HKSAR v. WONG WAI KEUNG AND OTHERS

DCCC 572/2018

[2019] HKDC 454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 572 OF 2018

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty before me to the first and second joint charges both relating to smuggling.

2.  Charge 1 is Conspiracy to import unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60, and sections 159A and 159C of the Crimes Ordinance, Cap 200.  Particulars are that D1 and D2, and D3 (a person surnamed Lai), between 5 May 2016 and 17 June 2016, both days inclusive, in Hong Kong, conspired together with Wong Chi Hung and other persons unknown, to import unmanifested cargoes, namely 611.90 kilogrammes of silver bricks and 95.10 kilogrammes of silver beads.

3.  Charge 2 is Conspiracy to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap 60, and sections 159A and 159C of the Crimes Ordinance, Cap 200.  Particulars are that D1 and D2, and D3, during the same period, in Hong Kong, conspired together with Wong Chi Hung and other persons unknown, to export unmanifested cargoes, namely 4,710 pieces of Central Processing Units, 64 iPads, 247 mobile phones, 540 pieces of mobile phone parts and 17,400 pieces of computer accessories.

4.  D1 and D2 pleaded not guilty to Charge 3 – one of Attempting to export unmanifested cargo preferred against all 3 defendants.

5.  As for D3, he pleaded not guilty to all three charges.

6.  The prosecution offered no evidence against D3 on all 3 charges; and asked that Charge 3, insofar as D1 and D2 are concerned, be left on court file.

7.  I ordered that insofar as D3 is concerned, he be acquitted of all 3 charges; and insofar as D1 and D2 are concerned, I made an order that Charge 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.

8.  The facts admitted by D1 and D2 may be summarized as follows.

9.  D2 and D1 are related as father and son.  Between 5 May and 17 June 2016 (“the surveillance period”), Customs officers conducted surveillance over a smuggling syndicate and observed its members involving D1, D2, a male person Wong Chi Hung (“Wong”) and other persons unknown act together to import and export unmanifested cargo in and out of Hong Kong.

Surveillance

10.  During the surveillance period, the syndicate operated as follows.  D1 would drive a light goods vehicle with registration number TW2174 (“the LGV”), with D2 or persons unknown on board, to collect suspected repacked electronic goods, such as used mobile phones and Central Processing Units (“CPUs”), from Flat 1403, Hung Tai Industrial Building in Kwun Tong (“the Repack Centre”). They then loaded the goods onto the LGV before travelling on it to a fenced area in Tong Yan San Tsuen, Yuen Long (“the Yard”).  At the Yard, the suspected repacked electronic goods would be stored in the concealed compartment of an unidentified trailer (“the unidentified trailer”).

11.  Meanwhile, Wong would drive a tractor with registration number ND8689 (“the Tractor”) and a trailer with registration number 52415T (“52415T”) from the Mainland to Hong Kong via Lok Ma Chau Control Point (“LMCCP”).  52415T’s concealed compartments contained suspected silver bricks and beads.  After entering Hong Kong, Wong drove the Tractor with 52415T to the Yard.

12.  Upon arrival at the Yard, 52415T would be detached from the Tractor and replaced by the unidentified trailer filled with the suspected repacked electronic goods.  Wong would then drive the Tractor with the unidentified trailer out of Hong Kong for the purpose of exporting the electronic goods without manifest.

13.  On the other hand, D1, together with D2 or a person unknown, would take the suspected silver bricks and beads out of 52415T, load them onto the LGV, and moved them to precious metal companies in Guardforce Centre, in Hok Yuen Street, Hung Hom (“Guardforce Centre”).

14.  D2’s mobile phone records showed D2 had had 18 calls with Wong.

Interception

15.  On 17 June 2016, at about 0716 hours, Wong drove the Tractor with 52415T into Hong Kong via LMCCP without declaring any goods.  He parked the two vehicles at the Lok Ma Chau Outbound Vehicle Waiting Area and left.

16.  At about 0825 hours the same day, another driver came and drove away the Tractor and 52415T to the Yard.  There he replaced 52415T with another trailer bearing registration mark 44689T (“44689T”).  He then drove the two vehicles to Man Kam To Control Point (“MKTCP”).

17.  Meanwhile, at about 0900 hours the same day in the Yard, D1 unloaded silver bricks and beads from the concealed compartments of 52415T before loading some repacked electronic goods onto the same.  D1 also loaded the silver bricks onto the LGV.

18.  At about 1043 hours the same day, while D1 was driving the LGV with D2 on board to leave the Yard, Customs officers intercepted and arrested them. Upon search, officers found 611.90 kg of silver bricks in 8 boxes inside the cargo compartment.

19.  In the Yard, Customs further found on the ground 95.10 kg of silver beads in a box.  From 52415T’s concealed compartments, Customs found 2,640 pieces of CPUs.

20.  All these silver bricks, beads, and CPUs were unmanifested.

21.  Under caution, D1 admitted that:-

(a) He and D2 went to the container yard in Tong Yan San Tsuen at about 0900 hours;

(b) He saw eight plastic boxes of goods beside the LGV and knew the goods were silver;

(c) He and his father D2 were delivering silver to Guardforce Centre in Hung Hom for a Mainlander; and

(d) He would receive $100 as reward.

22.  Under caution, D2 admitted that:-

(a) The silver bricks and silver beads were imported by the Tractor that morning;

(b) The silver bricks were loaded onto the vehicle from the container yard of Tong Yan San Chuen; and his son D1 asked him to help with delivery;

(c) He had a key to the Yard; his son told him to take care of the Yard; and

(d) He and his son D1 were delivering the silver bricks to Guardforce Centre in Hung Hom.

23.  At about 1146 hours the same day, the Tractor towing 44689T arrived at MKTCP.  Customs intercepted them for a search.  In the false compartments of 44689T’s axles, Customs found 2,070 pieces of CPUs and 244 mobile phones.

24.  Later the same day, Customs raided the Repack Centre.  There, Customs found 64 iPads, 3 mobile phones, 540 pieces of mobile phone parts and 17,400 pieces of computer accessories.

25.  All the electronic goods found were intended for unmanifested export.

26.  The silver found was assessed to be of a fair value of $3,040,100; the electronic goods found were assessed to be of a fair value of $3,619,480.

27.  The Electrical and Mechanical Services Department examined 52415T and 44689T and confirmed that their respective axles had been altered to create storage chambers in the hollow axle beams with access openings concealed by modified wheel hubs.

Criminal record

28.  D1 and D2 both enjoy a clear record.

Antecedents

29.  The antecedents statements of D1 and D2 spoke to the following correspondingly.

30.  D1 is aged 38 (35 at the time of the offences), born in the Mainland. He completed secondary education in the Mainland.  He is married with a daughter (aged 5: Defence says aged 8) and son (aged 2: Defence says aged 4). His father D2 had retired.  His mother worked as a cook in an elderly centre. D1 lives with his family in a village in Ping Shan.  Before arrest, he worked as a driver earning $17,000 a month.

31.  D2 is aged 74 (71 at the time of the offences), born in the Mainland. He completed primary education in the Mainland.  He is married with 2 sons and 2 daughters.  His second son is D1.  D2 lives with one of his daughters in a public housing flat in Tin Shui Wai.  He had worked as a cross boundary driver.  Before arrest, he worked as a casual worker with monthly income of $8,000.

Mitigation

32.  Mr Steven Liu of counsel instructed by KCL & Partners mitigated on behalf of D1 and D2.

33.  The following is a summary of the mitigation submissions.

34.  D1 is now 39, not 38 as averred to in the antecedents statement.  After arrest, he worked as a construction worker in Hong Kong earning $1,000 a day. D1 has two young children and a wife who is a full time housewife.  D1 is the sole bread winner.  

35.  D2 aged 74 has retired after arrest.

36.  Both D1 and D2 have a clear record.  Their family members are in court to give them support.

37.  Mr Liu drew my attention to the fact that a full 2 years had elapsed between arrest and charge during which time the case had been hanging around the heads of the two defendants.

38.  Both defendants have been fully cooperative upon arrest; they confessed at once what they had known ie importing goods from the Mainland.  As a reflection of their remorse, they pleaded guilty at the earliest opportunity and so are entitled to full discount.  They realized they had committed serious offences attracting imprisonment sentences.  They are not playing an important role as they had never crossed the border with the unmanifested cargo.

39.  At the beginning, D2 was employed in a role similar to a security guard and was paid $8,000 a month.  D1 at a later stage was hired as a delivery driver and was paid around $20,000 a month.  The jobs were offered by a Mr Wong (not the deceased Wong Chi Hung) who lived in the same village as D2 when both were in the Mainland.  The two defendants came to know about the smuggling operation a few days after they started working there.  They did not think what they did was unlawful because they did not cross the border.  Their chance of reoffending is slim.  They had been working there for 2 months.  They have no personal relationship with the cross-border driver apart from a working relationship although it is acknowledged that from time to time, a driver had called D2.

40.  There are no sentencing guidelines; sentence will depend on the role, value of seizure, size of the operation, number of people in the conspiracy etc.  Normal sentencing range for the charge of smuggling is 18-20 months; it could be higher or lower depending on number of defendants and value.

41.  Referring to the case of Xian Rixiu (a Chinese judgment) handed up by the prosecution (citation below), Mr Liu drew the attention of the court to para 24 thereof.  There, the Court of Appeal appeared to be saying that the same Court (differently constituted) had in an earlier case, namely HKSAR v Yip Shuk Tat (citation below), held that the usual sentence after trial for conspiracy to “smuggle” was 18 to 20 months’ imprisonment.  Mr Liu has no demurrer to this figure.

42.  Mr Liu handed up four District Court sentencing cases which are obviously non-binding for my reference only.  They are:-

(a) HKSAR v Lam Kwok Fai & Ors, DCCC 161 & 438/2015 (Consolidated);

(b) HKSAR v Lai Ka Ho (transliteration) & Ors, DCCC 101/2016 (Chinese judgment);

(c) HKSAR v Fan Kam Wing & Ors, DCCC 96/2016; and

(d) HKSAR v Lam Tuen Lin & Ors, DCCC 1089/2008.

43.  Mr Liu went through in part the first three of the above cases.

44.  Mr Liu acknowledged that at least some part of the sentences on the two charges in the present case will have to be served consecutively.  However, Mr Liu urged the court to be lenient bearing in mind the totality principle. 

Sentence

45.  I have considered the mitigation submissions made by Mr Steven Liu.

46.  The maximum penalty of the offence subject of Charge 1 or 2 is 7 years’ imprisonment and a fine of $500,000.

47.  Upon my request for sentencing authorities, the prosecution handed up the cases of HKSAR v Xian Rixiu & Ors, CACC 485/2011 (a Chinese judgment), and HKSAR v Yip Shuk Tat [2001] 4 HKC 43.  The prosecution, when referring to the former case, also directed the court to the “usual” sentence of 18-20 months’ imprisonment for the offence of conspiracy to “smuggle”.

48.  There appears to be no tariff sentences for this type of offence.

49.  In considering what starting point to adopt, I have borne in mind the sentencing cases cited before me.

50.  In the present case, under Charge 1, the silver actually imported was worth just over $3 million; and under Charge 2, the value of the electronic goods about and intended to be exported amounted to about $3.6 million.  These amounts cannot be said to be insignificant.

51.  I note there is some degree of sophistication in the operation by the use of altered axles creating concealed chambers (for details, see the EMSD examination reports of the two trailers).

52.  Although Mr Liu described the two defendants as playing a role akin to manual workers, it cannot be ignored that D1 drove to and from the Repack Centre and Guardforce Centre; D2 on the other hand held a key to the Yard and was no doubt playing the role of a storage keeper.

53.  In any event, in a conspiracy which is akin to a joint enterprise, for sentencing purposes, no distinction should be drawn between participants whatever their roles unless, of course, for the mastermind, a heavier sentence should be imposed on him/her (see in general Cross & Cheung, Sentencing in Hong Kong 8^th ed at pp 453-455).  There is insufficient evidence to suggest that either D1 or D2 is the mastermind here.

54.  Having considered the above factors, for each of the two charges against each of the defendants, I shall adopt an initial starting point of 21 months’ imprisonment.

55.  Because of D2’s old age and his previous clear record, I shall be lenient with him and will take off 3 months, resulting in his case, a final starting point of 18 months for each charge.

56.  Because of D1’s previous clear record, I shall deduct one month from this initial starting point, resulting in a final starting point of 20 months.

57.  I apply a discount of 1/3 off the final starting point in the case of each defendant[1]. There are no other mitigating factors of sufficient weight to warrant a further discount.

58.  The sentence for D1 came down to 13 and 1/3 months.  The sentence for D2 came down to 12 months.  These figures will work for both of the charges.

59.  Finally, I need to work out how much of the two sentences are to run consecutively to each other.  I note that the two sets of activities spanned over the same period with the same or substantially the same personnel involved.  Nonetheless, the offence subject of each charge is not a necessary concomitant to the other.  I consider that a degree of concurrence of sentences (though not full concurrence) is justified.  In this exercise, I shall take into account the principle of totality.

(D1 and D2, please stand)

60.  So for Charge 1, the sentence for D1 is 13 and 1/3 months’ imprisonment; and the sentence for D2 is 12 months’ imprisonment.  For Charge 2, the sentence for D1 is 13 and 1/3 months’ imprisonment; and the sentence for D2 is 12 months’ imprisonment.

61.  I order, in the case of D1, 4 and 2/3 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 18 months’ imprisonment.

62.  I order, in the case of D2, 4 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 16 months’ imprisonment.