HKSAR v. Suen Ting Chuen

DCCC 916/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 916 OF 2015

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REASONS FOR SENTENCE

1.Suen Ting Chuen you have pleaded guilty to one charge of importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance[1], and one charge of possession of dutiable goods, contrary to sections 17(6) and 46(3) of the Dutiable Commodities Ordinance[2].

2.Full particulars of the offences are set out in the facts admitted by you on 15 December last year.  Briefly on 31 August last year you drove a cargo truck SP 4185 through the Customs Kiosk at the Lok Ma Chau Control Point.  You tendered a manifest stating that you were carrying 212 boxes of PBT-plastic bits. 

3.Customs & Excise officers cut open the sealed rear compartment of the truck and inspected the cargo.  Officers found 2,640,600 cigarettes, valued at $6,820,040 and moulded pulp packing valued at $300.  No PBT-plastic bits were found.  The duty payable on the cigarettes was $5,032,983.60 as particularised in a table submitted to court by Mr Tam.

4.44.5 grammes of loose tobacco together with 16 cigarettes were also found in your shoulder bag.  I am told the duty payable on the tobacco was $20.83.  Under caution you said the tobacco and the 16 cigarettes were for your own consumption. 

Mitigation

5.In passing sentence I have carefully considered everything said on your behalf by Mr Chan.  I take into account you have no previous similar convictions; that your last conviction was in 2009 and that you have never been to prison before.

Charge 1 - importing unmanifested cargo

6.I am told that you did not know the cargo was cigarettes and therefore unmanifested.  You were contacted to collect the vehicle at the Huanggang Check Point in China.  When you arrived at the check point the vehicle had already been inspected and sealed by the Chinese customs.  You found the manifest on the driver seat indicating the cargo had already been checked.  You therefore drove the vehicle to Hong Kong. 

7.Section 18(2) provides for a defence to the charge where the defendant proves he did not know and could not with reasonable diligence have known that the cargo was unmanifested.  Case law indicates that for transportation workers reasonable diligence generally means supervising the loading of the goods or inspecting the goods[3].

8.The goods had already been loaded by the time you collected the vehicle.  You say you were not allowed to cut the seal on the vehicle whilst in China and therefore could not inspect the goods whilst in China.  However you say having passed Chinese customs and before reaching Hong Kong customs there is a parking space where you could have and should have cut the seal and inspected the goods.  You say you usually do this but on this occasion you did not because you were in a hurry.

9.You accept that with reasonable diligence you could have found out the cargo was cigarettes and therefore unmanifested.  It is on this basis that you plead guilty.  Whilst I have reservations as to the circumstances you came to drive the vehicle I proceed to sentence on the basis that you failed to inspect the goods. 

10.There are no guideline sentences for importing unmanifested cargo.  Where the value of the goods is large sentences of 2-3 years have been imposed[4].  Mr Tam has submitted statistics from 2013 to 2015 with specific reference to seven cases in 2014 and 2015 where cigarettes with a value in excess of $5 million have been seized.  Mr Tam says these are the only cases where cigarettes with a value in excess of $5 million have been seized.  In all but one case pleas of guilty were entered with the sentence imposed varying between 10 and 16 months imprisonment. 

11.In HKSAR v Tam Wai Pio[5], a case heard in 1998, the applicant pleaded guilty to two charges of importing unmanifested cargo.  The cargo involved was 8,000,000 cigarettes valued at $9,840,000 with duty potential of $5,784,000 and 8,460,000 cigarettes valued at $10,405,800 with duty potential of $6,116,580. 

12.The Court of Appeal held the appropriate starting point after trial was 2 years for each charge.  Although you imported far less cigarettes the value of the cigarettes and duty potential is similar, indicating an increase in the price of cigarettes and the duty since 1997. 

13.Taking into account all the circumstances, including that you did not know the cargo was cigarettes, I am satisfied that the appropriate starting point for 2,640,600 cigarettes valued at $6,820,040 with duty potential of $5,032,983.60 is 1 year and 9 months imprisonment.  I am satisfied the small quantity of moulded pulp packing does not add to your culpability.  Giving you full credit for your plea of guilty you are convicted and sentenced to 14 months imprisonment.

Charge 2 -Possession of dutiable goods

14.I am told the duty free allowance a person may bring into Hong Kong is either 19 cigarettes or 25 grammes of tobacco.  You had both cigarettes and tobacco.  The amount of tobacco is not substantial and the duty evaded very small.  You are convicted and fined $500 which you consent to being taken from your bail money.