HKSAR v. Wu Hongmei

DCCC 1011/2017

[2018] HKDC 568

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1011 OF 2017

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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 and a second offence of importing unmanifested cargo.

2.The offences were committed in June of 2016 and August of 2017, and they relate to items found in a Mercedes Benz vehicle driven by the defendant.

3.The 1st offence was committed on 20 June 2016.  The defendant was driving a five-seater private vehicle - it was a Mercedes Benz - and she was departing through Lok Ma Chau Control Point. She made the normal declaration there were no goods on board the vehicle. However, 96 iPhones were found in a panel of the boot.

4.The value of the phones is $536,448.  She said she did not know anything about the phones and she was the driver of the vehicle only.  She was then released on police bail on 21 June 2016.

5.However, a 2nd offence - of importing unmanifested cargo this time - was committed on 1 August 2017, again at the Lok Ma Chau Control Point, and she was inbound on that occasion.  She declared there was nothing on the vehicle.  It was searched, and in total, 76 gold - I think you would call them bars - were found, or slabs, were found in the car.

6.The total value of the goods was some $24,213,600, and their weight was 76 kilos.  The defendant again said she had no knowledge of these items or how they had been placed in the vehicle she was driving.  She had not inspected the vehicle before driving it.  The car belonged to her company and the key was kept in the company.

7.There had been no alterations made to the vehicle, and the location where some of these items were found, which is a space, in fact originated with the vehicle; is an original panel of the vehicle.

8.In the facts, the defendant at all times says she had no knowledge of the contents.  That is maintained in mitigation and is not challenged, although the repetition of these kind of offences and the fact that on the second occasion the car must have been 76 kilos heavier than normal do make that claim seem to be somewhat questionable.

9.In any event, turning to the defendant’s background, she is now aged 42 years old.  She is of clear record and worked, as we can see, as a driver at the time of arrest, earning about $12,000.  She has a family.  She is presently divorced from her husband and I am informed that she has a son, aged 13, currently at school, and is, as I understand it, to be living with his father due to his mother’s likely imprisonment.  So the question of the defendant’s imprisonment will of course have a major effect on her family and especially her son.  The young boy is still of an age, at 13, where his mother’s presence would be, I think, necessary for his proper development.  It is a mitigating factor that I must consider, although I believe I can be satisfied that the general care of the son will be certainly of a good standard.

10.As I said, the defendant is of clear record before today and has maintained that up to her present age, so it must be that these offences are quite out of character for her.

11.Turning to the approach to sentencing, there is no tariff for sentence for these particular offences.  However, where there is a high value on items, either imported or exported in this fashion, sentences can range between 2 to 3 years’ imprisonment as a starting point for a person of clear record.

12.Of particular concern for sentencing in this case is, firstly, the repetition of these kind of offences within just over one year; secondly, the fact that the 2nd offence was committed whilst on bail for the 1st offence; thirdly, that on the second occasion, the goods are of a very high value, over $24 million, which would suggest that a higher starting point must be adopted for that particular offence; and finally, the circumstances of the 2nd offence were, as I have already said, a repetitious offence, and also the goods had some considerable weight, which must have been noticeable to the driver.

13.Against that is the defendant’s clear record, her family situation, and the fact this is clearly an offence that is out of character for her.

14.Having regard to all these factors, I will adopt the following starting points, which will be deducted by one-third for the defendant’s plea of guilty.

15.On the 1st charge, I will adopt a starting point of 18 months’ imprisonment, which I will reduce to 12 months’ imprisonment for the defendant’s plea of guilty.  On the 2nd charge, I will adopt an initial starting point of 36 months’ imprisonment, which I will enhance by 3 months’ imprisonment for the fact that the offence was committed on bail.  That is a starting point of 39 months’ imprisonment, which will be reduced to 26 months’ imprisonment having regard to the defendant’s plea of guilty.

16.The offences are committed separately, so can be served consecutively.

17.I consider an overall figure for this particular episode of criminality and a final overall sentence should be one of 30 months’ imprisonment.  I will achieve that by making 4 months of the 1st charge to be served consecutively to the 2nd charge.