HKSAR v. Chiu Shung Chi

DCCC 575/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 575 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to Count 1 on the indictment of attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance, Cap. 200. He denied Count 2 on the indictment of making use of the altered structure of a vehicle for the purpose of smuggling articles out of Hong Kong, contrary to section 14(1) of the Import and Export Ordinance, Cap. 60. The Prosecution asked for Count 2 to remain on the Court file, not to be proceeded with without the leave of the Court, and I granted that application.

Facts

2.The Amended Summary of Facts admitted by the Defendant disclosed that on 1^st December, 2015, at about 8.40 p.m. he was the driver of a medium goods vehicle with registration number TM 4096. He was driving the vehicle at the Man Kam To Control Point, New Territories. He was directed to drive TM 4096 to the Export Cargo Examination Complex for inspection. The Defendant submitted a manifest to Customs Officer 90114. It was declared on the manifest that TM 4096 was an empty vehicle.  Upon inspection, the last axle of TM 4096 raised suspicions. The Defendant was directed to drive TM 4096 for X-ray screening.  After the screening, Customs Officer 90114 unscrewed the last axle – a silver coloured object was found hidden in the hollow chamber of the axle. Altogether, 3,190 “Intel” CPUs were found packed inside 58 metal boxes concealed in the hollow chamber of the said axle.  The estimated value of the CPUs is HK$3,573,040.  The Defendant was arrested and cautioned, and admitted, inter alia, that he had signed the manifest, that he had collected TM 4096 at the ‘Choi Lee Carpark’ at Lok Ma Chau at about 8 p.m. he had only checked the fuel level of the vehicle, but had not inspected TM 4096. He had been directed to drive TM 4096 to Mainland China to collect cargo by Mr. Mok of ‘Wing Cheuk Logistic’.  In a subsequent video interview conducted under caution, the Defendant said he had no means to contact Mr. Mok and he was the only driver of TM 4096.  Upon subsequent inspection of TM 4096, it was found that it had been altered to create a storage chamber in the last axle.  The representative of the Choi Lee Carpark at Lok Ma Chau confirmed that there was only one carpark with that name in Lok Ma Chau. All vehicles that entered and left the carpark were recorded, and there was no record of TM 4096 entering or leaving the carpark between 8 a.m. on 1 December, 2015 and 12.30 a.m. on 2 December, 2015. The registered owner of TM 4096 confirmed he had bought TM 4096 in 2015. He had not made any alterations to the vehicle. He had reminded the Defendant that no alteration to TM 4096 was permitted.  He leased it to the Defendant for $8,000 a month since July, 2015, and the Defendant held the only ignition key of TM 4096. He had no knowledge of the goods seized by the C&E from TM 4096.

3.By his plea, the Defendant admitted that at the material time, he had knowledge of the CPUs being concealed in the hollow chamber of the last axle of TM 4096.

4.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported Count 1, and accordingly I convicted the Defendant of Count 1.

Previous Convictions

5.The Defendant has a clear record.

Antecedent Statement & Mitigation

6.The Antecedent Statement was read into the record by the Prosecution. No issue was taken on its contents.  This disclosed that the Defendant had been born in Hong Kong and he is now aged 37 years.  He was married and lived in Tuen Mun.  He was a truck driver and could earn $25,000 a month at the time of his arrest. He had been educated to upper secondary level. He was not a drug addict.  Although the Antecedent Statement was dated 1/12/2016, Mr. Omar informed the court that the information contained in it was provided by the Defendant and had been provided by him to the police at the time of his arrest.

7.In mitigation, I was informed that the Defendant had been married for 4 years – his wife was a housewife and they had 2 young children.  His son was aged 3 years, and his daughter aged 2 years.  The Defendant had been educated to Form 5.  He had been a truck driver for about 2 years and earned $20,000 to $25,000 a month.  Prior to being a truck driver, he had been a salesman of private vehicles for about 5 years.  Since July, 2016 he had been working in a construction company earning $12,000 a month. He has aged parents, his father being aged 70 years and his mother 63 years, and he contributes $3,000 a month to them.  His younger sister lives apart.  The Defendant’s household expenses was $15,000 to $17,000 each month.  It does not leave him a lot for himself, and was the reason for his offending.  His reward for what he did was to be $3,000.  Counsel submitted that although the Defendant had been a cross-border driver for a number of years, this was his first such offence. He had pleaded guilty and he was remorseful.  Counsel also submitted letters in mitigation from the Defendant, his father, his current employer and from a District Councillor, all seeking leniency for the Defendant.

8.Counsel submitted that there was no guideline sentences for such offences.  He had advised his client of the likelihood of an immediate custodial sentence. He drew to the Court’s attention a number of authorities for the Court to consider, dealing with cases of this type.  One of these is R. v. Ng Wai-hong, [1993] 1 HKCLR 307. The goods in question consisted of a large quantity of electronic goods that were hidden in a concealed compartment in a lorry – the offence came to light during a routine customs examination at the Lok Ma Chau Control Point.  As long ago as 1992, Litton JA in his judgment referred to the growing menace of smuggling and the threat it posed to the orderly conduct of trade between Hong Kong and China, and to Hong Kong’s external relations generally.  A sentence of 12 months’ imprisonment imposed by the magistrate upon a plea of guilty was upheld on appeal. Other cases referred to are HKSAR v. Wong Ah Cheung & Anr., HCMA 1175/98, HKSAR v. Yip Shuk Tat, CACC 496/2000, HKSAR v. Fan Yau Mo, DCCC 371/2010, HKSAR v. Cheung Tam-sing (D1), DCCC 656/2009, HKSAR v. You Keshuan, DCCC 1180/2011, HKSAR v. Fan Kam-wing & Others, DCCC 96/2016.

Sentence

9.Section 18(1) of the Import and Export Ordinance, Cap. 60 provides that a person convicted on indictment is liable to a fine of $2,000,000 and to imprisonment for 7 years.

10.There is no tariff for this type of offence. It has been held that an immediate custodial sentence is required as a deterrence to smugglers, and the court must consider the quality and value of the smuggled goods as well as the circumstances of the offence and the mitigating circumstances.  The nature and value of goods can vary considerably.

11.Here, the medium goods vehicle TM 4096 had been altered to create a storage chamber in the last axle. Altogether, 3,190 “Intel” CPUs were found packed inside 58 metal boxes concealed in the hollow chamber of the last axle of TM 4096.  The estimated value of the CPUs is HK$3,573,040.

12.The Defendant was the driver of TM 4096. He had signed the manifest declaring that TM 4096 was an empty vehicle which he submitted to the Customs Officer. He had knowledge of the CPUs being concealed in the hollow chamber of the last axle of TM 4096.  I am of the view that without people like the Defendant who are willing to assist in such criminal activities by actually driving the vehicle in which the smuggled goods are hidden to the Mainland, such smuggling activities could not be carried out.

13.I have considered the facts of this case, including the scale of the operation, the value of the goods involved, and that the medium goods vehicle had been altered to create a compartment in which the goods were hidden to avoid detection.  

14.The Defendant has pleaded guilty. He has a clear record.  I have read the letters that have been submitted in mitigation from the Defendant as well as from his father, his current employer as well as from the District Councillor Yan Man Chun, all seeking leniency for the Defendant. The letters from his father, his current employer and from the District Councillor all speak highly of him. He had been working as a cross-border driver for 2 years, before he committed the present offence – he succumbed to the offer of a small financial reward as he had a heavy financial burden.  As has been said time and again, financial pressure is no excuse for offending.  While it can help to explain why a person offends, it cannot provide mitigation.   Save for the plea of guilty, there is little mitigation of weight before me.

15.In the present case, the matters urged upon me cannot detract from the fact that deterrence must be borne in mind in determining the appropriate sentence for offences involving smuggling.  I do have sympathy for the Defendant’s situation. I have borne in mind the Defendant’s personal circumstances.  Nonetheless, in my view, the only appropriate sentence must be an immediate custodial sentence.     It must reflect the high value of the goods involved and the manner of the smuggling.  Having regard to all these, I am minded to adopt a starting point of 2 years’ imprisonment.  In light of the Defendant’s guilty plea, I shall give him the usual discount of one-third.  I do not see any other mitigating factors that warrant any further reduction in sentence.

16.The Defendant is sentenced to 1 year and 4 months’ (16 months)  imprisonment.