A A
B B
DCCC 1169/2021
C [2022] HKDC 567 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1169 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I LAU KA CHUN (D1) I
SHING HO LAM (D2)
J J
-------------------------------
K K
Before: His Honour Judge Tam
L L
Date: 8 June 2022
M Present: Ms Lau Lorinda C W, Counsel on fiat, for HKSAR M
Mr Woon Jee Quan Freddy, instructed by Francis Kong & Co,
N N
assigned by the Director of Legal Aid, for the 1st and 2nd
O defendants O
Offence: Assisting the passage within Hong Kong of unauthorized
P P
entrants (協助未獲授權進境者在香港境內的旅程)
Q Q
R
--------------------------------------- R
REASONS FOR SENTENCE
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 and D2 jointly face a charge of Assisting the passage
C within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) C
of the Immigration Ordinance, Cap 115. Particulars are that they, on
D D
4 August 2021, in Hong Kong, assisted the passage within Hong Kong of
E 4 unauthorized entrants, namely Yang Xiang, Wu Jing, Chang Juan and E
Ji Tianni.
F F
G 2. Both D1 and D2 pleaded guilty to the charge before me. G
H H
Facts admitted by D1 & D2
I I
3. On 4 August 2021, at about 5:15 am, a speedboat carrying one
J J
man and 4 women approached the southwest tip of Chek Lap Kok Island.
K After running ashore, the 4 women boarded a silver private vehicle. K
L L
4. Soon after, two private vehicles one white (V1) and one silver
M (V2) were seen moving along South Perimeter Road towards the direction M
of Tung Chung. V1 sped away. V2 was intercepted by the police.
N N
O 5. D2 was the driver of V2 which was carrying the O
4 unauthorized entrants named in the charge. They were unable to produce
P P
identity documents. D2 was arrested for aiding and abetting unlawful entry
Q of persons. Q
R R
6. Meanwhile, at about 5:17 am, police managed to intercept V1
S too. D1 was found to be onboard. He was arrested also for aiding and S
abetting unlawful entry of persons. Under caution, D1 claimed he was
T T
U U
V V
-3-
A A
B B
taking a pleasure ride when he saw 4 unknown women board a light
C coloured private vehicle next to his vehicle; then he drove away. C
D D
7. CCTV installed on South Perimeter Road captured the
E following on the subject day:- E
F F
(a) At about 5:10 am, the 4 named women alighted from a
G speedboat and ran ashore; G
H H
(b) At about 5:13 am, V1 and V2 arrived; the driver of V1
I (ie D1) walked towards V2 and talked to its driver (ie I
D2); D1 then ran to the shore and passed something to
J J
the coxswain of the speedboat; after that, D1 walked
K back to V2 and assisted the 4 women to put their K
luggage on V2; and
L L
M (c) At about 5:14 am, D1 boarded V1 while D2 and the M
4 women boarded V2; V1 and V2 then drove away.
N N
O 8. Between 29 July and 4 August 2021 inclusive, 27 phone calls O
were made between D1 and D2 including 17 phone calls made on 4 August
P P
2021 alone.
Q Q
Criminal records
R R
S 9. D1 has one previous dissimilar conviction in 2015. S
T T
U U
V V
-4-
A A
B B
10. D2 has 5 previous convictions between 2008 and 2015 with
C none similar. C
D D
Antecedents
E E
11. D1 is aged 30 (29 at the time of the offence), completed
F F
secondary 5 education, operated a canoe business in a water sports centre.
G He is divorced and lived with his parents and his two elder sisters in Sheung G
Sze Wan. His three children are living with his ex-wife.
H H
I 12. D2 is aged 39 now and at the time of the offence, completed I
secondary 5 education, was a van driver. He is married and was living with
J J
his wife and children in Sai Kung.
K K
Mitigation
L L
M 13. Mr Freddy Woon of counsel assigned by the Director of Legal M
Aid mitigated on behalf of D1 and D2. The following is a summary of the
N N
mitigation submissions.
O O
D1
P P
Q 14. D1 operated a canoe shop earning $30,000 to $50,000 a Q
month. He has to pay a monthly maintenance fee of about $20,000 to his
R R
ex-wife for her and the children’s upkeep. He has also to pay a monthly
S contribution of $8,000 to parent(s). S
T T
U U
V V
-5-
A A
B B
15. D1’s business suffered as a result of the ongoing pandemic.
C He was invited by one Ah Chu to arrange for transportation to carry C
unauthorized entrants from Chek Lap Kok Island to Kowloon in the early
D D
hours of 4 August 2021 for a financial reward of $1,500. His role was that
E of a lookout. E
F F
16. D1 pleaded guilty. He was not the mastermind. He has not
G received the promised reward yet. He has never been to prison before so G
this conviction will serve as a strong deterrence against his reoffending. A
H H
lenient sentence is asked for.
I I
D2
J J
K 17. D2’s wife is a housewife. His two sons are both under 10. D2 K
is the sole breadwinner; previously worked as a minibus driver earning
L L
about $15,000 a month. His two parents are in their 70’s.
M M
18. D2’s income dropped significantly as a result of the ongoing
N N
pandemic resulting in his inability to make ends meet. He was approached
O by one Ah Chu with an offer to make quick money of $1,500. That was O
why D2 committed the offence of driving the unauthorized entrants from
P P
Chek Lap Kok Island heading for Kowloon.
Q Q
19. D2 pleaded guilty. He was not the mastermind. He played
R R
only a minor role of a driver. He has not received his promised reward yet.
S He has never been to prison before so this conviction will serve as a strong S
deterrence against his reoffending. A lenient sentence is asked for.
T T
U U
V V
-6-
A A
B B
20. Mr Woon submitted 3 mitigation letters on behalf of D2 all
C written in Chinese (with English translation). They were written C
respectively by D2 himself, a District Councilor, and a Chairman of a Rural
D D
Committee. The contents are generally that D2 was the economic pillar of
E the family, is regretful and remorseful, was helpful to others, promises to E
reform himself and hopes to turn over a new leaf. All the letter writers
F F
asked for a lenient sentence for D2.
G G
21. D2’s parents and wife are in court to give their support to D2.
H H
I For D1 & D2 I
J J
22. Mr Woon referred to two cases, namely HKSAR v Chan Lai
K Choi, CACC 166/1997, and HKSAR v Chan Chun Kit (transliteration), K
DCCC 48/2021 (Chinese Reasons for Sentence).
L L
M 23. On the topic of joint enterprise, Mr Woon asked the court not M
to raise the sentence in light of the backgrounds of the defendants.
N N
O Sentence O
P P
24. I have had regard to the cases referred to by Mr Woon.
Q Q
25. I have noted the case of HKSAR v Wong Chi Kin, CACC
R R
357/2004, referred to by the prosecution.
S S
26. The maximum penalty for the subject offence is a fine of $5M
T T
and 14 years’ imprisonment.
U U
V V
-7-
A A
B B
C 27. In HKSAR v Chan Lai Choi (supra), the Court of Appeal was C
satisfied that the applicant, who had no part in the bringing of the unlawful
D D
entrants from the Mainland into Hong Kong and was not involved in any
E carriage by sea, was merely playing the role of a taxi driver who E
transported unauthorized entrants from one part of the territory to another.
F F
The Court was satisfied that his culpability could not be equated with that
G of a captain of a vessel bringing unlawful entrants into the territory. In the G
premises, the Court considered that an appropriate starting point would be
H H
three years.
I I
28. The two defendants played a similar role here. There is of
J J
course the aggravating factor of joint enterprise in the present case. I note
K D1 was captured by the CCTV to have passed something to the coxswain K
of the speedboat; but there is no evidence as to what that was. There is no
L L
sufficient evidence to show which, as between the two defendants, was the
M mastermind of the joint enterprise. M
N N
29. Everything considered, I take an initial starting point of
O 3 years against each defendant. Because of the aggravating factor O
aforesaid, I increase it to 3 years and 3 months.
P P
Q 30. Both defendants pleaded guilty in good time and are therefore Q
entitled to the full 1/3 discount on sentence. There are no other mitigating
R R
factors of weight that could earn either of them any further reduction in
S sentence. S
T T
U U
V V
-8-
A A
B B
31. I impose the following sentences.
C C
(D1 and D2, please stand)
D D
E 32. The sentence for D1 is 2 years and 2 months’ imprisonment. E
F F
33. The sentence for D2 is 2 years and 2 months’ imprisonment.
G G
H H
I I
J J
( Isaac Tam )
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1169/2021
C [2022] HKDC 567 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1169 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I LAU KA CHUN (D1) I
SHING HO LAM (D2)
J J
-------------------------------
K K
Before: His Honour Judge Tam
L L
Date: 8 June 2022
M Present: Ms Lau Lorinda C W, Counsel on fiat, for HKSAR M
Mr Woon Jee Quan Freddy, instructed by Francis Kong & Co,
N N
assigned by the Director of Legal Aid, for the 1st and 2nd
O defendants O
Offence: Assisting the passage within Hong Kong of unauthorized
P P
entrants (協助未獲授權進境者在香港境內的旅程)
Q Q
R
--------------------------------------- R
REASONS FOR SENTENCE
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 and D2 jointly face a charge of Assisting the passage
C within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) C
of the Immigration Ordinance, Cap 115. Particulars are that they, on
D D
4 August 2021, in Hong Kong, assisted the passage within Hong Kong of
E 4 unauthorized entrants, namely Yang Xiang, Wu Jing, Chang Juan and E
Ji Tianni.
F F
G 2. Both D1 and D2 pleaded guilty to the charge before me. G
H H
Facts admitted by D1 & D2
I I
3. On 4 August 2021, at about 5:15 am, a speedboat carrying one
J J
man and 4 women approached the southwest tip of Chek Lap Kok Island.
K After running ashore, the 4 women boarded a silver private vehicle. K
L L
4. Soon after, two private vehicles one white (V1) and one silver
M (V2) were seen moving along South Perimeter Road towards the direction M
of Tung Chung. V1 sped away. V2 was intercepted by the police.
N N
O 5. D2 was the driver of V2 which was carrying the O
4 unauthorized entrants named in the charge. They were unable to produce
P P
identity documents. D2 was arrested for aiding and abetting unlawful entry
Q of persons. Q
R R
6. Meanwhile, at about 5:17 am, police managed to intercept V1
S too. D1 was found to be onboard. He was arrested also for aiding and S
abetting unlawful entry of persons. Under caution, D1 claimed he was
T T
U U
V V
-3-
A A
B B
taking a pleasure ride when he saw 4 unknown women board a light
C coloured private vehicle next to his vehicle; then he drove away. C
D D
7. CCTV installed on South Perimeter Road captured the
E following on the subject day:- E
F F
(a) At about 5:10 am, the 4 named women alighted from a
G speedboat and ran ashore; G
H H
(b) At about 5:13 am, V1 and V2 arrived; the driver of V1
I (ie D1) walked towards V2 and talked to its driver (ie I
D2); D1 then ran to the shore and passed something to
J J
the coxswain of the speedboat; after that, D1 walked
K back to V2 and assisted the 4 women to put their K
luggage on V2; and
L L
M (c) At about 5:14 am, D1 boarded V1 while D2 and the M
4 women boarded V2; V1 and V2 then drove away.
N N
O 8. Between 29 July and 4 August 2021 inclusive, 27 phone calls O
were made between D1 and D2 including 17 phone calls made on 4 August
P P
2021 alone.
Q Q
Criminal records
R R
S 9. D1 has one previous dissimilar conviction in 2015. S
T T
U U
V V
-4-
A A
B B
10. D2 has 5 previous convictions between 2008 and 2015 with
C none similar. C
D D
Antecedents
E E
11. D1 is aged 30 (29 at the time of the offence), completed
F F
secondary 5 education, operated a canoe business in a water sports centre.
G He is divorced and lived with his parents and his two elder sisters in Sheung G
Sze Wan. His three children are living with his ex-wife.
H H
I 12. D2 is aged 39 now and at the time of the offence, completed I
secondary 5 education, was a van driver. He is married and was living with
J J
his wife and children in Sai Kung.
K K
Mitigation
L L
M 13. Mr Freddy Woon of counsel assigned by the Director of Legal M
Aid mitigated on behalf of D1 and D2. The following is a summary of the
N N
mitigation submissions.
O O
D1
P P
Q 14. D1 operated a canoe shop earning $30,000 to $50,000 a Q
month. He has to pay a monthly maintenance fee of about $20,000 to his
R R
ex-wife for her and the children’s upkeep. He has also to pay a monthly
S contribution of $8,000 to parent(s). S
T T
U U
V V
-5-
A A
B B
15. D1’s business suffered as a result of the ongoing pandemic.
C He was invited by one Ah Chu to arrange for transportation to carry C
unauthorized entrants from Chek Lap Kok Island to Kowloon in the early
D D
hours of 4 August 2021 for a financial reward of $1,500. His role was that
E of a lookout. E
F F
16. D1 pleaded guilty. He was not the mastermind. He has not
G received the promised reward yet. He has never been to prison before so G
this conviction will serve as a strong deterrence against his reoffending. A
H H
lenient sentence is asked for.
I I
D2
J J
K 17. D2’s wife is a housewife. His two sons are both under 10. D2 K
is the sole breadwinner; previously worked as a minibus driver earning
L L
about $15,000 a month. His two parents are in their 70’s.
M M
18. D2’s income dropped significantly as a result of the ongoing
N N
pandemic resulting in his inability to make ends meet. He was approached
O by one Ah Chu with an offer to make quick money of $1,500. That was O
why D2 committed the offence of driving the unauthorized entrants from
P P
Chek Lap Kok Island heading for Kowloon.
Q Q
19. D2 pleaded guilty. He was not the mastermind. He played
R R
only a minor role of a driver. He has not received his promised reward yet.
S He has never been to prison before so this conviction will serve as a strong S
deterrence against his reoffending. A lenient sentence is asked for.
T T
U U
V V
-6-
A A
B B
20. Mr Woon submitted 3 mitigation letters on behalf of D2 all
C written in Chinese (with English translation). They were written C
respectively by D2 himself, a District Councilor, and a Chairman of a Rural
D D
Committee. The contents are generally that D2 was the economic pillar of
E the family, is regretful and remorseful, was helpful to others, promises to E
reform himself and hopes to turn over a new leaf. All the letter writers
F F
asked for a lenient sentence for D2.
G G
21. D2’s parents and wife are in court to give their support to D2.
H H
I For D1 & D2 I
J J
22. Mr Woon referred to two cases, namely HKSAR v Chan Lai
K Choi, CACC 166/1997, and HKSAR v Chan Chun Kit (transliteration), K
DCCC 48/2021 (Chinese Reasons for Sentence).
L L
M 23. On the topic of joint enterprise, Mr Woon asked the court not M
to raise the sentence in light of the backgrounds of the defendants.
N N
O Sentence O
P P
24. I have had regard to the cases referred to by Mr Woon.
Q Q
25. I have noted the case of HKSAR v Wong Chi Kin, CACC
R R
357/2004, referred to by the prosecution.
S S
26. The maximum penalty for the subject offence is a fine of $5M
T T
and 14 years’ imprisonment.
U U
V V
-7-
A A
B B
C 27. In HKSAR v Chan Lai Choi (supra), the Court of Appeal was C
satisfied that the applicant, who had no part in the bringing of the unlawful
D D
entrants from the Mainland into Hong Kong and was not involved in any
E carriage by sea, was merely playing the role of a taxi driver who E
transported unauthorized entrants from one part of the territory to another.
F F
The Court was satisfied that his culpability could not be equated with that
G of a captain of a vessel bringing unlawful entrants into the territory. In the G
premises, the Court considered that an appropriate starting point would be
H H
three years.
I I
28. The two defendants played a similar role here. There is of
J J
course the aggravating factor of joint enterprise in the present case. I note
K D1 was captured by the CCTV to have passed something to the coxswain K
of the speedboat; but there is no evidence as to what that was. There is no
L L
sufficient evidence to show which, as between the two defendants, was the
M mastermind of the joint enterprise. M
N N
29. Everything considered, I take an initial starting point of
O 3 years against each defendant. Because of the aggravating factor O
aforesaid, I increase it to 3 years and 3 months.
P P
Q 30. Both defendants pleaded guilty in good time and are therefore Q
entitled to the full 1/3 discount on sentence. There are no other mitigating
R R
factors of weight that could earn either of them any further reduction in
S sentence. S
T T
U U
V V
-8-
A A
B B
31. I impose the following sentences.
C C
(D1 and D2, please stand)
D D
E 32. The sentence for D1 is 2 years and 2 months’ imprisonment. E
F F
33. The sentence for D2 is 2 years and 2 months’ imprisonment.
G G
H H
I I
J J
( Isaac Tam )
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V