DCCC1061/2017 HKSAR v. YANG YINCHUN AND OTHERS - LawHero
DCCC1061/2017
HKSAR v. YANG YINCHUN AND OTHERS
區域法院（刑事）HH Judge E. Yip12/6/2018[2018] HKDC 744
DCCC1061/2017
A A
B DCCC 1061/2017 B
[2018] HKDC 744
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 1061 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H (D1) YANG Yinchun H
(D2) YANG Xiaoying
I I
(D3) ZHANG Yunhan
J ----------------------------------- J
Before: HH Judge E. Yip
K K
Date: 13th June 2018 at 09:41 am
L Present: Mr HUI Cheuk Lun Lawrence, Counsel on Fiat, for HKSAR L
Mr LI James William Labboon, of M/s James W.L. Li & Co
M M
assigned by DLA for D1
N Ms CHOW Wai Mee May, of M/s Chow Wong & Lawyers N
assigned by DLA for D2
O O
Mr LEE Kwok Fu Dick, instructed by M/s C.K. Charles Ho
P & Co assigned by DLA for D3 P
Offence: [1] Attempting to export unmanifested cargo (企圖輸出未列
Q Q
艙單貨物)
R R
[2] Assisting the passage to Hong Kong of unauthorized
S entrants (協助未獲授權進境者前來香港的旅程) S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 2 -
A A
B ---------------------------- B
Reasons for Sentence
C C
----------------------------
D Charges D
E E
1. D1 and D2 plead guilty to Charge 1, that of attempting to the
F charge of export unmanifested cargo under section 18(1)(b) of the Import F
and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance,
G G
Cap. 200.
H H
2. D3 pleads guilty to Charge 2, that of assisting the passage to
I I
Hong Kong of unauthorized entrants under section 37D(1)(a) of the
J Immigration Ordinance, Cap. 115. J
K K
Facts
L L
M
3. At 5:30pm on 10 July 2017, police had a joint operation with M
the Customs. At about 10:19pm, the radar room officer of the police
N N
spotted three suspicious vessels gathered 4.5 nautical miles off northeast
O
of Waglan Island. Three minutes later, all of them left with V1 and V3 O
steering towards southeast whereas V2 steering towards Lei Yue Mun.
P P
One cargo vessel (V1) and one speedboat (V3) were seen by the police
Q vessels PV26 and PV27 at 2.8 nautical miles away from the boundary of Q
administration of Hong Kong when they were heading towards mainland
R R
and were about to leave Hong Kong waters. PV26 and PV27 were
S instructed to intercept V1 and V3. S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 3 -
A A
B 4. When PV26 approached V3, there was only D3 on board. D1 B
and D2 were on V1. V1 was sufficiently illuminated. D1 and D2 looked
C C
nervous and jumped over from the left side of V1 to V3. D3 then tried to
D steer away towards the east at high speed. D
E E
5. Police vessels PV26 and PV27 traced and approached them.
F D3 accelerated and turned V3 continuously to flee from PVs. V1 and V3 F
were intercepted after pursuit. At V3, D3 was the coxswain while D1 and
G G
D2 were at the rear seats. They were at 8.6 nautical miles off the southeast
H of East Ninepin Group. H
I I
6. Upon search on V1, nobody was found thereon, 37,374 kg of
J frozen beef offal in a large number of carton boxes was found on board of J
V1. Some of them were found in the cargo hold of V1 while some were
K K
placed on the deck underneath the steering house and covered by a green
L L
canvas. The total value of the frozen beef offal was estimated to be
M
HK$747,480. (Charge 1) M
N N
7. D1 and D2 failed to produce any export manifest to cover the
O
export of the frozen beef offal. D1 to D3 were arrested. O
P P
8. Upon enquiry, D3 said that he had not boarded V1; he was
Q only the coxswain of V3 receiving RMB2,000 and some fuel cost to convey Q
D1 and D2 from Mirs Bay to Hong Kong for D1 and D2 to board V1; since
R R
they were chased by the police, D1 and D2 jumped to V3 and tried to flee.
S (Charge 2) S
T T
9. Under caution, D3 said that
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 4 -
A A
B (a) he was given RMB2,000 fuel money to convey the two males B
to the cargo vessel.
C C
D (b) D3 did not know what was on the cargo vessel. D3 did not D
know D1 and D2.
E E
F (c) A fisherman friend in China introduced D1 and D2 to him and F
asked D3 to convey them. D1 and D2 asked D3 to pick them
G G
up if they were chased.
H H
(d) D3 picked up D1 and D2 at Mirs Bay, China. It took them 2
I I
hours to reach Hong Kong. D3 received a call from 5167
J 7732 asking him to gather at a designated point. He put the J
coordinate provided by that person in the GPS device.
K K
L 10. In the subsequent video recorded interview, under caution, D3 L
M
said that: M
N N
(a) D3 was not authorized to enter Hong Kong by the
O
Immigration Department. He had been driving a boat for O
more than 10 years.
P P
Q (b) He received a call from a friend M/LAM asking him to bring Q
somebody to a vessel at a location outside Hong Kong for a
R R
reward of $2,000. D3 was told to follow the vessel for 30
S minutes after D1 and D2 boarded the vessel and then return S
back to Autau himself alone. He was told that the exact
T T
location would be given to him after he had departed. He was
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 5 -
A A
B also told that if D1 and D2 were chased, D3 had to send them B
back to China. D3 believed that they were doing something
C C
illegal. He would not take up the job if he had known that he
D needed to enter Hong Kong. D3 knew that V3 cannot enter D
Hong Kong. D3 did not know D1 and D2.
E E
F (c) On 10 July 2017, he picked up D1 and D2 at around 1pm at F
Autou at Huizhou. D3 did not know what D1 and D2 were
G G
going to do in Hong Kong. He was given a coordinate
H halfway of his journey. He entered the data in the GPS device H
and sailed along the route shown in the GPS device. He was
I I
not aware that he had already entered Hong Kong.
J J
(d) D1 and D2 boarded another vessel upon arrival at the
K K
designated location. D3 was told to follow the vessel which
L L
was travelling towards China.
M M
(e) When they arrived at the vessel, D3 lost mobile phone
N N
network and he was told to follow the big vessel. D3 was told
O
not to leave otherwise he would not be paid. O
P P
(f) After D1 and D2 boarded the cargo vessel, D3 rescaled the
Q digital sea chart and knew that he was already in Hong Kong. Q
R R
(g) He had been to Hong Kong before and had been working on
S fisherman boats in Hong Kong. S
T T
11. Under caution, D1 said that he came fishing; he saw the police
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 6 -
A A
B and jumped to V3 to escape back to mainland; he did not know what the B
goods on V1 were; Nor did he know if there was any manifest for the
C C
cargoes; both D1 and D2 had steered the cargo vessel; D1 acquainted with
D D3. D
E E
12. Under caution, D2 said he came fishing and he would go back
F to Daya Bay in the Mainland; it was D3 who asked D1 and D2 to jump F
onto V3; they were heading towards mainland on V3; D1 had steered the
G G
cargo vessel and D2 was standing beside him; he did not know if there was
H any manifest for the cargoes; D1 had been steering V1 for about 20 to 30 H
minutes.
I I
J 13. At the material time, D1 and D2 attempted to export J
unmanifested cargo, namely 37,374kg of frozen beef offal.
K K
L 14. At the material time, D3 assisted the passage to Hong Kong L
M
of two unauthorized entrants, namely D1 and D2. M
N N
Personal background and mitigation
O O
P
15. All defendants are fisherman in China. Each has a clear P
record in Hong Kong. Each has a family to feed. D1 is promised, but not
Q Q
yet given, RMB2,000 to navigate the cargo vessel. D2 is promised, but not
R yet given, RMB1,000 to watch over the cargo, and, if necessary, to stand R
in as a navigator for D1.
S S
T Sentencing considerations T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 7 -
A A
B 16. Solicitors for D1 and D2 both refer to the case of HKSAR v B
Lum Shui Kwai HCMA 970/1999 where the defendant imported
C C
unmanifested cargo in the form of frozen pigs of 15 tons valued at
D $300,000 (1st charge). This charge is accompanied by a 2 nd charge of D
importing reserved commodities without a licence and a 3rd charge of
E E
importing game meat without an official licence. The charges are said to
F have arisen out of the same incident, despite separate charges being laid. F
The overall sentence of 15 months is reduced to 12 months on appeal. The
G G
notional starting point is thus 18 months.
H H
17. Solicitors for D1 and D2 both ask me to adopt 18 months as
I I
the starting point for Charge 1 on the basis that the nature and the value
J (after 18 years of that judgment) of the cargo are comparable. J
K K
18. A person in charge of the boat assisting the passage faces a
L L
customary starting point of 5 years in the presence of aggravating features
M
(R v Ng Kit Yuen [1992] 1 HKCLR 170; R v Wong Yin Lung [1995] 1 M
HKCLR 151, at 153; R v Pang Wing [1996] 1 HKC 624, at 626 and 627;
N N
HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v. Yeung Wui CACC
O
415/2004). Counsel for D3 asks me to adopt not more than 5 years as the O
starting point.
P P
Q Sentencing these defendants Q
R R
19. Our present case involves 37,374 kg valued at HK$747,480,
S clearly more than that of 15 tons valued at HK$300,000 in Lum Shui Kwai S
(above) where a notional starting point of 18 months is adopted. In this
T T
comparison exercise I am aware of the impact of inflation after 18 years.
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 8 -
A A
B I now take 21 months as the starting point for Charge 1. After the one- B
third discount, the sentence is 14 months for D1 and D2 each.
C C
D 20. There is no evidence that D3 precisely knew D1 and D2 were D
smuggling. Otherwise D3 would have been charged as their accomplice.
E E
Therefore D3’s sentence shall not be based on smuggling. I consider
F whether the usual norm of 5 years for assisting passage shall be taken as F
the starting point. I eventually decide to take 4 years 9 months so as to
G G
reflect the fact of only 2 unauthorised entrants on board. After the one-
H third discount, the sentence is 3 years 2 months on Charge 2. H
I I
J J
(E. Yip)
K K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
A A
B DCCC 1061/2017 B
[2018] HKDC 744
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 1061 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H (D1) YANG Yinchun H
(D2) YANG Xiaoying
I I
(D3) ZHANG Yunhan
J ----------------------------------- J
Before: HH Judge E. Yip
K K
Date: 13th June 2018 at 09:41 am
L Present: Mr HUI Cheuk Lun Lawrence, Counsel on Fiat, for HKSAR L
Mr LI James William Labboon, of M/s James W.L. Li & Co
M M
assigned by DLA for D1
N Ms CHOW Wai Mee May, of M/s Chow Wong & Lawyers N
assigned by DLA for D2
O O
Mr LEE Kwok Fu Dick, instructed by M/s C.K. Charles Ho
P & Co assigned by DLA for D3 P
Offence: [1] Attempting to export unmanifested cargo (企圖輸出未列
Q Q
艙單貨物)
R R
[2] Assisting the passage to Hong Kong of unauthorized
S entrants (協助未獲授權進境者前來香港的旅程) S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 2 -
A A
B ---------------------------- B
Reasons for Sentence
C C
----------------------------
D Charges D
E E
1. D1 and D2 plead guilty to Charge 1, that of attempting to the
F charge of export unmanifested cargo under section 18(1)(b) of the Import F
and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance,
G G
Cap. 200.
H H
2. D3 pleads guilty to Charge 2, that of assisting the passage to
I I
Hong Kong of unauthorized entrants under section 37D(1)(a) of the
J Immigration Ordinance, Cap. 115. J
K K
Facts
L L
M
3. At 5:30pm on 10 July 2017, police had a joint operation with M
the Customs. At about 10:19pm, the radar room officer of the police
N N
spotted three suspicious vessels gathered 4.5 nautical miles off northeast
O
of Waglan Island. Three minutes later, all of them left with V1 and V3 O
steering towards southeast whereas V2 steering towards Lei Yue Mun.
P P
One cargo vessel (V1) and one speedboat (V3) were seen by the police
Q vessels PV26 and PV27 at 2.8 nautical miles away from the boundary of Q
administration of Hong Kong when they were heading towards mainland
R R
and were about to leave Hong Kong waters. PV26 and PV27 were
S instructed to intercept V1 and V3. S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 3 -
A A
B 4. When PV26 approached V3, there was only D3 on board. D1 B
and D2 were on V1. V1 was sufficiently illuminated. D1 and D2 looked
C C
nervous and jumped over from the left side of V1 to V3. D3 then tried to
D steer away towards the east at high speed. D
E E
5. Police vessels PV26 and PV27 traced and approached them.
F D3 accelerated and turned V3 continuously to flee from PVs. V1 and V3 F
were intercepted after pursuit. At V3, D3 was the coxswain while D1 and
G G
D2 were at the rear seats. They were at 8.6 nautical miles off the southeast
H of East Ninepin Group. H
I I
6. Upon search on V1, nobody was found thereon, 37,374 kg of
J frozen beef offal in a large number of carton boxes was found on board of J
V1. Some of them were found in the cargo hold of V1 while some were
K K
placed on the deck underneath the steering house and covered by a green
L L
canvas. The total value of the frozen beef offal was estimated to be
M
HK$747,480. (Charge 1) M
N N
7. D1 and D2 failed to produce any export manifest to cover the
O
export of the frozen beef offal. D1 to D3 were arrested. O
P P
8. Upon enquiry, D3 said that he had not boarded V1; he was
Q only the coxswain of V3 receiving RMB2,000 and some fuel cost to convey Q
D1 and D2 from Mirs Bay to Hong Kong for D1 and D2 to board V1; since
R R
they were chased by the police, D1 and D2 jumped to V3 and tried to flee.
S (Charge 2) S
T T
9. Under caution, D3 said that
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 4 -
A A
B (a) he was given RMB2,000 fuel money to convey the two males B
to the cargo vessel.
C C
D (b) D3 did not know what was on the cargo vessel. D3 did not D
know D1 and D2.
E E
F (c) A fisherman friend in China introduced D1 and D2 to him and F
asked D3 to convey them. D1 and D2 asked D3 to pick them
G G
up if they were chased.
H H
(d) D3 picked up D1 and D2 at Mirs Bay, China. It took them 2
I I
hours to reach Hong Kong. D3 received a call from 5167
J 7732 asking him to gather at a designated point. He put the J
coordinate provided by that person in the GPS device.
K K
L 10. In the subsequent video recorded interview, under caution, D3 L
M
said that: M
N N
(a) D3 was not authorized to enter Hong Kong by the
O
Immigration Department. He had been driving a boat for O
more than 10 years.
P P
Q (b) He received a call from a friend M/LAM asking him to bring Q
somebody to a vessel at a location outside Hong Kong for a
R R
reward of $2,000. D3 was told to follow the vessel for 30
S minutes after D1 and D2 boarded the vessel and then return S
back to Autau himself alone. He was told that the exact
T T
location would be given to him after he had departed. He was
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 5 -
A A
B also told that if D1 and D2 were chased, D3 had to send them B
back to China. D3 believed that they were doing something
C C
illegal. He would not take up the job if he had known that he
D needed to enter Hong Kong. D3 knew that V3 cannot enter D
Hong Kong. D3 did not know D1 and D2.
E E
F (c) On 10 July 2017, he picked up D1 and D2 at around 1pm at F
Autou at Huizhou. D3 did not know what D1 and D2 were
G G
going to do in Hong Kong. He was given a coordinate
H halfway of his journey. He entered the data in the GPS device H
and sailed along the route shown in the GPS device. He was
I I
not aware that he had already entered Hong Kong.
J J
(d) D1 and D2 boarded another vessel upon arrival at the
K K
designated location. D3 was told to follow the vessel which
L L
was travelling towards China.
M M
(e) When they arrived at the vessel, D3 lost mobile phone
N N
network and he was told to follow the big vessel. D3 was told
O
not to leave otherwise he would not be paid. O
P P
(f) After D1 and D2 boarded the cargo vessel, D3 rescaled the
Q digital sea chart and knew that he was already in Hong Kong. Q
R R
(g) He had been to Hong Kong before and had been working on
S fisherman boats in Hong Kong. S
T T
11. Under caution, D1 said that he came fishing; he saw the police
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 6 -
A A
B and jumped to V3 to escape back to mainland; he did not know what the B
goods on V1 were; Nor did he know if there was any manifest for the
C C
cargoes; both D1 and D2 had steered the cargo vessel; D1 acquainted with
D D3. D
E E
12. Under caution, D2 said he came fishing and he would go back
F to Daya Bay in the Mainland; it was D3 who asked D1 and D2 to jump F
onto V3; they were heading towards mainland on V3; D1 had steered the
G G
cargo vessel and D2 was standing beside him; he did not know if there was
H any manifest for the cargoes; D1 had been steering V1 for about 20 to 30 H
minutes.
I I
J 13. At the material time, D1 and D2 attempted to export J
unmanifested cargo, namely 37,374kg of frozen beef offal.
K K
L 14. At the material time, D3 assisted the passage to Hong Kong L
M
of two unauthorized entrants, namely D1 and D2. M
N N
Personal background and mitigation
O O
P
15. All defendants are fisherman in China. Each has a clear P
record in Hong Kong. Each has a family to feed. D1 is promised, but not
Q Q
yet given, RMB2,000 to navigate the cargo vessel. D2 is promised, but not
R yet given, RMB1,000 to watch over the cargo, and, if necessary, to stand R
in as a navigator for D1.
S S
T Sentencing considerations T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 7 -
A A
B 16. Solicitors for D1 and D2 both refer to the case of HKSAR v B
Lum Shui Kwai HCMA 970/1999 where the defendant imported
C C
unmanifested cargo in the form of frozen pigs of 15 tons valued at
D $300,000 (1st charge). This charge is accompanied by a 2 nd charge of D
importing reserved commodities without a licence and a 3rd charge of
E E
importing game meat without an official licence. The charges are said to
F have arisen out of the same incident, despite separate charges being laid. F
The overall sentence of 15 months is reduced to 12 months on appeal. The
G G
notional starting point is thus 18 months.
H H
17. Solicitors for D1 and D2 both ask me to adopt 18 months as
I I
the starting point for Charge 1 on the basis that the nature and the value
J (after 18 years of that judgment) of the cargo are comparable. J
K K
18. A person in charge of the boat assisting the passage faces a
L L
customary starting point of 5 years in the presence of aggravating features
M
(R v Ng Kit Yuen [1992] 1 HKCLR 170; R v Wong Yin Lung [1995] 1 M
HKCLR 151, at 153; R v Pang Wing [1996] 1 HKC 624, at 626 and 627;
N N
HKSAR v Wong Chi Kin CACC 357/2004; HKSAR v. Yeung Wui CACC
O
415/2004). Counsel for D3 asks me to adopt not more than 5 years as the O
starting point.
P P
Q Sentencing these defendants Q
R R
19. Our present case involves 37,374 kg valued at HK$747,480,
S clearly more than that of 15 tons valued at HK$300,000 in Lum Shui Kwai S
(above) where a notional starting point of 18 months is adopted. In this
T T
comparison exercise I am aware of the impact of inflation after 18 years.
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V
- 8 -
A A
B I now take 21 months as the starting point for Charge 1. After the one- B
third discount, the sentence is 14 months for D1 and D2 each.
C C
D 20. There is no evidence that D3 precisely knew D1 and D2 were D
smuggling. Otherwise D3 would have been charged as their accomplice.
E E
Therefore D3’s sentence shall not be based on smuggling. I consider
F whether the usual norm of 5 years for assisting passage shall be taken as F
the starting point. I eventually decide to take 4 years 9 months so as to
G G
reflect the fact of only 2 unauthorised entrants on board. After the one-
H third discount, the sentence is 3 years 2 months on Charge 2. H
I I
J J
(E. Yip)
K K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT29/13.6.2018 DCCC 1061/2017/Sentence
V V