由此
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B DCCC 360/2021 B
[2021] HKDC 1294
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 360 OF 2021 E
F ____________ F
G HKSAR G
H v H
CHAN Po-keung, Paul
I I
____________
J J
K Before : H.H. Judge G. Lam K
Date : 15 October 2021
L Present : Mr. Franco Kuan, counsel on fiat, for HKSAR. L
Mr. Osmond Lam instructed by M/s Jal N.
Karbhari & Co. for the defendant.
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Offence : Assisting the passage within Hong Kong of
unauthorized entrants（協助未獲授權進境者在
N N
香港境內的旅程）
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REASONS FOR SENTENCE
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The defendant pleaded guilty to a charge of "Assisting the
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passage within Hong Kong of unauthorized entrants1".
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T T
1
Contrary to section 37D(1)(a) of the Immigration Ordinance (Cap.115).
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Summary of Facts
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C 2. About 3:38 a.m. on 1 November 2020, in the vicinity of Tung C
D Chung New Development Pier ("the Pier"), PC 12021 spotted a speedboat D
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with no navigation lights ("the Boat") travelling from the Hong Kong E
Zhuhai Macau Bridge crossing facility towards the Pier. Shortly afterwards,
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a red private car SK7270 ("the Car") was heading towards the Pier. It
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stopped at Tung Chung Waterfront Road near lamppost FB8386.
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3. When the Boat reached the Pier, 3 female passengers (UE1 to
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UE3, who later confirmed to be mainland residents) alighted from the Boat
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and boarded the Car. PC 12021 alerted his teammates.
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M 4. Police officers intercepted the Car when it was leaving the Pier. M
N The defendant was found to be the driver with UE1 to UE3 on board. Police N
enquiries revealed that UE1 to UE3 all came to Hong Kong from Shenzhen
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by boat. They carried no travel documents with them.
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Q Q
5. The defendant was arrested for "Aiding and abetting illegal
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immigrants". Under caution, he said "I got a notification from WeChat
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telling me to pick up 3 girls from Tung Chung to Tin Shui Wai and Sheung
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Shui for $500 per person. I guess they are illegal immigrants." In his video
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recorded interview, the defendant admitted, inter alia, that the Car was
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registered under his wife's name. She allowed him to use the Car. He
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possessed the 2 mobile phones which were found on him.
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E E
6. The Immigration Department confirmed that there is no
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exit/entry record of UE1 to UE3 at the time of the offence.
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H Mitigation & Sentence H
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7. The defendant will soon be 58 and has a clear record. Defence
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counsel Mr. Lam informed me that the defendant is married with a daughter
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(aged 22), who is a full-time student. The defendant works as a computer
L engineer earning $20,000 to $30,000 per month. He is the sole income L
M source of his family. M
N N
8. In mitigation, Mr. Lam submitted that the defendant has been
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with his current employer for over 11 years. His employer considers him "a
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key and vital member" of the company. An open offer was made to the
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defendant to re-join the company when he becomes available. Regarding
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the present offence, Mr. Lam explained that the defendant was trying to help
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a friend (by picking up a few persons and giving them a ride) without
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thinking too much of the consequences (legal or otherwise) involved. Mr.
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Lam stressed that the defendant's employer is supportive; he even stood as
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the defendant's surety in his bail application. A bundle of mitigation
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documents was placed before me; their contents are duly noted.
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9. In respect of sentencing principles and guidelines, Mr. Lam has
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drawn my attention to HKSAR v Chan Lai-choi CACC 166/1997, in which
G the Court of Appeal held that for a taxi driver who conveyed 5 unauthorized G
H entrants within Hong Kong after they entered the territory by boat, the H
I appropriate starting point would be 3 years' imprisonment. Mr. Lam has I
J
also referred to the Reasons for Sentence by H.H. Judge A. Kwok in HKSAR J
v 石數 Mandy & another [2020] HKDC 1221 (Chinese judgment). The
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learned judge adopted a starting point of 28 months' imprisonment for D3 in
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that case, a taxi driver who failed to make reasonable efforts in ascertaining
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the immigration status of 5 suspicious passengers2.
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O O
10. I accept that the defendant has been an upstanding citizen all
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his life, which is a meaningful mitigation factor for someone of his age. He
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is a caring and responsible husband and father at home; a valuable employee
R at work; and a contributing member in the community. I do not know why R
S he decided to help his friend (if indeed he was asked by a friend to help) to S
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2
See paragraphs 14 and 15.
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pick up some passengers (needless to say unauthorized entrants) in the small
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hours at such a remote location. As confirmed by Mr. Lam, the defendant
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was not moonlighting as an Uber driver and the sum he could earn was only
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$1,500. It was not put forward that he had any financial need to earn some
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quick money. It troubles me why the defendant, being such a fine person,
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would commit the present offence. For the purpose of sentencing, I accept
G what he did was a single fall from grace. G
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I 11. I have considered the Court of Appeal's decision in Chan I
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Lai-choi. I find the defendant's culpability in the present case less serious, J
even less serious than D3 in 石數 Mandy. A starting point of 2 years'
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imprisonment is just and appropriate in the present case. On the other hand,
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the offence took place in November 2020, when every reasonable person in
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Hong Kong would and should appreciate the importance of guarding the
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city against the COVID-19 virus. Conveying unauthorized entrants to any
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part of the city creates a tremendous risk to public health. I find this to be an
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aggravating factor. I would increase the starting point to 27 months. With
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the timely guilty plea, the sentence is reduced to 18 months. Apart from this,
R I see no other mitigating factors which warrant any further reduction. I R
S sentence the defendant to 18 months' imprisonment. S
T T
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由此
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A A
12. It is not an easy task to send someone like the defendant, who
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has never lost his freedom, to prison. I have considered long and hard what
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the appropriate length of imprisonment should be. Mr. Lam has said
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everything he could on behalf of the defendant. I have attached due weight
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to every acceptable mitigating factor to arrive at the starting point of 2 years'
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imprisonment. It saddens me to put him in prison.
G G
H H
I (G. Lam) I
District Judge
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K K
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