HKSAR v. Li Shaojun

DCCC 459/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 459 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of attempting to export unmanifested cargo. He has agreed the facts and I have convicted him.

2.The facts show the offence was committed on 18 December 2014.  The defendant is a resident of China who was employed as a driver of Phoenix TV.  And on that day, he was driving a 7-seater car and had picked up some fellow employees in Hong Kong and was driving back to China through the Lok Ma Chau Control Point. 

3.At the Customs and Excise kiosk, he told Customs officers that he had nothing to declare nor did any of his passengers and that his destination was Shenzhen.  The car was inspected and 74 pieces of palladium were found concealed inside the vehicle.  12 were under the middle-row passenger seats and 62 under the carpet near the front-row passenger seat. These were obviously unmanifested.

4.The defendant was arrested for attempting to export unmanifested cargo.  Now, under caution, he immediately admitted that the metal plates were given to him by a person called Ah Chit at Tai Po Railway Station.  He was going to convey them into Futian and give them to a person called Ah Lung.  He would be paid HK$10,000 for this.

5.Now, it is agreed that the nature and value of the metal plates is as follows: they are 94.8766 kilograms of palladium worth $20,061,000.  Defendant also agrees it was a company vehicle and he was employed as a company driver on that occasion.

6.Defendant’s antecedents are agreed.  He is a holder of a two-way entry-exit permit to Hong Kong.  He is aged 45 years old.  He is married and has two children, employed as a driver at the time of his arrest.  He lives in Shenzhen normally and has no abode in Hong Kong. And most importantly for today, he is a person of clear record.

7.In mitigation, it is said that I must bear in mind the defendant’s plea of guilty and his clear record.  He stands by the account he gave to the Customs and Excise Department.  He was helping a friend. He had no idea as to the value of the items and anticipated that if he were caught, he would be subject to a fine.  He is a family man with two children and aged 15 and 10.  He has a mother whom he supports.  She is aged 84 and she has heart problems.  He was earning RMB10,000 as a company driver.

8.As far as the offence itself is concerned, it is said this was clearly not a professional job.  The vehicle was not altered in any way.  The items were just hidden under carpets.  The defendant cannot be described in any way as a commercial, professional smuggler of items.

9.As far as the appropriate sentence is concerned, in cases such as this of this sort, it has been said that immediate imprisonment is required as a deterrence to smugglers, that the actual sentence should depend on the quality or the value of the goods and the mitigating circumstances.  There is no guideline case as the nature and value of goods can vary considerably.  Historically, the goods involved in these kind of cases have involved electrical goods and luxury vehicles.

10.The defence have referred me to the Magistracy Appeal No. 753 of 1994 involving $5 million worth of electrical goods where a sentence was suspended.  Also in aid the case of HKSAR v Yip Shuk Tat which is 496 of 2000.  That involved luxury vehicles valued at some $2 million where the starting point for sentence after trial was considered to be 2 years’ imprisonment.

11.The prosecution has referred me to a much more recent case of Tsang Chiu Kin CACC 228 of 2012 where the appeal was handed down in 2013.  This involved $8.5 million worth of silver bars which I understand were hidden in a container by a lorry driver.  Having regard to the value of the goods, a starting point of 36 months was adopted for the offence itself but the defendant himself had been involved in earlier similar offences.

12.In this case, the most serious factor is the value of the metal concerned.  Palladium is a high-value precious metal. It is a rare, valuable metal with great commercial value.  It is easily portable and therefore easily smugglable, and also in this case the estimated value of those palladium metal plates is high, over $20 million.

13.As against that, there are certain mitigating factors.  This is evidently a small-scale attempt at exportation, and the vehicle is not altered for the hiding of the metal and the overall approach is amateurish.  There is no indication this is a syndicated form of criminality.

14.The defendant has a clear record and substantial family ties in Shenzhen.  I have read letters from friends and family.  They speak highly of him.  The defendant has reached the age of 45 without any involvement in any form of criminality.  He had a responsible job acting as a cross-border driver of personnel.  He is a somewhat unlikely smuggler.

15.I consider that a custodial sentence should be passed and that this sentence must reflect the high value of the goods involved.  I consider that the starting point in the case of Tsang would normally be the appropriate starting point in cases such as this where the goods have a very high value such as in this case.

16.Having regard to the individual factors in this case, I will take a starting point of 33 months’ imprisonment.  After deduction for the defendant’s plea of guilty, which is one-third, this leads to an end sentence of 22 months’ imprisonment.  That is the sentence I will impose.