HKSAR v. DENG RIXIN

DCCC 870/2021

[ 2022 ] HKDC 936

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 870 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant (D) pleaded guilty before me to 2 Charges, Charge 1 being “Importing unmanifested cargoes”, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap. 60; Charge 2 being “Dealing with goods to which the Dutiable Commodities Ordinance applies”, contrary to sections 17(1) and 46(3) of the Dutiable Commodities Ordinance, Cap. 109. Both offences occurred at the same time and place, viz., 3 September 2020 at the Cargo Examination Platform, Inbound Cargo Examination Building, Lok Ma Chau Control Point. Charge 1 involved 20 gold bullions while Charge 2 involved 66 sticks of cigarettes of assorted brands.

Facts of case

2.  According to the Summary of Facts admitted by D, at around 17:10 hours on 3 September 2020, D drove a medium goods vehicle bearing registration mark VZ 4437 from the Mainland to Lok Ma Chau Control Point for customs clearance into Hong Kong.  D submitted a set of manifest to the Customs Officer before the vehicle examination.  Upon search of the driver’s compartment, Customs Officers found from a storage underneath the passenger’s seat 2 plastic bags containing a total of 20 gold bullions, each weighed 1 kg and wrapped by packing material, and another 66 sticks of cigarettes of assorted brands from a storage between the driver’s seat and the passenger’s seat.  Both items were not covered by the manifest. D was arrested.

3.  D admitted under caution that the gold bullions were given to him by a friend who lived in the Mainland.  He personally put them in the storage underneath the passenger’s seat and intended to sell them to make a profit for the higher gold price in Hong Kong.  As to the cigarettes, it was for his own consumption.  He knew that he had to declare these items to the Customs but he failed to do so.

4.  The Government Chemist confirmed that the gold bullions composed of gold with gold composition not less than 99%.  An independent valuer assessed the gold bullions to have a fair market value of HK$9,653,000 as at the date of the offence.

Defendant’s Background

5.  According to the Background Report, D is 39 years old, born in the Mainland on 1 February 1983. After completing primary education, he stayed idle for a few years until he was old enough to work, and became a factory worker. His mother and sister came to Hong Kong to join his father in 1999, leaving him in the care of his maternal grandparents.  He married in 2008.  His elder son was born in Hong Kong in 2010 while his younger son was born in the Mainland in 2011.  He and his elder son came to settle in Hong Kong in 2014 and his younger son joined them in 2015.  They lived with his parents in a public housing unit under the names of his parents, as unauthorized tenants.  His wife deserted the family and could not be contacted for a few years prior to the present offence, leaving him to take care of his 2 sons and his elderly parents, who are both in poor health.  Both his sons suffered from some form of speech problem with his elder son needing to attend psychiatric treatment in Tuen Mun Hospital on a regular basis.

6.  D was the sole bread-winner of the family, with his parents on CSSA.  After settling in Hong Kong, he worked as a night-shift security guard, a vegetable delivery worker in the market and by 2018 he became a cross-border driver.  His income in this job was about HK$13,000 per month as his working time was limited by the need to attend to the special education needs of his sons as well as the health problems of his aged parents.  His income was further reduced to about HK$7,000 to 8,000 per month as a result of the COVID-19 pandemic.  He was unemployed since his arrest as he was forbidden to leave Hong Kong pending the present criminal proceedings.  He has a clear criminal record.

Mitigation

7.  In mitigation, Ms Wu representing D, submitted that D committed the offences due to financial hardship.  At the time he was under-employed and his savings were running out.  He could not even afford to buy a computer for his sons to attend classes on line.  D’s elder son was said to be suffering from ADHD and Asthma.  A psychiatric report and 3 medical reports of this son were also submitted in support.  Under such circumstances, he was offered HK$10,000 reward to bring the gold bullions in question to Hong Kong.  It is to be noted that in the Background Report he told the probation officer he committed the offence “for quick monetary return of about $5,000 to meet the living expenses of the sons”. In any event, without considering the consequences and seriousness of the offences, he took the chances and committed Charge 1.  For Charge 2, only a small quantity of cigarettes was involved and they were for D’s own consumption only.  Ms Wu submitted that D is remorseful for what he had done and pleaded guilty to the offences at the first opportunity.

8.  Mitigation letters written by D himself, his younger sister and Rev LAM Kai Hung, Chaplain of the Christian Prison Pastoral Association Limited were submitted, all stated that D is extremely remorseful and asked the court to be as lenient as possible to him.

9.  Ms Wu further submitted that the offences did not involve meticulous, sophisticated planning or special skills, no structural alteration to the vehicle was involved.  The gold bullions were put inside the storage compartment underneath the passenger’s seat without any other concealment and were easily found.  Ms Wu cited 6 authorities, notably HKSAR v Tsang Chiu Kin unrep CACC 228/2012, to assist the court in assessing the appropriate sentence.

Sentence

10.  There is no tariff for the offences under consideration.  The maximum sentence for Charge 1 upon conviction on Indictment is 7 years’ imprisonment and HK$2 million fine, and for Charge 2, 2 years’ imprisonment and HK$1 million fine.  In Tsang Chiu Kin(supra), the cargoes involved were 50 slabs of silver bullions worth over HK$8.4 million.  The CA considered 3 years was a proper starting point.  It must be noted that the appellant in that case was convicted on the basis that he was not aware of the presence of the cargoes concerned, only that he could not satisfy the statutory defence available to him.  In the other cases cited by Ms Wu, including HKSAR v Tsang Kwok Choi unrep CACC 227 of 2019, HKSAR v Lam Kwan Ying DCCC 1103 of 2020, HKSAR v Chock Kwai Leung DCCC 1118/2018, HKSAR v Lee Wing Kin DCCC 60 of 2018 and HKSAR v Tang Kwai Wa, unrep. HCMA 556 of 2019, the general starting point for offences of similar nature falls in the region of 2 years and 9 months to 3 years and 3 months with most of these cases involved a deliberate commission of the offences.

11.  For Charge 1, having considered the authorities cited and the facts of the present case, I adopt 3 years as the starting point.

12.  D has a clear criminal record prior to the commission of the present offences.  I also take into account his family background and the reasons for breaching the law on this occasion.  I agree with Ms Wu’s submission that this case does not involve any sophisticated planning or special skills in the commission of the offences.  The cargoes involved were “hidden” in a way that they could easily be found by the Customs Officers when the vehicle was searched.  I will reduce the starting point by 6 months to 2 years and 6 months for these factors.

13.  D pleaded guilty at the first available opportunity.  I will give him the full 1/3 discount.  For Charge 1, D is sentenced to 1 year and 8 months’ imprisonment.

14.  For Charge 2, only 66 sticks of cigarettes were involved.  I accept that they were for D’s own consumption.  I adopt 3 weeks as the starting point, reduce it by 1/3 for his timely guilty plea and impose 2 weeks’ imprisonment for this offence.

15.  The 2 offences were committed on the same occasion.  I order the sentences for the 2 Charges be run concurrently.

Conclusion

16.  The sentences imposed on D are as follows:

Charge 1 : 1 year and 8 months

Charge 2 : 2 weeks, concurrent to Charge 1

Total sentence : 1 year and 8 months.