HKSAR v. LAM KWOK FAI AND OTHERS

DCCC 161 & 438/2015 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 161 AND 438 OF 2015 (CONSOLIDATED)

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REASONS FOR SENTENCE

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Charges

1.  D2 – D8, D11 and D13 plead guilty to Charge 1.  D9, D10 and D12 plead not guilty to that charge but they are all convicted after trial.  Charge 1 is “Conspiracy to export unmanifested cargo”.

2.  D3 also pleads guilty to Charge 5; D4 pleads guilty to Charge 6; D5 pleads guilty to Charge 7; D6 pleads guilty to Charge 8; D7 pleads guilty to Charge 9; and D8 pleads guilty to Charge 10. Charges 5 – 10 are all “Breach of condition of stay”.

3.  D13 also pleads guilty to Charges 2 – 4.  Charge 2 is “Possession of dangerous drugs”, Charge 3 and Charge 4 are both “Possession of apparatus fit and intended for inhalation of dangerous drugs”.

Facts

Charge 1 (D2 – D13)

4.  On 30 July 2014, Custom & Excise (C & E) officers found people stuffing goods into the axles of some trailers in a hoarded site at Hong Po Road, Tuen Mun (the site).  Five tractors came out of the site respectively, each towing a stuffed trailer with an empty container.  They all reached Sha Tau Kok Control Point (STKCP), where the five drivers (D9 – D13) all declared “unladen”.  C & E officers checked the 5 trailers (A – E) and found the goods hidden inside the axles.  They were mobile phones, memory cards, computer CPUs, RAMs and chips.  Apparently, the goods were to be smuggled across the border to China.

5.  C & E officers found similar goods when they raided the site on the same day.

6.  At the site, there were 10 trailers.  Two looked worn. The officers did not check those two. The other eight each held an empty container.  The last three axles of each of those eight trailers (F – M) were all structured as the axles of the five trailers (A – E) intercepted at STKCP.  The two trailers (H and M) parked inside the shed already had goods stuffed into their axles.  The other six had not been stuffed yet.

7.  These goods were found from Trailers A – E and the site: 1,435 mobile phones, 9,105 CPUs, 5,629 RAMs, 24,800 micro SD cards and 1,018 computer chips. (For individual quantities of such goods found from Trailers A – E, refer to Schedules 1 – 5 of Trial Admitted Facts P1.) The estimated value of all the goods seized was around HK$15 Million.

8.  D2 admitted to the investigators he was the boss of a logistics company.  He had keys to the site.

9.  D11 admitted that D2 hired him. He was to be rewarded according to the value of the smuggled goods. He had not enquired from D2 what were being smuggled.

10.  In court, D3 – D8 admit they were manual workers and they dealt with the goods at the site.

11.  In the trial, I find D12 was the one who contracted with a logistics company to deliver the 13 empty containers to China for repair.  He caused or permitted those containers to be towed to the site so that the trailers after getting their axles stuffed could take the empty containers straight away from there to the border check point.

12.  To sum up, D2 was the operator of the smuggling; D12 assisted him (as per para. 11) and he also drove a tractor to tow Trailer D.  D9 – D11 and D13 were the other drivers (Trailers A – C and E.).

13.  In court, D2 – D8, D11 and D13 all admit they involved themselves in the smuggling activity knowingly.

14.  In the trial, I find D9, D10 and D12 also involved themselves in the operation knowing well the smuggling nature of their own deed.

Charges 5 – 10 (D3 – D8)

15.  D3 – D8 were mainlanders. They came to Hong Kong on visitor’s visa. As such, they were not allowed to take up any employment here.

Charges 2 – 4 (D13)

16.  At STKCP, C & E officers found a bag of methamphetamine hydrochloride (ice) in D13’s wallet. That was 6.17g of solid containing 6.08g of ice. D13 told the officers that he bought it in China for RMB 1,800 for his own consumption (Charge 2).

17.  Inside D13’s tractor, the officers found a plastic bottle containing 325 ml. of liquid which contained 0.03g of substance containing methamphetamine. D13 admitted it was a home-made apparatus for consuming ice (Charge 3).

18.  D13 was brought back to his residence in Sheung Shui. There C & E officers found a plastic bottle, 7 glass tubes,  2 plastic straws and 2 interconnected plastic straws, 3 other plastic straws, 4 plastic caps, 5 plastic/rubber tubings and one plastic bulb. The dangerous drugs contained in some of these apparatus were 0.14g of methamphetamine, 0.06g of powder containing methamphetamine, 0.01g of powder containing trace of methamphetamine and some traces of powder containing methamphetamine.

Record

19.  D2, D9 – D13 are Hong Kong residents; D3 – D8 are China citizens.

20.  D2 had 5 precious convictions between 1987 and 2007.  The fourth one (2005) was “Attempt to import/export unmanifested cargo”.

21.  D3 – D8 all have clear record.  So do D9 and D10.

22.  D11 had 2 previous convictions between 1975 and 1978.  They were not similar to Charge 1.

23.  D12 had 3 previous convictions between 1999 and 2008.  The third one (2008) was “Furnishing incorrect declaration on an export permit”.  He was fined $15,000 for that.

24.  D13 had one previous conviction in 2007.  That was not similar to Charges 1 – 4.

Mitigation

D2

25.  D2 is aged 55.  He is now in his second marriage with one son aged 18.  His wife is a worker.

26.  Counsel says although D2 told C & E officers that he was the boss of a logistics company, he was in fact only an employee earning $40,000 per month.  His duty was to take care of the matters at that Hong Po Road site run by the company.  D2 admits he was the operator of the site, where smuggling activities went on with his knowledge. Counsel says the site had been closed now.  It is unlikely D2 would re-offend.

D3 – D8

27.  D3 is aged 28; D4 is aged 41; D5 is aged 24; D6 is aged 29; D7 is aged 28; D8 has just turned 33.

28.  D3 and D6 are single; the other four are married with children.  All live in China.  Counsel says D3 – D8 came to Hong Kong to look for employment in order to alleviate their family’s financial difficulties.  They knew about the smuggling only after they had started to work at the site. They continued working there because they needed money.

D9

29.  D9 is aged 34.  He is married and has 2 young children.  His wife has no job.  D9 is the sole bread winner of his family.

30.  Counsel says D9 had only worked for that logistics company for about a month when he was arrested. He earned $15,000 as a driver and received no bonus for what the court finds he was guilty of.  After his arrest, D9 has changed to work at construction sites. Counsel says it is unlikely that D9 would re-offend.

D10

31.   D10 is aged 57.  He is a divorcee.  His children have grown up.  He had worked as a cross-border driver for more than 10 years.  Because of this incident, he has changed to drive only in Hong Kong.

D11

32.  D11 is aged 58.  He is married and his children have grown up.  He has to take care of his vulnerable aged mother.  He has to spend around $10,000 on her care each month.  That was a great burden and forced D11 to do the smuggling job, which could earn him more money.  Counsel says D11 received an extra $1,000 per day for such work.

D12

33.  D12 is aged 36.  He is divorced and has to look after his 8-year old daughter.  He had been a cross-border driver for more than 10 years.  After the arrest, he has changed to work as a part-time driver.

34.  Counsel says D12’s last conviction (in 2008) was for a garment quota offence.  It was nothing similar to Charge 1.  It was not a serious breach and D12 was only fined on that occasion.

D13

35.  D13 is 29.  He is single, living with his parents.  He used to work as a cross-border driver earning $20,000.

36.  Counsel points out that D13 had only one conviction.  That was in 2007 for “Common assault”.

37.  Counsel says D13 was the first one to plead guilty in this case.  His doing so might have an effect on those who also pleaded guilty later.

38.  Counsel says the drugs D13 possessed were not of a large quantity.  They were for his own consumption and any latent risk was low.  Counsel asks the court to consider the totality factor and to pass concurrent (albeit partially) sentences.

D2 – D13

39.  It is submitted to the court that D3 – D8 were only workers and D9 – D13 were merely drivers.  Their role and criminality were less than those of the operator (D2) of the illegal enterprise.

40.  Some counsel say the normal range of sentence for offences relating to unmanifested cargo is 18 – 24 months.  They say the operator (D2) may deserve the upper-end punishment of the said range but the drivers (D9 – D13) are less culpable and the workers (D3 – D8) are further less culpable, which means the last category should receive the lower-end punishment.

41.  Counsel would not dispute that employing unemployable persons (D3 – D8) to work in this smuggling business is an aggravating factor.  However, those representing the drivers say that D9 – D13 had no control over that.  And it has not been proved that they knew about that either. Counsel say D9 – D13 should not be penalized for that.

Case law

42.  All Defence Counsel submit no sentencing authority.  They only refer to a previous case I dealt with in 2009 (DCCC 1089/2008).  They try to persuade me to adopt the same lenient sentences I passed on the defendants in that case. 

43.  That case was indeed similar to the present one.  It involved a smuggling site and some drivers plus workers.  The total value of the goods seized was estimated by Prosecution to be around HK$17 million.  However, I accepted defence submission that they might only be worth HK$3 – 5 million when sold in China.  None of the defendants in that case was convicted of any conspiracy (Charge 1 and Charge 2).  As starting point, I adopted 18 months imprisonment for D1’s Charge 3 (“Attempt to export unmanifested cargo”) and Charge 4 (“Making use of the altered fittings of a vehicle for the purpose of smuggling articles out of Hong Kong”), and also for D2’s Charge 5 (“Dealing with cargo with intent to assist another person to export the cargo without a manifest”).  For those workers (D3 – D5) who Prosecution could not prove they knew about the smuggling, they were only given 4 months’ imprisonment (after plea) for “Breach of condition of stay”.

44.  Counsel try to convince me that 18 months’ imprisonment might also be a suitable starting point in the present case for those working at the lower end of the conspiracy.

45.  Prosecutor, on the other hand, draws my attention to the following cases:-

R v Wong Kwong Hei CACC 16/1993:-

The applicant was convicted after trial of one court of handling stolen goods and 6 counts of exporting unmanifested cargo. He got 18 months’ imprisonment for each of those 6 exporting charges. They were made to run concurrently with one another and also concurrently with the 4½ years’ imprisonment for the handling charge. The Court of Appeal upheld all the sentences.

HKSAR v Choi Gin Ngon & 2 others CACC 570/1997:-

The three applicants together with another person were charged with ‘Dealing with cargo with intent to assist another person to export the cargo without a manifest’. The crime was perpetrated over 6 days. The goods involved were 17 new cars but no value was mentioned. The three were convicted after trial. D1 appealed against his sentence of 20 months’ imprisonment. The Court of Appeal found D1’s involvement was not inconsiderable. Their Lordships did not find the sentence manifestly excessive and dismissed the application.

HKSAR v Yip Shuk Tat CACC 496/2000:-

The appellant was convicted after trial of one count of ‘Conspiracy to import unmanifested cargo’, which alleged he in a period of 5 months conspired with others to import stolen vehicles. The trial judge passed a sentence of 4 years’ imprisonment. 13 stolen vehicles were involved. The Court of Appeal estimated their value to be about HK$2M. After reviewing a number of smuggling cases (some were magistracy appeals), their Lordships thought the 4-year sentence was out of line with the other cases. They also found that the appellant only committed the offence out of stupidity, ignorance and blindness rather than deliberately. The sentence was halved.

HKSAR v So Sung Loi & others CACC 115/2007:-

In this case, D1, D2, D4, D5 and D7 were convicted after trial of Charge 1 ‘Dealing with unmanifested cargo’. The goods were electronic goods, mobile phones and silver bullion. The offence were said to occur in a day. D1 and D2 were each sentenced to 2 years’ imprisonment; D4 and D7 each received 21 months; D5 being young was sent to Training Centre. The other charges concerning D1, D9 and D10 only were about perverting public justice. The Court of Appeal said there was no guideline for Charge 1. However, their Lordships referred to the different maximum sentences for summary conviction and in indictment trial. The former was merely 2 years’ imprisonment; the latter being 7 years. Their Lordships also noted that the majority of cases were heard in the magistracy. Therefore, they were not surprised to see the average sentence for such offence was only a matter of months. However, the crime before the court was well-organized; the goods were worth about HK$6M. Their Lordships referred to Yip Shuk Tat’s case and said “…with the value of the present cargo in mind, that the sentences for those in this case who played a role which was more than that of a mere labourer could be described as having veered on the side of leniency”. The 24-month sentences of D1 and D2 were upheld (both were treated as of previous clear record). On the other hand, D4 and D7 were accepted to have no premeditation and planning and played a lesser role. Their Lordships said there should be a greater distinction between their sentence and those imposed on D1 and D2 who played greater roles. The 21-month sentences for D4 and D7 were reduced to allow for their immediate release. The substituted sentences were not clearly stated. (The appeal was heard about a year after the offence but it was not clear how long D4 and D7 had been held in custody.)

Sentence

46.  Some counsel submit that the said authorities reveal a sentence range of 18 – 24 months’ imprisonment.  That was a correct statement but only mathematically.  As the Court of Appeal in So Sung Loi’s case said, there were no set guidelines.  All depend on the circumstances of the case.

47.  Counsel for D2 says although the goods seized had an estimated value of about HK$15M, such worth was not the only factor for consideration.  That is true but the value of the goods smuggled or to be smuggled must be the dominant factor of sentence in such cases.

48.  Counsel also says the whole operation was unsophisticated.  I cannot agree. 

49.  Due to the lack of expert evidence, I am unable to find in the trial that the trailers’ axles had been altered.  For that, and in order to achieve parity for all defendants, I shall ignore para. 16 of the facts D13 agrees to and para. 22 of the facts D2 – D8 and D11 agree to. In those paragraphs, a mechanical inspector says the axles had been altered to create storage chamber and such alteration would damage the structural integrity of the axles. This, if accepted by the court, could be an aggravating factor. But as just explained, I would not treat the axles as altered fittings.

50.  Nevertheless, it is still a fact that the whole operation was organized and carried out according to planning.  The goods were put inside the axles and thus difficult to be found out.  At the site, there were 6 mainland workers (D3 – D8) who helped to deal with the goods. 5 drivers (D9 – D13) drove out from there.  There were 8 more trailers with empty containers parking there.  The two in the shed already had goods loaded into their axles.  The other six were waiting to be loaded, no doubt.  The goods at the site together with those found inside the axles of  Trailers A – E were valued to be about HK$15M.  That six unemployable persons (D3 – D8) worked at the site was also an aggravating factor against D2 (the operator) and of course against D3 – D8 themselves.

51.  D3 – D10 all have clear record.  D11 has convictions but not similar to Charge 1.  So is D13.  D12 has convictions and that one in 2008 was an import/export contravention. I accept what his Counsel says that it was a garment quota matter. It seems not to be a serious breach as D12 was only fined.  I do not regard such conviction as significant.  D2, however, had a conviction in 2005 similar to Charge 1.  It was “Attempt to import/export unmanifested cargo”.  He was given 200 hours of community service.  It means in the eyes of the sentencing judge in that case D2’s contravention in 2005 warranted imprisonment in the first place but the judge was lenient to pass a community service order in lieu of  any imprisonment.

Charge 1 (D2 – D13)

52.  D2 to D13 are all convicted of conspiracy but their roles were not the same. 

53.  D2, through his counsel, says he was only employed by a logistics company to look after the smuggling business. I do not accept this saying. D2 told C & E investigators in the first instance that he was the boss. Whether he was the real boss or only employed to look after the operation, it did not matter really. He remains as the operator of the site and was in charge of the smuggling. I adopt 39 months’ imprisonment as the starting point.  After 1/3 discount for his plea, D2 is sentenced to 26 months’ imprisonment. 

54.  D12 assisted in the operation and he was also a driver that towed a trailer to the border.  I adopt 30 months’ imprisonment as the starting point.  He is convicted after trial.  That is the sentence he has to serve.

55.  D9, D10, D11 and D13 were drivers. They played a significant role by trying to tow the stuffed trailers across the border.  If not stopped, all the goods found (including those at the site) would surely be smuggled gradually to China.  I adopt 24 months’ imprisonment for each of D9, D10, D11 and D13.  D11 and D13 plead guilty.  They are entitled to 1/3 discount.  These two each gets a sentence of 16 months’ imprisonment.  D9 and D10 are convicted after trial. Each has to go to prison for 24 months.

56.  D3 – D8 were manual workers. The starting point for each of them is 21 months’ imprisonment. All are entitled to 1/3 discount for their plea. Each gets a sentence of 14 months.

Charges 5 – 10 (D3 – D8)

57.  D3 – D8 all came here on visitor’s visa. When people of such status take up proper jobs (albeit illegally), the usual sentence is one of 2 months’ imprisonment after plea. However, these 6 defendants chose to continue working at the site after they had been aware of the smuggling. The starting point for each of them should be raised to one of 6 months’ imprisonment. All are entitled to 1/3 discount for their plea. Each receives a sentence of 4 months for such offence. Thus, D3 on Charge 5, D4 on Charge 6, D5 on Charge 7, D6 on Charge 8, D7 on Charge 9, D8 on Charge 10, are all sentenced to 4 months’ imprisonment. Their breach of condition of stay was connected to their involvement in the smuggling conspiracy (Charge 1). So the two terms of imprisonment for each of D3 – D8 should run concurrently.

58.  D3 goes to prison for 14 months on Charge 1 and Charge 5.

59.  D4 goes to prison for 14 months on Charge 1 and Charge 6.

60.  D5 goes to prison for 14 months on Charge 1 and Charge 7.

61.  D6 goes to prison for 14 months on Charge 1 and Charge 8.

62.  D7 goes to prison for 14 months on Charge 1 and Charge 9.

63.  D8 goes to prison for 14 months on Charge 1 and Charge 10.

Charges 2 – 4 (D13)

64.  Normally, the court has to obtain a DATC report for the defendant before imposing any prison term for his possession of dangerous drugs/apparatus. However, D13 has just been sentenced to 16 months’ imprisonment on Charge 1. I can thus impose prison terms for his drugs/apparatus offences without seeking any DATC report.

65.  In Charge 2, the ice in D13’s possession was only 6.08 g. That was not a large quantity. It was in one bag. I also accept D13 was addicted to taking ice. It is quite sure that he would keep the drugs for himself. The latent risk was low. In Charge 3 and Charge 4, the apparatus were for D13’s own use. They only contained minute quantities of methamphetamine.

66.  I adopt 12 months, 3 months and 4½ months as the starting point for Charge 2, Charge 3 and Charge 4 respectively. After 1/3 discount for his plea, the sentence for these three offences are imprisonment of 8 months, 2 months and 3 months respectively. These three terms can run concurrently with one another. However, such dangerous drugs/apparatus offences are completely unconnected to the smuggling conspiracy (Charge 1). Thus, the combined 8-month term for Charges 2 – 4 should run consecutively to the 16 months’ imprisonment for Charge 1. The total sentence for D13’s Charges 1 – 4 is, therefore, 24 months’ imprisonment.