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”.
Estados Unidos de América
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
RE DEFENDANT 2
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.