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DCCC 916/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 916 OF 2015 D
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E HKSAR E
v
F F
SUEN TING CHUEN
G _________ G
H Before: HH Judge Dufton H
Date: 7 January 2016
I Present: Mr Felix Tam, SPP, of the Department of Justice, I
for HKSAR
J Mr Chan Wing Bor of David Wong & Co, J
assigned by the Director of Legal Aid, for the defendant
K Offences: (1) Importing unmanifested cargo (輸入未列艙單貨物) K
(2) Possession of dutiable goods (管有應課稅貨品)
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REASONS FOR SENTENCE
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1. Suen Ting Chuen you have pleaded guilty to one charge of
N importing unmanifested cargo, contrary to section 18(1)(a) of the Import N
and Export Ordinance1, and one charge of possession of dutiable goods,
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contrary to sections 17(6) and 46(3) of the Dutiable Commodities
P Ordinance2. P
Q Q
2. Full particulars of the offences are set out in the facts
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admitted by you on 15 December last year. Briefly on 31 August last R
year you drove a cargo truck SP 4185 through the Customs Kiosk at the
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T 1
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Cap 60.
2
Cap 109.
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Lok Ma Chau Control Point. You tendered a manifest stating that you
C were carrying 212 boxes of PBT-plastic bits. C
D 3. Customs & Excise officers cut open the sealed rear D
compartment of the truck and inspected the cargo. Officers found
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2,640,600 cigarettes, valued at $6,820,040 and moulded pulp packing
F valued at $300. No PBT-plastic bits were found. The duty payable on F
the cigarettes was $5,032,983.60 as particularised in a table submitted to
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court by Mr Tam.
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4. 44.5 grammes of loose tobacco together with 16 cigarettes
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were also found in your shoulder bag. I am told the duty payable on the
J tobacco was $20.83. Under caution you said the tobacco and the 16 J
cigarettes were for your own consumption.
K K
L
Mitigation L
M 5. In passing sentence I have carefully considered everything M
said on your behalf by Mr Chan. I take into account you have no
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previous similar convictions; that your last conviction was in 2009 and
O that you have never been to prison before. O
P P
Charge 1 - importing unmanifested cargo
Q Q
6. I am told that you did not know the cargo was cigarettes and
R therefore unmanifested. You were contacted to collect the vehicle at the R
Huanggang Check Point in China. When you arrived at the check point
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the vehicle had already been inspected and sealed by the Chinese customs.
T You found the manifest on the driver seat indicating the cargo had T
already been checked. You therefore drove the vehicle to Hong Kong.
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7. Section 18(2) provides for a defence to the charge where the
C defendant proves he did not know and could not with reasonable C
diligence have known that the cargo was unmanifested. Case law
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indicates that for transportation workers reasonable diligence generally
E means supervising the loading of the goods or inspecting the goods 3. E
F 8. The goods had already been loaded by the time you collected F
the vehicle. You say you were not allowed to cut the seal on the vehicle
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whilst in China and therefore could not inspect the goods whilst in China.
H However you say having passed Chinese customs and before reaching H
Hong Kong customs there is a parking space where you could have and
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should have cut the seal and inspected the goods. You say you usually do
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this but on this occasion you did not because you were in a hurry.
K K
9. You accept that with reasonable diligence you could have
L found out the cargo was cigarettes and therefore unmanifested. It is on L
this basis that you plead guilty. Whilst I have reservations as to the
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circumstances you came to drive the vehicle I proceed to sentence on the
N basis that you failed to inspect the goods. N
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10. There are no guideline sentences for importing unmanifested
P cargo. Where the value of the goods is large sentences of 2-3 years have P
been imposed4. Mr Tam has submitted statistics from 2013 to 2015 with
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specific reference to seven cases in 2014 and 2015 where cigarettes with
R a value in excess of $5 million have been seized. Mr Tam says these are R
the only cases where cigarettes with a value in excess of $5 million have
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3
See HKSAR v Diao Rui & another HCMA 602/2013.
4
See HKSAR v Yip Shuk Tat [2001] 4 HKC 43 & HKSAR v So Sung Loi & others CACC 115/2007.
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been seized. In all but one case pleas of guilty were entered with the
C sentence imposed varying between 10 and 16 months imprisonment. C
D 11. In HKSAR v Tam Wai Pio 5 , a case heard in 1998, the D
applicant pleaded guilty to two charges of importing unmanifested cargo.
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The cargo involved was 8,000,000 cigarettes valued at $9,840,000 with
F duty potential of $5,784,000 and 8,460,000 cigarettes valued at F
$10,405,800 with duty potential of $6,116,580.
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H 12. The Court of Appeal held the appropriate starting point after H
trial was 2 years for each charge. Although you imported far less
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cigarettes the value of the cigarettes and duty potential is similar,
J indicating an increase in the price of cigarettes and the duty since 1997. J
K K
13. Taking into account all the circumstances, including that you
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did not know the cargo was cigarettes, I am satisfied that the appropriate L
starting point for 2,640,600 cigarettes valued at $6,820,040 with duty
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potential of $5,032,983.60 is 1 year and 9 months imprisonment. I am
N satisfied the small quantity of moulded pulp packing does not add to your N
culpability. Giving you full credit for your plea of guilty you are
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convicted and sentenced to 14 months imprisonment.
P P
Charge 2 - Possession of dutiable goods
Q Q
14. I am told the duty free allowance a person may bring into
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Hong Kong is either 19 cigarettes or 25 grammes of tobacco. You had
S both cigarettes and tobacco. The amount of tobacco is not substantial and S
the duty evaded very small. You are convicted and fined $500 which you
T T
5
[1998] 4 HKC 291.
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consent to being taken from your bail money.
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D D
E (D. J. DUFTON) E
District Judge
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