HKSAR v. Cheung Tam Sing

DCCC656/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of exporting unmanifested cargoes, contrary to section 18(1)(b) of the Import and Export Ordinance, Chapter 60, and one count of attempting to export unmanifested cargoes, contrary to section 18(1)(b) of the Import and Export Ordinance, Chapter 60, and section 159G of the Crimes Ordinance, Chapter 200.

2.The facts admitted by the defendant revealed that on 13 January 2009, he was in charge of a vessel which exported unmanifested cargo to the mainland.  This vessel had, on the day before, been loaded with a large quantity of frozen meat and computer monitors from three container trucks at the Chai Wan Public Cargo Working Areas.  The defendant was on board the vessel at that time and when asked about the goods, he claimed that the goods were meant for delivery at Tung Ping Chau.  However, as mentioned above, instead of sending the goods to Tung Ping Chau, all the cargo on board the defendant’s vessel was exported to the mainland without a manifest.  The cargo consisted of over 20,000 kilos of frozen meat and 962 sets of used computer monitors.  The total retail value was estimated to be about HK$800,000.  This is the subject matter of Charge 1.

3.On 2 February 2009, the vessel which the defendant was in charge of was again loaded with frozen meat from five container trucks at the Chai Wan Pier.  When the vessel was intercepted, the defendant made the same claim that the goods were meant for delivery to Tung Ping Chau when in fact the goods, which consisted of about 30,000 kilos of frozen meat, were later exported to the mainland without a manifest.  The total retail value of the goods was estimated to be about HK$1.2 million.  This is the subject matter of the 2nd charge.

4.One day after this event, that is on 3 February 2009, the same vessel was again observed to have loaded goods from five container trucks at the Chai Wan Pier.  On 5 February 2009, while the vessel was sailing towards the mainland waters, it was intercepted and about 120,000 kilos of frozen meat with an estimated retail value of about HK$6.4 million were found on board the vessel.  There was no export manifest for the goods. This is the subject matter of the 3rd charge.

5.Upon subsequent examination, it was noted that there was no proper storage facilities on board the vessel for the transport of the frozen meat.  

6.The defendant is aged 71½ .  He has one previous conviction in 2004 for possession on board a vessel a prescribed article without lawful excuse.  He was fined HK$5,000 for that offence.

7.Mr Chan for the defendant told the court that the defendant was educated to Form 2 and he was married.  However, he has lost contact with his wife and children and is now living alone.  The defendant used to be a seaman but has already retired.  He has been receiving public assistance for over 10 years.

8.Mr Chan also told the court that the defendant is deaf in his left ear and he has been suffering from heart disease, hypertension and depression.  He has to be on medication and has to receive regular treatment.

9.In mitigation, it was said on behalf of the defendant that although the goods involved in these charges were in the region of some HK$8.4 million, the defendant all along only acted upon the instruction of another person surnamed Fan. Fan was the main instigator, not this defendant, and Fan only gave HK$3,000 to the defendant per shipment.  In other words, Mr Chan said that the only financial gain the defendant got from these shipments was only about HK$9,000.

10.Moreover, it was urged upon this court that the defendant has always been co-operative.  He was willing to testify against Fan and had been served with a witness summons.  It was only about two days before Fan’s scheduled trial was the defendant told that Fan might plead guilty. Therefore, it was said that all along, the defendant was under some psychological pressure as he was contemplating to give evidence in Fan’s trial and to be cross-examined.  Finally, it was said that the defendant has learnt his lesson and given his age, it is relatively unlikely that he would re-offend.  

11.The defendant’s co‑operation and useful assistance was accepted and confirmed by the prosecution.  Mr Percy told the court that the defendant had furnished a full witness statement at an early stage in which he implicated Fan, and such had given sufficient pressure for Fan to admit his guilt and to finally plead guilty.

12.There is no tariff for this type of offence.  In R v Ng Wai Hong [1993] 1 HKCLR 307, Litton JA, as he then was, observed that no distinction should be drawn between the smuggling of motorcycles and of electronic equipment as they are all high-value products, the smuggling of which brings substantial rewards.  Also see HKSAR v Yip Shuk Tat [2001] 4 HKC 43.

13.In the present case, other than the 962 sets of used computer monitors involved in the 1st charge, all the other goods smuggled consisted of frozen meat.  Although the frozen meat which was smuggled into the mainland could not per se be described as high-value goods for they were frozen chicken wings, chicken legs, pork legs, etc., however, I note that the goods were being smuggled in very large quantities and the smuggling activities were relatively frequent for immediately after the shipment on 2 February 2009, the vessel was seen loading goods at the Chai Wan Pier again on the very following day, that is, 3 February.  This shows that there was a large market for such frozen meat in the mainland, and the smuggling activities would likely bring some attractive profits.

14.While Mr Chan said that the defendant merely acted upon the instruction of Fan, the defendant, according to the Summary of Facts, was the in-charge of the vessel and there were two others to assist him on all the occasions.  Moreover, as the vessel was observed to have loaded the goods from container trucks at a fixed venue, the operation was no doubt a relatively organised one involving preplanning.  Although the defendant was not the main instigator, I am of the view that without people like the defendant who was willing to assist in such criminal enterprises by actually sending the goods to the mainland, the smuggling activities could not be carried out. 

15.Moreover, as there were no proper storage facilities on board the vessel for the transportation of the frozen meat, the possible harm caused to those in the mainland who were to consume the goods is not difficult to imagine, not to mention that there was no way to trace the origin of the meat in case anything happened to the smuggled meat.  I regard this as an aggravating factor.

16.Taking into account the facts of this case, including the scale of the operation, the value of the goods involved, the possible harm caused to the potential consumers of the frozen meat and that there were three such smuggling activities within less than a month’s time, I consider a starting point of 2 years to be appropriate for each charge.

17.The defendant pleaded guilty and has provided useful assistance to the authority.  I would give him a reduction of 45 per cent for his pleas and the assistance.  However, his old age and his health condition could not be of mitigation as he should have thought about those before he committed these offences.  Given his pleas and assistance, the defendant is therefore to be sentenced to a term of 13 months for Charge 1; again for Charge 2, also 13 months; for Charge 3, also 13 months.

18.However, having considered the totality principle, I order that 2 months of the term in respect of Charge 2 are to run consecutively to that of Charge 1 and also 2 months of the term in respect of Charge 3 are to run consecutively to the terms of Charges 1 and 2, resulting in a total term of 17 months.  Defendant, you are therefore to serve a total term of 17 months’ imprisonment.