A A
B B
DCCC 1016/2017
C [2018] HKDC 869 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 1016 OF 2017
F F
---------------------------
G G
HKSAR
H
v H
LIU JINLUO
I ---------------------------- I
J J
Before: HH Judge K Lo
K Date: 15 May 2018 K
Present: Mr Adonis Cheung, Counsel on fiat, for HKSAR
L L
Mr Lee Chiu Tong Peter, instructed by Paul Kwong & Co,
M assigned by the Director of Legal Aid, for the defendant M
Offence: [1] Assisting the passage to Hong Kong of an unauthorised
N N
entrant (協助未獲授權進境者前來香港的旅程)
O O
[2] Endangering the safety of others at sea (危及他人在海上
P 的安全) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. In this case, defendant has pleaded guilty to a charge of T
assisting the passage to Hong Kong of an unauthorised entrant, contrary to
U U
V V
-2-
A A
B B
section 37D(1)(a) of the Immigration Ordinance, Cap 115 and a charge of
C endangering the safety of others at sea, contrary to section 32 of the C
Merchant Shipping (Local Vessels) Ordinance, Cap 548 and was so
D D
convicted.
E E
2. According to the agreed Summary of Facts, in the afternoon
F F
of 10 August 2017, the fishing vessel C140130 (vessel) was sailing east to
G west towards the Shau Kei Wan Typhoon Shelter. G
H 3. When intercepted by the police, defendant was found to be the H
coxswain, while Zhang Ziqing and another Hong Kong male Leung were
I I
found inside the wheelhouse. Zhang was an unauthorised entrant from
J Mainland China. J
K K
4. Both defendant and Zhang had only Mainland China identity
L cards and did not have any valid immigration documents or crew permits L
on them.
M M
N 5. Defendant and Zhang were arrested. Under caution, N
defendant said he came to Hong Kong to buy supplies as the vessel was
O O
out of fuel. Defendant had three mobile phones and cash of HK$2,616 and
P RMB¥639 on him. P
Q Q
6. The vessel compartments were empty and on board, there
R were some vessel’s equipment, a GPS device, a radio, two life buoys, eight R
life-jackets, two oil tanks with no meters installed, one fire pump and two
S S
fire buckets with lanyards.
T T
U U
V V
-3-
A A
B B
7. The vessel belonged to a Mr Lam who said that the defendant
C rented from him in Shenzhen for fishing purpose at HK$5,000 a month. C
D D
8. Marine Department confirmed that the vessel was not suitable
E for operation as there was no fire fighting equipment on board as fire E
extinguishers should be provided for oil or engine fire.
F F
G 9. In a video-recorded interview, defendant said the following:- G
H (a) He was the coxswain of the rented vessel; that the same H
was used for fishing within international waters;
I I
J (b) He did not have a coxswain licence even in Mainland J
China but he knew how to steer the vessel and he has been
K K
a fisherman;
L L
(c) He picked up Zhang from Shanwei in the early hours the
M M
day before and Leung from Wailingding Island, Zhuhai
N in the afternoon. After resting some time on the island, N
three of them planned to sail to Dangan Island in the
O O
afternoon the next day, ie 10 August 2017. He then
P realised he had only half tank of fuel, ie 600 litres, left; P
Q (d) He therefore headed for Yau Tong, Hong Kong to fuel Q
and food. One round trip from Shanwei would require
R R
500 litres of fuel, but he thought that fuel was cheaper in
S Hong Kong than in Mainland China and therefore he S
decided to enter Hong Kong to refuel;
T T
U U
V V
-4-
A A
B B
(e) There were eight life jackets on the vessel but there were
C no fire extinguishers, and defendant was aware of it. C
Defendant said he forgot to buy them;
D D
(f) The vessel was not registered in the Mainland, and there
E E
was no crew registration book on board;
F F
(g) None of the three had applied to Immigration Department
G G
or Marine Department for entry into Hong Kong; and
H H
(h) Defendant used GPS device on board to identify their
I location. I
J J
10. Defendant admitted that at the material times, he had assisted
K in the passage to Hong Kong of an unauthorised entrant, namely, Zhang, K
and he, without reasonable excuse, endangered or caused to be endangered
L L
the safety of both Zhang and Leung, in that being the coxswain of the
M vessel, he navigated the vessel which was not suitable for operation as there M
was no fire-fighting appliances equipped on board.
N N
O Criminal record O
P P
11. Defendant had 10 previous criminal records in Hong Kong,
Q two of which related to importing and exporting unmanifested cargo and/or Q
dutiable commodity without a licence and two previous convictions
R R
relating to underway without a certificated coxswain.
S S
T T
U U
V V
-5-
A A
B B
Mitigation
C C
12. It was said on his behalf that he was born in Mainland and is
D D
now aged 41.
E E
13. He resides in China with wife and two children and that he
F F
had received education up to Primary 6 level.
G G
14. His last discharge from a Hong Kong prison dated back to
H 18 January 2012, i.e. five and a half years ago before the commission of H
the present offence.
I I
J 15. Mr Lee, counsel for the defendant, originally mitigated on his J
behalf that he came to Hong Kong to refuel, that mitigation was later
K K
withdrawn. In any event, defendant said that he had inadvertently brought
L Zhang into Hong Kong. L
M M
16. Mr Lee said according to defendant, both Zhang and Leung
N were his friends and the three of them used the boat for transferring cargo N
between the Lema Islands (擔桿島) and Hui Dong (惠東). He said on the
O O
day in question, they were about to fetch fishing equipment from Hui Dong
P as the fishing moratorium is about to end. They then decided to go to P
Hong Kong to get cheaper fuel and were later intercepted by police once
Q Q
they were in Hong Kong waters. In any event, defendant carelessly forgot
R that Zhang and himself had no travel documents allowing them to enter R
Hong Kong.
S S
T 17. Mr Lee submitted letters written by defendant and his wife. T
They asked for a lenient sentence of this court and said that defendant is
U U
V V
-6-
A A
B B
the sole breadwinner of the family and that he has to support also his
C retarded elder brother and elderly mother. Defendant said that he is deeply C
remorseful as to what he had done and asked for leniency so that he would
D D
start afresh on release from prison.
E E
Discussion
F F
G 1st Charge G
H H
18. Section 37D(1)(a) of the Immigration Ordinance, Cap 115
I reads:- I
J J
“Arranging passage to Hong Kong of unauthorised entrants.
Subject to subsection (2), any person who, on his behalf or on
K behalf of any other person, whether or not such person is in K
Hong Kong, arranges or assists the passage to, or within,
Hong Kong of a person who is, or of a conveyance which carries,
L L
an unauthorised entrant, commits an offence and is liable on
conviction on indictment to a fine of $5 million and to
M imprisonment of 14 years.” M
N 19. In this case, the defendant was the coxswain of the vessel N
which brought Zhang into Hong Kong waters.
O O
P 20. The offence was committed in broad daylight. P
Q Q
21. The defendant is no stranger to our criminal justice system.
R He had previous convictions for importing and exporting unmanifested R
cargo and dutiable goods. Our case does not concern import and export of
S S
goods but it concerns bringing in unauthorised entrant.
T T
U U
V V
-7-
A A
B B
22. It is also noted that the vessel was not registered in Mainland
C and there was no crew registration book on board of the vessel. The C
defendant did not have a coxswain licence in Mainland. This court had
D D
reservation as to whether defendant was, as he said, most of the time a
E fisherman. E
F F
23. In the case of HKSAR v Wong Chi Kin , CACC 357/2004,
G Woo VP said in the judgment that:- G
H “10. It can therefore be seen that whenever there is an H
unauthorised entrant on board a vessel in Hong Kong waters, the
person in charge of the vessel or a crew member who assisted in
I I
the passage will be liable to prosecution under either of the two
sections. There is no difference in the penalty. The cases laying
J down the sentencing guidelines do not make any difference J
either. The emphasis in the earlier section seems to be on the
position of the accused in the vessel whereas the later section
K lays emphasis on his conduct.” K
L L
M “11.A number of authorities on sentence has been referred to by M
both Mr Haynes and Mr David Leung, for the respondent. We
will summarise the effect of these authorities, irrespective of
N whether the accused was convicted of the offence under one or N
the other of the statutory provisions. All the authorities are
decisions of this Court and the sentences are those applicable
O O
where an accused is found guilty after trial.”
P P
Q “12.The generally applicable tariff is 4 years’ imprisonment: R Q
v Ho Siu Lun & Others [1987] HKLR 1086, R v Chan Kwok
Keung & Another [1988] 1 HKLR 279, R v Lam Kon Man Crim
R App No. 329/1990. Where the accused was the captain of the R
vessel or the person in charge or assisting in the operation of the
S organisation of the venture, the appropriate starting point is S
5 years’ imprisonment: R v Wong Yin Lung [1995] 1 HKCLR
151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and
T 627A...” T
U U
V V
-8-
A A
B B
And later on in the judgment, he also set out a list of
C aggravating factors which increases the sentence from 5 years’ starting C
point.
D D
E 24. This applicable tariff was applied subsequently in the case of E
HKSAR v Yeung Wui & Others, CACC 415/2004.(see paragraphs 26 and
F F
27 of the judgment.)
G G
25. In our case here, the defendant is the coxswain of the vessel.
H H
I see no reason to depart from the tariff guideline and will adopt 5 years as
I being the sentencing starting point in this case. In arriving at this starting I
point, this court has not taken into account the fact that there is an absence
J J
of fire-fighting equipment on the vessel which exposes the passengers on
K board of the vessel to danger while at sea. K
L L
26. While I have considered all that was said on behalf of the
M defendant and the mitigation letters submitted, I find the only useful M
mitigating factor is defendant’s timely guilty plea, of which he is entitled
N N
to full one-third sentencing discount. For the 1st charge, defendant is
O therefore sentenced to 40 months’ imprisonment. O
P P
2nd Charge
Q Q
27. Section 32 of the Merchant Shipping (Local Vessels)
R R
Ordinance reads:-
S S
“Any person (wherever he may be) who by any unlawful act, or
T in any manner whatsoever without reasonable excuse, endangers T
or causes to be endangered the safety of any person conveyed in
U U
V V
-9-
A A
B or being in or upon any local vessel or in the sea commits an B
offence and is liable on conviction on indictment to a fine of
C $200,000 and to imprisonment of 4 years.” C
D 28. The vessel in question was held to be unfit for operation for D
the fact that there was no fire-fighting appliances on board. This court,
E E
however, noted that there was actually the presence of some buckets for
F fetching water which could possibly be used for fire-fighting. Section 32 F
of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 is actually
G G
identical in wordings to section 72, endangering the safety of others in the
H Shipping and Port Control Ordinance, Cap 313 of the Laws of Hong Kong. H
On conviction on indictment of either of these offence, the penalty is the
I I
same, ie subject to a fine of $200,000 and to imprisonment for 4 years.
J J
29. Chapter 548 is primarily concerned with the regulation and
K K
control of local vessels in Hong Kong or in the waters of Hong Kong and
L L
for other matters affecting local vessels, including the navigation and
M
safety at sea, whether within or beyond the waters of Hong Kong whereas M
Chapter 313 is primarily concerned with the regulation and control of ports
N N
and vessels in Hong Kong or in the waters of Hong Kong, including the
O regulation and control of matters affecting vessels, navigation and the O
safety of vessels at sea again whether within or beyond the waters of
P P
Hong Kong.
Q Q
30. In the case of HKSAR v Wan Ruzhong, CACC128/2016
R R
defendant was convicted of section 72 of the Shipping and Port Control
S Ordinance on his guilty plea together with the offence, contrary to S
section 39 of the Immigration Ordinance. In that case, defendant was
T T
steering the sampan at the time when he was intercepted by police. Police
U U
V V
- 10 -
A A
B B
found seven illegal immigrants on the deck of the sampan, and there was
C no life-jacket, compass or navigation light on the sampan. The sampan C
was found to be seaworthy but was not fit for operation by reason of the
D D
absence of those safety items. Defendant was sentenced to 12 months’
E imprisonment for the charge under that section 72. E
F F
31. The Court of Appeal commented in paragraph 30 of the
G judgment that:- G
H H
“It seems to me that where these two offences are charged
together and the particulars of the section 72 offence are
I aggravating factors for the Immigration Ordinance offence, the I
simplest way of reaching the appropriate totality is not to
enhance the sentence for the section 39 offence but rather to
J J
simply punish the section 72 conduct appropriately, including
the ordering of wholly or partially consecutive sentences,
K depending upon the seriousness of the defendant’s conduct. K
Such an approach has the attraction of simplicity and that it
enables an assessment to be readily made as to whether the
L totality is just in the circumstances. However, more importantly, L
it prevents any misunderstanding arising, and the sense of
M grievance which inevitably flows from it, as to whether the M
defendant has been punished twice for the same conduct.”
N N
32. In the Wan Ruzhong case, the breach is more serious than the
O breach in our present case. In that case, defendant was sentence to 12 O
months’ imprisonment, of which 2 months is to be served consecutively to
P P
the sentence in the 1st charge. At the same time, the court has enhanced
Q the starting point in sentencing of the 1st charge by 3 months because of Q
the state of affairs in the 2nd charge.
R R
S 33. In our case here, the breach concerns the mere absence of fire- S
fighting equipment. After considering authorities HKSAR v Tang Zhuyan
T T
[2010] HKCU 2731, HKSAR v Ding Qijing CACC 75 of 2014, Yeung Wui
U U
V V
- 11 -
A A
B B
case and the Wong Chi Kin case, this court considers a starting point of
C 3 months’ imprisonment appropriate for this charge. Again because of his C
guilty plea, he is entitled to full one-third discount. Accordingly, he is
D D
sentenced to 2 months’ imprisonment for this charge.
E E
34. Charge 1 and Charge 2 concern offences of entirely different
F F
nature, and therefore consecutive sentence should be imposed. However,
G considering the totality principle, having regard to the defendant’s G
culpability in this case, in order to pass a sentence just and appropriate,
H H
taking the offences as a whole, I order that 1 month of the sentence for
I Charge 2 is to run concurrently to the sentence in Charge 1 and the other I
one sentence shall run consecutively to the sentencing in Charge 1.
J J
K 35. In total, the defendant is therefore sentenced to 41 months’ K
imprisonment.
L L
M M
N N
( K Lo )
O
District Judge O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1016/2017
C [2018] HKDC 869 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 1016 OF 2017
F F
---------------------------
G G
HKSAR
H
v H
LIU JINLUO
I ---------------------------- I
J J
Before: HH Judge K Lo
K Date: 15 May 2018 K
Present: Mr Adonis Cheung, Counsel on fiat, for HKSAR
L L
Mr Lee Chiu Tong Peter, instructed by Paul Kwong & Co,
M assigned by the Director of Legal Aid, for the defendant M
Offence: [1] Assisting the passage to Hong Kong of an unauthorised
N N
entrant (協助未獲授權進境者前來香港的旅程)
O O
[2] Endangering the safety of others at sea (危及他人在海上
P 的安全) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. In this case, defendant has pleaded guilty to a charge of T
assisting the passage to Hong Kong of an unauthorised entrant, contrary to
U U
V V
-2-
A A
B B
section 37D(1)(a) of the Immigration Ordinance, Cap 115 and a charge of
C endangering the safety of others at sea, contrary to section 32 of the C
Merchant Shipping (Local Vessels) Ordinance, Cap 548 and was so
D D
convicted.
E E
2. According to the agreed Summary of Facts, in the afternoon
F F
of 10 August 2017, the fishing vessel C140130 (vessel) was sailing east to
G west towards the Shau Kei Wan Typhoon Shelter. G
H 3. When intercepted by the police, defendant was found to be the H
coxswain, while Zhang Ziqing and another Hong Kong male Leung were
I I
found inside the wheelhouse. Zhang was an unauthorised entrant from
J Mainland China. J
K K
4. Both defendant and Zhang had only Mainland China identity
L cards and did not have any valid immigration documents or crew permits L
on them.
M M
N 5. Defendant and Zhang were arrested. Under caution, N
defendant said he came to Hong Kong to buy supplies as the vessel was
O O
out of fuel. Defendant had three mobile phones and cash of HK$2,616 and
P RMB¥639 on him. P
Q Q
6. The vessel compartments were empty and on board, there
R were some vessel’s equipment, a GPS device, a radio, two life buoys, eight R
life-jackets, two oil tanks with no meters installed, one fire pump and two
S S
fire buckets with lanyards.
T T
U U
V V
-3-
A A
B B
7. The vessel belonged to a Mr Lam who said that the defendant
C rented from him in Shenzhen for fishing purpose at HK$5,000 a month. C
D D
8. Marine Department confirmed that the vessel was not suitable
E for operation as there was no fire fighting equipment on board as fire E
extinguishers should be provided for oil or engine fire.
F F
G 9. In a video-recorded interview, defendant said the following:- G
H (a) He was the coxswain of the rented vessel; that the same H
was used for fishing within international waters;
I I
J (b) He did not have a coxswain licence even in Mainland J
China but he knew how to steer the vessel and he has been
K K
a fisherman;
L L
(c) He picked up Zhang from Shanwei in the early hours the
M M
day before and Leung from Wailingding Island, Zhuhai
N in the afternoon. After resting some time on the island, N
three of them planned to sail to Dangan Island in the
O O
afternoon the next day, ie 10 August 2017. He then
P realised he had only half tank of fuel, ie 600 litres, left; P
Q (d) He therefore headed for Yau Tong, Hong Kong to fuel Q
and food. One round trip from Shanwei would require
R R
500 litres of fuel, but he thought that fuel was cheaper in
S Hong Kong than in Mainland China and therefore he S
decided to enter Hong Kong to refuel;
T T
U U
V V
-4-
A A
B B
(e) There were eight life jackets on the vessel but there were
C no fire extinguishers, and defendant was aware of it. C
Defendant said he forgot to buy them;
D D
(f) The vessel was not registered in the Mainland, and there
E E
was no crew registration book on board;
F F
(g) None of the three had applied to Immigration Department
G G
or Marine Department for entry into Hong Kong; and
H H
(h) Defendant used GPS device on board to identify their
I location. I
J J
10. Defendant admitted that at the material times, he had assisted
K in the passage to Hong Kong of an unauthorised entrant, namely, Zhang, K
and he, without reasonable excuse, endangered or caused to be endangered
L L
the safety of both Zhang and Leung, in that being the coxswain of the
M vessel, he navigated the vessel which was not suitable for operation as there M
was no fire-fighting appliances equipped on board.
N N
O Criminal record O
P P
11. Defendant had 10 previous criminal records in Hong Kong,
Q two of which related to importing and exporting unmanifested cargo and/or Q
dutiable commodity without a licence and two previous convictions
R R
relating to underway without a certificated coxswain.
S S
T T
U U
V V
-5-
A A
B B
Mitigation
C C
12. It was said on his behalf that he was born in Mainland and is
D D
now aged 41.
E E
13. He resides in China with wife and two children and that he
F F
had received education up to Primary 6 level.
G G
14. His last discharge from a Hong Kong prison dated back to
H 18 January 2012, i.e. five and a half years ago before the commission of H
the present offence.
I I
J 15. Mr Lee, counsel for the defendant, originally mitigated on his J
behalf that he came to Hong Kong to refuel, that mitigation was later
K K
withdrawn. In any event, defendant said that he had inadvertently brought
L Zhang into Hong Kong. L
M M
16. Mr Lee said according to defendant, both Zhang and Leung
N were his friends and the three of them used the boat for transferring cargo N
between the Lema Islands (擔桿島) and Hui Dong (惠東). He said on the
O O
day in question, they were about to fetch fishing equipment from Hui Dong
P as the fishing moratorium is about to end. They then decided to go to P
Hong Kong to get cheaper fuel and were later intercepted by police once
Q Q
they were in Hong Kong waters. In any event, defendant carelessly forgot
R that Zhang and himself had no travel documents allowing them to enter R
Hong Kong.
S S
T 17. Mr Lee submitted letters written by defendant and his wife. T
They asked for a lenient sentence of this court and said that defendant is
U U
V V
-6-
A A
B B
the sole breadwinner of the family and that he has to support also his
C retarded elder brother and elderly mother. Defendant said that he is deeply C
remorseful as to what he had done and asked for leniency so that he would
D D
start afresh on release from prison.
E E
Discussion
F F
G 1st Charge G
H H
18. Section 37D(1)(a) of the Immigration Ordinance, Cap 115
I reads:- I
J J
“Arranging passage to Hong Kong of unauthorised entrants.
Subject to subsection (2), any person who, on his behalf or on
K behalf of any other person, whether or not such person is in K
Hong Kong, arranges or assists the passage to, or within,
Hong Kong of a person who is, or of a conveyance which carries,
L L
an unauthorised entrant, commits an offence and is liable on
conviction on indictment to a fine of $5 million and to
M imprisonment of 14 years.” M
N 19. In this case, the defendant was the coxswain of the vessel N
which brought Zhang into Hong Kong waters.
O O
P 20. The offence was committed in broad daylight. P
Q Q
21. The defendant is no stranger to our criminal justice system.
R He had previous convictions for importing and exporting unmanifested R
cargo and dutiable goods. Our case does not concern import and export of
S S
goods but it concerns bringing in unauthorised entrant.
T T
U U
V V
-7-
A A
B B
22. It is also noted that the vessel was not registered in Mainland
C and there was no crew registration book on board of the vessel. The C
defendant did not have a coxswain licence in Mainland. This court had
D D
reservation as to whether defendant was, as he said, most of the time a
E fisherman. E
F F
23. In the case of HKSAR v Wong Chi Kin , CACC 357/2004,
G Woo VP said in the judgment that:- G
H “10. It can therefore be seen that whenever there is an H
unauthorised entrant on board a vessel in Hong Kong waters, the
person in charge of the vessel or a crew member who assisted in
I I
the passage will be liable to prosecution under either of the two
sections. There is no difference in the penalty. The cases laying
J down the sentencing guidelines do not make any difference J
either. The emphasis in the earlier section seems to be on the
position of the accused in the vessel whereas the later section
K lays emphasis on his conduct.” K
L L
M “11.A number of authorities on sentence has been referred to by M
both Mr Haynes and Mr David Leung, for the respondent. We
will summarise the effect of these authorities, irrespective of
N whether the accused was convicted of the offence under one or N
the other of the statutory provisions. All the authorities are
decisions of this Court and the sentences are those applicable
O O
where an accused is found guilty after trial.”
P P
Q “12.The generally applicable tariff is 4 years’ imprisonment: R Q
v Ho Siu Lun & Others [1987] HKLR 1086, R v Chan Kwok
Keung & Another [1988] 1 HKLR 279, R v Lam Kon Man Crim
R App No. 329/1990. Where the accused was the captain of the R
vessel or the person in charge or assisting in the operation of the
S organisation of the venture, the appropriate starting point is S
5 years’ imprisonment: R v Wong Yin Lung [1995] 1 HKCLR
151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and
T 627A...” T
U U
V V
-8-
A A
B B
And later on in the judgment, he also set out a list of
C aggravating factors which increases the sentence from 5 years’ starting C
point.
D D
E 24. This applicable tariff was applied subsequently in the case of E
HKSAR v Yeung Wui & Others, CACC 415/2004.(see paragraphs 26 and
F F
27 of the judgment.)
G G
25. In our case here, the defendant is the coxswain of the vessel.
H H
I see no reason to depart from the tariff guideline and will adopt 5 years as
I being the sentencing starting point in this case. In arriving at this starting I
point, this court has not taken into account the fact that there is an absence
J J
of fire-fighting equipment on the vessel which exposes the passengers on
K board of the vessel to danger while at sea. K
L L
26. While I have considered all that was said on behalf of the
M defendant and the mitigation letters submitted, I find the only useful M
mitigating factor is defendant’s timely guilty plea, of which he is entitled
N N
to full one-third sentencing discount. For the 1st charge, defendant is
O therefore sentenced to 40 months’ imprisonment. O
P P
2nd Charge
Q Q
27. Section 32 of the Merchant Shipping (Local Vessels)
R R
Ordinance reads:-
S S
“Any person (wherever he may be) who by any unlawful act, or
T in any manner whatsoever without reasonable excuse, endangers T
or causes to be endangered the safety of any person conveyed in
U U
V V
-9-
A A
B or being in or upon any local vessel or in the sea commits an B
offence and is liable on conviction on indictment to a fine of
C $200,000 and to imprisonment of 4 years.” C
D 28. The vessel in question was held to be unfit for operation for D
the fact that there was no fire-fighting appliances on board. This court,
E E
however, noted that there was actually the presence of some buckets for
F fetching water which could possibly be used for fire-fighting. Section 32 F
of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 is actually
G G
identical in wordings to section 72, endangering the safety of others in the
H Shipping and Port Control Ordinance, Cap 313 of the Laws of Hong Kong. H
On conviction on indictment of either of these offence, the penalty is the
I I
same, ie subject to a fine of $200,000 and to imprisonment for 4 years.
J J
29. Chapter 548 is primarily concerned with the regulation and
K K
control of local vessels in Hong Kong or in the waters of Hong Kong and
L L
for other matters affecting local vessels, including the navigation and
M
safety at sea, whether within or beyond the waters of Hong Kong whereas M
Chapter 313 is primarily concerned with the regulation and control of ports
N N
and vessels in Hong Kong or in the waters of Hong Kong, including the
O regulation and control of matters affecting vessels, navigation and the O
safety of vessels at sea again whether within or beyond the waters of
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Hong Kong.
Q Q
30. In the case of HKSAR v Wan Ruzhong, CACC128/2016
R R
defendant was convicted of section 72 of the Shipping and Port Control
S Ordinance on his guilty plea together with the offence, contrary to S
section 39 of the Immigration Ordinance. In that case, defendant was
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steering the sampan at the time when he was intercepted by police. Police
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V V
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A A
B B
found seven illegal immigrants on the deck of the sampan, and there was
C no life-jacket, compass or navigation light on the sampan. The sampan C
was found to be seaworthy but was not fit for operation by reason of the
D D
absence of those safety items. Defendant was sentenced to 12 months’
E imprisonment for the charge under that section 72. E
F F
31. The Court of Appeal commented in paragraph 30 of the
G judgment that:- G
H H
“It seems to me that where these two offences are charged
together and the particulars of the section 72 offence are
I aggravating factors for the Immigration Ordinance offence, the I
simplest way of reaching the appropriate totality is not to
enhance the sentence for the section 39 offence but rather to
J J
simply punish the section 72 conduct appropriately, including
the ordering of wholly or partially consecutive sentences,
K depending upon the seriousness of the defendant’s conduct. K
Such an approach has the attraction of simplicity and that it
enables an assessment to be readily made as to whether the
L totality is just in the circumstances. However, more importantly, L
it prevents any misunderstanding arising, and the sense of
M grievance which inevitably flows from it, as to whether the M
defendant has been punished twice for the same conduct.”
N N
32. In the Wan Ruzhong case, the breach is more serious than the
O breach in our present case. In that case, defendant was sentence to 12 O
months’ imprisonment, of which 2 months is to be served consecutively to
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the sentence in the 1st charge. At the same time, the court has enhanced
Q the starting point in sentencing of the 1st charge by 3 months because of Q
the state of affairs in the 2nd charge.
R R
S 33. In our case here, the breach concerns the mere absence of fire- S
fighting equipment. After considering authorities HKSAR v Tang Zhuyan
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[2010] HKCU 2731, HKSAR v Ding Qijing CACC 75 of 2014, Yeung Wui
U U
V V
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A A
B B
case and the Wong Chi Kin case, this court considers a starting point of
C 3 months’ imprisonment appropriate for this charge. Again because of his C
guilty plea, he is entitled to full one-third discount. Accordingly, he is
D D
sentenced to 2 months’ imprisonment for this charge.
E E
34. Charge 1 and Charge 2 concern offences of entirely different
F F
nature, and therefore consecutive sentence should be imposed. However,
G considering the totality principle, having regard to the defendant’s G
culpability in this case, in order to pass a sentence just and appropriate,
H H
taking the offences as a whole, I order that 1 month of the sentence for
I Charge 2 is to run concurrently to the sentence in Charge 1 and the other I
one sentence shall run consecutively to the sentencing in Charge 1.
J J
K 35. In total, the defendant is therefore sentenced to 41 months’ K
imprisonment.
L L
M M
N N
( K Lo )
O
District Judge O
P P
Q Q
R R
S S
T T
U U
V V