The criminal justice response to smuggling of migrants should not be insensitive to the specific circumstances of certain perpetrators, their varying levels of culpability and the gravity of their conduct. For example, the individual who steers a vessel because he or she, being an irregular migrant him or herself, could not pay the smuggling fee might see such circumstances acknowledged at sentencing and lead to a lower penalty. Of course, this type of lenience is not automatic. The available evidence, mitigating and aggravating circumstances must be balanced by a sentencing court. The examples in the Boxes below illustrate how distinct roles in the migrant smuggling process lead to different penalties for the perpetrators.
HKSAR v W.K.C. and L.C.L. Criminal Appeal No. 264 of 2001
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 searches 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.
Both defendants were convicted of migrant smuggling. Defendant 1 was sentenced to four years' imprisonment and Defendant 2 was sentenced to five and a half years' imprisonment. In explaining the higher sentence attributed to Defendant 2, the Court noted he had had a leading role in the criminal plan, notably he had recruited, summoned and instructed the drivers as well as supervised operations for a while. His participation in the smuggling venture had been more substantial thus justifying a higher penalty.
On 25 June 2004, approximately 04.00, the defendant swam from some place off the Moroccan coast towards Ceuta (Spain). He was equipped with a neoprene suit and fins, and he towed an Algerian irregular migrant. The latter did not hold the necessary documentation to enter or stay in Spain. The defendant acted in the fashion afore-explained with the purpose of facilitating upon payment of an undetermined fee - the illegal entry of the migrant in Spain. Notably, the migrant later stated to have paid 100 Euro for the services of the defendant. Law enforcement agents ( Guardia Civil) spotted the defendant and the irregular migrant through a night vision camera. They proceed to inform the Coast Guard, who was able to intercept the defendant and the migrant on the sea and rescue them. Both the defendant and the smuggled migrant presented obvious signs of exhaustion and hypothermia.
The Public Prosecutor charged the defendant with migrant smuggling, having requested that he be convicted to eight years' imprisonment. The Audiencia Provincial de Cádiz (Spain) convicted the defendant, though applying a penalty lower than the one requested by the Prosecution.
Given the purpose to obtain a financial or other material benefit as well as the risk caused to the life and safety of migrants, the Court convicted the defendant for aggravated migrant smuggling (in accordance with Spanish Law), the penalty of which ranged from six to eight years. However, the Court also noted that (i) the defendant had no prior criminal record, (ii) the circumstances in which the defendant smuggled the migrant were dangerous and posed serious risks to his own life and safety, mostly when compared to those that promote and facilitate migrant smuggling from a distance and perceiving high profits. It thus sentenced the defendant to the lowest possible term of imprisonment, i.e. six years.