A A
DCCC 238/2016
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 238 OF 2016
C C
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D D
HKSAR
E v E
Wan Ruzhong
F F
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G G
Before: HH Judge Casewell
Date: 29 April 2016 at 3.10 pm
H Present: Mr Ivan Shiu, PP of the Department of Justice, for H
HKSAR
I
Mr Wong Kwok-tung Daniel, of Fan Wong & Tso, assigned I
by the Director of Legal Aid, for the defendant
Offence: (1) Being the captain of a ship with persons on board
J seeking to land unlawfully in Hong Kong (身為船長而其船隻 J
上載有尋求在香港非法入境的人)
K (2) Endangering the safety of others at sea (危害他人在 K
海上的安全)
L --------------------- L
M
Reasons for Sentence M
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N N
1. The defendant has pleaded guilty to two charges: first
O one is being captain of a ship with persons on board seeking to O
land unlawfully in Hong Kong, which is contrary to Section 39 of
P the Immigration Ordinance; second charge is endangering the P
safety of others at sea, contrary to Section 72 of the Shipping
Q Q
and Port Control Ordinance.
R R
2. The facts have been agreed and I convicted the
S defendant on both charges. S
T 3. They arise from a patrol carried out by police vessels T
near Lantau Island on the early morning of 7 February 2016.
U U
Their radar showed an unidentified motorised sampan speeding
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A across the boundary of marine south waters towards Lantau A
Island, heading for a landing at the south area of Lantau
B Island. B
C C
4. At about 4.24 am, the vessel, which was unlit, was
sailing in the southeast direction, approaching the south of
D D
Lantau Island near Fan Lau. Sea and wave conditions were
E considered to be rough at the time. E
F 5. The sampan was intercepted at about 1 nautical mile F
from the south coast of Lantau Island. Seven illegal immigrants
G G
were found crouching on the deck and the defendant was
controlling the steering wheel at the stern.
H H
I
6. The defendant was found to be a Mainland identity card I
holder.
J J
7. The seven illegal immigrants were from India,
K Pakistani and Bangladesh. None had permission to land in Hong K
Kong.
L L
8. The defendant said that he was conveying those seven
M M
illegal immigrants from Zhuhai to Hong Kong for RMB300.
N N
9. There was no life jacket, compass and navigation light
O on the sampan, and the engine was a 10-horsepower Yamaha O
outboard.
P P
10. Later, an inspection by Ship Inspector found the hull
Q Q
structure was normal. There was no fire-fighting equipment on
R the vessel. There was no lifesaving appliances on the vessel; no R
navigation light fitted on board for the night operation. The
S vessel was found to be seaworthy but the lack of equipment would S
have made it not suitable for operation.
T T
U U
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A 11. The defendant made various admissions during a video A
recorded interview. He was to take a vessel from Zhuhai with
B seven foreigners on board the ship. He was told to take them to B
a beach. He was aware of the absence of navigation light and
C C
lifejackets.
D D
12. The defendant’s antecedent is as follows. He is aged
E 44. He is a resident of the Mainland and has a clear record in E
Hong Kong.
F F
13. As far as the mitigating factors put forward, they are
G G
as follows. The defendant immediately confessed his guilt after
arrest and has fully co-operated. He was not the principal
H H
mastermind. He is simply the coxswain of the vessel and did it
I
for the sum of RMB300, which is a small sum of money. All of the I
illegal immigrants were adult males. The vessel stopped
J immediately when being asked to do so by the police. No J
swerving, accelerating or other reckless movements of the
K vessel. The conditions were not stormy, although not entirely K
calm. Although the vessel lacked necessary equipment, it was in
L L
itself seaworthy.
M M
14. As far as the approach to sentence is concerned, I
N have been referred to the case of HKSAR v Ding Qijing, which is N
CACC 75/2014, which involved again a motorised sampan and seven
O Pakistani males seeking to land from the sampan. Now, the sampan O
itself also lacked essential equipment, as this sampan did. It
P P
also appears to differ from this sampan, in that the bottom
buoyancy chamber had been removed. There is no suggestion that
Q Q
happened in this case.
R R
15. The Court of Appeal considered the sentences that had
S been imposed by the trial judge and considered that, on the S
first charge, an appropriate starting point for sentence would
T T
be 4½ years’ imprisonment.
U U
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A 16. That sentence was enhanced by 3 months to represent A
the aggravating factor in the commission of the offence in the
B absence of the vessel of the fire-fighting and lifesaving B
equipment. That means leading to a total starting point for
C C
sentence of 4 years and 9 months’ imprisonment.
D D
17. On the second charge, a starting point of 12 months’
E imprisonment was adopted. E
F 18. It appears to me the operating factors in the case of F
Ding Qijing and in this case are the same in terms of the
G G
starting point for sentence on the first charge. In this case
there is also the absence of fire-fighting and lifesaving
H H
equipment.
I I
19. I propose then to adopt the following starting points
J for sentence in respect of each charge. J
K 20. On the first, Charge 1, a starting point for sentence K
of 4 years and 9 months’ imprisonment. This will be reduced to
L L
38 months’ imprisonment, having regard to the defendant’s plea
of guilty.
M M
N 21. On the second charge, a starting point of 12 months’ N
imprisonment, which will be reduced to 8 months’ imprisonment,
O having regard to the defendant’s plea of guilty. O
P P
22. I shall order that 2 months of the second charge be
served consecutively to the first charge to represent the
Q Q
correct overall totality, giving a total sentence of 40 months’
R imprisonment for these two charges. R
S S
T T
(T Casewell)
District Judge
U U
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