HKSAR v. LO WING MING

DCCC 1095/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1095 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance.

2.  The particulars of the offence are that the offence occurred on 9 October 2015 at Lok Ma Chau Control Point, and the unmanifested cargo consisted of 3,451,800 sticks of cigarettes.

3.  The facts have been agreed by the defendant. They show that at about 8.40 am on 9 October, the defendant was driving a medium goods vehicle for Customs clearance at Lok Ma Chau Control Point, where he tendered a manifest and a packing list declaring 496 carton boxes of paper bags and plastic pellets in the cargo compartment on board the vehicle.

4.  The vehicle was inspected, and there was a seal purportedly from China Customs on the door of the cargo compartment, but there was nothing from China Customs on the documents produced by the defendant.

5.  The vehicle was inspected, and on inspection, 244 carton boxes containing 3,451,800 cigarettes were found.  They were unmanifested.  There were a further 334 carton boxes also found.

6.  The value of the seized cigarettes is estimated to be $9,319,860, and the duty payable on those cigarettes would be $6,759,130.80.

7.  The defendant was cautioned for the offence.  He said he did not know the contents of the cargo until the cigarettes were found.  He had left the vehicle to a mainland driver for loading in Huanggang. He had not witnessed the loading process, and the cargo declaration was prepared by the company and the documents were left at the vehicle by the mainland driver.  He made no check on the goods on board the vehicle, as the documents appeared to be in order and there was a seal from China Customs affixed to the cargo compartment.

8.  The defendant has admitted his antecedents as well today.  He is aged 48.  He is a vehicle driver.  He tells me through mitigation that he lives mainly in Shenzhen with his wife.

9.  He has a criminal record dating back to the 1990s, involving offences of trafficking in dangerous drugs, robbery, and he served lengthy sentences in 1990 - 4 years for possession of dangerous drugs, for unlawful trafficking - went to drug addiction treatment centre in 1995, and then a further offence was sentenced for 6 years for robbery in 1995; and was released, as I understand it, in November 1999 for that offence.

10.  There were no further recorded convictions in the next 16 years, so it would appear to be that the defendant did have a serious record, but it no longer has any real bearing on sentencing in this matter, because it is of a different nature and also a long time ago.

11.  The defendant has today pleaded guilty.  He has been detained since he was arrested.  He has written a letter expressing his remorse today.

12.  As far as the charge is concerned, the defendant’s mitigation is in the same terms as his record of interview and cautioned statement:  that he was to collect the vehicle at the checkpoint, take the vehicle through the checkpoint when he had arrived and the vehicle had purportedly been inspected and sealed by China Customs, and the documents, including the manifest, were in the vehicle.

13.  The ordinance itself, in section 18, does provide a defence if the defendant can prove he did not know or could not with reasonable diligence have known the cargo was unmanifested.  “Reasonable diligence” generally means being present while the goods are loaded and supervising the loading or inspecting the goods.

14.  The defendant admits that he had not inspected the goods, and the defendant accepts that the defence does not apply to him. He accepts that with reasonable diligence he could have found out the cargo was cigarettes and unmanifested.

15.  As far as the sentence is concerned, there is no actual guideline sentence for the offence of importing unmanifested cargo. Sentences have ranged between 2 to 3 years where there are high values of goods involved.

16.  I have been referred to the case of HKSAR v Tam Wai Pio [1998], where there were pleas of guilty to two charges of importing unmanifested cargo.  In that case, the charges involved, firstly, 8 million cigarettes valued at $9,840,000, duty potential of $5.7‑odd million, and the other charge, 8,460,000 cigarettes valued at $10.4 million, duty potential $6.1 million.

17.  The Court of Appeal considered the starting point after trial should be 2 years for each charge.

18.  I am also referred to another case in 2016, a recent District Court case with a very similar factual background to this case.  In that case, the number of cigarettes was 2,640,600 cigarettes, which is just under a million cigarettes less than this case, and the cigarettes in that case were valued at $6,820,000, which again is less than the value of the cigarettes in this case.  The payable duty in that case was just over $5 million.  In our case it is $6,759,000‑odd.

19.  In the more recent case in the District Court, a starting point of 21 months’ imprisonment was taken.

20.  In this case, I have to take into account the circumstances of the offence, including your submission that you did not know that the cargo was cigarettes, and I also of course have to take into account the high value of the seized cigarettes and their payable duty, which are more in line with the case of HKSAR v Tam Wai Pio, where a starting point of 2 years’ imprisonment was taken.

21.  I am satisfied that the correct starting point in this case is one of 2 years’ imprisonment; that is, 24 months’ imprisonment.  You are, of course, entitled to a full one‑third deduction for your plea of guilty.

22.  The sentence I will impose today will be one of 16 months’ imprisonment.