HKSAR v. TSE CHI HEI IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 393 OF 2009 CACC 393/2009 BETWEEN HKSAR ResponDent (香港特別行政區) v TSE CHI HEI (謝自喜) Before: Hon Tang VP, Yeung JA anD M Poon J in Court Date of Hearing: 1 June 2010 Date of HanDing Down of JuDgment: 1 June 2010 J U D G M E N T Hon Yeung JA (giving the juDgment of the Court): Introduction 1. On 22August 2009, a Sergeant on boarD the Police Launch PL60 founD a suspicious fishing vessel entering the waters of Hong Kong anD going towarDs the waters of Tai O. The suspicious fishing vessel was later intercepteD by another Police Launch PV80. Apart from the coxswain, the Sergeant founD on boarD the vessel two Chinese males anD ten Pakistani males who had no valiD travel Documents to prove that they had obtaineD the permission to enter Hong Kong. 2. The Applicant Tse Chi Hei was the coxswain of the fishing vessel. Under police interrogation, the Applicant admitteD that he had arrangeD those twelve males to enter Hong Kong unlawfully from the MainlanD by sea anD had receiveD from each of them RMB 450. 3. The Applicant later saiD that he was instructeD in Shenzhen to carry the batch of illegal immigrants from Dongguan to Hong Kong by a fishing vessel. 4. AccorDing to the vessel examination report, the hull of the fishing vessel in question was in poor conDition. There was no fire-extinguishing appliance or life- saving apparatus on boarD. It was not equippeD with any navigation light for night- time navigation. AccorDingly, it was not seaworthy. 5. Subsequent to the above inciDent, the Applicant was chargeD with one count of “Assisting the passage to Hong Kong of a conveyance which carrieD unauthorizeD entrants” anD one count of “AiDing anD abetting a person to attempt to lanD in Hong Kong without permission”. 6. The first count was relateD to the two Chinese males on boarD the fishing vessel whereas the seconD count was relateD to the ten Pakistani males there. 7. ADmitteDly the two counts arose out of the same inciDent, but technically speaking the ten Pakistani males in question were not unauthorizeD entrants. As they were Different from the two Chinese males, the Prosecution had to lay two charges against the Applicant. 8. The Applicant pleadeD guilty to the two charges before Deputy District Court JuDge Johnny Chan who sentenceD him to 4 years anD 9 months imprisonment. 9. Deputy JuDge Chan took 6 years anD 27 months as the sentencing starting points for the two charges, anD reDuceD the sentences to4 years anD 18 months respectively after giving the Applicant one-thirD Discount for his guilty pleas. 10. Deputy JuDge Chan saiD that the involvement with the ten illegal immigrants specifieD in Charge 2 was not reflecteD in Charge 1, anD the cross-borDer element of Charge 2 had no connection with Charge 1. Deputy JuDge Chan finally orDereD 9 months of the sentences for the two charges be serveD consecutively, resulting in a total sentence of 4 years anD 9 months’ imprisonment. Grounds of Appeal 11. Mr. James Tze, Counsel for the Applicant, agreeD to the sentencing starting points adopteD by the trial juDge for the respective charges, but he emphasizeD that the two charges arose from the same inciDent anD shoulD not be serveD consecutively. Mr. Tze also submitteD that the total sentence of 4 years anD 9 months imprisonment was manifestly excessive. Discussion 12. Although the trial juDge inDicateD that he had taken into account at the time of sentencing the respective circumstances of the two charges when Determining the starting points of the two charges, it is questionable whether the sentences shoulD be serveD consecutively given that the two charges arose from the same inciDent. But at the enD the only matter to be DeciDeD by this Court is whether the overall sentence is manifestly excessive or not. 13. The usual sentencing starting point for a charge of “conveying unauthorizeD entrants to Hong Kong by a vessel for monetary gains ”is 4 years imprisonment (see R v Ho Siu-lun [1987] HKLR 1086). If the DefenDant is the coxswain of the vessel or has taken part in organizing or planning the journey, the sentencing starting point shoulD be one of 5 years (See R v Wong Yin-lung [1995] 1 HKCLR 151 anD R v Pang Wing [1996] 1 HKC 624, etc.). Where there are other aggravating factors such as hiDing the illegal immigrants in places where it will be Difficult for them to escape in case of an emergency, the DilapiDateD state of the vessel anD the lack of life-saving apparatus, risking the lifeof passengers on boarD or an extremely large number of illegal immigrants being on boarD, the starting point can be raiseD further. 14. In the present case, the Applicant was the coxswain of the fishing vessel anD the structure of the vessel was in poor conDition. There was no life-saving apparatus. The number of illegal immigrants was as many as twelve. Such are aggravating factors by which the sentencing starting point can be increaseD to one of more than 5 years. 15. However this Court is of the view that unless there are extremely unusual reasons, the sentencing starting point for a charge of “conveying unauthorizeD entrants into Hong Kong by a fishing vessel” shoulD not, even with the abovementioneD aggravating factors, be higher than 6 years’ imprisonment. 16. The present case Does not involve particularly elDerly, young or DisableD illegal immigrants. There is no eviDence to show that the twelve illegal immigrants were hiDDen in a place where it coulD be Difficult for them to escape in case of an emergency. Mr.RaymonD Cheng, Senior Public Prosecutor, who appeareD on behalf of the ResponDent, emphasizeD that the illegal immigrants woulD have consiDerable Difficulty if they neeDeD to make escape. But this Court is of the view that such Difficulty woulD be present in every case where illegal immigrants are conveyeD by a fishing vessel. Although the fishing vessel was not seaworthy, it was not particularly DilapiDateD. There is no eviDence to show that the fishing vessel ran the risk of sinking in the journey. 17. The Applicant has no previous recorD of conviction in Hong Kong. This Court consiDers that in view of the backgrounD of the case, even if the aggravating factors are taken into account, a total sentencing starting point of 6 years is adequate. The Applicant’s final sentence of 4 years anD 9 months represents a starting point of 7 years anD 3 months which is manifestly excessive. 18. We allow the Applicant’s application to appeal against sentence. Taking his application as the formal appeal, we allow the Applicant’s appeal. The respective sentences of the two charges are uphelD but we orDer the sentences of the two charges to run concurrently. The 4 years anD 9 months sentence of the Applicant is hereby reDuceD to 4 years. (Robert Tang) (Wally Yeung) (Maggie Poon) Vice-PresiDent Justice of Appeal JuDge of the Court of First Instance James Tze, instructeD by the Legal AiD Department, for the Applicant RaymonD Cheng, Senior Public Prosecutor of the Department of Justice, for the ResponDent TranslateD by the JuDgment Translation Unit of the JuDiciary anD approveD by Mr. P. Y. Lo, Barrister-at-law. .