HKSAR v. LIANG YUNCHAO AND ANOTHER

DCCC 1108/2020

[2021] HKDC 980

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1108 OF 2020

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REASONS FOR SENTENCE

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1.  The defendants plead guilty to one charge of attempting to export unmanifested cargo, contrary to section 18(1)(b)  of the Import and Export Ordinance[1] and section 159G of the Crimes Ordinance[2] (charge 1)  and one charge of cruelty to animals, contrary to section 3(1)(g)  of the Prevention of Cruelty to Animals Ordinance[3] (charge 6).

2.  D1 also pleads guilty to one charge of failing to stop a speedboat in accordance with the international code signal “L”, contrary to section 20(1)  and (3)  of the Shipping and Port Control Regulations[4] (charge 2)  and two charges of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance[5]  (charges 3 & 5).

3.  D2 also pleads guilty to one charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance (charge 4).

4.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendants on 17 June 2021.  Sentence was adjourned for the prosecution to obtain further statistics requested by the defence in relation to the prosecution application for enhancement of sentence pursuant to section 27(2)  of the Organized and Serious Crimes Ordinance[6].

5.  In summary at 8:20 p.m. on 21 August 2020, PC 13974 spotted an unlit speedboat approaching Mui Wo Sewage Treatment Works.  D1 and D2 were on board the speedboat.

6.  At 9:26 p.m. the speedboat docked beside the sewage treatment works.  At 9:44 p.m. three men and two vehicles approached and loaded around eighty cartons onto the speedboat.  At 10:19 p.m. the speedboat left in the direction of Hei Ling Chau.  D1 navigated the speedboat while D2 sat on the stern. 

7.  At 10:35 p.m. Police Launch 88 (PL88)  and Police Vessel 27 (PV27)  located the speedboat. PL 88 and PV 27 instructed the speedboat to stop by making the international code signal “L” by sounding horns, flashing lamps and using the megaphone.  D1 did not stop and accelerated towards the southern border of Hong Kong.

8.  The speedboat made vigorous sharp turns and dangerous manoeuvres to avoid interception causing PL 88 and PV 27 to decelerate and change directions in order to avoid a collision with the speedboat.   In an attempt to stop the speedboat two rounds of tear gas were also discharged from PL88.

9.  The speedboat again accelerated and collided with PV27 causing some of the police officers on board to fall down.  The speedboat also navigated in circles and made a quick U-turn to avoid PV 27 getting close. After about fifteen minutes PL88 and PV 27 successfully intercepted the speedboat at 10:50 p.m. 

10.  On four occasions during the pursuit D2 threw square shaped objects into the sea causing PL88 and PV27 to abruptly change direction to avoid the objects. 

11.  No police officer was injured in the pursuit.  PV 27 however had a one-inch crack and some scratches on the right rear side of the vessel which was caused during the collision.  Photographs of the damage to PV27 have been submitted to court[7].

12.  Police officers boarded the speedboat and discovered eighty carton boxes containing miscellaneous goods including cosmetics, electronics, wine, designer goods, medicine, and dried seafood.  The total value of the goods, which were unmanifested, was estimated to be $7,294,800.  Photographs of the carton boxes containing the goods have been submitted to court[8].  

13.  The police also found four plastic crates containing twelve dogs.  There was no food or water inside the crates for the dogs and the dogs were unable to stand upright or turn around.  The dogs appeared frightened and made weeping sounds intermittently.  Four of the dogs showed signs of mild dehydration.  Photographs of the crates containing the dogs have also been submitted to court[9]. 

14.  All the dogs were examined by a registered veterinarian from the Society for the Prevention of Cruelty to Animals.  According to IATA recommendations for air transport two crates, each containing one dog, were not of a reasonable size which would allow the dogs to stand, sit, turn and lie down in a natural manner.

15.  The third crate contained six dogs and the fourth crate contained four dogs.  Only two compatible adult dogs should be shipped in the same container.  The overcrowding of the dogs posed an increased risk of dog fights, injury, stress, poor ventilation and faecal or urine contamination. 

16.  One dog had an eye injury which was likely sustained in the last 24-48 hours and could have been caused from fighting other dogs or was an abrasive injury from the crate due to overcrowding.

17.  Another dog had an injury to the right forelimb which was possibly an acute injury sustained in the last 24-48 hours or an acute event on a pre-existing injury. 

18.  All the dogs would have suffered mentally and physically due to lack of access to water, sufficient space and a comfortable resting area.  The dogs were transported in a way which might cause them needless or avoidable suffering.

19.  All the owners of the dogs had arranged for delivery of their pets from overseas to China and did not know the dogs were to be smuggled illegally into China[10].

20.  Inspection of the speedboat revealed the speedboat was seaworthy but not suitable for operation as there were no firefighting appliances, insufficient lifesaving appliances and no navigation light for night operation.  Photographs of the speedboat have been submitted to court[11].

21.  Under caution and in written interview D1 admitted, inter alia, that he was a fisherman in the Mainland China; he had no identity documents, the goods on board included wine and dogs for which there was no manifest and that he was to be rewarded ¥4,000 if he successfully returned with the goods.  

22.  Under caution and in written interview D2 admitted, inter alia, that he had no identity documents, the goods on board included wine and dogs for which there was no manifest and that he would receive a reward of ¥500 for helping D1. 

Mitigation

23.  I have carefully considered the oral and written submissions of Ms Ko on behalf of D1, who is 29, single, lives with his parents in Mainland China and was unemployed prior to his arrest[12].  

24.  I have carefully considered the oral and written submissions of Mr Keung on behalf of D2, who is 27, has a two year old daughter who is looked after by his girlfriend’s mother and was also unemployed prior to his arrest[13].   

25.  I have read D2’s mitigation letter in which he explains he acted out of greed because he had no work. 

26.  I take into account that both defendants have clear records in Hong Kong. 

27.  I have considered the cases referred to court by Ms Ko[14] and Mr Keung[15].

Attempting to export unmanifested cargo (charge 1)

28.  There are no guideline sentences for exporting unmanifested cargo.  Where the value of the goods is large sentences of 2-3 years have been imposed[16]. 

29.  I take into account that D1 was not the mastermind and was asked to steer the speedboat to Hong Kong to collect the goods in return for a reward of ¥4,000; D1 thought he was smuggling wine and only became aware dogs were also to be smuggled at the time the goods were loaded onto the sampan; D1 was not aware of the full value of the goods and having lost his employment foolishly took the chances to earn some money without realising the seriousness of the offences[17].

30.  I take into account that D2 was not aware of the value of the goods and that his role was limited to helping D1 for which he would receive a reward of ¥500[18].

31.  Taking into account all the circumstances, including the value of the goods and the different roles of the defendants, I am satisfied that the appropriate starting point for D1 is 2 years’ imprisonment and for D2 is 1 year and 6 months’ imprisonment. 

32.  Giving the defendants full credit for their pleas of guilty reduces the sentences on charge 1 to 1 year and 4 months and 12 months respectively.

Enhancement of sentence

33.  The prosecution applies for enhancement of sentence pursuant to section 27(2)  of the Organized and Serious Crimes Ordinance on the grounds of the prevalence of the offence and the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of the offence[19].

34.  In support of the application the prosecution submits a statement of Inspector Lai Kwong Hing dated 16 June 2021[20]. There was no objection to the admission in evidence of the statement which was read into the record pursuant to section 65B of the Criminal Procedure Ordinance[21].

35.  The statement of Inspector Lai clearly shows a significant increase in the number of attempting to export unmanifested cargo cases to Mainland China by sea in 2020 and 2021 in comparison to both 2018 and 2019.  The percentage increase in 2020 was 76%.  As at 23 April 2021 there has been 23 cases which is already over half the cases in 2019 and just over a third of the cases in 2020.

36.  Inspector Lai also specifically sets out the increase in cases of attempting to export cosmetics, electronics, wine, luxury goods, medicine and dried seafood which ranges between 64% and 600% and the value of the seized items ranges between 84% and 7064%. 

37.  Both Ms Ko and Mr Keung submit that the statistics do not accurately reflect the actual prevalence of the offence under normal circumstances, the increase being attributable to the pandemic[22].

38.  Sentence was adjourned for the prosecution to obtain further statistics requested by the defence of all cases of attempting to export unmanifested cargo to Mainland China and not limited to cases where the export was by sea. 

39.  The prosecution submit the statement of Inspector Lau Tin Fung dated 14 July 2021 which has also been read into the record pursuant to section 65B of the Criminal Procedure Ordinance[23].

40.  The statement of Inspector Lau shows that whilst there has been an increase where export was by sea there has been a decline in cases by land and an overall decrease in cases since 2018.   

41.  Ms Yuen submits that notwithstanding an overall decrease in cases the fact remains that there has been an increase in cases of export by sea with the number of persons arrested also increasing.  This Ms Yuen submits shows the prevalence of the offence.  

42.  In support of the application that sentence should be enhanced by reason of the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences, Ms Yuen refers to the substantial increase in the value of the seized items which indicates that the exporting by sea must be very profitable. 

43.  Ms Ko and Mr Keung submit the application for enhancement on the grounds of prevalence is not made out there being an overall decrease in cases and that the increase in export by sea is consistent with a decrease in export by land.

44.  With regard to the increase in value Ms Ko submits that the increase in value is not to be equated with the benefit received.  Mr Keung submits that the increase in value is because the smuggler wants to load up the boat to reduce his costs and that the value would depend on whether the economy was good.    

Discussion

45.  The prosecution have to prove prevalence of the offence, not the increase in the number of such offences[24]. Although there has been an overall decrease in the number of cases since 2018 the number of cases remain high with export by sea increasing. 

46.  The value of seized items has significantly increased which increase is not attributable to the decrease in export by land.  In 2019 the value of all goods exported by sea was already substantially higher than the value of all goods exported by land notwithstanding the lower number of cases exported by sea[25].  

47.  In 2020 the value of all goods exported by sea increased by 236%[26].  As of 23 April 2021 the total value of seizures is $124,190,684, the vast majority of which was exported by sea[27].

48.  The value of some goods exported by sea have dramatically increased, for example cosmetics.  The value of seized cosmetics in 2018 was $240,600 and in 2019 was $851,530.  In 2020 the value had increased to $61,000,484 an increase of 7064%.  As of 23 April 2021 the value of seizures is $18,669,826[28]. 

49.  Similar significant increases can be seen in the export by sea of electronic products, alcoholic beverage, luxury goods and dried seafood.  The value of cosmetics and electronic products exported by sea alone exceed the total of all goods exported by land in 2019. 

50.  In my view the increase in the value of goods seized is indicative of a highly profitable business.  Common sense dictates that someone will benefit substantially from smuggling on this scale. 

51.  On the evidence of Inspector Lai and Inspector Lau, which I accept, I am satisfied beyond reasonable doubt both grounds for enhancement are made out. 

52.  In considering the extent of the enhancement I note that this is the first application made by the prosecution for enhancement of sentence on the grounds of prevalence where the offence involves export by sea of cosmetics, electronic products, alcoholic beverage, luxury goods and dried seafood[29]. 

53.  I am satisfied the sentence on charge 1 is to be enhanced by 25% which in the case of D1 is 4 months to 1 year and 8 months’ imprisonment and for D2 is 3 months to 1 year and 3 months’ imprisonment.

Failing to stop a speedboat in accordance with the international code signal “L” (charge 2)

54.  Taking into account that D1 failed to stop the speedboat when being pursued by the police notwithstanding the police instructed the speedboat to stop by making the international code signal “L” by sounding horns, flashing lamps and using the megaphone, I am satisfied a starting point of 3 months imprisonment is appropriate[30].

55.  Giving D1 full credit for his plea of guilty reduces the sentence on charge 2 to 2 months’ imprisonment.

Endangering the safety of others at sea (charges 3-5)

56.  When trying to escape from the police D1 steered the speedboat in a dangerous manner including making vigorous sharp turns and manoeuvres to avoid interception in the course of which the speedboat collided with PV27. 

57.  In oral submission Ms Ko explained that D1 did not deliberately ram into PV 27 and that the collision occurred after tear gas was fired at the speedboat, D1 being shocked and startled by the tear gas.

58.  Taking into account the pursuit lasted fifteen minutes, no police officer was injured, the damage to PV 27 and that this is not a case where unauthorised entrants were on board the speedboat whose lives were also put in danger, I am satisfied a starting point of 12 months imprisonment is appropriate[31]. 

59.  Giving D1 full credit for his plea of guilty reduces the sentence on charge 3 to 8 months’ imprisonment.

60.  On four occasions during the pursuit D2 threw square shaped objects into the sea causing PL88 and PV27 to abruptly change direction to avoid the objects.  Mr Keung is instructed that D2 was merely trying to lighten the load by throwing some of the cargo off board and had no intention to harm the pursuing officers. Mr Keung says the defendant accepts that in throwing the cargo off board he was reckless[32].

61.  As indicated in court I do not accept the mitigation that the defendant was merely trying to lighten the load and had no intention to harm the pursuing officers. Mr Keung having taken further instructions informs the court that the defendant does not wish to give evidence about why he threw the cargo off board.

62.  I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving D2 full credit for his plea of guilty reduces the sentence on charge 4 to 6 months’ imprisonment.

63.  The speedboat, although seaworthy, was not suitable for operation as there were no firefighting appliances, insufficient lifesaving appliances and no navigation light for night operation. 

64.  Taking into account that the vessel was found seaworthy, I am satisfied a starting point of 9 months’ imprisonment is appropriate[33]. Giving D1 full credit for his plea of guilty reduces the sentence on charge 5 to 6 months’ imprisonment.

Cruelty to animals (charge 6)

65.  In her written submission Ms Ko has particularised in more detail the findings of the registered veterinarian who examined the dogs[34]. I have also read the reports of the registered veterinarian[35].

66.  The findings of the registered veterinarian were that the body temperature of the dogs was normal and that the dogs were bright, alert and responsive.  Eight of the dogs were adequately hydrated and four dogs mildly hydrated.  The registered veterinarian is of the opinion that the signs of mild dehydration were possibly due to either a lack of access to drinking water, or insufficient water provided, or excessive panting in hot weather or a combination of these reasons.

67.  Ms Ko submits that the guidelines of IATA for what might be suitable for air transportation of dogs may not apply to sea transportation[36]. Whether or not the size of the containers should be the same for air transport and sea transport, the fact remains that the crates as shown in the photographs were too small for the larger dogs to stand, sit, turn and lie down in a natural manner and there were too many dogs in the other crates thereby posing an increased risk of dog fights, injury, stress, poor ventilation and faecal or urine contamination. 

68.  I take into account the journey by speedboat was however likely to be relatively short in comparison to long haul air flights[37]. I disregard the injuries to two of the dogs there being no evidence the injuries were caused during the transportation by D1 and D2[38].  I am satisfied the defendants are to be sentenced on transporting the dogs in a way which was wholly unsuitable which might cause them needless or avoidable suffering.

69.  There are no guidelines each case depending on the overall circumstances, including the offender’s culpability and his individual background[39].

70.  In all the circumstances I am satisfied a starting point of 6 months’ imprisonment is appropriate. Giving the defendants full credit for their pleas of guilty reduces the sentence on charge 6 to 4 months’ imprisonment. 

Totality

D1

71.  I am satisfied concurrent sentences are appropriate for the charge of failing to stop and the two charges of endangering the safety of others at sea (charges 2, 3 & 5).  The three charges however add to the culpability of the defendant in attempting to export unmanifested cargo as does the charge of cruelty to animals (charge 6).  Subject to the totality principle consecutive sentences are appropriate.

72.  I am satisfied that a total sentence of 2 years and 2 months’ imprisonment properly reflects D1’s overall criminal culpability on the five charges and takes into account D1’s personal circumstances and the seriousness of the offences[40]. 

D2

73.  I am satisfied the charge of endangering the safety of others at sea (charge 4)  and the charge of cruelty to animals (charge 6)  add to the culpability of the defendant in attempting to export unmanifested cargo.  Subject to the totality principle consecutive sentences are appropriate.

74.  I am satisfied that a total sentence of 1 year and 7 months’ imprisonment properly reflects D2’s overall criminal culpability on the three charges and takes into account D2’s personal circumstances and the seriousness of the offences[41]. 

Sentence

75.  The defendants are convicted and sentenced as follows:

D1

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 2 – 2 months’ imprisonment;

Charge 3 – 8 months’ imprisonment;

Charge 5 – 6 months’ imprisonment;

Sentence on charges 2, 3 & 5 to be served concurrent with 4 months consecutive to charge 1 and 4 months concurrent.

Charge 6 – 4 months’ imprisonment with 2 months consecutive to charges 1, 2, 3 & 5 and 2 months concurrent.

The total sentence to be served by D1 is 2 years and 2 months’ imprisonment.

D2

Charge 1 – 1 year and 3 months’ imprisonment;

Charge 4 – 6 months’ imprisonment with 2 months consecutive to charge 1 and 4 months concurrent; and

Charge 6 – 4 months’ imprisonment with 2 months consecutive to charges 1 & 4 and 2 months concurrent.

The total sentence to be served by D2 is 1 year and 7 months’ imprisonment.