DCCC509/2024

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 -------------------------------------- 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