DCCC509/2024 HKSAR v. SU WEITIAN AND ANOTHER - LawHero
DCCC509/2024
區域法院(刑事)Deputy District Judge Daniel Tang5/2/2025[2025] HKDC 209
DCCC509/2024
A A
B B
DCCC 509/2024
C [2025] HKDC 209 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 509 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I SU WEITIAN (D1) I
LU JINGWEN (D2)
J J
----------------------------
K K
Before: Deputy District Judge Daniel Tang
L L
Date: 6 February 2025
M Present: Ms Tsoi Mung Fan, Moonar, Senior Public Prosecutor (Ag.) M
of the Department of Justice, for HKSAR
N N
Mr Wong Lap Wai, James, instructed by Tung & Associates,
O for the 1st defendant, assigned by the Director of Legal Aid. O
Mr Chan Ging Man, Robert, instructed by Lily Fenn &
P P
nd
Partners, for the 2 defendant, assigned by the Director of
Q Legal Aid. Q
Offence: [1] Assisting the passage to Hong Kong of unauthorised
R R
entrants (協助未獲授權進境者前來香港的旅程) – D1 & D2
S S
[2] Endangering the safety of others at sea (危害他人在海上
T 的安全) – D1 T
[3] Failing to stop (沒有停船) – D1
U U
V V
-2-
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
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E E
1. D1 and D2 plead guilty before the court for the charge of
F F
“Assisting the passage to Hong Kong of unauthorised entrants”, contrary
G to section 37D(1)(a) of the Immigration Ordinance, Cap 115 (“Charge 1”). G
D1 also plead guilty to the charge of “Endangering the safety of others at
H H
sea”, contrary to section 72 of the Shipping and Port Control Ordinance,
I Cap 313 ( “Charge 2”). For Charge 3, “Failing to stop”, contrary to I
regulation 20(1) and (3) of the Shipping and Port Control Regulations, Cap
J J
313A, the prosecution and D1 enter an agreement that the charge will be
K kept at the court file and will not be proceeded unless with the leave of the K
court or Court of Appeal.
L L
M 2. D1 and D2 also admit that the content of the Amended M
Summary of Facts to be true and correct. In a gist, they admit that:
N N
O
(a) on 8 November 2023, at around 0013 hours, a police O
vessel (the “Police Vessel”) spotted an open-deck speedboat (the
P P
“Speedboat”) within Hong Kong waters near the west coast of Lung Kwu
Q Chau. Q
(b)The Police Vessel instructed the Speedboat to stop.
R R
However, the Speedboat did not and made a rigorous sharp turn that nearly
S collided with the Police Vessel, then it accelerated towards to the western S
border of Hong Kong at about 25 knot; made rigorous sharp turns and
T T
dangerous manoeuvre on three occasions.
U U
V V
-3-
A A
B B
C (c) D1 was the coxswain of the Speedboat. D2, who was C
sitting next to D1, turned and looked at the Police Vessel from time to time.
D D
(d) At about 0020 hours, the Speedboat was intercepted and
E D1, D2 and nine South Asian Bangladeshi males were found on board of E
the Speedboat. Immigration record showed that there was no entry record
F F
to Hong Kong for D1, D2 and the nine South Asian males. The nine South
G Asian males’ passports showed no exit record from China, and they were G
handed over to the Immigration Department for repatriation between 10
H H
and 22 November 2023.
I (e) Under caution, D1 admitted, inter alia, that he charged I
RMB3,000 per head to transport the passengers from Zhongshan,
J J
Mainland China to Lung Kwu Chau, Hong Kong. He did not have any
K identification documents. He steered the Speedboat from Zhongshan to K
Lung Kwu Chau on 7 November 2023 with the nine South Asian males on
L L
board. He knew it was illegal to transport unauthorised entrants into Hong
M Kong. He did not know if there were fire-fighting equipment on the M
Speedboat. He and D2 were wearing the life jackets while the nine South
N N
Asian males did not.
O (f) Under caution, D2 admitted, inter alia, that he came from O
Zhongshan to Hong Kong to assist D1 without remuneration. D1 offered
P P
him a job for a reward of RMB3,000 to help sailing the Speedboat from
Q Zhongshan to Lung Kwu Tan. He did not have any identification document. Q
R R
S S
T T
U U
V V
-4-
A A
B B
The starting point
C C
3. For Charge 1, the maximum penalty is a fine of $5,000,000
D D
and a 14 years’ imprisonment; for Charge 2, that is a fine of $200,000 and
E a 4 years’ imprisonment. E
F F
4. In respect of sentencing principle and guideline for Charge 1,
G the Court of Appeal’s decision in HKSAR v Wong Chi Kin, CACC G
357/2004, HKSAR v Yeung Lap, CACC 385/2007, and HKSAR v Tse Chi
H H
Hei, [2010] 5 HKLRD 707 are relevant.
I I
5. Yeung JA (as he then was) held in Tse Chi Hei that the usual
J J
starting point of a charge of assisting the passage to Hong Kong of
K unauthorised entrants is a 4 years’ imprisonment. If the defendant is the K
coxswain of the vessel or has taken part in organising or planning the
L L
journey, the starting point should be one of 5 years. Where there are other
M aggravating factors such as hiding the illegal immigrants in places where M
it would be difficult for them to escape in case of emergency; the
N N
dilapidated state of the vessel and the lack of life saving apparatus; risking
O the life of passengers on board or an extremely large number of illegal O
immigrants being on board, the starting point can be raised further. (para.
P P
4)
Q Q
6. Accordingly, D1 is the coxswain of the Speedboat, the starting
R R
point for him in Charge 1 should be one of 5 years’ imprisonment, for D2,
S the starting point for Charge 1 should be one of 4 years’ imprisonment. S
T T
U U
V V
-5-
A A
B B
7. According to HKSAR v Zhong Ming Jing, CACC 180/2010,
C the starting point of Charge 2 should be one of 18 months’ imprisonment. C
D D
Aggravating factors, mitigation and the total sentence
E E
8. Both D1 and D2 have clear record in Hong Kong. They plead
F F
guilty at the very first opportunity, so they will have one-third discount on
G sentence. G
H H
9. The court do find there are aggravating factors in Charge 1.
I According to the Amended Summary of Facts, when the Speedboat was I
found, it did not stop and make a rigorous sharp turn that nearly collided
J J
with the Police Vessel, then it accelerated towards the western border of
K Hong Kong at about 25 knots and make rigorous sharp turns and K
manoeuvred dangerously on three occasions, there were no fire-fighting
L L
appliances, no life-saving appliances and no navigation light for night
M operation to be found on board. The court cannot turn a blind eye to those M
aggravating factors.
N N
O 10. Accordingly, for D1 in Charge 1, the court will add a 6 months’ O
imprisonment to reflect the aggravating factors. The starting point for D1
P P
in Charge 1 is one of 5 years and 6 months’ imprisonment.
Q Q
11. For D2, he was not the coxswain and there is no evidence that
R R
he had any contribution to the aggravating factors; or he had taken part in
S organising or planning the journey, so his starting point in Charge 1 S
remains a 4 years’ imprisonment.
T T
U U
V V
-6-
A A
B B
12. Mr. James Wong acts for D1. According to his mitigation,
C D1 has a clear record. He commits the offence for financial reason. He is C
a filial son, a caring husband and a good father who works hard to support
D D
his family. He is known to his fellow villagers as a grateful and helpful
E person who contributes his time and effort to the welfare of the village. E
F F
13. Further, D1 had, through his wife, supplied information
G concerning the syndicate of this case in Mainland China, which leads to G
the arrest of the boss and accomplices by the Chinese authorities. This
H H
alleged mitigation happens outside Hong Kong’s jurisdiction, the court has
I no way to verify it, so I will not put any weight on such mitigation. I
J J
14. Mr. Robert Chan acts for D2. According to him, D2 commits
K the offence for financial reason. He has to support his family and he is K
deeply remorseful now.
L L
M 15. I consider both D1 and D2’s mitigation and conclude that M
other than their timely plea, they do not have any other mitigating factor.
N N
O 16. For D1, the sentence for Charge 1 is one of 5 years and 6 O
months’ imprisonment, after one-third discount, it becomes 3 years and 8
P P
months; for Charge 2, the starting point is one of 18 months’ imprisonment,
Q after one-third discount, it is reduced to 12 months’ imprisonment. As Q
Charge 1 and Charge 2 happened in the same incident, and I have already
R R
considered the incidents that happened in Charge 2 to be the aggravating
S factors for Charge 1, so all the sentence of Charge 1 and 2 shall be run S
concurrently, the total sentence for D1 is one of 3 years and 8 months’
T T
imprisonment;
U U
V V
-7-
A A
B B
C 17. For D2, the sentence for Charge 1 should be one of 2 years C
and 8 months’ imprisonment after one-third discount.
D D
E Conclusion E
F F
18. For D1, all the sentence for Charge 1 and 2 to be run
G concurrently, and the total sentence is one of 3 years and 8 months’ G
imprisonment.
H H
I 19. For D2, his sentence in Charge 1 is one of 2 years and 8 I
months’ imprisonment.
J J
K K
L L
M M
N N
( Daniel Tang )
O
Deputy District Judge O
P P
Q Q
R R
S S
T T
U U
V V
本案涉及 sentencing 原則。核心問題在於:(1) 協助未獲授權進境者前來香港的 starting point 如何根據被告角色(船長 vs 助手)而定;(2) 船上缺乏安全設備及危險駕駛是否構成 aggravating factors;(3) D1在中國內地提供情報以協助逮捕同夥是否可作為 mitigation。
判決理由
法官引用 HKSAR v Tse Chi Hei 確立之原則:一般協助進境者的 starting point 為4年監禁,若為船長或組織者則為5年。D1作為船長且因缺乏救生設備及危險駕駛,法官在其 starting point 上增加6個月。對於 D1 在內地提供情報的 mitigation,法官認為該行為發生在香港 jurisdiction 之外且無法核實,故不予考慮。兩被告因及時認罪獲得 one-third discount。
引用案例與條文
引用 HKSAR v Tse Chi Hei [2010] 5 HKLRD 707 確定船長及組織者的 starting point 為5年;引用 HKSAR v Wong Chi Kin (CACC 357/2004) 及 HKSAR v Yeung Lap (CACC 385/2007) 作為量刑參考;引用 HKSAR v Zhong Ming Jing (CACC 180/2010) 確定危害海上安全罪的 starting point 為18個月。
### 案件基本資料
- 案件名稱:HKSAR v Su Weitian (D1) & Lu Jingwen (D2)
- 法院:區域法院 (District Court)
- 法官:Daniel Tang
- 判決日期:2025年2月6日
### 案情摘要
2023年11月8日,警方在龍鼓洲附近發現一艘快艇。船長D1在警方要求停船時拒絕,並採取危險駕駛及高速逃逸。最終警方截獲該船,發現D1、D2及9名南亞孟加拉籍男子,後者均無合法入境記錄。D1承認每人收取3,000人民幣將其從中山運往香港,且船上缺乏救生及消防設備,乘客亦未穿救生衣。
### 核心法律爭議
本案涉及 sentencing 原則。核心問題在於:(1) 協助未獲授權進境者前來香港的 starting point 如何根據被告角色(船長 vs 助手)而定;(2) 船上缺乏安全設備及危險駕駛是否構成 aggravating factors;(3) D1在中國內地提供情報以協助逮捕同夥是否可作為 mitigation。
### 判決理由
法官引用 HKSAR v Tse Chi Hei 確立之原則:一般協助進境者的 starting point 為4年監禁,若為船長或組織者則為5年。D1作為船長且因缺乏救生設備及危險駕駛,法官在其 starting point 上增加6個月。對於 D1 在內地提供情報的 mitigation,法官認為該行為發生在香港 jurisdiction 之外且無法核實,故不予考慮。兩被告因及時認罪獲得 one-third discount。
### 引用案例與條文
引用 HKSAR v Tse Chi Hei [2010] 5 HKLRD 707 確定船長及組織者的 starting point 為5年;引用 HKSAR v Wong Chi Kin (CACC 357/2004) 及 HKSAR v Yeung Lap (CACC 385/2007) 作為量刑參考;引用 HKSAR v Zhong Ming Jing (CACC 180/2010) 確定危害海上安全罪的 starting point 為18個月。
### 裁決與命令
D1被判處總共3年8個月監禁(Charge 1 與 Charge 2 同時執行);D2被判處2年8個月監禁。D1的第三項罪名(沒有停船)則由法院保留,除非獲准否則不予追究。
### 判決啟示
本案強調了在協助非法入境案件中,船長的責任較重,且缺乏安全設備(life-saving apparatus)會顯著增加刑期。此外,法官明確表示無法核實的境外 mitigation(如在內地配合調查)將不被採納。
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### 免責聲明
本摘要由人工智能自動生成,內容可能存在錯誤或遺漏,僅供參考,不構成法律意見。如需法律建議,請諮詢合資格律師。### Case Details
- Case Name: HKSAR v Su Weitian (D1) & Lu Jingwen (D2)
- Court: District Court
- Judge: Daniel Tang
- Date of Judgment: 6 February 2025
### Factual Background
On 8 November 2023, police intercepted a speedboat near Lung Kwu Chau carrying D1, D2, and nine Bangladeshi nationals without entry records. D1, the coxswain, had charged RMB 3,000 per person for transport from Zhongshan. During the encounter, D1 ignored police orders to stop and performed dangerous maneuvers. The vessel lacked fire-fighting and life-saving equipment, and passengers were not provided with life jackets.
### Key Legal Issues
The primary issue was the determination of the appropriate sentence for assisting unauthorized entrants. The court had to decide the starting point based on the defendants' roles, the impact of aggravating factors (dangerous navigation and lack of safety gear), and whether D1's alleged cooperation with Mainland Chinese authorities could serve as mitigation.
### Ratio Decidendi
Following HKSAR v Tse Chi Hei, the court set the starting point at 5 years for D1 (coxswain) and 4 years for D2. D1's sentence was increased by 6 months due to aggravating factors. The court rejected D1's mitigation regarding information provided to Mainland authorities as it occurred outside Hong Kong's jurisdiction and could not be verified. Both received a one-third discount for early guilty pleas.
### Key Precedents & Statutes
HKSAR v Tse Chi Hei [2010] 5 HKLRD 707 (starting points for coxswains/organizers); HKSAR v Wong Chi Kin (CACC 357/2004) and HKSAR v Yeung Lap (CACC 385/2007) (sentencing guidelines); HKSAR v Zhong Ming Jing (CACC 180/2010) (starting point for endangering safety at sea).
### Decision & Orders
D1 was sentenced to a total of 3 years and 8 months' imprisonment (Charge 1 and 2 to run concurrently). D2 was sentenced to 2 years and 8 months' imprisonment. Charge 3 against D1 was kept on file.
### Key Takeaways
The judgment reinforces that the role of coxswain carries higher culpability. It also highlights that the absence of safety equipment and reckless navigation are significant aggravating factors. Notably, the court will not grant weight to unverified mitigation occurring outside its jurisdiction.
---
### Disclaimer
This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.
A A
B B
DCCC 509/2024
C [2025] HKDC 209 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 509 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I SU WEITIAN (D1) I
LU JINGWEN (D2)
J J
----------------------------
K K
Before: Deputy District Judge Daniel Tang
L L
Date: 6 February 2025
M Present: Ms Tsoi Mung Fan, Moonar, Senior Public Prosecutor (Ag.) M
of the Department of Justice, for HKSAR
N N
Mr Wong Lap Wai, James, instructed by Tung & Associates,
O for the 1st defendant, assigned by the Director of Legal Aid. O
Mr Chan Ging Man, Robert, instructed by Lily Fenn &
P P
nd
Partners, for the 2 defendant, assigned by the Director of
Q Legal Aid. Q
Offence: [1] Assisting the passage to Hong Kong of unauthorised
R R
entrants (協助未獲授權進境者前來香港的旅程) – D1 & D2
S S
[2] Endangering the safety of others at sea (危害他人在海上
T 的安全) – D1 T
[3] Failing to stop (沒有停船) – D1
U U
V V
-2-
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
--------------------------------------
E E
1. D1 and D2 plead guilty before the court for the charge of
F F
“Assisting the passage to Hong Kong of unauthorised entrants”, contrary
G to section 37D(1)(a) of the Immigration Ordinance, Cap 115 (“Charge 1”). G
D1 also plead guilty to the charge of “Endangering the safety of others at
H H
sea”, contrary to section 72 of the Shipping and Port Control Ordinance,
I Cap 313 ( “Charge 2”). For Charge 3, “Failing to stop”, contrary to I
regulation 20(1) and (3) of the Shipping and Port Control Regulations, Cap
J J
313A, the prosecution and D1 enter an agreement that the charge will be
K kept at the court file and will not be proceeded unless with the leave of the K
court or Court of Appeal.
L L
M 2. D1 and D2 also admit that the content of the Amended M
Summary of Facts to be true and correct. In a gist, they admit that:
N N
O
(a) on 8 November 2023, at around 0013 hours, a police O
vessel (the “Police Vessel”) spotted an open-deck speedboat (the
P P
“Speedboat”) within Hong Kong waters near the west coast of Lung Kwu
Q Chau. Q
(b)The Police Vessel instructed the Speedboat to stop.
R R
However, the Speedboat did not and made a rigorous sharp turn that nearly
S collided with the Police Vessel, then it accelerated towards to the western S
border of Hong Kong at about 25 knot; made rigorous sharp turns and
T T
dangerous manoeuvre on three occasions.
U U
V V
-3-
A A
B B
C (c) D1 was the coxswain of the Speedboat. D2, who was C
sitting next to D1, turned and looked at the Police Vessel from time to time.
D D
(d) At about 0020 hours, the Speedboat was intercepted and
E D1, D2 and nine South Asian Bangladeshi males were found on board of E
the Speedboat. Immigration record showed that there was no entry record
F F
to Hong Kong for D1, D2 and the nine South Asian males. The nine South
G Asian males’ passports showed no exit record from China, and they were G
handed over to the Immigration Department for repatriation between 10
H H
and 22 November 2023.
I (e) Under caution, D1 admitted, inter alia, that he charged I
RMB3,000 per head to transport the passengers from Zhongshan,
J J
Mainland China to Lung Kwu Chau, Hong Kong. He did not have any
K identification documents. He steered the Speedboat from Zhongshan to K
Lung Kwu Chau on 7 November 2023 with the nine South Asian males on
L L
board. He knew it was illegal to transport unauthorised entrants into Hong
M Kong. He did not know if there were fire-fighting equipment on the M
Speedboat. He and D2 were wearing the life jackets while the nine South
N N
Asian males did not.
O (f) Under caution, D2 admitted, inter alia, that he came from O
Zhongshan to Hong Kong to assist D1 without remuneration. D1 offered
P P
him a job for a reward of RMB3,000 to help sailing the Speedboat from
Q Zhongshan to Lung Kwu Tan. He did not have any identification document. Q
R R
S S
T T
U U
V V
-4-
A A
B B
The starting point
C C
3. For Charge 1, the maximum penalty is a fine of $5,000,000
D D
and a 14 years’ imprisonment; for Charge 2, that is a fine of $200,000 and
E a 4 years’ imprisonment. E
F F
4. In respect of sentencing principle and guideline for Charge 1,
G the Court of Appeal’s decision in HKSAR v Wong Chi Kin, CACC G
357/2004, HKSAR v Yeung Lap, CACC 385/2007, and HKSAR v Tse Chi
H H
Hei, [2010] 5 HKLRD 707 are relevant.
I I
5. Yeung JA (as he then was) held in Tse Chi Hei that the usual
J J
starting point of a charge of assisting the passage to Hong Kong of
K unauthorised entrants is a 4 years’ imprisonment. If the defendant is the K
coxswain of the vessel or has taken part in organising or planning the
L L
journey, the starting point should be one of 5 years. Where there are other
M aggravating factors such as hiding the illegal immigrants in places where M
it would be difficult for them to escape in case of emergency; the
N N
dilapidated state of the vessel and the lack of life saving apparatus; risking
O the life of passengers on board or an extremely large number of illegal O
immigrants being on board, the starting point can be raised further. (para.
P P
4)
Q Q
6. Accordingly, D1 is the coxswain of the Speedboat, the starting
R R
point for him in Charge 1 should be one of 5 years’ imprisonment, for D2,
S the starting point for Charge 1 should be one of 4 years’ imprisonment. S
T T
U U
V V
-5-
A A
B B
7. According to HKSAR v Zhong Ming Jing, CACC 180/2010,
C the starting point of Charge 2 should be one of 18 months’ imprisonment. C
D D
Aggravating factors, mitigation and the total sentence
E E
8. Both D1 and D2 have clear record in Hong Kong. They plead
F F
guilty at the very first opportunity, so they will have one-third discount on
G sentence. G
H H
9. The court do find there are aggravating factors in Charge 1.
I According to the Amended Summary of Facts, when the Speedboat was I
found, it did not stop and make a rigorous sharp turn that nearly collided
J J
with the Police Vessel, then it accelerated towards the western border of
K Hong Kong at about 25 knots and make rigorous sharp turns and K
manoeuvred dangerously on three occasions, there were no fire-fighting
L L
appliances, no life-saving appliances and no navigation light for night
M operation to be found on board. The court cannot turn a blind eye to those M
aggravating factors.
N N
O 10. Accordingly, for D1 in Charge 1, the court will add a 6 months’ O
imprisonment to reflect the aggravating factors. The starting point for D1
P P
in Charge 1 is one of 5 years and 6 months’ imprisonment.
Q Q
11. For D2, he was not the coxswain and there is no evidence that
R R
he had any contribution to the aggravating factors; or he had taken part in
S organising or planning the journey, so his starting point in Charge 1 S
remains a 4 years’ imprisonment.
T T
U U
V V
-6-
A A
B B
12. Mr. James Wong acts for D1. According to his mitigation,
C D1 has a clear record. He commits the offence for financial reason. He is C
a filial son, a caring husband and a good father who works hard to support
D D
his family. He is known to his fellow villagers as a grateful and helpful
E person who contributes his time and effort to the welfare of the village. E
F F
13. Further, D1 had, through his wife, supplied information
G concerning the syndicate of this case in Mainland China, which leads to G
the arrest of the boss and accomplices by the Chinese authorities. This
H H
alleged mitigation happens outside Hong Kong’s jurisdiction, the court has
I no way to verify it, so I will not put any weight on such mitigation. I
J J
14. Mr. Robert Chan acts for D2. According to him, D2 commits
K the offence for financial reason. He has to support his family and he is K
deeply remorseful now.
L L
M 15. I consider both D1 and D2’s mitigation and conclude that M
other than their timely plea, they do not have any other mitigating factor.
N N
O 16. For D1, the sentence for Charge 1 is one of 5 years and 6 O
months’ imprisonment, after one-third discount, it becomes 3 years and 8
P P
months; for Charge 2, the starting point is one of 18 months’ imprisonment,
Q after one-third discount, it is reduced to 12 months’ imprisonment. As Q
Charge 1 and Charge 2 happened in the same incident, and I have already
R R
considered the incidents that happened in Charge 2 to be the aggravating
S factors for Charge 1, so all the sentence of Charge 1 and 2 shall be run S
concurrently, the total sentence for D1 is one of 3 years and 8 months’
T T
imprisonment;
U U
V V
-7-
A A
B B
C 17. For D2, the sentence for Charge 1 should be one of 2 years C
and 8 months’ imprisonment after one-third discount.
D D
E Conclusion E
F F
18. For D1, all the sentence for Charge 1 and 2 to be run
G concurrently, and the total sentence is one of 3 years and 8 months’ G
imprisonment.
H H
I 19. For D2, his sentence in Charge 1 is one of 2 years and 8 I
months’ imprisonment.
J J
K K
L L
M M
N N
( Daniel Tang )
O
Deputy District Judge O
P P
Q Q
R R
S S
T T
U U
V V