Case Law Database

Smuggling of migrants

Offences

• Enabling illegal entry

Mode

• sea

Aggravations

• Endangering lives or safety of smuggled migrants

HKSAR v T.K.M

Fact Summary

In the early hours of 26 December 2003, the defendant was intercepted while sailing an unlit wooden vessel* (sampan type) into Hong Kong (China) waters, in the direction of Lau Fau Shan (Hong Kong). On board the vessel, in addition to the defendant, was a young woman, who was approximately nine months pregnant. The defendant was the vessel’s coxswain”.

 

The vessel had no fire fighting equipment, life saving appliances, navigation lights suitable for night operation. Furthermore, it was unsuitable for carrying passengers. The Marine Department’s ship inspector described its hull as being in “in normal condition.

 

In ascertaining the facts, authorities relied much on testimonial evidence. The defendant claimed that he had intended to go to Hong Kong to collect rubbish. He had given the young woman a free ride, with no-one having paid him to undertake the journey. He stated to have bought the vessel in Shenzhen (China mainland) for RMB 2,000. He further acknowledged knowing that the young woman was pregnant.

 

 

Legal findings:

 

The defendant pled guilty to assisting the passage to Hong Kong of unauthorized entrants. The District Court sentenced the defendant to four years’ imprisonment. The decision was maintained on appeal.

 

For further details see ‘Other background’ under “Accused Persons”, “Procedural History” and “Commentary”.

 

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* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.

In the early hours of 26 December 2003, the defendant was intercepted while sailing an unlit wooden vessel* (sampan type) into Hong Kong (China) waters, in the direction of Lau Fau Shan (Hong Kong). On board the vessel, in addition to the defendant, was a young woman, who was approximately nine months pregnant. The defendant was the vessel’s coxswain”.

 

The vessel had no fire fighting equipment, life saving appliances, navigation lights suitable for night operation. Furthermore, it was unsuitable for carrying passengers. The Marine Department’s ship inspector described its hull as being in “in normal condition.

 

In ascertaining the facts, authorities relied much on testimonial evidence. The defendant claimed that he had intended to go to Hong Kong to collect rubbish. He had given the young woman a free ride, with no-one having paid him to undertake the journey. He stated to have bought the vessel in Shenzhen (China mainland) for RMB 2,000. He further acknowledged knowing that the young woman was pregnant.

 

 

Legal findings:

 

The defendant pled guilty to assisting the passage to Hong Kong of unauthorized entrants. The District Court sentenced the defendant to four years’ imprisonment. The decision was maintained on appeal.

 

For further details see ‘Other background’ under “Accused Persons”, “Procedural History” and “Commentary”.

 

----

* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.

Commentary and Significant Features

In deciding the appeal, the High Court of the Hong Kong Special Administrative Regionnoted as follows:

 

·           The five-year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of the vessel (see e.g. R v. Lam Kon Man Crim App No. 329/1990 and R v. Wong Yin Lung, Crim App No. 52/1994).

·           In R v. Ng Kit Yuen [1992], it was determined that the starting point sentence should be increased if (i) irregular migrants had been concealed in a place from which escape would be difficult, or (ii) the vessel was in an unseaworthy condition. Were both circumstances to converge in the same case, a starting point sentence as high as nine years’ imprisonment would be appropriate. In casu, the vessel was both in an unseaworthy condition and operated in an unseaworthy manner. Thus, the Judge a quo determination that the vessel was flimsy was justified. This alone grounded the adopted higher starting point of six years’ imprisonment.

·            Being true that no Newton Inquiry was held before concluding that the defendant had been paid to undertake the journey, the Judge a quo did not use this finding as one of the reasons for increasing the starting point sentence.

·            While no independent evidence confirmed that the irregular migrant was nine months pregnant, the defendant stated during the course of proceedings that she was “…about 9 months pregnant.” Furthermore, as pointed out by the Judge a quo  “… you can’t hide that sort of thing”.

·            In R v. Lo Shui Lun CACC 109 of 1995, it was held that the five years’ starting point can be increased where the irregular migrants, by reason of age or physical condition, are at greater risk than a normal healthy person would be: “…the degree of danger would involve, among other things, the age and condition of unauthorised entrants. For the very young, very old and infirm would naturally be at greater risk in the event of a mishap “. There can be no doubt that the pregnant migrant at the advanced stage of her pregnancy falls within the category of persons who are at greater risk.

·            With regard to the dangerous – or otherwise – nature of the journey, it is dangerous, if not foolhardy, to undertake a voyage of over two hours across Deep Bay (China) in an unseaworthy vessel operated without navigation lights. The fact that the defendant may have undertaken that voyage before, in similar circumstances, without coming to any mishap does not jeopardise this conclusion.

 

Against this background, the High Court of the Hong Kong Special Administrative Region deemed the overall sentence of four years’ imprisonment (resulting from a starting point of six years’ imprisonment discounted of one-third in view of the defendant’s plea of guilty) not to be excessive. It thus denied leave to appeal.

In deciding the appeal, the High Court of the Hong Kong Special Administrative Regionnoted as follows:

 

·           The five-year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of the vessel (see e.g. R v. Lam Kon Man Crim App No. 329/1990 and R v. Wong Yin Lung, Crim App No. 52/1994).

·           In R v. Ng Kit Yuen [1992], it was determined that the starting point sentence should be increased if (i) irregular migrants had been concealed in a place from which escape would be difficult, or (ii) the vessel was in an unseaworthy condition. Were both circumstances to converge in the same case, a starting point sentence as high as nine years’ imprisonment would be appropriate. In casu, the vessel was both in an unseaworthy condition and operated in an unseaworthy manner. Thus, the Judge a quo determination that the vessel was flimsy was justified. This alone grounded the adopted higher starting point of six years’ imprisonment.

·            Being true that no Newton Inquiry was held before concluding that the defendant had been paid to undertake the journey, the Judge a quo did not use this finding as one of the reasons for increasing the starting point sentence.

·            While no independent evidence confirmed that the irregular migrant was nine months pregnant, the defendant stated during the course of proceedings that she was “…about 9 months pregnant.” Furthermore, as pointed out by the Judge a quo  “… you can’t hide that sort of thing”.

·            In R v. Lo Shui Lun CACC 109 of 1995, it was held that the five years’ starting point can be increased where the irregular migrants, by reason of age or physical condition, are at greater risk than a normal healthy person would be: “…the degree of danger would involve, among other things, the age and condition of unauthorised entrants. For the very young, very old and infirm would naturally be at greater risk in the event of a mishap “. There can be no doubt that the pregnant migrant at the advanced stage of her pregnancy falls within the category of persons who are at greater risk.

·            With regard to the dangerous – or otherwise – nature of the journey, it is dangerous, if not foolhardy, to undertake a voyage of over two hours across Deep Bay (China) in an unseaworthy vessel operated without navigation lights. The fact that the defendant may have undertaken that voyage before, in similar circumstances, without coming to any mishap does not jeopardise this conclusion.

 

Against this background, the High Court of the Hong Kong Special Administrative Region deemed the overall sentence of four years’ imprisonment (resulting from a starting point of six years’ imprisonment discounted of one-third in view of the defendant’s plea of guilty) not to be excessive. It thus denied leave to appeal.
Sentence Date:
2014-12-14

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

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

Investigation Procedure

Involved Agencies

• Maritime authorities
• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Mixed System
Latest Court Ruling:
High Court
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    appeal
  • Official Case Reference:
    HKSAR v T.K.M. Criminal Appeal No. 247 of 2004
  • Decision Date:
    14 December 2014

    Court

    Court Title

    High Court of the Hong Kong Special Administrative Region
     

    Location

  • City/Town:
    Hong Kong
  • Province:
    China
  • • Criminal

    Description

    The defendant pled guilty to migrant smuggling and was sentenced by the District Court. The District Court noted it was convinced the defendant had been paid to undertake the smuggling journey so that the young woman could give birth to her child in Hong Kong. Being the defendant “the captain of the vessel”, she took a starting point of five years’ imprisonment, increasing it to six years’ imprisonment to reflect the existing aggravating factors: (i) dangerous conditions under which the vessel was operated, (ii) fact that the young woman was heavily pregnant, (iii) recidivism of the defendant. The defendant benefited from a one-third discount to mirror his guilty plea. The defendant was thus sentenced to an overall sentence of four years’ imprisonment. It followed the appeal herein under analysis. The Court ad quem decided to entertain the application despite the fact that the defendant was two months late in submitting the notice of appeal.
     

    Outcome

    Other Outcome

    Leave to appeal denied
     

    Sentences

    Sentence

    Term of Imprisonment:
    4 years
     

    Migrants

    Migrant:
    Gender:
    Female
    Nationality:
    Chinese
    Approximately nine months pregnant

    Defendants / Respondents in the first instance

    Defendant:
    T.K.M
    Gender:
    Male

    In March 1995, the District Court had sentenced the defendant to three years and five months’ imprisonment for an offence similar to the one at stake in the instant proceeding.

     

    On appeal, the Defence argued the sentence was excessive. It highlighted the defendant had not perceived any financial or other material benefit for his role in the smuggling venture. Furthermore, it argued the District Court had erred in considering the pregnancy of the irregular migrant an aggravating circumstance as well as the fact that the vessel would be unseaworthy. Likewise, the course of the journey would not have been unsafe as the defendant was accustomed to travelling those waters.

    Charges / Claims / Decisions

    Defendant:
    T.K.M
    Charge:
    Facilitating the passage of an unauthorized entrant
    Statute:
    Immigration OrdinanceSection 37 D (1), Cap. 115
    Charge:
    Endangering the safety of others at sea
    Statute:
    Shipping and Port Control OrdinanceSection 72, Cap. 313
    Charge:
    Failure to stop vessel as ordered by police authorities
    Statute:
    Shipping and Port Control Regulations, made under the Shipping and Port Control OrdinanceRegulation 20(1) and (3), Cap. 313

    Sources / Citations

    CACC 247/2004