HKSAR v. FAN YAU MO

DCCC371/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 371 OF 2010

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Reasons for Sentence

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1.  The Defendant pleaded guilty to one charge of conspiracy to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60, and section 159A of the Crimes Ordinance, Cap. 200. The period of the conspiracy was particularized in the charge as between 1 August 2008 and 5 February 2009.

2.  At all the material times, the Defendant was the registered owner of a vessel, and the Defendant’s wife was the sole proprietor of a company which owned 4 vessels. The facts admitted by the Defendant which formed the basis of this conspiracy charge are as follows :

3.  The Defendant employed a number of persons to work for him on a casual basis in this smuggling operation, amongst whom were PW1 to PW12. The group would meet at the Defendant’s residential boat at Shau Kei Wan and the Defendant would then divide them into different groups of three with a vessel allocated to them. They might be operating different vessels and had different partners each time.

4.  On each occasion, the Defendant would arrange sampans to carry them to the boundary of the Hong Kong waters to collect an empty vessel from some unknown Mainlanders near the boundary. The sampans would then be given to the Mainlanders for them to travel back to the Mainland whereas the Defendant’s crew members would sail the empty vessels to Chai Wan Public Cargo Working Area (“CWPCWA”) for loading goods including frozen meat, computer monitors, batteries or mobile phones. They were also given a list from a ground transportation company which stated that the goods were bound for Tung Ping Chau.

5.  After loading the goods, the Defendant’s crew members would sail the vessels to the boundary and handed them to the Mainlanders who were there waiting for them on sampans. This time, the crew members would return on such sampans and the Mainlanders would take the loaded vessels to travel back to the Mainland.

6.  The crew members had been instructed by the Defendant to show the law enforcement agencies the list of goods and to claim that they were making shipments to Tung Ping Chau in case their vessels were intercepted. Further, if the crew members were to see the Police and the Customs during their voyages or before they set sail, they had to call the Defendant for instructions.

7.  After each journey, the members would again gather at the Defendant’s residential boat and the Defendant would pay cash of HK$8,000 for the three crew members on each vessel.

8.  PW1 and PW2 started working for the Defendant in this way since August 2008 and they estimated that they had worked for the Defendant for about 20 and 50 times respectively. PW4, PW6 to PW9 started working for the Defendant in September 2008 and they estimated that they had worked for the Defendant for 20, 30, 15, 15 and 30 times respectively. PW3 started working for the Defendant in November 2008 and he had done so for about 60 times. PW5 started working for the Defendant in October 2008 and he had done so for about 53 times. PW10 to PW12 all started working for the Defendant in January 2009 and they estimated that they had worked for the Defendant for 5, 6 and 9 times respectively.

9.  Between December 2008 and February 2009, the Customs and the Police carried out three operations during which it was observed that goods were loaded at CWPCWA onto different vessels, including the four owned by the Defendant and his wife’s company. When these loaded vessels were intercepted by the authorities, the crew on board would provide a list of goods to the authorities and would claim that the goods were for delivery to Tung Ping Chau when such loaded vessels, in fact, all crossed the boundary of Hong Kong and sailed to the Mainland.

10.  During the operation conducted between 2 and 5 February 2009, the vessels controlled by the Defendant were intercepted and a large quantity of frozen meat was found on four of the vessels, the value of which was estimated at about HK$1.3M, HK$6.4M, HK$7.4M, and HK$897,000 respectively. Insofar as these estimates which appear in the Summary of Facts are concerned, it was agreed by the parties that a discount of 20% could be applied to the valuations.

11.  The Defendant is aged 37 and has a clear record. He was born in the Mainland and came to settle in Hong Kong in 2004. He worked as a fisherman and as a casual worker, earning about HK$400-HK$600 per day. His wife is a housewife and the Defendant also has to look after his aged parents who live in Hong Kong.

12.  In mitigation, it was said that the Defendant was first arrested in February 2009. He was then released unconditionally but was re-arrested in November 2009. Thus, this matter had been hanging over his head for a period of time. It was also said that the Defendant is fully co-operative and he gave two detailed statements to the Customs Officers and was prepared to give evidence on behalf of the prosecution although, at the end, the authority found the statements to be of no use.

13.  Mr. Liu for the Defendant told the Court that while the PWs painted the Defendant as the master-mind of this illegal operation, he was indeed only working for a Mainlander surnamed Kwong. Kwong initially asked the Defendant to take care of a vessel for him and the Defendant was paid HK$500 a day. Later, the Defendant was asked to recruit members : masters of ships, crew members and engine-operators to transport frozen meat to the Mainland. The Defendant agreed but he was only paid HK$500 per delivery whereas the master of the ship would get HK$4,000, the engine operator HK$2,500 and ordinary crew member HK$2,000.

14.  Therefore, it was said that although the Defendant played a different role from the others in this illegal enterprise, he was not the master-mind and he was no different from the crew members he had recruited. Further, as the Defendant has pleaded guilty to the charge which saved the Court’s time, it was asked that a most lenient sentence be imposed.

15.  As I have mentioned when passing sentence in DCCC 656/2009 which was a case related to this one, there is no tariff for this type of offence. However, of general reference is the case of R v Ng Wai-hong [1993] 1 HKCLR 307 where Litton JA, as he then was, observed that no distinction should be drawn between the smuggling of motor cycles and of electronic equipment as they are all high value products, the smuggling of which brings substantial rewards. Also see HKSAR v Yip Shuk-tat [2001] 4 HKC 43. In the course of mitigation, Mr. Liu for the Defendant handed up to the Court the case of HKSAR v Lam Chi Shing HCMA 120/2010 (unreported) which related to the appeal lodged by one of the crew members involved in this case. There, Deputy High Court Judge A. Chan referred to HKSAR v Lam Shui Kwai [2002] 2 HKC 608 which involved importing frozen meat to Hong Kong, and upheld a starting point of 12 months for the charge of “exporting unmanifested cargo”. 

16.  In the present case, no doubt, the value of the goods involved in the conspiracy was of a substantial amount. Even applying the 20% discount agreed by the parties, the total value of the goods found on board the vessels was in the region of HK$12M, and that was the sum involved in a few days’ operation only. As stated in the Summary of Facts, some of the PWs had worked for the Defendant in this illegal enterprise for as many as 60 times, so it is beyond doubt that the operation was a large-scale one involving the smuggling of large quantities of goods. I also note that the Defendant’s crew members were asked to sail sampans to the boundary, then got the empty vessels for loading and when the loading was completed, they had to sail the vessels to the boundary again and had to return by sampans. On these facts, one could see that the operation was clearly planned and well-organized and others were involved.

17.  No doubt, the Defendant played a key role in this illegal enterprise as he admitted to be the one who recruited the crew members, who allocated work to them, who instructed them what to do when being intercepted by the authorities, and who distributed their earnings to them. Mr. Liu told the Court that the Defendant earned less than his crew members and was only given HK$500 per delivery. Although I have great doubts as to whether that was true, I am prepared to make that assumption in favour of the Defendant when sentencing him. Nonetheless, the Defendant, on any view of the facts which the Defendant admitted, was the major key player in this conspiracy and his culpability is no doubt greater than the crew members he had recruited.

18.  In the present case, the majority of the goods smuggled consisted of frozen meat. As I have mentioned in DCCC 656/2009, although the frozen food which was smuggled into the Mainland could not, per se, be described as high value goods, it is clear that the goods were being smuggled in very large quantities and the smuggling activities were frequent. This shows that there was a large market for such frozen food in the Mainland and the smuggling activities would likely bring some attractive profits.

19.  Taking into account the facts of this case, including the role of the Defendant, the scale of the operation, the value of the goods involved, and that the conspiracy had lasted for over ½ year, I consider a starting point of 3 years to be appropriate. The Defendant pleaded guilty and he would be given 1/3 reduction for his plea. Other than that, I do not see any other mitigating factors which would warrant a further reduction in the sentence.

20.  The Defendant is therefore sentenced to a term of 2 years’ imprisonment.