HKSAR v. YOU KESHUAN

DCCC1180/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1180 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges. The 1st charge is attempting to export unmanifested cargo from Hong Kong. The offence was committed on 3 September 2011 and related to electrical goods worth just in excess of $1.2 million. The 2nd charge to which the defendant pleaded guilty, which was the 3rd charge on the charge sheet, was an offence of making a false statement or representation to an immigration assistant, contrary to Part II of the Immigration Ordinance, section 42(1)(a) of the Immigration Ordinance.

2.  The offence was committed the same day as the 1st

charge and it related to a statement or representation that he knew to be false, namely that there were only eight members of crew on board his vessel whereas in fact there were nine. There was on the charge sheet Charge No. 2, a charge alleging that he assisted the passage within Hong Kong of an unauthorised entrant on the same day. That charge related to the extra crew member on the vessel. It was because of that charge that this matter was listed in the District Court.

3.  The defendant entered a not guilty plea to that charge and the prosecution have asked that the charge remain on the court file not to be proceeded with without the leave of the court, and I have agreed to that application. 

4.  The facts admitted by the defendant state that at 20 past 8 on 3 September 2011, a Customs launch intercepted the vessel of which the defendant was a captain at Tung Lung Chau in Hong Kong waters.  The defendant produced a cargo manifest stating that he was only carrying empty containers.  Because of deteriorating weather conditions, the vessel was escorted to Junk Bay.     

5.  A search was conducted on the vessel and a secret compartment was found under the bed inside the crew’s cabin containing a batch of goods which were not included in the manifest.  It was also discovered that there was extra person on board the vessel, a Mr Xu Zaiyin.  His name was not on the crew list and it was suspected that he was an unauthorised entrant. 

6.  The vessel was then escorted to Tsing Yi and a more detailed search was conducted, and on the port side and starboard side of the cargo hull a further quantity of unmanifested goods were found.  The goods not declared amounted to some 20 pallets of cargo and were valued at just in excess of $1.2 million.

7.  When the vessel was coming into Hong Kong, it was discovered that there were eight crews declared to be coming in on the vessel and when it left on 3 September, as the vessel was about to depart, the defendant made a false report to the Immigration officer that there were still eight seamen including the defendant.  It was this false statement which was the subject of the 3rd charge. 

8.  The defendant was interviewed by Customs officers and made full and frank admissions of his criminal conduct.  He said as the captain he was responsible for preparing the manifest and other shipping documents.  He said he was helping a PRC male called Ah Ming to deliver the unmanifested cargo seized by the Custom officers for a reward of RMB10,000.   

9.  With regards to Mr Xu, the defendant said that he had produced apparently expired seafarer documents to him before they left the Mainland.  He said that he told the company to deal with the matter but it had not been dealt with when he left for Hong Kong.  

10.  The defendant said that he was sympathetic to Xu because of his age and because Xu had already spent a few hundred dollars on travelling expenses.  He thought that no one would find out and he took a chance.  He agreed that he had not notified the Immigration Department about Xu and he said that was because he knew that the vessel would not be allowed to enter Hong Kong and he would not be able to deliver the goods, so he concealed Xu on board the vessel even though he knew it was illegal.  Xu, he said, worked as a cook on the vessel and had never disembarked from the vessel when it was in Hong Kong. 

11.  I am told that the defendant is a married man.  He is 38 years of age and has three children, all of school age.  He earns only $5,000 a month from his employment as a captain and out of that he has to pay $300 for his child’s education and RMB1,000 for his mortgage. 

12.  I am told by his counsel that the defendant has been a seafarer all his life.  He comes from a humble family but he is now finding it very difficult to cope with the cost of living on the Mainland.  It was submitted that he is not involved in any substantial organisation and that he was tempted to do this to make some easy money. 

13.  I have been handed a number of authorities of cases dealing with offences of this type.  One of those cases is a 1992 case of Ng Wai Hong.  I note in that case that as long ago as 1992 Litton JA referred to the menace of smuggling.  He referred to the threat it poses to the orderly conduct of trade between Hong Kong and the Mainland, and to Hong Kong’s external relations generally.  He mentions that there were substantial increases in penalties for smuggling offences affected by the legislature in 1991.  He said that the new legislation in 1991 underlined the community’s concern at the growing gravity of the problem and the courts would not be playing their part in dealing with the problem if sentences for offences were not correspondingly increased.

14.  As counsel has said, the defendant has been a seafarer all his life and, as such, he would have known the risks he was taking. Clearly, deterrent sentences have to be passed.  I accept that he carried out this offence for relatively modest rewards and the main beneficiary would be the person behind this enterprise.    

15.  The defendant has been in custody since 3 September 2011 when he was arrested.  Had there only been Charges 1 and 3 on the charge sheet, this is a matter which would have been dealt with in the Magistrates’ Court some time ago.   He has had the anguish of having the 2nd charge hanging over him for some time and it was because of that charge that the matter was transferred to the District Court.             

16.  I am instructed by counsel that the travel document held by Mr Xu Zaiyin, originally had expired but there was in fact in force, at the time this offence was committed, an up-to-date travel document.  However, this was in the hands of the agents dealing with the matter, they had not passed it over to the crewman. 

17.  There is no doubt that the value of goods involved in this case is substantial, it is over a million dollars. 

18.  Looking at all the authorities and taking into account everything that had been said in this case, I propose to take a starting point of 15 months for Charge 1 and reduce that to 10 months to reflect his guilty plea. 

19.  Taking into account the question of totality, I take a starting point of 6 months for Charge 3, reduce it to 4 months and order that it run concurrently.  The total sentence will be therefore one of 10 months’ imprisonment.