A A
B B
DCCC 444/2017
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 444 OF 2017
F F
G ------------------------ G
HKSAR
H H
v
I LEUNG KA MING I
-------------------------
J J
Before: Deputy District Judge M Chow
K K
Date: 31 October 2017
L Present: Mr Felix Tam, SPP of the Department of Justice, for HKSAR L
Mr Shaphan Marwah, instructed by S H Chan & Co, for the
M M
defendant
N N
Offence: [1] Importing unmanifested cargo (輸入未列艙單貨物)
O [2] Making use of the altered structure of a vehicle for the O
purpose of smuggling articles into Hong Kong (為走私物品進
P P
入香港而利用經更改的車輛結構)
Q [3] Dealing with goods to which the Dutiable Commodities Q
Ordinance applies (處理《應課稅品條例》適用的貨品)
R R
S --------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. The defendant pleaded guilty to three charges: C
D D
(1) the first charge, importing unmanifested cargo,
E contrary to section 18(1)(a) of the Import and Export E
Ordinance, Cap 60;
F F
G (2) the second charge is making use of altered structure of G
a vehicle for the purpose of smuggling articles into
H H
Hong Kong, contrary to section 14(1) of the Import and
I Export Ordinance, Cap 60; and I
J J
(3) the third charge is dealing with goods to which Dutiable
K Commodities Ordinance applies, contrary to sections K
17(1) and 46(3) of the Dutiable Commodities
L L
Ordinance, Cap 109.
M M
Summary of facts
N N
O 2. On 27 April 2016 the defendant drove a seven-seater private O
car through Shenzhen Bay Control Point. He told the Customs officer he
P P
had nothing to declare. He was directed to drive to the Inbound Customs
Q Private Car Search Area for customs clearance. Q
R R
3. On examination of the storage compartment between the front
S passenger seat and driver’s seat and storage compartment of two front S
doors, 214 sticks of illicit cigarettes were found (that was Charge 3). When
T T
the bonnet was examined, two storage chambers, one on each side of the
U U
V V
-3-
A A
B B
front inner wheel housing, were located, and 30 slabs of gold bars wrapped
C in newspaper were also found. C
D D
4. The defendant was arrested. In a video record of interview,
E he admitted that he brought the cigarettes for his friends and the car E
belonged to Mirror Glory Limited. He was responsible for the maintenance
F F
of the vehicle. He did not check the car before driving it into Hong Kong
G and he did not know if anyone has the key to the car. He also denied G
knowledge of the gold bars.
H H
I 5. Mirror Glory Limited confirmed that the vehicle was rented I
to the defendant for two years from March 2016, and two ignition keys to
J J
the vehicle were also passed to the defendant upon signing of the lease.
K Mirror Glory did not make any duplication of the keys and no alteration of K
the vehicle was ever made.
L L
M 6. The authorised local dealer, Audi Motors, also confirmed that, M
to access to the inner inside of the bonnet, the only method, without
N N
breaking the vehicle, was to pull the hood lever inside the vehicle. The
O dealer confirmed that they have no record of any request for duplicate O
ignition key of the vehicle.
P P
Q 7. The seven-seater was examined by Electrical and Mechanical Q
Services Department. It was also confirmed the two storage chambers
R R
found on both sides of the front wheel housing liner lower sections were
S altered for the purpose of creating additional storage chambers. There is S
no sign of any forced prising of the engine bonnet.
T T
U U
V V
-4-
A A
B B
8. The government chemist certified that the 30 pieces of gold
C bars were tested to be gold with a fineness of gold (ppt) of 999. The value C
of the unmanifested gold bar is $9,456,000. The value of the 214 illicit
D D
cigarette is valued at $588.5 with potential payable duty at $407.88.
E E
Mitigation
F F
G 9. The defendant has a clear record. He is 34. He worked in a G
restaurant as a bartender since 2012, with a short period of time as a driver
H H
from the summer of 2015 to the time of the commission of the present
I offence. He earned about $10,000 per month. He then resumed his work I
as a bartender again with the same restaurant, with a monthly earning of
J J
about $11,000.
K K
Sentence
L L
M 10. In passing sentence, I bear in mind of all the mitigation M
advanced by the defence counsel and that the defendant has a clear record.
N N
O 11. Both the defence and the prosecution refer me to a few cases. O
P P
12. The prosecution refer me to the case of HKSAR v Tsang Chiu
Q Kin CACC 228/2012 and also HKSAR v Li Shaojun DCCC 459/2015, Q
while the defence refer me to the case of HKSAR v Fan Kam Wing & Ors
R R
DCCC 96/2016. Both DCCC 459/2015 and DCCC 96/2016, the
S sentencing judge was Judge Casewell. S
T T
U U
V V
-5-
A A
B B
13. The defence urged me to follow the sentence being passed on
C D2 in DCCC 96/2016, that D2 was also a driver in that case. He pleaded C
guilty to two charges: attempting to export unmanifested cargo and altering
D D
the structure of a vehicle for the purpose of smuggling. The goods involved
E were 50 kilos of silver beads and 434 pieces of used phones. The total E
value was in the region of 5 million. Medical reports stated that he was in
F F
bad health. Starting point was 18 months, reduced to 12 months. Both
G charges to run concurrently. G
H H
14. As to HKSAR v HKSAR v Tsang Chiu Kin CACC 228/2012,
I the appellant pleaded guilty to one single charge of importing unmanifested I
cargo of 50 pieces of silver block with a total value of about 8.4 million.
J J
The Court of Appeal, having regard to a number of cases, upheld the
K original sentence, that being a starting point of 3 years, enhanced by K
6 months because it was committed during the bail period.
L L
M 15. Tsang Chiu Kin was also adopted in DCCC 459/2015. The M
defendant pleaded guilty to one single charge of attempting to export
N N
unmanifested cargo. That was the palladium metal plates, which had an
O estimated value of about 20 million. The court adopted a starting point of O
33 months, reduced to 22 months.
P P
Q 16. In DCCC 96/2015, D2 was in poor health. However, in the Q
present case, there was no evidence to suggest that the defendant is in poor
R R
health.
S S
17. The defendant committed the present offences by using two
T T
altered storage chambers found on both sides of the front wheel housing
U U
V V
-6-
A A
B B
liner in order to smuggle the 30 slabs of gold bars. This is high-end
C commodity, with a total value of about $9.4 million. These offences were C
committed with a sophisticated planning by alteration of the front wheel
D D
housing liner to create storage space. This is clearly done with the intention
E to smuggle high-end commodities. E
F F
18. Against this background, I disagree with the defence to adopt
G a starting point of 18 months for this case. I shall follow the decision of G
HKSAR v Tsang Chiu Kin CACC 288/2013, as it also involved high-end
H H
commodity of silver block, with a value of $8.4 million.
I I
19. The first two charges carried a maximum sentence of 7 years.
J J
Having regard to the value of the 30 slabs of gold bar and the alteration of
K the storage compartments, I adopt a starting point of 3 years for Charge 1 K
and 2, reduce the sentence to 2 years because of the defendant’s guilty plea.
L L
M 20. As to Charge 3, it involved a total of 214 illicit cigarettes, M
valued at about $588.5, with a potential payable duty at $407.88. I consider
N N
that a fine of $2,000 is appropriate in the present circumstances.
O O
21. I order the two sentences to run concurrently. A total sentence
P P
of 2 years.
Q Q
22. I order $2,000 to be deducted from his bail.
R R
S S
( M Chow )
T T
Deputy District Judge
U U
V V
A A
B B
DCCC 444/2017
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 444 OF 2017
F F
G ------------------------ G
HKSAR
H H
v
I LEUNG KA MING I
-------------------------
J J
Before: Deputy District Judge M Chow
K K
Date: 31 October 2017
L Present: Mr Felix Tam, SPP of the Department of Justice, for HKSAR L
Mr Shaphan Marwah, instructed by S H Chan & Co, for the
M M
defendant
N N
Offence: [1] Importing unmanifested cargo (輸入未列艙單貨物)
O [2] Making use of the altered structure of a vehicle for the O
purpose of smuggling articles into Hong Kong (為走私物品進
P P
入香港而利用經更改的車輛結構)
Q [3] Dealing with goods to which the Dutiable Commodities Q
Ordinance applies (處理《應課稅品條例》適用的貨品)
R R
S --------------------------------------- S
REASONS FOR SENTENCE
T T
---------------------------------------
U U
V V
-2-
A A
B B
C 1. The defendant pleaded guilty to three charges: C
D D
(1) the first charge, importing unmanifested cargo,
E contrary to section 18(1)(a) of the Import and Export E
Ordinance, Cap 60;
F F
G (2) the second charge is making use of altered structure of G
a vehicle for the purpose of smuggling articles into
H H
Hong Kong, contrary to section 14(1) of the Import and
I Export Ordinance, Cap 60; and I
J J
(3) the third charge is dealing with goods to which Dutiable
K Commodities Ordinance applies, contrary to sections K
17(1) and 46(3) of the Dutiable Commodities
L L
Ordinance, Cap 109.
M M
Summary of facts
N N
O 2. On 27 April 2016 the defendant drove a seven-seater private O
car through Shenzhen Bay Control Point. He told the Customs officer he
P P
had nothing to declare. He was directed to drive to the Inbound Customs
Q Private Car Search Area for customs clearance. Q
R R
3. On examination of the storage compartment between the front
S passenger seat and driver’s seat and storage compartment of two front S
doors, 214 sticks of illicit cigarettes were found (that was Charge 3). When
T T
the bonnet was examined, two storage chambers, one on each side of the
U U
V V
-3-
A A
B B
front inner wheel housing, were located, and 30 slabs of gold bars wrapped
C in newspaper were also found. C
D D
4. The defendant was arrested. In a video record of interview,
E he admitted that he brought the cigarettes for his friends and the car E
belonged to Mirror Glory Limited. He was responsible for the maintenance
F F
of the vehicle. He did not check the car before driving it into Hong Kong
G and he did not know if anyone has the key to the car. He also denied G
knowledge of the gold bars.
H H
I 5. Mirror Glory Limited confirmed that the vehicle was rented I
to the defendant for two years from March 2016, and two ignition keys to
J J
the vehicle were also passed to the defendant upon signing of the lease.
K Mirror Glory did not make any duplication of the keys and no alteration of K
the vehicle was ever made.
L L
M 6. The authorised local dealer, Audi Motors, also confirmed that, M
to access to the inner inside of the bonnet, the only method, without
N N
breaking the vehicle, was to pull the hood lever inside the vehicle. The
O dealer confirmed that they have no record of any request for duplicate O
ignition key of the vehicle.
P P
Q 7. The seven-seater was examined by Electrical and Mechanical Q
Services Department. It was also confirmed the two storage chambers
R R
found on both sides of the front wheel housing liner lower sections were
S altered for the purpose of creating additional storage chambers. There is S
no sign of any forced prising of the engine bonnet.
T T
U U
V V
-4-
A A
B B
8. The government chemist certified that the 30 pieces of gold
C bars were tested to be gold with a fineness of gold (ppt) of 999. The value C
of the unmanifested gold bar is $9,456,000. The value of the 214 illicit
D D
cigarette is valued at $588.5 with potential payable duty at $407.88.
E E
Mitigation
F F
G 9. The defendant has a clear record. He is 34. He worked in a G
restaurant as a bartender since 2012, with a short period of time as a driver
H H
from the summer of 2015 to the time of the commission of the present
I offence. He earned about $10,000 per month. He then resumed his work I
as a bartender again with the same restaurant, with a monthly earning of
J J
about $11,000.
K K
Sentence
L L
M 10. In passing sentence, I bear in mind of all the mitigation M
advanced by the defence counsel and that the defendant has a clear record.
N N
O 11. Both the defence and the prosecution refer me to a few cases. O
P P
12. The prosecution refer me to the case of HKSAR v Tsang Chiu
Q Kin CACC 228/2012 and also HKSAR v Li Shaojun DCCC 459/2015, Q
while the defence refer me to the case of HKSAR v Fan Kam Wing & Ors
R R
DCCC 96/2016. Both DCCC 459/2015 and DCCC 96/2016, the
S sentencing judge was Judge Casewell. S
T T
U U
V V
-5-
A A
B B
13. The defence urged me to follow the sentence being passed on
C D2 in DCCC 96/2016, that D2 was also a driver in that case. He pleaded C
guilty to two charges: attempting to export unmanifested cargo and altering
D D
the structure of a vehicle for the purpose of smuggling. The goods involved
E were 50 kilos of silver beads and 434 pieces of used phones. The total E
value was in the region of 5 million. Medical reports stated that he was in
F F
bad health. Starting point was 18 months, reduced to 12 months. Both
G charges to run concurrently. G
H H
14. As to HKSAR v HKSAR v Tsang Chiu Kin CACC 228/2012,
I the appellant pleaded guilty to one single charge of importing unmanifested I
cargo of 50 pieces of silver block with a total value of about 8.4 million.
J J
The Court of Appeal, having regard to a number of cases, upheld the
K original sentence, that being a starting point of 3 years, enhanced by K
6 months because it was committed during the bail period.
L L
M 15. Tsang Chiu Kin was also adopted in DCCC 459/2015. The M
defendant pleaded guilty to one single charge of attempting to export
N N
unmanifested cargo. That was the palladium metal plates, which had an
O estimated value of about 20 million. The court adopted a starting point of O
33 months, reduced to 22 months.
P P
Q 16. In DCCC 96/2015, D2 was in poor health. However, in the Q
present case, there was no evidence to suggest that the defendant is in poor
R R
health.
S S
17. The defendant committed the present offences by using two
T T
altered storage chambers found on both sides of the front wheel housing
U U
V V
-6-
A A
B B
liner in order to smuggle the 30 slabs of gold bars. This is high-end
C commodity, with a total value of about $9.4 million. These offences were C
committed with a sophisticated planning by alteration of the front wheel
D D
housing liner to create storage space. This is clearly done with the intention
E to smuggle high-end commodities. E
F F
18. Against this background, I disagree with the defence to adopt
G a starting point of 18 months for this case. I shall follow the decision of G
HKSAR v Tsang Chiu Kin CACC 288/2013, as it also involved high-end
H H
commodity of silver block, with a value of $8.4 million.
I I
19. The first two charges carried a maximum sentence of 7 years.
J J
Having regard to the value of the 30 slabs of gold bar and the alteration of
K the storage compartments, I adopt a starting point of 3 years for Charge 1 K
and 2, reduce the sentence to 2 years because of the defendant’s guilty plea.
L L
M 20. As to Charge 3, it involved a total of 214 illicit cigarettes, M
valued at about $588.5, with a potential payable duty at $407.88. I consider
N N
that a fine of $2,000 is appropriate in the present circumstances.
O O
21. I order the two sentences to run concurrently. A total sentence
P P
of 2 years.
Q Q
22. I order $2,000 to be deducted from his bail.
R R
S S
( M Chow )
T T
Deputy District Judge
U U
V V