HKSAR v. MYO AUNG

DCCC 1451/2024

[2025] HKDC 1395

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1451 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant is charged with one count of importing unmanifested cargo, contrary to section 18(1)(a) of the Import and export Ordinance, Cap 60, Laws of Hong Kong (Charge 1) and one count of importing goods to which the Dutiable Commodities Ordinance applied, contrary to sections 17(1) and 46(3) of the Dutiable Commodities Ordinance, Cap 109, Laws of Hong Kong (Charge 2).

2.  The Defendant pleaded guilty to Charge 1. 

3.  The particulars of Charge 1 alleged that the Defendant on 24 July 2024 imported 30,400,000 pieces of cigarettes into Hong Kong without manifest.

4.  The facts of the case are that at around 23:55 hours on 23 July 2024, Customs officers while conducting an anti-smuggling operation spotted a vessel (“the subject vessel”) near the boundary of Hong Kong waters heading in the direction of Lamma Island.  At around 00:46 hours on 24 July 2024, the subject vessel turned south and moved towards Mainland Waters.  Boats operated by Customs pursued the subject vessel and signaling it to stop but it did not comply.  At the outset, Customs officers were able to board the subject vessel with force when the boats were close enough. 

5.  6 crew members including the Defendant were located on the subject vessel.  The Defendant claimed to be the captain of the subject vessel.

6.  3,040 carton boxes containing a total of 30,400,000 sticks of cigarettes were found inside three 40-foot containers onboard the subject vessel.  One of the containers’ doors were unlocked and dozens packs of cigarettes scattered inside that container could be observed through the door gap. 

7.  The Defendant was arrested.  Under caution he admitted:

(i) He was the captain of the subject vessel;

(ii) The subject vessel came from Taiwan and the containers were loaded therein;

(iii) He knew that the containers contained cigarettes;

(iv) He could not provide a manifest for the goods; and

(v) He did not have any licence or permit to cover the goods.

8.  In a subsequent video-record interview, apart from the admissions he had made previously, the Defendant further admitted that the containers would be unloaded in Hong Kong.

9.  The estimated value of the cigarettes was around HK$136.8 million with a duty potential of HK$100.5 million.

10.  Upon admission of the facts, the Defendant is convicted of Charge 1. Prosecution applied to withdraw Charge 2.  I ordered Charge 2 to be put on court file and not be to be proceeded with except with the leave from court.

Personal background and mitigations

11.  Defendant is 49 years old, single and a Myanmar resident.  He has been working in the shipping industry since graduated from University in 2000.  He started to work as ships’ captain in 2013, and earned around US$2,800 per month prior to his arrest.  Defendant’s family members, including his mother and younger sister are financially dependent upon him.

12.  The Defendant has a clear record. 

13.  Counsel for the Defendant, Mr Davies submitted that at the material times, the Defendant’s employer assigned him to take charge of vessels owned by the clients.  In July 2024, he was asked to go to Taiwan to be the master of the subject vessel.  He had been working on the subject vessel for less than one month before he was told to sail it to Hong Kong.  It was further submitted he did enquire whether there existed a manifest for the goods but was informed in the negative, and he was also told that he would not be paid if he refused to sail the subject vessel to Hong Kong.  Out of foolishness, he acceded to the request.

14.  Mr Davies accepted that immediate custodial sentence is inevitable but he urged the court to consider that the Defendant did not take an active role in the organization of transporting the cigarettes and he was not specifically paid to do the job. 

15.  Defendant and his mother, in their letters, pleaded to the court for leniency.

Reasons for sentence

16.  There are no sentencing guidelines for importing unmanifested cargo. The maximum sentence, upon indictment, is 7 years’ imprisonment and a fine of HK$2 millions.

17.  In HKSAR v Tam Wai Po [1998] HKC 291, an authority referred to by Mr Davies, Tam pleaded guilty to 2 charges of importing unmanifested cargo. The cargo involved was 8 million cigarettes valued at HK$9,840,000 with duty potential of HK$5,874,000 and 8.46 million cigarettes valued at HK$10,485,000 with duty potential of HK$6,116,580 (i.e. a total of 16.46 million of cigarettes, valued at around HK$20 million with duty of potential of approximately HK$12 million).  Tamset up a trading company, arranging and warehousing as well as transportation workers to import the cigarettes into Hong Kong.  The sentencing judge determined that a starting point for sentence after trial, before the consideration for the enhancement being an organized crime as applied by the Prosecution, on each charge was 2 years’ imprisonment. On appeal, the Court of Appeal held that the starting point adopted by the judge is correct.

18.  I accepted that the Defendant’s culpability is less serious than Tam. However, the number of cigarettes in the present case far exceed those in Tam. It should also be noted that Tam was decided in 1998.  The price of the cigarettes together with the duty potential involved has risen significantly over the years. 

19.  In HKSAR v Tsang Chui Kin, CACC 228/2012, the Court of Appeal held that in considering the sentence for the charge of importing unmanifested cargo, the sentencing court could refer to the value of the cargo in determining the appropriate sentence.  In that case, the cargo involved is 50 silver bars valued at HK$8.5 million.  The Court of Appeal confirmed that a 3 years starting point after trial is not manifestly excessive.

20.  Taking into account all the circumstances and the mitigations advanced by Mr Davies, I am of the view that the appropriate starting point for importing 30.4 million of cigarettes, valued at around HK$136.8 million with a duty of potential of approximately HK$100.5 million is 4 years’ and 6 months’ imprisonment.  The Defendant is entitled to one third discount for his timely guilty plea.

21.  The Defendant is sentenced to 3 years’ imprisonment for Charge 1.