was sat at the front of the sampan stood up, started
I I
screaming and pointed to the east. D1, the coxswain, who was sat at the
J back of the sampan and was controlling the engine looked towards PV21. J
D1 then switched direction and headed towards mainland China increasing
K K
speed in the process.
L L
5. A high speed chase then ensued during which PV21 continued
M M
to issue the stop warning. The sampan did not stop and instead altered
N course several times. During the pursuit when PV 21 was alongside the N
sampan, the sampan hit the right side of PV21. This caused D2 to fall
O O
down. Police officers also noticed a woman and a baby girl on board crying.
P P
6. The pursuit continued. After a few minutes D1 jumped off the
Q sampan leaving no one controlling the sampan. A police officer therefore Q
jumped onto the sampan and switched off the engine.
R R
S 7. The police officer then apprehended D2 who was about to S
jump off the sampan. Under caution and in a video recorded interview D2
T T
admitted, inter alia, that for a reward of RMB 1000 he joined D1 to go to
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3
A A
B B
Hong Kong to pick up some persons and that he was responsible for
C looking after the passengers. C
D 8. Five passengers, all Vietnamese, were found on the sampan, D
including the mother and baby seen during the pursuit. None of the five
E E
passengers were wearing life jackets.
F F
9. One of the passengers Phan Thi Thanh Loan, who was the
G G
holder of a Vietnamese passport, had no permission to land in Hong Kong
H (“the unauthorized entrant”). The other four passengers were non- H
refoulement claimants who had been issued recognizance by the
I I
Immigration Department.
J J
10. Meanwhile other police vessels arrived and rescued D1 from
K K
the sea. Under caution and in a video recorded interview D1 admitted,
L
inter alia, that he was instructed to travel from China to pick up four L
persons in Hong Kong and bring them to China for which he would be paid
M M
RMB 1000 per person.
N N
11. The sampan only had two life jackets and apart from an
O unused compass no navigation system was installed. Inspection of the O
sampan revealed a hole on the top forward bulkhead and two cracks on the
P P
bulwark top port side of the sampan. The sampan was unseaworthy by
Q reason of the poor condition of the main hull and not suitable for operation Q
having no fire-fighting appliance; insufficient life jackets and no
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navigation light for night operation.
S S
T T
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A A
B B
Mitigation
C C
12. In passing sentence, I take into account everything said on
D behalf of the defendants by Mr Lee together with the mitigation letters D
written by D1’s wife; the rural committee where D1 lives; D2 and D2’s
E E
younger sister. I take into account both defendants have a clear record.
F This however carries little weight where the defendant is not a Hong Kong F
resident.
G G
H Sentence H
I 13. The correct starting point after trial for assisting in the passage I
within Hong Kong where the defendant is a crew member is 4 years
J J
imprisonment and where the defendant is the captain of the vessel or the
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person in charge or assisting in the operation or organisation of the passage
L
is 5 years imprisonment 3. L
M 14. D1 was in charge of the sampan being the coxswain. I am M
satisfied a starting point of 5 years’imprisonment is appropriate for D1. I
N N
accept that D2’s role was that of a crew member assisting D1 by keeping a
O lookout and looking after the passengers. I am satisfied a starting point of O
4 years is appropriate for D2.
P P
Q 15. The absence of sufficient life-saving equipment and fire- Q
fighting appliances is an aggravating factor for which I am satisfied the
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starting points are to be increased by 3 months to 5 years and 3 months for
S S
T T
3
See for example HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v Tang Zhuyan [2011] 1
HKLRD 447 and HKSAR v Zhong Ming Jing CACC 180/2010.
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A A
B B
D1 and to 4 years and 3 months for D24. I do not increase the starting point
C for the lack of navigation light for night navigation as the passage was in C
the morning.
D D
16. The starting point should also be increased where the vessel is
E E
unseaworthy. Although photographs of the sampan have been submitted,
F no photographs show the hole or cracks in the hull. The court is unable F
therefore to properly assess how poor the condition of the sampan was. In
G G
the circumstances I do not enhance the starting point by reason of the
H condition of the sampan. H
I I
17. Giving the defendants full credit for their pleas of guilty D1 is
J convicted and sentenced to 3 years and 6 months’ imprisonment and D2 is J
convicted and sentenced to 2 years and 10 months’ imprisonment.
K K
L
Charge 2 L
M 18. D1 navigated the sampan which was not suitable for operation M
by reason of the poor condition of the hull and the absence of safety
N N
equipment. When trying to escape from the police D1 steered the sampan
O in a dangerous manner which put all passengers at greater risk including a O
baby. In the course of a high speed chase the sampan kept changing
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direction and at one stage collided with PV21.
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19. I accept the submission of Mr Lee that D1 did not intentionally
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collide with PV21 and that when he jumped in the water this was as a result
S of him losing balance. I also accept the sampan would then reduce speed, S
T T
4
See HKSAR v Zhong Ming Jing CACC 180/2010 at §§19-20; HKSAR v Tang Zhuyan [2011] 1
HKLRD 447 at §18 and HKSAR v Ding Qijing [2015] 1 HKC 233 at §28.
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B B
however with no one controlling the sampan the risk of more people falling
C overboard was increased. C
D 20. In all the circumstances I am satisfied a starting point of 18 D
months’ imprisonment is appropriate. Giving D1 full credit for his plea of
E E
guilty he is convicted and sentenced to 12 months’ imprisonment. Having
F taken into account the absence of safety equipment on charge 1, I order 6 F
months consecutive and 6 months concurrent to charge 1.
G G
H 21. This makes a total sentence to be served by D1 of 4 years’ H
imprisonment. I am satisfied a total sentence of 4 years imprisonment takes
I I
into account the seriousness of the offences; the personal circumstances of
J D1 and properly reflects D1’s overall criminal culpability on the two J
charges5.
K K
L
22. D2’s role being to assist D1 in the navigation of the sampan, I L
am satisfied a starting point of 9 months’ imprisonment is appropriate.
M M
Giving D2 full credit for his plea of guilty he is convicted and sentenced to
N 6 months’ imprisonment. Having taken into account the absence of safety N
equipment on charge 1, I am satisfied in D2’s case a wholly concurrent
O O
sentence is appropriate. D2 goes to prison for 2 years and 10 months.
P P
Q Q
R R
(D. J. DUFTON)
S District Judge S
T 5
T
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.and HKSAR v Pau King Kong [2013] 3
HKLRD 676.
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