區域法院（刑事）Deputy District Judge Lily Wong23/12/2021[2021] HKDC 1625
DCCC224/2021
A A
B B
DCCC 224/2021
C [2021] HKDC 1625 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 224 OF 2021
F F
G ------------------------ G
HKSAR
H H
V
I KAM Chi-wa I
------------------------
J J
K Before: Deputy District Judge Lily Wong in Court K
Date: 24 December 2021
L L
Present: Mr. Arthur Wong C.Y., Counsel on fiat, for HKSAR
M Ms. Vanessa Ho H.Y., instructed by Messrs. Tang, Lai & M
Leung, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: [1] Assisting the passage within Hong Kong of unauthorized O
entrants (協助未獲授權進境者在香港境內的旅程)
P P
[2] Driving while disqualified (於取消駕駛資格期間駕駛)
Q Q
[3] Driving without a valid driving licence (駕駛時無有效駕
R 駛執照) R
[4] Using a motor vehicle without third party insurance
S S
(沒有第三者保險而使用汽車)
T T
U U
V V
-2-
A A
B B
[5] Failing to surrender to custody without reasonable cause
C (無合理因由而沒有按照法庭的指定歸押) C
D D
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E REASONS FOR SENTENCE E
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F F
G Charges G
1. The defendant pleaded guilty to the following 5 charges, save
H H
for charge 5 which took place on 6 May 2021, the other offences took place
I on 14 August 2020: I
J J
st
1 charge: Assisting the passage within Hong Kong of
K unauthorized entrants, contrary to s37D(1)(a) of the K
Immigration Ordinance, Cap. 115;
L L
M 2nd charge: Driving while disqualified, contrary to s 44(1)(b) M
of the Road Traffic Ordinance Cap. 374;
N N
O O
3rd charge: Driving without a valid driving licence, contrary
P
to s42(1) and (4) of the Road Traffic Ordinance, Cap. 374; P
Q Q
4th charge: Using a motor vehicle without third party
R
insurance, contrary to s4(1) and (2)(a) of the Motor Vehicles R
Insurance (Third Party Risks) Ordinance, Cap. 272; and
S S
T T
U U
V V
-3-
A A
B B
5th charge: Failing to surrender to custody without reasonable
C cause, contrary to s9L(1) and (3) of the Criminal Procedure C
Ordinance, Cap. 221.
D D
E Facts E
F
Charge 1 F
2. In gist, the facts to which the defendant admitted are as
G G
follows. In the early hours on 14 August 2020, police officers were
H patrolling on a private car in Tung Chung, Hong Kong, in an anti-illegal H
immigrants operation. At 2:30am on the same day, the defendant, male
I I
Fan Kai-yim (“Fan”) and male Chan Yuk-lung (“Chan”) were seen
J standing next to a light goods vehicle with registration no. WT4996 J
(“LGV”), which was parked at the carpark outside of Tung Chung Ma Wan
K K
Chung Pier. The officers revealed their police identity and intercepted
L these 3 men for enquires. Nothing suspicious was found on the LGV and L
the officers departed at 3:05 am on the same day.
M M
N 3. Later, at 3:21 am on the same day, the officers noted that the N
LGV was parked outside of Tung Chung Catholic School, Yat Tung Estate,
O O
Tung Chung, which is about 450m away from the above pier. A few
P minutes later, the officers observed that 5 men appeared from Ma Wan P
Chung Village and ran on board the LGV. The LGV pulled out and drove
Q Q
for about 1m. The police private car intercepted it. The defendant was
R found to be the driver of the LVG. He and the other 5 men alighted from R
the LGV and ran away.
S S
T
4. Later, the defendant and 2 of the men who had alighted from T
the LGV i.e. Su Shengyin and Su Pinting were intercepted. Upon search
U U
V V
-4-
A A
B B
of these 2 men, their China identity cards were found. Meanwhile, police
C officers also spotted another man, Ye Ziming, running outside of Shun Yat C
House of Yat Tung Estate (which was just across the street from Tung
D D
Chung Catholic School) and intercepted Ye Ziming who did not carry any
E identification documents. The defendant and these 3 men were arrested. E
F F
5. At 3:30 am on the same day, Chan was found driving a private
G car with registration no. PU 5464 around Chung Yan Road and Yu Tung G
Road. Chan was intercepted and arrested. Chan’s phone was examined, it
H H
was found that at 3:22 am that day, Chan’s phone sent out a picture of the
I private car that was used by the police officers in a WeChat conversation I
to “Big Brother”. In that conversation, Chan sent out voice messages,
J J
saying that it was one of the vehicles that intercepted them just now. 6
K minutes later, Chan sent another voice message, saying that just now even K
there were someone ambushing at the bridge.
L L
M 6. Around 3:36 am on the same day, Fan was found near House M
No. 15 in Ma Wan Chung Village. Fan was intercepted and arrested.
N N
O 7. Under caution at scene, the defendant said voluntarily that he O
was disqualified and had nothing to do, therefore he received $3,000 from
P P
Ah Yim to help out driving several Chinese illegal immigrants to leave
Q Tung Chung so as to support his family. Q
R R
8. In the subsequent video-recorded interview, the defendant
S said under caution voluntarily: S
T T
U U
V V
-5-
A A
B B
a) he was disqualified from driving for a year on 6 March
C 2020 because he drove without a licence; C
b) he knew Fan a few months ago; Fan offered him HK$3,000
D D
to carry some illegal immigrants out of Tung Chung by car;
E c) Around 2 odd am on 14 August 2020, he was at Ma Wan E
Chung Village and Fan called him, asking him to carry
F F
“goods” at the Ma Wan Chung Pier;
G d) At the pier, he, Fan and another man were intercepted by G
the police;
H H
e) After the police had left, about 5 Chinese illegal
I I
immigrants came out from Ma Wan Chung Village; Fan
J drove the LGV to take him and these Chinese illegal J
immigrants to leave the pier;
K K
f) However, since there was oncoming traffic, the LGV had
L to reverse back to the pier and these Chinese illegal L
immigrants alighted from it;
M M
g) Fan said that he needed to lead these Chinese illegal
N immigrants to Yat Tung Estate on foot and the defendant N
needed to drive the LGV to Yat Tung Estate to wait for
O O
these Chinese illegal immigrants to get on board;
P h) Fan asked him to carry these Chinese illegal immigrants P
out of Tung Chung by car and Fan would later tell him the
Q Q
destination; and
R R
i) he still had not received the HK$3,000 reward.
S S
T T
U U
V V
-6-
A A
B B
Charges 2-3
C 9. The defendant was disqualified from driving for 12 months on C
6 March 2020. He had obtained driving licence (Class 1 & 2) in 2005 but
D D
the licence had expired since 2015.
E E
Charge 4
F F
10. The LGV’s third party insurance provides that only a person
G who is not disqualified from holding or obtaining the relevant driving G
licence is entitled to drive the LGV.
H H
I Charge 5 I
11. The defendant was charged with Charges 1-4 in the
J J
Magistracy and released on court bail. He first appeared in the District
K Court for this case on 25 March 2021 and the case was adjourned to 6 May K
2021 with bail granted by the Court to him. However, the defendant did
L L
not appear in court on 6 May 2021 in compliance with the bail condition.
M M
12. At 9:30pm on 2 September 2021, police officers spotted the
N N
defendant in Mui Wo. He acted furtively at the sight of the officers and
O attempted to leave on bike. Thus, he was intercepted. Upon arrest and O
under caution at scene, he said voluntarily that he did not know he needed
P P
to attend court for this case.
Q Q
13. In the subsequent record of interview, under caution the
R R
defendant said voluntarily that he forgot to attend court on 6 May 2021.
S During the time that he jumped court bail, he resided in Mui Wo and did S
not work.
T T
U U
V V
-7-
A A
B B
Antecedent Statement
C C
14. The antecedent statement of the defendant was read out in
D
court. In summary, it provides that the defendant, aged 40, received D
secondary three education level. He was previously a transportation
E E
worker. He has criminal records and was last discharged in May 2020.
F F
Criminal Record
G G
15. The defendant has 5 criminal convictions. He was sentenced
H H
on 6 March 2020 to a term of 2 months’ imprisonment, fined and was
I subject to a disqualification order for offences of taking conveyance I
without authority; driving without a licence and using a motor vehicle on
J J
a road against third party risks.
K K
16. On 3 September 2021, he was sentenced to concurrent
L L
sentence of 6 months and 3 week’s imprisonment for each of the 2 fraud
M offences (KCCC 574/2021). In other words, he is now serving this prison M
N
term. N
O Mitigation O
17. Ms. Ho, Counsel representing the defendant, submitted in
P P
mitigation that the Defendant has separated with his wife since 2019 and
Q they have two sons aged 16 and 7 years. The Defendant lives together with Q
his mother, younger brother and elder son in Mui Wo, Lantau Island. He
R R
is the main breadwinner for both his mother and ex-wife (for maintenance
S of his younger son), contributing a total of HK$10,000 to them. S
T T
U U
V V
-8-
A A
B B
18. Prior to the disqualification in 2020, he was a driver earning
C approximately HK$15,500 a month. He then became unemployed and C
experienced great difficulty in finding gainful employment during the
D D
pandemic. He committed the present offences with a view to earning quick
E money to support his family. The defendant did not fully consider the E
serious consequences of his actions.
F F
G 19. In respect of the sentence of charge 1, Ms. Ho referred to the G
following 3 cases namely HKSAR v Lee Kin Ming CACC 536/1991,
H H
HKSAR v Wong Fu Keung CACC 158/1996 and HKSAR v Chan Lai
I Choi CACC 166/1997. The facts were summarised in her written I
submissions and I do not intend to repeat them here. She made a
J J
comparison of the facts of the present case to that of these cases. What I
K understand from her is that a starting point for the 1st charge should be in K
the region of 3 years.
L L
M 20. Finally, Ms. Ho submitted that the defendant has learnt a bitter M
lesson, and urged this Court to consider the sentence of the present case to
N N
run concurrently to his existing sentence.
O O
Reasons for Sentence
P P
21. In sentencing, I have considered everything said and written
Q by Ms Ho and the authorities cited. Q
R R
Charge 1 Assisting the passage within HK of unauthorized entrants
S 22. It goes without saying that the 1st charge is a very serious S
offence and the maximum penalty is a fine of $5,000,000 and 14 years’
T T
imprisonment. In Lee King Ming, the Court of Appeal said that:
U U
V V
-9-
A A
B “5…these were indeed serious offences…”. B
C C
23. Although Ms. Ho referred this Court to Lee Kin Ming (date
D of judgment 12 March 1992), Wong Fu Keung (date of judgment: 16 D
August 1996) and Chan Lai Choi (date of Judgment: 19 February 1998),
E E
there are relatively recent judgments which the Court of Appeal have dealt
F with the same offence: HKSAR v Wong Chi Kin (unreported, CACC F
357/2004, 5 February 2005) and HKSAR v Yeung Wui (ureported, CACC
G G
415/2004 18 March 2005).
H H
24. In Wong Chi Kin, Woo VP said:
I I
“12. The generally applicable tariff is 4 years’
imprisonment…Where the accused was the captain of the vessel
J or the person in charge of assisting in the operation of the J
organization of the venture, the appropriate starting point is 5
K
years’ imprisonment.” K
L 25. In her submission, Ms. Ho considers that: L
(a) The defendant faces 1 single charge but the appellant
M M
Lee King Ming pleaded guilty to seven charges of the
N same offence for which he received concurrent N
sentence of 2 ½ years’ imprisonment. Lee Kin Ming
O O
was more culpable than the defendant;
P (b) The appellant Wong Fu Keung provided not only P
transport but also forged ID documents to the
Q Q
unauthorized entrants and received 3 years’
R imprisonment after trial. Here, the defendant simply R
provided transport to the unauthorized entrants;
S S
(c) The defendant’s culpability is similar to that of Chan
T Lai Choi who assisted the passage of 5 unlawful T
entrants and was, on appeal, sentenced to 3 years’
U U
V V
- 10 -
A A
B B
imprisonment but for his clear record, the sentence was
C reduced to 2 ½ years’ imprisonment. C
D 26. Notwithstanding the aforesaid, this court must not lose sight D
that the defendant is charged together with Fan for assisting the passage
E E
within Hong Kong of not a single but 3 unauthorized entrants. The facts
F F
also show that (a) another culprit Chan was involved, and (b) the defendant
G
said under caution, there were a total of 5 Chinese illegal G
immigrants. Pausing here, I must emphasis that I am aware that the 1 st
H H
charge named 3 but not 5 unauthorized entrants. The facts to which the
I defendant pleaded guilty show that he did not act alone. Each of them (the I
defendant, Fan and Chan) has a role to play in order to carry out a pre-
J J
planned scheme of assisting the passage of at least 3 unauthorized
K entrants. K
L L
27. In Wong Chi Kin, Woo VP said:
M “22. In our law, it is always recognized that two or more persons M
committing a crime would normally be considered as an
aggravating factor as compared with the sentencing in respect of
N a lone culprit.” N
O O
28. Despite Ms. Ho said the Court of Appeal in Chan Lai Choi
P
adopted a starting point of 3 years, I take into account all the circumstances P
of the case including those stated in paragraph 26, and come to the
Q Q
conclusion that a starting point of 4 years’ imprisonment is appropriate.
R R
Charge 2 driving while disqualified
S 29. The offence of driving while disqualified is serious. The S
maximum prison term is 12 months, and the court shall order that the
T T
person be disqualified in the case of a first conviction, for a period of not
U U
V V
- 11 -
A A
B B
less than 12 months unless the court for special reasons orders that the
C person be disqualified for a shorter period or that the person not be C
disqualified.
D D
E 30. Fully aware of the disqualification order imposed on him on E
6 March 2020 for a period of 12 months, the defendant paid no heed to it
F F
and committed the offence of driving while disqualified five months after
G the court order. Doubtless to say, it is a flagrant breach of the court order G
and a custodial sentence is inevitable.
H H
I 31. In HKSAR v Wong Chi Ming HCMA 510/1999, Yeung J (as I
he then was) said:
J J
“20. The offences of driving whilst disqualified and the offences
of driving without insurance are, of course, very serious
K offences. Their seriousness lies in the possibility that victims in K
traffic accidents may be left without any compensation.”
L L
32. In light of the circumstances, I take a starting point of sentence
M M
of 3 months’ imprisonment. No special reason was put forward, and I order
N that the defendant be disqualified for 12 months. N
O O
Charge 3 - driving without a valid driving licence
P
33. The maximum penalty for this offence as provided in 42(4) of P
Cap. 374 is to imprisonment for 3 months in the case of a first conviction,
Q Q
and to imprisonment for 6 months in the case of a second or subsequent
R conviction. R
S S
34. The defendant committed this offence previously on 6 April
T 2019 and 14 April 2019 for which he was fined $2,000 and $3,000 T
respectively. This is the third time he committed this offence. Obviously,
U U
V V
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A A
B B
previous sentences of a fine did not deter the defendant from committing
C the same offence again and again. As such, I take a starting point of C
sentence of 6 weeks’ imprisonment.
D D
E Charge 4 using a motor vehicle without third party insurance E
35. An offender, who drives a motor vehicle whilst being
F F
disqualified, will also face a charge of driving without third party
G insurance. These two offences go hand-in-hand. The maximum penalty for G
such an offence was, at the time of the offence, a fine of $10,000 and to
H H
imprisonment for 12 months, and be disqualified for a period of not less
I than 12 months nor more than 3 years from the date of conviction. I
J J
36. In HKSAR v Chan Chuk Hon HCMA 623/2005, Deputy
K High Court Judge D. Pang (as he then was) noted that: - K
“9…...if the breach was flagrantly committed and there was no
L operative factor to diminish culpability, then an immediate L
custodial sentence should be imposed even if the offender has
never before suffered imprisonment”
M M
37. It is the second time the defendant committed this offence,
N N
and I will adopt the same starting point for sentence as that of charge 2 i.e.
O 3 months’ imprisonment. Again, no special reason is put forward, and I O
order that the defendant be disqualified for 2 years.
P P
Q Charge 5 Failing to surrender to custody without reasonable cause Q
38. Any person who commits the offence of failing to surrender
R R
to custody without reasonable cause is liable on conviction upon
S S
indictment to a fine and to imprisonment for 12 months.
T T
U U
V V
- 13 -
A A
B B
39. The defendant disregarded the court order and jumped bail
C and I adopt a starting point of sentence of 3 months’ imprisonment. C
D 40. The prosecution applied to estreat the defendant’s bail money D
of $8,000 to which the defence raised no objection. I order that the bail
E E
money of $8,000 be estreated.
F F
Starting point and sentence reduction
G G
41. The starting points for each offence and the sentence after 1/3
H discount for the defendant’s guilty pleas are summarized in the table below: H
Charge Starting 1/3 discount
I I
Point
J 1st charge, assisting passage 48 months (4 (32 months) J
years)
K K
nd
2 charge, driving whilst 3 months 2 months + a
L L
disqualified disqualification order
M
(DQ) for 12 months M
rd
3 charge, driving without 6 weeks 4 weeks
N N
licence
O 4th charge, no third party 3 months 2 months + DQ for 2 O
insurance years, the DQ order is
P P
concurrent with charge
Q 2 Q
5th charge, failing to surrender 3 months 2 months
R R
S Totality S
42. The offences of charges 1 to 4 though happened on the same
T T
day are in fact separate and distinct. In principle, each of the sentence
U U
V V
- 14 -
A A
B B
should run consecutively to each other. However, I pay regard to the
C totality principle. If the sentences of charges 1 to 4 are to run concurrently C
with each other, it will not reflect the culpability of the defendant who,
D D
having known that he was disqualified, still drove to transport the
E unauthorized entrants. As such, I order that the sentences for the E
traffic/driving offences, namely charges 2, 3 and 4 should run concurrently
F F
with each other but 1 month of it should run consecutively to the sentence
G of charge 1 (1 month + 32 months = 33 months). G
H H
43. Charge 5 did not arise from the incident on 14 August 2020.
I The defendant disregarded the court order and jumped bail. The defendant, I
by absconding, committed a fresh offence and had to be punished
J J
separately.
K K
44. The sentence of 2 months for charge 5 should run
L L
consecutively to the sentence of other charges thus making a total of 35
M months’ imprisonment: M
N N
[1 month (charges 2,3,4) + 32 months (charge 1) + 2 months (charge 5)
O = 35 months] O
P P
KCCC 574/2021
Q 45. The defendant is now serving a sentence of 6 months and 3 Q
weeks’ imprisonment imposed on him on 3 September 2021 for two
R R
offences of fraud in relation to KCCC 574/2021. I have called for the case
S papers of that case and found that the offence dates of the fraud offences S
were between 1 and 6 September 2019. The defendant was not arrested
T T
until 14 August 2020 on which day he committed the present offences.
U U
V V
- 15 -
A A
B B
C 46. Having considered all the circumstances of the case, I order C
that 2 months of the sentences of the present case should run concurrently
D D
with his existing sentence (i.e. 33 months consecutive to his existing
E sentence). E
F Disqualification order F
47. Now I have to explain to the defendant in relation to the
G G
disqualification order imposed on charges 2 and 4. The defendant is
H disqualified from holding or obtaining a driving licence for all classes of H
vehicles. The defendant is warned that driving whist disqualified is a
I I
serious offence which attracts immediate imprisonment.
J J
K K
L L
M M
( Lily Wong )
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 224/2021
C [2021] HKDC 1625 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 224 OF 2021
F F
G ------------------------ G
HKSAR
H H
V
I KAM Chi-wa I
------------------------
J J
K Before: Deputy District Judge Lily Wong in Court K
Date: 24 December 2021
L L
Present: Mr. Arthur Wong C.Y., Counsel on fiat, for HKSAR
M Ms. Vanessa Ho H.Y., instructed by Messrs. Tang, Lai & M
Leung, assigned by the Director of Legal Aid, for the
N N
defendant
O Offence: [1] Assisting the passage within Hong Kong of unauthorized O
entrants (協助未獲授權進境者在香港境內的旅程)
P P
[2] Driving while disqualified (於取消駕駛資格期間駕駛)
Q Q
[3] Driving without a valid driving licence (駕駛時無有效駕
R 駛執照) R
[4] Using a motor vehicle without third party insurance
S S
(沒有第三者保險而使用汽車)
T T
U U
V V
-2-
A A
B B
[5] Failing to surrender to custody without reasonable cause
C (無合理因由而沒有按照法庭的指定歸押) C
D D
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E REASONS FOR SENTENCE E
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F F
G Charges G
1. The defendant pleaded guilty to the following 5 charges, save
H H
for charge 5 which took place on 6 May 2021, the other offences took place
I on 14 August 2020: I
J J
st
1 charge: Assisting the passage within Hong Kong of
K unauthorized entrants, contrary to s37D(1)(a) of the K
Immigration Ordinance, Cap. 115;
L L
M 2nd charge: Driving while disqualified, contrary to s 44(1)(b) M
of the Road Traffic Ordinance Cap. 374;
N N
O O
3rd charge: Driving without a valid driving licence, contrary
P
to s42(1) and (4) of the Road Traffic Ordinance, Cap. 374; P
Q Q
4th charge: Using a motor vehicle without third party
R
insurance, contrary to s4(1) and (2)(a) of the Motor Vehicles R
Insurance (Third Party Risks) Ordinance, Cap. 272; and
S S
T T
U U
V V
-3-
A A
B B
5th charge: Failing to surrender to custody without reasonable
C cause, contrary to s9L(1) and (3) of the Criminal Procedure C
Ordinance, Cap. 221.
D D
E Facts E
F
Charge 1 F
2. In gist, the facts to which the defendant admitted are as
G G
follows. In the early hours on 14 August 2020, police officers were
H patrolling on a private car in Tung Chung, Hong Kong, in an anti-illegal H
immigrants operation. At 2:30am on the same day, the defendant, male
I I
Fan Kai-yim (“Fan”) and male Chan Yuk-lung (“Chan”) were seen
J standing next to a light goods vehicle with registration no. WT4996 J
(“LGV”), which was parked at the carpark outside of Tung Chung Ma Wan
K K
Chung Pier. The officers revealed their police identity and intercepted
L these 3 men for enquires. Nothing suspicious was found on the LGV and L
the officers departed at 3:05 am on the same day.
M M
N 3. Later, at 3:21 am on the same day, the officers noted that the N
LGV was parked outside of Tung Chung Catholic School, Yat Tung Estate,
O O
Tung Chung, which is about 450m away from the above pier. A few
P minutes later, the officers observed that 5 men appeared from Ma Wan P
Chung Village and ran on board the LGV. The LGV pulled out and drove
Q Q
for about 1m. The police private car intercepted it. The defendant was
R found to be the driver of the LVG. He and the other 5 men alighted from R
the LGV and ran away.
S S
T
4. Later, the defendant and 2 of the men who had alighted from T
the LGV i.e. Su Shengyin and Su Pinting were intercepted. Upon search
U U
V V
-4-
A A
B B
of these 2 men, their China identity cards were found. Meanwhile, police
C officers also spotted another man, Ye Ziming, running outside of Shun Yat C
House of Yat Tung Estate (which was just across the street from Tung
D D
Chung Catholic School) and intercepted Ye Ziming who did not carry any
E identification documents. The defendant and these 3 men were arrested. E
F F
5. At 3:30 am on the same day, Chan was found driving a private
G car with registration no. PU 5464 around Chung Yan Road and Yu Tung G
Road. Chan was intercepted and arrested. Chan’s phone was examined, it
H H
was found that at 3:22 am that day, Chan’s phone sent out a picture of the
I private car that was used by the police officers in a WeChat conversation I
to “Big Brother”. In that conversation, Chan sent out voice messages,
J J
saying that it was one of the vehicles that intercepted them just now. 6
K minutes later, Chan sent another voice message, saying that just now even K
there were someone ambushing at the bridge.
L L
M 6. Around 3:36 am on the same day, Fan was found near House M
No. 15 in Ma Wan Chung Village. Fan was intercepted and arrested.
N N
O 7. Under caution at scene, the defendant said voluntarily that he O
was disqualified and had nothing to do, therefore he received $3,000 from
P P
Ah Yim to help out driving several Chinese illegal immigrants to leave
Q Tung Chung so as to support his family. Q
R R
8. In the subsequent video-recorded interview, the defendant
S said under caution voluntarily: S
T T
U U
V V
-5-
A A
B B
a) he was disqualified from driving for a year on 6 March
C 2020 because he drove without a licence; C
b) he knew Fan a few months ago; Fan offered him HK$3,000
D D
to carry some illegal immigrants out of Tung Chung by car;
E c) Around 2 odd am on 14 August 2020, he was at Ma Wan E
Chung Village and Fan called him, asking him to carry
F F
“goods” at the Ma Wan Chung Pier;
G d) At the pier, he, Fan and another man were intercepted by G
the police;
H H
e) After the police had left, about 5 Chinese illegal
I I
immigrants came out from Ma Wan Chung Village; Fan
J drove the LGV to take him and these Chinese illegal J
immigrants to leave the pier;
K K
f) However, since there was oncoming traffic, the LGV had
L to reverse back to the pier and these Chinese illegal L
immigrants alighted from it;
M M
g) Fan said that he needed to lead these Chinese illegal
N immigrants to Yat Tung Estate on foot and the defendant N
needed to drive the LGV to Yat Tung Estate to wait for
O O
these Chinese illegal immigrants to get on board;
P h) Fan asked him to carry these Chinese illegal immigrants P
out of Tung Chung by car and Fan would later tell him the
Q Q
destination; and
R R
i) he still had not received the HK$3,000 reward.
S S
T T
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A A
B B
Charges 2-3
C 9. The defendant was disqualified from driving for 12 months on C
6 March 2020. He had obtained driving licence (Class 1 & 2) in 2005 but
D D
the licence had expired since 2015.
E E
Charge 4
F F
10. The LGV’s third party insurance provides that only a person
G who is not disqualified from holding or obtaining the relevant driving G
licence is entitled to drive the LGV.
H H
I Charge 5 I
11. The defendant was charged with Charges 1-4 in the
J J
Magistracy and released on court bail. He first appeared in the District
K Court for this case on 25 March 2021 and the case was adjourned to 6 May K
2021 with bail granted by the Court to him. However, the defendant did
L L
not appear in court on 6 May 2021 in compliance with the bail condition.
M M
12. At 9:30pm on 2 September 2021, police officers spotted the
N N
defendant in Mui Wo. He acted furtively at the sight of the officers and
O attempted to leave on bike. Thus, he was intercepted. Upon arrest and O
under caution at scene, he said voluntarily that he did not know he needed
P P
to attend court for this case.
Q Q
13. In the subsequent record of interview, under caution the
R R
defendant said voluntarily that he forgot to attend court on 6 May 2021.
S During the time that he jumped court bail, he resided in Mui Wo and did S
not work.
T T
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A A
B B
Antecedent Statement
C C
14. The antecedent statement of the defendant was read out in
D
court. In summary, it provides that the defendant, aged 40, received D
secondary three education level. He was previously a transportation
E E
worker. He has criminal records and was last discharged in May 2020.
F F
Criminal Record
G G
15. The defendant has 5 criminal convictions. He was sentenced
H H
on 6 March 2020 to a term of 2 months’ imprisonment, fined and was
I subject to a disqualification order for offences of taking conveyance I
without authority; driving without a licence and using a motor vehicle on
J J
a road against third party risks.
K K
16. On 3 September 2021, he was sentenced to concurrent
L L
sentence of 6 months and 3 week’s imprisonment for each of the 2 fraud
M offences (KCCC 574/2021). In other words, he is now serving this prison M
N
term. N
O Mitigation O
17. Ms. Ho, Counsel representing the defendant, submitted in
P P
mitigation that the Defendant has separated with his wife since 2019 and
Q they have two sons aged 16 and 7 years. The Defendant lives together with Q
his mother, younger brother and elder son in Mui Wo, Lantau Island. He
R R
is the main breadwinner for both his mother and ex-wife (for maintenance
S of his younger son), contributing a total of HK$10,000 to them. S
T T
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A A
B B
18. Prior to the disqualification in 2020, he was a driver earning
C approximately HK$15,500 a month. He then became unemployed and C
experienced great difficulty in finding gainful employment during the
D D
pandemic. He committed the present offences with a view to earning quick
E money to support his family. The defendant did not fully consider the E
serious consequences of his actions.
F F
G 19. In respect of the sentence of charge 1, Ms. Ho referred to the G
following 3 cases namely HKSAR v Lee Kin Ming CACC 536/1991,
H H
HKSAR v Wong Fu Keung CACC 158/1996 and HKSAR v Chan Lai
I Choi CACC 166/1997. The facts were summarised in her written I
submissions and I do not intend to repeat them here. She made a
J J
comparison of the facts of the present case to that of these cases. What I
K understand from her is that a starting point for the 1st charge should be in K
the region of 3 years.
L L
M 20. Finally, Ms. Ho submitted that the defendant has learnt a bitter M
lesson, and urged this Court to consider the sentence of the present case to
N N
run concurrently to his existing sentence.
O O
Reasons for Sentence
P P
21. In sentencing, I have considered everything said and written
Q by Ms Ho and the authorities cited. Q
R R
Charge 1 Assisting the passage within HK of unauthorized entrants
S 22. It goes without saying that the 1st charge is a very serious S
offence and the maximum penalty is a fine of $5,000,000 and 14 years’
T T
imprisonment. In Lee King Ming, the Court of Appeal said that:
U U
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A A
B “5…these were indeed serious offences…”. B
C C
23. Although Ms. Ho referred this Court to Lee Kin Ming (date
D of judgment 12 March 1992), Wong Fu Keung (date of judgment: 16 D
August 1996) and Chan Lai Choi (date of Judgment: 19 February 1998),
E E
there are relatively recent judgments which the Court of Appeal have dealt
F with the same offence: HKSAR v Wong Chi Kin (unreported, CACC F
357/2004, 5 February 2005) and HKSAR v Yeung Wui (ureported, CACC
G G
415/2004 18 March 2005).
H H
24. In Wong Chi Kin, Woo VP said:
I I
“12. The generally applicable tariff is 4 years’
imprisonment…Where the accused was the captain of the vessel
J or the person in charge of assisting in the operation of the J
organization of the venture, the appropriate starting point is 5
K
years’ imprisonment.” K
L 25. In her submission, Ms. Ho considers that: L
(a) The defendant faces 1 single charge but the appellant
M M
Lee King Ming pleaded guilty to seven charges of the
N same offence for which he received concurrent N
sentence of 2 ½ years’ imprisonment. Lee Kin Ming
O O
was more culpable than the defendant;
P (b) The appellant Wong Fu Keung provided not only P
transport but also forged ID documents to the
Q Q
unauthorized entrants and received 3 years’
R imprisonment after trial. Here, the defendant simply R
provided transport to the unauthorized entrants;
S S
(c) The defendant’s culpability is similar to that of Chan
T Lai Choi who assisted the passage of 5 unlawful T
entrants and was, on appeal, sentenced to 3 years’
U U
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A A
B B
imprisonment but for his clear record, the sentence was
C reduced to 2 ½ years’ imprisonment. C
D 26. Notwithstanding the aforesaid, this court must not lose sight D
that the defendant is charged together with Fan for assisting the passage
E E
within Hong Kong of not a single but 3 unauthorized entrants. The facts
F F
also show that (a) another culprit Chan was involved, and (b) the defendant
G
said under caution, there were a total of 5 Chinese illegal G
immigrants. Pausing here, I must emphasis that I am aware that the 1 st
H H
charge named 3 but not 5 unauthorized entrants. The facts to which the
I defendant pleaded guilty show that he did not act alone. Each of them (the I
defendant, Fan and Chan) has a role to play in order to carry out a pre-
J J
planned scheme of assisting the passage of at least 3 unauthorized
K entrants. K
L L
27. In Wong Chi Kin, Woo VP said:
M “22. In our law, it is always recognized that two or more persons M
committing a crime would normally be considered as an
aggravating factor as compared with the sentencing in respect of
N a lone culprit.” N
O O
28. Despite Ms. Ho said the Court of Appeal in Chan Lai Choi
P
adopted a starting point of 3 years, I take into account all the circumstances P
of the case including those stated in paragraph 26, and come to the
Q Q
conclusion that a starting point of 4 years’ imprisonment is appropriate.
R R
Charge 2 driving while disqualified
S 29. The offence of driving while disqualified is serious. The S
maximum prison term is 12 months, and the court shall order that the
T T
person be disqualified in the case of a first conviction, for a period of not
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A A
B B
less than 12 months unless the court for special reasons orders that the
C person be disqualified for a shorter period or that the person not be C
disqualified.
D D
E 30. Fully aware of the disqualification order imposed on him on E
6 March 2020 for a period of 12 months, the defendant paid no heed to it
F F
and committed the offence of driving while disqualified five months after
G the court order. Doubtless to say, it is a flagrant breach of the court order G
and a custodial sentence is inevitable.
H H
I 31. In HKSAR v Wong Chi Ming HCMA 510/1999, Yeung J (as I
he then was) said:
J J
“20. The offences of driving whilst disqualified and the offences
of driving without insurance are, of course, very serious
K offences. Their seriousness lies in the possibility that victims in K
traffic accidents may be left without any compensation.”
L L
32. In light of the circumstances, I take a starting point of sentence
M M
of 3 months’ imprisonment. No special reason was put forward, and I order
N that the defendant be disqualified for 12 months. N
O O
Charge 3 - driving without a valid driving licence
P
33. The maximum penalty for this offence as provided in 42(4) of P
Cap. 374 is to imprisonment for 3 months in the case of a first conviction,
Q Q
and to imprisonment for 6 months in the case of a second or subsequent
R conviction. R
S S
34. The defendant committed this offence previously on 6 April
T 2019 and 14 April 2019 for which he was fined $2,000 and $3,000 T
respectively. This is the third time he committed this offence. Obviously,
U U
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A A
B B
previous sentences of a fine did not deter the defendant from committing
C the same offence again and again. As such, I take a starting point of C
sentence of 6 weeks’ imprisonment.
D D
E Charge 4 using a motor vehicle without third party insurance E
35. An offender, who drives a motor vehicle whilst being
F F
disqualified, will also face a charge of driving without third party
G insurance. These two offences go hand-in-hand. The maximum penalty for G
such an offence was, at the time of the offence, a fine of $10,000 and to
H H
imprisonment for 12 months, and be disqualified for a period of not less
I than 12 months nor more than 3 years from the date of conviction. I
J J
36. In HKSAR v Chan Chuk Hon HCMA 623/2005, Deputy
K High Court Judge D. Pang (as he then was) noted that: - K
“9…...if the breach was flagrantly committed and there was no
L operative factor to diminish culpability, then an immediate L
custodial sentence should be imposed even if the offender has
never before suffered imprisonment”
M M
37. It is the second time the defendant committed this offence,
N N
and I will adopt the same starting point for sentence as that of charge 2 i.e.
O 3 months’ imprisonment. Again, no special reason is put forward, and I O
order that the defendant be disqualified for 2 years.
P P
Q Charge 5 Failing to surrender to custody without reasonable cause Q
38. Any person who commits the offence of failing to surrender
R R
to custody without reasonable cause is liable on conviction upon
S S
indictment to a fine and to imprisonment for 12 months.
T T
U U
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A A
B B
39. The defendant disregarded the court order and jumped bail
C and I adopt a starting point of sentence of 3 months’ imprisonment. C
D 40. The prosecution applied to estreat the defendant’s bail money D
of $8,000 to which the defence raised no objection. I order that the bail
E E
money of $8,000 be estreated.
F F
Starting point and sentence reduction
G G
41. The starting points for each offence and the sentence after 1/3
H discount for the defendant’s guilty pleas are summarized in the table below: H
Charge Starting 1/3 discount
I I
Point
J 1st charge, assisting passage 48 months (4 (32 months) J
years)
K K
nd
2 charge, driving whilst 3 months 2 months + a
L L
disqualified disqualification order
M
(DQ) for 12 months M
rd
3 charge, driving without 6 weeks 4 weeks
N N
licence
O 4th charge, no third party 3 months 2 months + DQ for 2 O
insurance years, the DQ order is
P P
concurrent with charge
Q 2 Q
5th charge, failing to surrender 3 months 2 months
R R
S Totality S
42. The offences of charges 1 to 4 though happened on the same
T T
day are in fact separate and distinct. In principle, each of the sentence
U U
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A A
B B
should run consecutively to each other. However, I pay regard to the
C totality principle. If the sentences of charges 1 to 4 are to run concurrently C
with each other, it will not reflect the culpability of the defendant who,
D D
having known that he was disqualified, still drove to transport the
E unauthorized entrants. As such, I order that the sentences for the E
traffic/driving offences, namely charges 2, 3 and 4 should run concurrently
F F
with each other but 1 month of it should run consecutively to the sentence
G of charge 1 (1 month + 32 months = 33 months). G
H H
43. Charge 5 did not arise from the incident on 14 August 2020.
I The defendant disregarded the court order and jumped bail. The defendant, I
by absconding, committed a fresh offence and had to be punished
J J
separately.
K K
44. The sentence of 2 months for charge 5 should run
L L
consecutively to the sentence of other charges thus making a total of 35
M months’ imprisonment: M
N N
[1 month (charges 2,3,4) + 32 months (charge 1) + 2 months (charge 5)
O = 35 months] O
P P
KCCC 574/2021
Q 45. The defendant is now serving a sentence of 6 months and 3 Q
weeks’ imprisonment imposed on him on 3 September 2021 for two
R R
offences of fraud in relation to KCCC 574/2021. I have called for the case
S papers of that case and found that the offence dates of the fraud offences S
were between 1 and 6 September 2019. The defendant was not arrested
T T
until 14 August 2020 on which day he committed the present offences.
U U
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A A
B B
C 46. Having considered all the circumstances of the case, I order C
that 2 months of the sentences of the present case should run concurrently
D D
with his existing sentence (i.e. 33 months consecutive to his existing
E sentence). E
F Disqualification order F
47. Now I have to explain to the defendant in relation to the
G G
disqualification order imposed on charges 2 and 4. The defendant is
H disqualified from holding or obtaining a driving licence for all classes of H
vehicles. The defendant is warned that driving whist disqualified is a
I I
serious offence which attracts immediate imprisonment.
J J
K K
L L
M M
( Lily Wong )
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
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