HKSAR v. LEUNG KA MING

DCCC 444/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges:

(1) the first charge, importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60;

(2) the second charge is making use of altered structure of a vehicle for the purpose of smuggling articles into Hong Kong, contrary to section 14(1) of the Import and Export Ordinance, Cap 60; and

(3) the third charge is dealing with goods to which Dutiable Commodities Ordinance applies, contrary to sections 17(1) and 46(3) of the Dutiable Commodities Ordinance, Cap 109.

Summary of facts

2.  On 27 April 2016 the defendant drove a seven-seater private car through Shenzhen Bay Control Point.  He told the Customs officer he had nothing to declare.  He was directed to drive to the Inbound Customs Private Car Search Area for customs clearance.

3.  On examination of the storage compartment between the front passenger seat and driver’s seat and storage compartment of two front doors, 214 sticks of illicit cigarettes were found (that was Charge 3).  When the bonnet was examined, two storage chambers, one on each side of the front inner wheel housing, were located, and 30 slabs of gold bars wrapped in newspaper were also found.

4.  The defendant was arrested.  In a video record of interview, he admitted that he brought the cigarettes for his friends and the car belonged to Mirror Glory Limited.  He was responsible for the maintenance of the vehicle.  He did not check the car before driving it into Hong Kong and he did not know if anyone has the key to the car.  He also denied knowledge of the gold bars. 

5.  Mirror Glory Limited confirmed that the vehicle was rented to the defendant for two years from March 2016, and two ignition keys to the vehicle were also passed to the defendant upon signing of the lease.  Mirror Glory did not make any duplication of the keys and no alteration of the vehicle was ever made. 

6.  The authorised local dealer, Audi Motors, also confirmed that, to access to the inner inside of the bonnet, the only method, without breaking the vehicle, was to pull the hood lever inside the vehicle.  The dealer confirmed that they have no record of any request for duplicate ignition key of the vehicle. 

7.  The seven-seater was examined by Electrical and Mechanical Services Department.  It was also confirmed the two storage chambers found on both sides of the front wheel housing liner lower sections were altered for the purpose of creating additional storage chambers. There is no sign of any forced prising of the engine bonnet.

8.  The government chemist certified that the 30 pieces of gold bars were tested to be gold with a fineness of gold (ppt) of 999.  The value of the unmanifested gold bar is $9,456,000.  The value of the 214 illicit cigarette is valued at $588.5 with potential payable duty at $407.88.

Mitigation

9.  The defendant has a clear record. He is 34.  He worked in a restaurant as a bartender since 2012, with a short period of time as a driver from the summer of 2015 to the time of the commission of the present offence.  He earned about $10,000 per month.  He then resumed his work as a bartender again with the same restaurant, with a monthly earning of about $11,000.

Sentence

10.  In passing sentence, I bear in mind of all the mitigation advanced by the defence counsel and that the defendant has a clear record.

11.  Both the defence and the prosecution refer me to a few cases.

12.  The prosecution refer me to the case of HKSAR v Tsang Chiu Kin CACC 228/2012 and also HKSAR v Li Shaojun DCCC 459/2015, while the defence refer me to the case of HKSAR v Fan Kam Wing & Ors DCCC 96/2016.  Both DCCC 459/2015 and DCCC 96/2016, the sentencing judge was Judge Casewell. 

13.  The defence urged me to follow the sentence being passed on D2 in DCCC 96/2016, that D2 was also a driver in that case.  He pleaded guilty to two charges: attempting to export unmanifested cargo and altering the structure of a vehicle for the purpose of smuggling.  The goods involved were 50 kilos of silver beads and 434 pieces of used phones.  The total value was in the region of 5 million.  Medical reports stated that he was in bad health.  Starting point was 18 months, reduced to 12 months.  Both charges to run concurrently.

14.  As to HKSAR v HKSAR v Tsang Chiu Kin CACC 228/2012, the appellant pleaded guilty to one single charge of importing unmanifested cargo of 50 pieces of silver block with a total value of about 8.4 million.  The Court of Appeal, having regard to a number of cases, upheld the original sentence, that being a starting point of 3 years, enhanced by 6 months because it was committed during the bail period.

15.  Tsang Chiu Kin was also adopted in DCCC 459/2015.  The defendant pleaded guilty to one single charge of attempting to export unmanifested cargo.  That was the palladium metal plates, which had an estimated value of about 20 million.  The court adopted a starting point of 33 months, reduced to 22 months.

16.  In DCCC 96/2015, D2 was in poor health.  However, in the present case, there was no evidence to suggest that the defendant is in poor health. 

17.  The defendant committed the present offences by using two altered storage chambers found on both sides of the front wheel housing liner in order to smuggle the 30 slabs of gold bars.  This is high-end commodity, with a total value of about $9.4 million. These offences were committed with a sophisticated planning by alteration of the front wheel housing liner to create storage space.  This is clearly done with the intention to smuggle high-end commodities.

18.  Against this background, I disagree with the defence to adopt a starting point of 18 months for this case.  I shall follow the decision of HKSAR v Tsang Chiu Kin CACC 288/2013, as it also involved high-end commodity of silver block, with a value of $8.4 million.

19.  The first two charges carried a maximum sentence of 7 years.  Having regard to the value of the 30 slabs of gold bar and the alteration of the storage compartments, I adopt a starting point of 3 years for Charge 1 and 2, reduce the sentence to 2 years because of the defendant’s guilty plea.

20.  As to Charge 3, it involved a total of 214 illicit cigarettes, valued at about $588.5, with a potential payable duty at $407.88.  I consider that a fine of $2,000 is appropriate in the present circumstances.

21.  I order the two sentences to run concurrently.  A total sentence of 2 years.

22.  I order $2,000 to be deducted from his bail.