A A
B B
DCCC 782/2019
C [2019] HKDC 1588 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 782 OF 2019
F F
G ----------------------------- G
HKSAR
H H
v
I PENG Zhengye I
-----------------------------
J J
Before: HH Judge Sham
K K
Date: 25 November 2019
L Present: Mr Benjamin Chain, Counsel on fiat, for HKSAR L
Ms Anna Ho instructed by Messrs. Fongs assigned by the
M M
Director of Legal Aid for the defendant.
N N
Offence: [1] Assisting the passage to Hong Kong of unauthorized
O
entrants (協助未獲授權進境者前來香港的旅程) O
[2] Endangering the safety of others at sea (危害他人在海上
P P
的安全)
Q Q
--------------------------------------
R R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
1. This is a case of smuggling of human cargo by sea.
U U
V V
- 2 -
A A
B B
C 2. The defendant, a 44-year-old Mainlander, being the coxswain C
of a motorized sampan carrying on board four Pakistani men (unauthorized
D D
entrants) was seen entering into Hong Kong waters from the Mainland in
E the small hours on 25 July 2019. When moving towards Lung Kwu Tan, E
the sampan was intercepted by the marine police without incident.
F F
G 3. The defendant, who was then arrested, told the police under G
caution that he received $500 for each person he conveyed from the
H H
Mainland to Hong Kong.
I I
4. About three weeks later on 14 August, the sampan was
J J
examined by a senior ship inspector of the Marine Department, who found
K it to be unseaworthy for the following reasons: K
L L
a)- The main hull structure was in poor condition;
M b)- It was not equipped with any life-saving equipment; M
c)- There were no firefighting appliances nor navigation lights.
N N
O O
5. Consequently, the defendant was charged with two counts of
P
offence to which he pleaded guilty: P
Q Q
Charge 1: Assisting the passage to Hong Kong of unauthorized entrants1;
R Charge 2: Endangering the safety of others at sea2. R
S S
T T
1
Contrary to sections 37D(1)(a) of the Immigration Ordinance Cap. 115
2
Contrary to section 72 of the Shipping and Port Ordinance Cap. 313
U U
V V
- 3 -
A A
B B
6. The defendant, a fisherman by profession with only primary
C one education, has never had any trouble with the law before. He is a C
divorce living with his mother and a 16-year-old daughter. The whole
D D
family is relying on his meagre fisherman’s income of about $4,000 RMB
E a month. E
F F
7. In mitigation, the court heard that the defendant, who was
G tested HIV positive in 2006, has had to spend approximately $15,000 RMB G
a year for his medication and fortunately his current condition remains
H H
stable.
I I
8. To make matters worse, however, there is moratorium on
J J
fishing between the months of May and August; in other words, he needs
K to look for some other sources of income to live on. Counsel for the K
defendant, Miss Anna Ho, said that it was under such circumstances that
L L
he committed the present offences.
M M
9. A section 37 offence carries the maximum term of 14 years’
N N
imprisonment. For those who engage in human smuggling by sea, the usual
O O
sentence, in the absence of aggravating features, is one of 5 years if he is
P
the person in charge of the vessel, such as the captain or the coxswain; P
those who are just giving a helping hand such as the crew members will
Q Q
attract a lesser term like 4 years.
R R
10. I accept that the defendant in the instant case made no
S S
attempt to escape when being intercepted by the marine police, thus
T avoiding the danger arising from any possible high-speed pursuit, which T
U U
V V
- 4 -
A A
B B
might aggravate the matters further by putting the lives of those
C unauthorized entrants at risk. C
D D
11. As far as Charge 2 is concerned (the maximum sentence is
E one of 4 years), the matters which rendered the sampan dangerous to the E
unauthorized entrants are to do with the conditions of the sampan itself,
F F
rather than the way the defendant maneuvered it in a dangerous manner
G resulting from, for example, escaping from the police. G
H H
12. Given the facts of the present case, I would take 5 years and 1
I year for charges 1 and 2 respectively, and reduce it to 40 months and 8 I
months to reflect the defendant’s timely pleas. Insofar as mitigation is
J J
concerned, apart from the guilty pleas, there is not anything of substance.
K K
L
13. Taking into account the totality principle, I order that the term L
of charge 1 be run consecutively to 2 months of charge 2, the total term is
M M
one of 42 months’ imprisonment.
N N
O O
P P
( Sham )
Q District Judge Q
R R
S S
T T
U U
V V