Smuggling of migrants

Offences

• Enabling illegal entry
• Producing a fraudulent travel or identity document in connection with migrant smuggling
• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling

Mode

• sea

HKSAR v W.K.C. and L.C.L. Criminal Appeal No. 264 of 2001

UNODC No.:
CHNh005

Fact Summary

Following a police investigation, on 10 December 2000, authorities detained 12 irregular migrants in Hong Kong (China). These individuals were found inside a forty-foot container that was scheduled to be loaded onto a ship due to leave Hong Kong on 11 December 2000, headed to Long Beach, California (U.S.A.).

The envisaged smuggling ventured required a structured plan with the collaboration of nine participants, amongst who the appellants in the instant case. Specifically:

 

  • Between late November and early December 2000, Defendant 2 contacted two taxi drivers in Hong Kong, to whom he requested assistance in transporting irregular migrants. To one driver, Defendant 2 offered the sum of 1500 USD. To the other he proposed 1800 USD per irregular migrant. One of these taxi drivers recruited two others to serve the same kind of tasks.
  • Upon questioning, Defendant 1 admitted that a friend in the mainland had asked for his assistance in hiring a container as well as in renting an office and a container-loading site.  Defendant 1 was offered 20 000 USD for this service.  He was also told to use a forged identity card and, for this purpose, Defendant 1 provided photographs of himself and another associate so that the latter could procure forged identity cards, which in due course came to effect.
  • On 30 November 2000, an associate of the defendants took the necessary actions to complete the formalities of renting an office for ‘shipping business’.
  • On the same day, Defendant 1 arranged for a company chop (i.e. company stamp or seal) and visit cards to be prepared. 
  • On 1 December 2000, Defendant 1 instructed an associate to use the pre-arranged forged identity card to engage the services of a secretarial company, which he had selected.  Defendant 1 paid 3000 USD for this task.  The mobile phone used to pass instructions was found in possession of Defendant 1 at the time of his arrest.
  • On 5 December 2000, Defendant 1 telephoned the shipping company to book the container and the shipping space for the container to be conveyed to the U.S.A.  Subsequently, he asked the shipping company to convey the container to successive specific container-loading sites, on 7 and 10 December 2000.
  • On 6 December 2000, Defendant 1 used – among other documents - another forged identity card to rent the container-loading site that was used between 8 December 2000 and 7 February 2001. He paid a monthly fee of 16 000 USD.
  • On the evening of 8 December 2000, Defendant 2 contacted the afore-mentioned taxi drivers.  They were due to meet with each other at approximately 7.30 a.m., on 9 December 2000, outside a pre-determined restaurant. At the appointed time, the taxi drivers met with Defendant 2 and another individual, who led the drivers to collecting 15 irregular migrants. One of the taxis was eventually stopped by the police at a roadblock. The driver and three irregular migrants that were in his taxi were taken to the police station.  The other taxi drivers used a different route to convey the remaining twelve irregular migrants to the determined container site.  An associate and friend of Defendant 2 received the 12 irregular migrants at the agreed site.
  • In the afternoon of 10 December 2000, Defendant 2 and three men that were with him were arrested in a roadblock.
  • The relevant container terminal was searched, revealing 12 irregular migrants hiding in a container.  They were in a semi-conscious condition. The container had been modified.  Ventilation and escape hatches had been cut into the floor and the front panels.  The container had been equipped with a large quantity of dried food, water, bedding and other facilities, including bags for waste disposal.
  • On 10 December 2000, Defendant 1 was also arrested.  In his possession was a notebook that contained the records of the container’s registration number, and other compromising data.  After inquiries, Defendant 1 led authorities to forged identity cards. Upon additional searched to his home and the shipping company, further documentary evidence was recovered.
  • Defendant 1 admitted having procured the forged identity cards and directing associates.  He also confessed that he had booked and arranged for the container to be sent to the U.S.A. for a reward of 20 000 USD.  He did, however, deny any knowledge that this operation involved migrant smuggling.  He declared to believe the container was to be used for smuggling cars.

 

 

Legal findings:

 

Defendant 1 pled guilty to the following:

  • Charge 1 - aiding and abetting, counseling and procuring forged identity cards to be used by others;
  • Charge 2 – using a forged Hong Kong identity card.

He was sentenced to four years’ imprisonment on each charge to be served concurrently.

 

Defendant 2 pled guilty to the following:

  • Charge 3 - arranging the passage within Hong Kong of fifteen irregular migrants.

He was sentenced to five and a half years’ imprisonment.

 

The defendants sought leave to appeal against the sentences. The Court of Appeal dismissed the application.

 

For further details see “Commentary”. 

Commentary and Significant Features

In deciding the case, the Court of Appeal in the High Court of the Hong Kong Special Administrative Region noted as follows:

 

RE DEFENDANT 1

 

  • In respect of Defendant 1, the District Court adopted an overall starting point of six years’ imprisonment, which was reduced by one third to take into account Defendant 1’s (i) plea of guilty, (ii) prior good character, (iii) disputed knowledge that the cargo involved in this operation consisted of human beings. However, the District Court underlined that although Defendant 1 had claimed that he thought the container was used to smuggle cars, he had given no explanation as to why he held such a belief.  In any event, Defendant 1 was well aware that he was engaged in a smuggling operation, which involved an international element with a cargo to be smuggled from Hong Kong into the U.S.A. The District Court further took into account that Defendant 1 had been prepared to arrange for forged Hong Kong identity cards, enlist the help of others, and to use the forged identity cards in the smuggling operation. In line with all the above, Defendant 1’s sentence was set at four years’ imprisonment for each charge to run concurrently.

 

RE DEFENDANT 2

 

  • Regarding Defendant 2, the District Court adopted a starting point of nine years’ imprisonment. It afforded to Defendant 2 a discount of one-third and a small further discount, leading to a sentence of five and a half years’ imprisonment. The District Court stressed Defendant 2’s critical role in the smuggling venture, by highlighting that he was “who recruited the drivers; who then summoned them to the rendezvous, who, together with another male, met them there and instructed them where to drive to meet their passengers, whom he knew full well to be unauthorized entrants; who went along to that meeting place; who instructed the drivers where to take their passengers; who later (…) followed the container for a distance after it left…” the container site for another.
  • The participation of Defendant 2 in the smuggling venture is more substantial – it goes beyond – that of the drivers. HKSAR v Chan Lai-choi, CACC 166/1997, is thus not of much relevance in casu. As noted by the Court in the cited judgment, “Offences which involve the carriage of unlawful entrants from another country into Hong Kong must be distinguished from cases such as the present one, in which the passage of unlawful entrants who have already entered Hong Kong is assisted.  The former offences involve, we are satisfied, greater culpability”. Furthermore, “the applicant had no part in the bringing of the unlawful entrants from China into Hong Kong and was not involved in any carriage by sea. After they had landed he transported them, on what was an otherwise normal taxi journey, from one part of the territory to another.  His culpability cannot, we are satisfied, be equated with that of a captain of a vessel bringing unlawful entrants into the territory”.
  • It is an obvious and necessary inference from the available evidence that Defendant 2 was aware of the transportation of irregular migrants into Hong Kong by sea and that he was aware of their envisaged onward journey in the container to the United States.   His role was to take up their transportation on their arrival and to move them on to the next stop on their journey.  Defendant 2 was fortunate that the police were able to discover his activities before the irregular migrants remained any longer inside the container and their condition deteriorated further.  Otherwise, he would likely face much more serious charges and penalty.
  • Accordingly, nine years’ imprisonment appears as a proper starting point in determining Defendant 2’s penalty. The sentence is reduced in view of his plea of guilt as well as the fact that another individual (co-defendant but not appellant in the instant case) had a even more vital role in the criminal plan.

 

Against this background, the Court of Appeal in the High Court of the Hong Kong Special Administrative Region deemed the sentences imposed by the District Court had not been too severe. Accordingly, it denied leave to appeal.

 

This case is illustrative of how the different roles of associates in a smuggling venture are critical and mirrored at the sentencing level. It further unveils courts are mostly concerned with the organisers and planners of migrant smuggling operations, to whom, as a consequence, the most severe penalties are reserved.
Sentence Date:
2002-02-22

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

United States of America

China

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Details

• Special investigative techniques
• electronic or other forms of surveillance

Procedural Information

Legal System:
Mixed System
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    appeal
  • Is the decision appealable?:
    No
  • Official Case Reference:
    HKSAR v W.K.C. and L.C.L. Criminal Appeal No. 264 of 2001 (on appeal from DCCC 244 of 2001)
  • Decision Date:
    22 February 2002

    Court

    Court Title:
    Court of Appeal in the High Court of the Hong Kong Special Administrative Region
     

    Location

  • City/Town:
    Hong Kong
  • • Criminal
    Description:

    The defendants appeared in the District Court with seven others to face charges related to migrant smuggling. The defendants and their co-defendants all pleaded guilty with the exception of one individual against whom no evidence was offered.

    The defendants sought leave to appeal against their sentences.

     

    Outcome

  • Verdict:
    Guilty
  • Sentences

    Sentence

    Term of Imprisonment:
    4 years
     
    Defendant #1 was convicted to 48 months of imprisonment
    Term of Imprisonment:
    5 years 6 Months
     
    Defendant#2 was convicted to 66 months of imprisonment

    Migrants

    Migrant:
    15 persons
    15 migrants of unspecified gender and nationality

    Defendants / Respondents in the first instance

    Defendant:
    W.K.C
    Gender:
    Male
    Nationality:
    Chinese
    Defendant#1
    The Defence argued the sentence was too severe without appropriately substantiating the claim.
    Defendant:
    L.C.L
    Gender:
    Male
    Nationality:
    Chinese
    Defendant#2
    The Defence maintained the District Court had failed to have proper regard to HKSAR v Chan Lai-choi, CACC 166/1997. See “Commentary”.

    Charges / Claims / Decisions

    Defendant:
    W.K.C
    Statute:
    Registration of Persons Ordinance Section 7A(1A), Cap. 177 (and Section 89 of the Criminal Procedure Ordinance, Cap. 221) Aiding and abetting, counseling and procuring forged identity cards to be used by others
    Statute:
    Registration of Persons Ordinance Section 7A(1A), Cap. 177 Using a forged Hong Kong identity card
    Defendant:
    L.C.L
    Statute:
    Immigration Ordinance Section 37D(1)(a), Cap. 115 Arranging the passage within Hong Kong of irregular migrants
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