HKSAR v. CHOCK KWAI LEUNG

DCCC 1118/2018

[2019] HKDC 541

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1118 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon his own guilty plea of the charge of importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap.60. The unmanifested cargo imported by the defendant was 54,000.7 grammes of gold slab.

2.  The facts admitted by the defendant revealed that on 20 July 2017, the defendant drove a seven-seater car registered in the defendant’s name into Hong Kong through Lok Ma Chau Control Point. The customs officer at the arrival kiosk asked the defendant whether he had anything to declare. The defendant answered in the negative. The defendant was then told to drive his car to Lok Ma Chau Inbound Cargo Examination Building for a search. It was subsequently found in the defendant’s car that 30 gold bars were hidden under the mat at the driver seat and 24 gold bars were hidden under the mat at the front passenger seat. No manifest was found. Nor was any manifest furnished to the Customs at all times. The total value of the 54 gold bars is about HK$16.88 million.

3.  Under caution at the scene, the defendant admitted inter alia that:

· the articles found under the mats were 54 gold bars and they belonged to him;

· he hid the gold bars under the mats thinking the Customs prohibited the importation of the gold bars; and

· he did not declare the importation of the gold bars to the Customs.

4.  In a video-recorded cautioned interview conducted on 21 July 2017, the defendant said inter alia that:

· he was a self-employed cross-boundary driver taking passengers between Hong Kong and the mainland;

· he had been a professional driver for 6 to 7 years;

· the gold bars belonged to his client’s friend who drove the gold bars to Huanggang Port for the defendant to pick up;

· the defendant then hid the gold bars under the mats of his car; and

· he was paid HK$6,000 for the importation of the gold bars.

5. Prior to the commission of the present offence, the defendant had two convictions sentenced in 1995 and 1997 respectively. In 1995, a probation order for 12 months was imposed on the defendant. In 1997, he was fined HK$1,500. The nature of those convictions were unrelated to the present offence. I will disregard those convictions in sentencing the defendant in the present case.

6. The defendant was born in December 1974. He is now 44 years old. He is married with a child of 14 years old. His mother is about 85 years old. At the time of arrest, he was a self-employed driver earning about HK$20,000 to HK$30,000 a month. He had previously been employed as a cross-border lorry driver and a taxi driver. It was submitted that he had a weak valve between the left and right side of his heart, and that his heart condition was affected by the stress of work and long working hours working as a cross-border driver. Two mitigation letters, one from the defendant and one from his wife, were submitted to this court asking for leniency.

7. In HKSAR v Tsang Chiu Kin CACC 228/2012, the appellant pleaded guilty to a charge of importing unmanifested cargo of 50 silver blocks of 778.80 kilogrammes worth about HK$8.5 million. The Court of Appeal agreed that a starting point of 3 years’ imprisonment appropriate. In HKSAR v Lee Wing Kin DCCC 60/2018, the defendant was convicted after trial of the first charge of importing unmanifested cargo and the second charge of making use of the altered structure of a vehicle for the purpose of smuggling articles into Hong Kong. The articles involved in the first charge were 30 gold bars worth about HK$11 million. Having considered a number of cases, the sentencing judge adopted a starting point of 3 years and 3 months’ imprisonment for each of the charges. The defendant there had 6 previous convictions of similar nature.

8. The present case involved 54 gold bars of 54,000.7 grammes worth about HK$16.88 million. In light of the high value of the goods, I will adopt a starting point of 3 years’ imprisonment.

9. The health conditions of the defendant and his mother are not valid mitigating factors. The only valid mitigating factor in this case is the defendant’s timely indication of guilty plea for which I will give him one-third discount on sentence. There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.