HKSAR v. WONG PUI FUN

DCCC 1011/2021

[2023] HKDC 438

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1011 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The D pleaded guilty to 2 charges:-

(a)  Attempted to export manifested cardo, contrary to s 18(1)(b)  of the Import and Export Ordinance, Cap 60 and s 159G of the Crimes Ordinance, Cap 200.

(b)  Attempting to export specimens of Appendix 1 species otherwise than in accordance with the provision of s 7(1)  of Cap 586, contrary to s 7(1)  and (3)  of the Protection of Endangered Species of Animals and Plants Ordinance, Chapter 586 and s 59G of the Crimes Ordinance, Cap 200

Summary of facts

2.  At around 0713 hours on 23 October 2018, D drove an outbound lorry TG 8309 (“Lorry”)  and entered Customs Cargo Departure Kiosk in Lok Ma Chau Control Point for clearance.  In the manifest (“Manifest”), it was declared the Lorry to contain 325 packages of electric wires (電源綫).

3.  The Lorry was intercepted for examination.

4.  In the presence of D, PW1 and PW2 examined the Lorry and discovered 16 pallets of goods in the cargo compartment.  In addition to the declared packages of electric wires, there was 106 packages packed in 4 pallets containing:

(a)  397 kilogrammes of bird’s nest (“E1”)  valued at HK$11,596,500

(b)  Assorted electronic products, including :-

(i)  154,380 integrated circuits,

(ii)  518 tablets,

(iii)  1,129 mobile phones,

(iv)  62 iPods,

(v)  178 watches,

(vi)  1,004 cameras,

(vii)  1,329 hard disk drives,

(viii)  9,810 random access memories,

(ix)  1,018 camera lens,

(x)  24 camera accessories,

(xi)  5,844 mobile phone monitors,

(xii)  176 batteries (“E2”); at a total value of HK$8,769,000

(xiii)  3.27 kg of suspected worked ivory (“E3”)  at a total value of HK$64,100

5.  Upon body search of D, Customs found 2 scaling receipts issued by weighing companies situated along Kwun Tung Road in San Tin.  Upon verification with the weighing companies, it was confirmed that:

6.  On 22 October 2018 at 2213 hour, the Lorry had a gross weight of 13,350 kg; and

7.  On 23 October 2018 at 0130 hour, the Lorry had a gross weight of 15,960 kg.

8.  D could not produce any valid documents under Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”)  for E3A.

Cautioned statements

9.  PW2 arrested D.  Under caution, D stated the following, among others:

(a)  On 22 October 2018, he picked up the Lorry loaded with goods from Huanggang, and drove it to Hong Kong;

(b)  He has not witnessed the loading of goods nor checked the Lorry. The goods were already sealed by the time he took over the Lorry;

(c)  After entering Hong Kong, he drove the Lorry to Proficient Industrial Centre in Kowloon Bay, and parked there to stay overnight. He was supposed to go back to mainland China in the morning on 23 October 2018; and

(d)  His company arranged the loading and sealing of E1-E3, as well as their stay in Hong Kong overnight.

10.  In the subsequent video-recorded interview, D added:

(a)  He earned a monthly salary of about HK$20,000 as a driver and deliveryman;

(b)  He did not have a fixed vehicle to drive; and

(c)  He was not clear about who handed over the Lorry to him, content of the cargo, or owner of the Lorry

Movement Record of D and the Lorry

11.  At around 2015 hours on 22 October, 2018 :-

(i)  The D drove the Lorry and arrived at Hong Kong. The Lorry was declared to contain 325 cartons of electronic gadgets (電子配件)  at the time in the Road Cargo System.

12.  At 0225 hours on 23 October 2018 :-

(ii)  The Lorry entered the carpark of Proficient Industrial Centre in Kowloon Bay and departed the carpark at 0503 hours.

Nature of seizure

13.  3.206 out of 3.27 kilogrammes in E3 were specimens of elephants (Elephantidae species)  (“E3A”), Appendix I species under the Protection of Endangered Species of Animals and Plants Ordinance, Chapter 586 (“Ordinance”). 

Endangered status of elephants

14.  All elephants are listed in Appendix I to CITES, except for 4 populations of African elephants listed in Appendix II under specified circumstances.  Both African and Asian elephants are classified as “endangered” by the International Union for Conservation of Nature (IUCN)  Red List of Threatened Species.

15.  African elephants are threatened by poaching activities for ivory, which was worst in the 1970s and 1980s, and surged against beginning in around 2006. Between 2006 and 2015, it is estimated that the population of African elephants has decreased by 114,000 largely caused by the surge in poaching for ivory.  Poaching activities are still being reported across the continent.

16.  Asian elephants continued to be threatened by habitat loss and degradation, and intensifying human-elephant conflict.  Cases of poaching have increased in Myanmar and Vietnam.  Trade of live elephants are also reported in Myanmar, Cambodia, India and Laos.

Criminal record

17.  The D has one criminal conviction in 1995 for an offence of common assault, he was ordered to pay a fine of $1,000 and compensation of $1,000

Antecedent/ mitigation

18.  He is now 54 years old.  His wife divorced him and they have two daughters from the marriage

19.  Since 1992, he has been a cross boarder lorry driver earning about $20,000 a month at the time of the offence. 

20.  Since 2018, he started to work partime for the present company as a driver and delivery man for a daily wage of $800 for day shift and $1,600 for the night shift.  He trusted the company that the content of consignments being loaded into the vehicle were proper and legal.

21.  Therefore, he drove the lorry without checking the content.  In hindsight, he admitted that it was foolish. 

22.  The D was arrested in Oct.2018 and there is a long period of delay to bring the D to Court.  It has caused the D and his family tremendous stress and anxiety. 

23.  The D voluntarily revoked his bail and has been in remand since September 2022.  That shows his genuine remorse. 

24.  There are altogether 10 letters from his family and friends, one of the letters was jointly signed by 40 fellow drivers to inform the Court that he is a hardworking responsible and honest person. 

25.  Due to the present offence, his wife divorced him and he subsequently suffered from anxiety and depression. However, he worked hard to support the living of his 2 children.  In his letter, he said that he is extremely remorseful for a momentarily recklessness. 

Sentence

26.  As to charge one, the maximum sentence on conviction on indictment to a fine of $2,000,000 and to 7 years’ imprisonment.

27.  As to charge 2, the maximum on conviction on indictment to fine of $10,000,000 and to imprisonment for 10 years.

28.  Both of the charges that the D has pleaded guilty to are in fact very serious offences.

29.  There is no sentencing guideline for both charges, it all depends on the role of the D, the amount of profit that he made from the 2 offences,  the nature of the products and the total amount of those products in the charges.

30.  I have the opportunity to read all the cases cited by the defence in the mitigation bundle. 

31.  Amongst all the cases cited by the defence, mostly are district court decisions except HKSAR v Tsang Chui Kin CACC 228/2012 that the appellant drove the lorry which contained 50 pieces of silver metal bricks worth about $8.5 million, he did not witness the loading of all items onto the lorry and had no knowledge that it carried silver metal bricks.  3 years starting point was upheld in appeal. 

32.  In essence, the sentences are immediate custody terms and the range is varied from one case to another. 

33.  In the present case, the D said that he did not check the content of the lorry.  However, as a cross border driver, he should have known that the responsibility rested upon him that he could not with reasonable diligence have known that the cargo was unmanifested.  ( see s 18(2)  of the Ordinance).

34.  He cannot rely on the trust that he had with the company as his counsel informed this Court that :-

(a)  He did not have a fixed lorry to drive, it was up to the company to make the arrangement.

(b)  The D did not know who handed the Lorry to him, contents of the cargo or the owner of the Lorry.

35.  As a cross boarder driver for 30 years, he should have heard time and time again that the drivers were arrested at Lok Ma Chou Control Point for unmanifested cargo.  It must be big news for those drivers to be arrested as they would be sent to a period of imprisonment.  When the D did not know so many unknown factors, he should have exercised his due diligent more vigorously.

36.  In the summary of facts, it stated that

22 Oct ,2018	8:15pm	The Lorry entered Hong Kong
	10:13pm	The D drove the Lorry to Kwu Tung to weight - 13,350 kg
23 Oct , 2018	1:30 am	The Lorry returned to the same place to weight again – 15,960 kg

37.  The defence informed me this morning when the D returned to weight the lorry at 1:30am, he already found it suspicious as the lorry was heavier than before.  However, he did not do anything to inspect the content of the lorry. 

38.  Those involved in the smuggling of those items picked those drivers who do not exercise their diligence to inspect the content of the lorry.  They knew that the D in the present case is one of those.  It seems to me that the defendant did not participate in the scheme of smuggling those items.  He was employed to drive the lorry and he did not derive any benefit/profit from driving those items in the two charges into Mainland China. 

39.  He has been a cross boarder driver for 30 years and he did not have any similar record.  The content also have some 3.2kg of ivories ( $64,000 )

40.  The total amount in charge 1 valued at about 20 million. 

41.  Taking all these matter into account, I take 3 ½ years as the starting point, reduce to 2 years 4 months after 1/3 discount.

42.  As to charge 2, the defence cited the case of HKSAR v Fung Tak Cheung CACC 160/2020, the appellant has a collection of some 20 kg of processed ivory and some 35 kg of natural ivory, altogether valued at $577,000, starting point of 3 years was adopted. 

43.  As to HKSAR v Zhao Zheng Xin DCCC 1119/2018 involved importing specimens of Appendix I species of about 16 kg of rhino horns with a total value of about $784,000 to 1.6 million.  The Court took a starting point of 15 months. 

44.  In the present case, the ivories weight 3.2 kg, valued at about $64,000. I consider that a starting of 9 months is appropriate, the sentence is further discount to 6 months and ordered to be run concurrently to charge 1. 

45.  As to the point of delay, the Prosecution has prepared a time line of events that:-

(a)  23/10/2018 the D was arrested

(b)  11/2018 – the suspected ivory products were sent to AFCD for Examination

(c)  12/2018 – valuation report was issued

(d)  3/2020 – the AFCD conducted examination on the ivory products

(e)  4/2020 – case file was sent to DOJ for legal advise

(f)  8/2021 – legal advice was issued by DOJ

(g)  9/2021 – the D was formally charged.

46.  The prosecution cannot provide any reason why it took almost 1year and 4 months for the AFCD to examine the ivory products bearing in mind that the quantity was only 3.2 kg, not a large quantity.

47.  Further, there was no explanation as to why it took another 1 year 4 months for the legal advice to return in 8/2021. 

48.  The D was arrested in 10/2018 and he did not know what was going on in his case until he was formally charged in 9/2021.  There was a period of 3 years with this case hanging over his head.  During this period of time, his wife left him because of this case and he suffered from depression.  His two daughters (aged 19 and 13)  in their letter to this court apart from showing gratitude to their father, they also expressed concerns about the mental and medical health of D. 

49.  In this regard, I take a generous approach to reduce the sentence by 4 months. 

50.  The final sentence is one of 2 years’ imprisonment.