HKSAR v. Fan Kam Wing and Others

DCCC 96/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 96 OF 2016

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Reasons for Sentence

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1.The defendants have pleaded guilty to the charges on this indictment as follows. The 1st charge which alleges, which particularised an attempt to export unmanifested cargo on 7 July 2015 has been -- the 1st and 3rd defendants have pleaded guilty to that charge.

2.The 2nd charge is the second attempting to export unmanifested cargo.  This is on 29 July 2015, and the 2nd, 3rd and 4th defendants have pleaded guilty to that charge.

3.The 3rd charge relates to the events on 29 July 2015 as well and is a charge of making use of the structure of a vehicle, altering the structure of a vehicle for the purpose of smuggling.  And the 2nd, 3rd and 4th defendants have pleaded guilty to that charge.

4.The final charge in this indictment is a breach of condition of stay which is pleaded guilty to by the 4th defendant only, and the breach of condition of stay by the defendant is taking up employment whilst being a visitor to Hong Kong. 

5.As far as the facts are concerned, they have all been agreed by the defendants, and the charges arise out of what I think can basically be described as a smuggling operation that was taking place at a lot in Tai Hang Tsuen near Tai Po in the New Territories, and this lot was placed under surveillance by Customs and Excise between the dates of 8 June 2015 and 29 July 2015.  It was a site of about 7,000 square feet surrounded by a wire fence.  There were various structures on the site involving at least two connecting metal huts.

6.The 1st charge that arose on 7 July 2015 - that is the charge of attempting to export unmanifested cargo - arose out of the observations that were conducted by the Customs and Excise on that date and involves the 1st and 3rd defendants.  In short, the 1st defendant was the driver of a medium goods vehicle which the 3rd defendant moved two vehicle batteries to, and those vehicle batteries replaced the original vehicle batteries on the goods vehicle, and thereafter the 1st defendant drove the vehicle away and attempted to leave for the mainland.  As he declared a manifest, the manifest declared 10 boxes of integrated circuits. 

7.The vehicle was in fact examined, and 248 used iPhones and 908 used mobile phone parts were found concealed in the vehicle batteries that the 3rd defendant had bought.  The total value of this seizure was estimated at $1,007,100.

8.The vehicle batteries were seized and examined and that parts of the battery had been removed, and this was for the purpose of building storage spaces where the goods were put.

9.The 2nd and 3rd charges relating to 29 July 2015 involve the 2nd, 3rd and 4th defendants, and this again involves an attempt to take goods over the border in a goods vehicle.  The 2nd defendant was the driver of that vehicle.  He had taken his medium goods vehicle to the lot in Tai Po, and the 3rd defendant and the 4th defendant were involved in moving goods to the vehicle.  A silver pad was seen to be moved and also carton boxes.  3rd defendant moved the silver pad and 4th defendant the carton boxes.

10.Later on, the 2nd defendant drove the vehicle back to the Lok Ma Chau Control Point.  He said that the vehicle was unladen.  The vehicle was selected for cargo examination.  The fuel tank had been altered and found within the altered fuel tank were 434 pieces of used mobile phones and 49.96 kilos of silver beads.

11.Following this, later in the day, Customs and Excise raided the lot at Tai Po and examined the metal hut, and they found a large number of items such as used mobile phones, used tablet computers, display panels, other electronic parts and components, silver beads, vehicle batteries and carton boxes.  

12.The 4th defendant was also found to be a person who had come into Hong Kong on a two-way permit, and he had assisted in moving the goods and was on that basis considered to be employed at the site.  So he committed another, a further offence by doing that.

13.Examination by the Electrical and  Mechanical Services Department found the fuel tank of the vehicle used on that occasion, 29 July, had been altered to build a storage chamber inside it, and also the vehicle batteries found had also got areas for storage inside them.

14.As far as the value of the seizures from the metal hut and from the vehicle, they were estimated to be in the region of $5 million.  The particularised figure is $5,350,953, and that is relevant to the calculation of the 2nd and 3rd charges.

15.Turning to the defendants, their antecedents have been put in before the court.  The 1st defendant has one previous conviction for the same -- for a similar offence in 2013, the offence of importing or exporting unmanifested cargo.  He was sentenced to 8-month imprisonment for that and fined $4,000 for failing to lodge information required.  He has committed a similar offence just over a year, within two years of that offence.

16.The other defendants are of clear record.

17.Insofar as the defendants are concerned, I obtained background reports on them, and as far as the 1st and 2nd defendants are concerned, it was necessary to obtain medical reports upon them.  I will deal with those briefly.  The 1st defendant can be described I think as a very ill man, and the medical report which is dated 19 April says he has what is described as end-stage renal failure and requires continuous ambulatory peritoneal dialysis or, basically, he needs dialysis every day. 

18.He has been remanded since his arrest, and it would appear from the report I have that a considerable amount of that time has been spent in the Caritas Medical Centre receiving dialysis.  He was discharged yesterday.  So he is able to attend court today.  But not wishing to sound too pessimistic, it would appear the defendant will require continuous CAPD, that is peritoneal dialysis, whatever happens to him today.  Clearly, he needs to be cared for in the right medical facility.

19.As far as the background report is concerned, it sets out his remorse.  He asks for clemency in view of his poor and declining health.  Of course, it is unlikely he is going to re-offend, having regard to his poor and declining health.

20.Also, the 2nd defendant required a medical report.  He has a number of medical problems, can be summed up as hypertension, diabetes and a left-eye impairment.  He has also been diagnosed as having congestive heart failure.  At the present moment, he is discharged but he has a number of follow-up appointments in Queen Elizabeth Hospital for his various medical problems.  And, clearly, he needs to be in a position to be able to attend those in the future.

21.The background report sets out his general background, works as a cross-border lorry driver.  He is a married man with two children, provides care and support for his wife and children.  He admits the violation of the law.

22.Turning to the 3rd defendant, he is involved in both the third -- first, second and third offences, so the two occasions when he has been involved in assisting in the attempt to export an unmanifested cargo.  He is described by the background report as a responsible father, caring husband and a filial son.  He has had a normal and simple life. He has only recently come to Hong Kong from the mainland in 2012, taking up a number of part-time jobs since then.  He has frankly admitted his fault to the probation officer and says he has learnt a tough lesson.  He is eager to supervise his elder son who has displayed behavioural problems as a result of the defendant's incarceration.

23.Turning to the appropriate level of sentencing for these offences, there is no general tariff for either of the offence of attempting or exporting unmanifested cargo or the other primary offence here of making use of the altered structure of a vehicle. 

24.I have been referred to a number of cases which tend to show a general starting point for goods such as this involving a value of between one to five million dollars, starting points ranging between 12 to 24 months' imprisonment with the range be more towards the 12-to-18-month imprisonment range.

25.As far as the fourth offence is concerned, that is normally visited by a shortish period of imprisonment. 

26.Turning to the approach I will take in respect of each defendant and the charges they face, I turn now to the 1st defendant.  As I said earlier, he faces one charge of attempting to export unmanifested cargo.  He plays a vital role, being the driver, a necessarily integral part of the operation, and the value of the goods in his case was round about a million dollars. 

27.There are two other factors in this defendant's case: firstly, the fact he has committed this offence before which is an aggravating factor and, secondly, the mitigating factors contained in his medical reports.  I think I said sentencing at the time when his counsel was submitting in court that it was somewhat academic given that the defendant is likely to spend the majority of his time from now on in a hospital.

28.My initial starting point for sentence in respect of the 1st charge would be 12 months' imprisonment.  The aggravating factor of the defendant's previous conviction would add 3 months to that starting point.  So I will take a starting point of 15 months' imprisonment, and I shall reduce that to 10 months' imprisonment for the defendant's plea of guilty.  So on the 1st charge, the defendant or the 1st defendant will receive a sentence of 10 months' imprisonment.  That is the only charge he faces.  So his overall sentence will be one of 10 months' imprisonment.

29.I turn now to the 2nd defendant, to his sentence.  The 2nd defendant faces the 2nd and 3rd charges.  These arise out of the same incident on 29 July.  They involve a larger number or a larger value of goods in the region of $5 million.  In respect of each of the offences, I will take a starting point of 18 months' imprisonment which I will reduce to 12 months' imprisonment for the defendant's plea of guilty, and I will order those sentences to run concurrently.  So the sentence for the 2nd defendant will be one of 12 months' imprisonment.

30.I turn now to the 3rd defendant.  He faces the 1st charge, the 2nd charge and the 3rd charge which disclose in fact two separate offences of attempting to export unmanifested cargo, the 3rd charge being an addendum to the 2nd charge which deals with the alteration of the vehicle. 

31.I have already indicated in sentencing the 1st defendant the starting point on the 1st charge is one of 12 months' imprisonment.  The defendant is entitled to a one-third deduction for his plea of guilty.  So the sentence on the 1st charge for the 3rd defendant will be 8 months' imprisonment.

32.I have also indicated in the 2nd and 3rd charges that the starting point is 18 months' imprisonment on those charges, and so add to the plea of guilty, the defendant's sentence on the 2nd and 3rd charges will be one of 12 months' imprisonment.  

33.The offences the 3rd defendant is involved with involve two separate, identifiable events and so, to a certain extent, they must be served some element consecutively.  It must enter into the sentencing process.  What I shall do is as follows.  I order that the 2nd and 3rd charges be served concurrently and that 3 months of the 1st charge be served consecutively to the 2nd and 3rd charges and the balance concurrently.  That leads to an overall sentence for the 3rd defendant of 15 months' imprisonment.

34.Dealing with the 4th defendant, he faces the 2nd, 3rd and his own charge which is the 4th charge.  I have already indicated the starting point for sentence on the 2nd and 3rd charges is one of 18 months' imprisonment.  That is reduced to 12 months' imprisonment for the defendant's plea of guilty.  On the 4th charge, the starting point will be one of 3 months' imprisonment which is reduced to 2 months' imprisonment for the defendant's plea of guilty.

35.I consider the 4th charge does involve an added element and must to a certain extent be served consecutively.  I will order the charges to be served as follows.  2nd and 3rd charges are served concurrently to one another.  As far as the 4th charge is concerned, 1 month will be served consecutively to the existing -- to the 2nd and 3rd charge and 1 month concurrently.  That leads to a sentence of 13 months' imprisonment.

36.So, in summary, the sentences for each defendant are as follows.  Their overall total sentences are as follows: 1st defendant, 10 months' imprisonment; 2nd defendant, 12 months' imprisonment; 3rd defendant, 15 months' imprisonment; and 4th defendant, 13 months' imprisonment.  Thank you.