A A
DCCC1180/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1180 OF 2011
C C
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D D
HKSAR
E v. E
You Keshuan
F F
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G G
Before: H H Judge Browne
Date: 14 February 2012 at 10.43 am
H Present: Mr Peter Cahill, Counsel on fiat, for HKSAR H
Ms Audrey Campbell-Moffat, instructed by Messrs
Stephenson Harwood, for the Defendant
I I
Offence: (1) Attempting to export unmanifested cargo (企圖輸出未
列艙單貨物)
J (2) Assisting the passage within Hong Kong of an J
unauthorised entrant (協助未獲授權進境者在香港境內的旅
K
程) K
(3) Making a false statement or representation to an
Immigration Assistant lawfully acting under Part
L II of the Immigration Ordinance (向一名根據《入境條 L
例》第II部合法行事的入境事務助理員作出虛假的陳述或申述)
M M
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N N
Reasons for Sentence
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P P
1. The defendant has pleaded guilty to two charges. The
Q
1st charge is attempting to export unmanifested cargo from Hong Q
Kong. The offence was committed on 3 September 2011 and related
R to electrical goods worth just in excess of $1.2 million. The R
2nd charge to which the defendant pleaded guilty, which was the
S 3rd charge on the charge sheet, was an offence of making a false S
statement or representation to an immigration assistant,
T T
contrary to Part II of the Immigration Ordinance, section
42(1)(a) of the Immigration Ordinance.
U U
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A A
2. The offence was committed the same day as the 1st
charge and it related to a statement or representation that he
B B
knew to be false, namely that there were only eight members of
C crew on board his vessel whereas in fact there were nine. There C
was on the charge sheet Charge No. 2, a charge alleging that he
D assisted the passage within Hong Kong of an unauthorised entrant D
on the same day. That charge related to the extra crew member on
E E
the vessel. It was because of that charge that this matter was
listed in the District Court.
F F
G 3. The defendant entered a not guilty plea to that charge G
and the prosecution have asked that the charge remain on the
H court file not to be proceeded with without the leave of the H
court, and I have agreed to that application.
I I
4. The facts admitted by the defendant state that at
J J
20 past 8 on 3 September 2011, a Customs launch intercepted the
K
vessel of which the defendant was a captain at Tung Lung Chau in K
Hong Kong waters. The defendant produced a cargo manifest
L stating that he was only carrying empty containers. Because of L
deteriorating weather conditions, the vessel was escorted to
M Junk Bay. M
N N
5. A search was conducted on the vessel and a secret
compartment was found under the bed inside the crew’s cabin
O O
containing a batch of goods which were not included in the
P manifest. It was also discovered that there was extra person on P
board the vessel, a Mr Xu Zaiyin. His name was not on the crew
Q list and it was suspected that he was an unauthorised entrant. Q
R R
6. The vessel was then escorted to Tsing Yi and a more
detailed search was conducted, and on the port side and
S S
starboard side of the cargo hull a further quantity of
T unmanifested goods were found. The goods not declared amounted T
to some 20 pallets of cargo and were valued at just in excess of
U $1.2 million. U
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A A
7. When the vessel was coming into Hong Kong, it was
B B
discovered that there were eight crews declared to be coming in
C on the vessel and when it left on 3 September, as the vessel was C
about to depart, the defendant made a false report to the
D Immigration officer that there were still eight seamen including D
the defendant. It was this false statement which was the subject
E E
of the 3rd charge.
F F
8. The defendant was interviewed by Customs officers and
G made full and frank admissions of his criminal conduct. He said G
as the captain he was responsible for preparing the manifest and
H other shipping documents. He said he was helping a PRC male H
called Ah Ming to deliver the unmanifested cargo seized by the
I I
Custom officers for a reward of RMB10,000.
J J
9. With regards to Mr Xu, the defendant said that he had
K
produced apparently expired seafarer documents to him before K
they left the Mainland. He said that he told the company to deal
L with the matter but it had not been dealt with when he left for L
Hong Kong.
M M
10. The defendant said that he was sympathetic to Xu
N N
because of his age and because Xu had already spent a few
hundred dollars on travelling expenses. He thought that no one
O O
would find out and he took a chance. He agreed that he had not
P notified the Immigration Department about Xu and he said that P
was because he knew that the vessel would not be allowed to
Q enter Hong Kong and he would not be able to deliver the goods, Q
so he concealed Xu on board the vessel even though he knew it
R R
was illegal. Xu, he said, worked as a cook on the vessel and had
never disembarked from the vessel when it was in Hong Kong.
S S
T 11. I am told that the defendant is a married man. He is T
38 years of age and has three children, all of school age. He
U earns only $5,000 a month from his employment as a captain and U
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A A
out of that he has to pay $300 for his child’s education and
RMB1,000 for his mortgage.
B B
C 12. I am told by his counsel that the defendant has been a C
seafarer all his life. He comes from a humble family but he is
D now finding it very difficult to cope with the cost of living on D
the Mainland. It was submitted that he is not involved in any
E E
substantial organisation and that he was tempted to do this to
make some easy money.
F F
G 13. I have been handed a number of authorities of cases G
dealing with offences of this type. One of those cases is a 1992
H case of Ng Wai Hong. I note in that case that as long ago as H
1992 Litton JA referred to the menace of smuggling. He referred
I I
to the threat it poses to the orderly conduct of trade between
Hong Kong and the Mainland, and to Hong Kong’s external
J J
relations generally. He mentions that there were substantial
K
increases in penalties for smuggling offences affected by the K
legislature in 1991. He said that the new legislation in 1991
L underlined the community’s concern at the growing gravity of the L
problem and the courts would not be playing their part in
M dealing with the problem if sentences for offences were not M
correspondingly increased.
N N
14. As counsel has said, the defendant has been a seafarer
O O
all his life and, as such, he would have known the risks he was
P taking. Clearly, deterrent sentences have to be passed. I P
accept that he carried out this offence for relatively modest
Q rewards and the main beneficiary would be the person behind this Q
enterprise.
R R
15. The defendant has been in custody since 3 September
S S
2011 when he was arrested. Had there only been Charges 1 and 3
T on the charge sheet, this is a matter which would have been T
dealt with in the Magistrates’ Court some time ago. He has had
U the anguish of having the 2nd charge hanging over him for some U
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A A
time and it was because of that charge that the matter was
transferred to the District Court.
B B
C 16. I am instructed by counsel that the travel document C
held by Mr Xu Zaiyin, originally had expired but there was in
D fact in force, at the time this offence was committed, an up-to- D
date travel document. However, this was in the hands of the
E E
agents dealing with the matter, they had not passed it over to
the crewman.
F F
G 17. There is no doubt that the value of goods involved in G
this case is substantial, it is over a million dollars.
H H
18. Looking at all the authorities and taking into account
I I
everything that had been said in this case, I propose to take a
starting point of 15 months for Charge 1 and reduce that to 10
J J
months to reflect his guilty plea.
K K
19. Taking into account the question of totality, I take a
L starting point of 6 months for Charge 3, reduce it to 4 months L
and order that it run concurrently. The total sentence will be
M therefore one of 10 months’ imprisonment. M
N N
O O
P P
Q Browne Q
District Judge
R R
S S
T T
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