區域法院（刑事）Deputy District Judge W H Ko12/8/2025[2025] HKDC 1395
DCCC1451/2024
A A
B B
DCCC 1451/2024
C [2025] HKDC 1395 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1451 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I MYO AUNG I
----------------------------
J J
K Before: Deputy District Judge W H Ko K
Date: 13 August 2025
L L
Present: Mr Tsui Wo Chung, Jones, Senior Public Prosecutor, for
M HKSAR M
Mr Davies Oliver Howell, instructed by Nasirs, assigned by
N N
the Director of Legal Aid, for the Defendant
O Offence: [1] Importing unmanifested cargoes（輸入未列艙單貨物） O
P
[2] Importing goods to which the Dutiable Commodities P
Ordinance applied（進口《應課稅品條例》適用的貨品）
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. The Defendant is charged with one count of importing
C unmanifested cargo, contrary to section 18(1)(a) of the Import and export C
Ordinance, Cap 60, Laws of Hong Kong (Charge 1) and one count of
D D
importing goods to which the Dutiable Commodities Ordinance applied,
E contrary to sections 17(1) and 46(3) of the Dutiable Commodities E
Ordinance, Cap 109, Laws of Hong Kong (Charge 2).
F F
G 2. The Defendant pleaded guilty to Charge 1. G
H H
3. The particulars of Charge 1 alleged that the Defendant on 24
I July 2024 imported 30,400,000 pieces of cigarettes into Hong Kong I
without manifest.
J J
K 4. The facts of the case are that at around 23:55 hours on 23 July K
2024, Customs officers while conducting an anti-smuggling operation
L L
spotted a vessel (“the subject vessel”) near the boundary of Hong Kong
M waters heading in the direction of Lamma Island. At around 00:46 hours M
on 24 July 2024, the subject vessel turned south and moved towards
N N
Mainland Waters. Boats operated by Customs pursued the subject vessel
O and signaling it to stop but it did not comply. At the outset, Customs O
officers were able to board the subject vessel with force when the boats
P P
were close enough.
Q Q
5. 6 crew members including the Defendant were located on the
R R
subject vessel. The Defendant claimed to be the captain of the subject
S vessel. S
T T
U U
V V
-3-
A A
B B
6. 3,040 carton boxes containing a total of 30,400,000 sticks of
C cigarettes were found inside three 40-foot containers onboard the subject C
vessel. One of the containers’ doors were unlocked and dozens packs of
D D
cigarettes scattered inside that container could be observed through the
E door gap. E
F F
7. The Defendant was arrested. Under caution he admitted:
G G
(i) He was the captain of the subject vessel;
H H
I (ii) The subject vessel came from Taiwan and the I
containers were loaded therein;
J J
K (iii) He knew that the containers contained cigarettes; K
L L
(iv) He could not provide a manifest for the goods; and
M M
(v) He did not have any licence or permit to cover the
N N
goods.
O O
8. In a subsequent video-record interview, apart from the
P P
admissions he had made previously, the Defendant further admitted that
Q the containers would be unloaded in Hong Kong. Q
R R
9. The estimated value of the cigarettes was around HK$136.8
S million with a duty potential of HK$100.5 million. S
T T
U U
V V
-4-
A A
B B
10. Upon admission of the facts, the Defendant is convicted of
C Charge 1. Prosecution applied to withdraw Charge 2. I ordered Charge 2 C
to be put on court file and not be to be proceeded with except with the leave
D D
from court.
E E
Personal background and mitigations
F F
G 11. Defendant is 49 years old, single and a Myanmar resident. He G
has been working in the shipping industry since graduated from University
H H
in 2000. He started to work as ships’ captain in 2013, and earned around
I US$2,800 per month prior to his arrest. Defendant’s family members, I
including his mother and younger sister are financially dependent upon him.
J J
K 12. The Defendant has a clear record. K
L L
13. Counsel for the Defendant, Mr Davies submitted that at the
M material times, the Defendant’s employer assigned him to take charge of M
vessels owned by the clients. In July 2024, he was asked to go to Taiwan
N N
to be the master of the subject vessel. He had been working on the subject
O vessel for less than one month before he was told to sail it to Hong Kong. O
It was further submitted he did enquire whether there existed a manifest for
P P
the goods but was informed in the negative, and he was also told that he
Q would not be paid if he refused to sail the subject vessel to Hong Kong. Q
Out of foolishness, he acceded to the request.
R R
S 14. Mr Davies accepted that immediate custodial sentence is S
inevitable but he urged the court to consider that the Defendant did not take
T T
U U
V V
-5-
A A
B B
an active role in the organization of transporting the cigarettes and he was
C not specifically paid to do the job. C
D D
15. Defendant and his mother, in their letters, pleaded to the court
E for leniency. E
F F
Reasons for sentence
G G
16. There are no sentencing guidelines for importing
H H
unmanifested cargo. The maximum sentence, upon indictment, is 7 years’
I imprisonment and a fine of HK$2 millions. I
J J
17. In HKSAR v Tam Wai Po [1998] HKC 291, an authority
K referred to by Mr Davies, Tam pleaded guilty to 2 charges of importing K
unmanifested cargo. The cargo involved was 8 million cigarettes valued
L L
at HK$9,840,000 with duty potential of HK$5,874,000 and 8.46 million
M cigarettes valued at HK$10,485,000 with duty potential of HK$6,116,580 M
(i.e. a total of 16.46 million of cigarettes, valued at around HK$20 million
N N
with duty of potential of approximately HK$12 million). Tam set up a
O trading company, arranging and warehousing as well as transportation O
workers to import the cigarettes into Hong Kong. The sentencing judge
P P
determined that a starting point for sentence after trial, before the
Q consideration for the enhancement being an organized crime as applied by Q
the Prosecution, on each charge was 2 years’ imprisonment. On appeal,
R R
the Court of Appeal held that the starting point adopted by the judge is
S correct. S
T T
U U
V V
-6-
A A
B B
18. I accepted that the Defendant’s culpability is less serious than
C Tam. However, the number of cigarettes in the present case far exceed C
those in Tam. It should also be noted that Tam was decided in 1998. The
D D
price of the cigarettes together with the duty potential involved has risen
E significantly over the years. E
F F
19. In HKSAR v Tsang Chui Kin, CACC 228/2012, the Court of
G Appeal held that in considering the sentence for the charge of importing G
unmanifested cargo, the sentencing court could refer to the value of the
H H
cargo in determining the appropriate sentence. In that case, the cargo
I involved is 50 silver bars valued at HK$8.5 million. The Court of Appeal I
confirmed that a 3 years starting point after trial is not manifestly excessive.
J J
K 20. Taking into account all the circumstances and the mitigations K
advanced by Mr Davies, I am of the view that the appropriate starting point
L L
for importing 30.4 million of cigarettes, valued at around HK$136.8
M million with a duty of potential of approximately HK$100.5 million is 4 M
years’ and 6 months’ imprisonment. The Defendant is entitled to one third
N N
discount for his timely guilty plea.
O O
21. The Defendant is sentenced to 3 years’ imprisonment for
P P
Charge 1.
Q Q
R R
S ( W H Ko ) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 1451/2024
C [2025] HKDC 1395 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1451 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I MYO AUNG I
----------------------------
J J
K Before: Deputy District Judge W H Ko K
Date: 13 August 2025
L L
Present: Mr Tsui Wo Chung, Jones, Senior Public Prosecutor, for
M HKSAR M
Mr Davies Oliver Howell, instructed by Nasirs, assigned by
N N
the Director of Legal Aid, for the Defendant
O Offence: [1] Importing unmanifested cargoes（輸入未列艙單貨物） O
P
[2] Importing goods to which the Dutiable Commodities P
Ordinance applied（進口《應課稅品條例》適用的貨品）
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. The Defendant is charged with one count of importing
C unmanifested cargo, contrary to section 18(1)(a) of the Import and export C
Ordinance, Cap 60, Laws of Hong Kong (Charge 1) and one count of
D D
importing goods to which the Dutiable Commodities Ordinance applied,
E contrary to sections 17(1) and 46(3) of the Dutiable Commodities E
Ordinance, Cap 109, Laws of Hong Kong (Charge 2).
F F
G 2. The Defendant pleaded guilty to Charge 1. G
H H
3. The particulars of Charge 1 alleged that the Defendant on 24
I July 2024 imported 30,400,000 pieces of cigarettes into Hong Kong I
without manifest.
J J
K 4. The facts of the case are that at around 23:55 hours on 23 July K
2024, Customs officers while conducting an anti-smuggling operation
L L
spotted a vessel (“the subject vessel”) near the boundary of Hong Kong
M waters heading in the direction of Lamma Island. At around 00:46 hours M
on 24 July 2024, the subject vessel turned south and moved towards
N N
Mainland Waters. Boats operated by Customs pursued the subject vessel
O and signaling it to stop but it did not comply. At the outset, Customs O
officers were able to board the subject vessel with force when the boats
P P
were close enough.
Q Q
5. 6 crew members including the Defendant were located on the
R R
subject vessel. The Defendant claimed to be the captain of the subject
S vessel. S
T T
U U
V V
-3-
A A
B B
6. 3,040 carton boxes containing a total of 30,400,000 sticks of
C cigarettes were found inside three 40-foot containers onboard the subject C
vessel. One of the containers’ doors were unlocked and dozens packs of
D D
cigarettes scattered inside that container could be observed through the
E door gap. E
F F
7. The Defendant was arrested. Under caution he admitted:
G G
(i) He was the captain of the subject vessel;
H H
I (ii) The subject vessel came from Taiwan and the I
containers were loaded therein;
J J
K (iii) He knew that the containers contained cigarettes; K
L L
(iv) He could not provide a manifest for the goods; and
M M
(v) He did not have any licence or permit to cover the
N N
goods.
O O
8. In a subsequent video-record interview, apart from the
P P
admissions he had made previously, the Defendant further admitted that
Q the containers would be unloaded in Hong Kong. Q
R R
9. The estimated value of the cigarettes was around HK$136.8
S million with a duty potential of HK$100.5 million. S
T T
U U
V V
-4-
A A
B B
10. Upon admission of the facts, the Defendant is convicted of
C Charge 1. Prosecution applied to withdraw Charge 2. I ordered Charge 2 C
to be put on court file and not be to be proceeded with except with the leave
D D
from court.
E E
Personal background and mitigations
F F
G 11. Defendant is 49 years old, single and a Myanmar resident. He G
has been working in the shipping industry since graduated from University
H H
in 2000. He started to work as ships’ captain in 2013, and earned around
I US$2,800 per month prior to his arrest. Defendant’s family members, I
including his mother and younger sister are financially dependent upon him.
J J
K 12. The Defendant has a clear record. K
L L
13. Counsel for the Defendant, Mr Davies submitted that at the
M material times, the Defendant’s employer assigned him to take charge of M
vessels owned by the clients. In July 2024, he was asked to go to Taiwan
N N
to be the master of the subject vessel. He had been working on the subject
O vessel for less than one month before he was told to sail it to Hong Kong. O
It was further submitted he did enquire whether there existed a manifest for
P P
the goods but was informed in the negative, and he was also told that he
Q would not be paid if he refused to sail the subject vessel to Hong Kong. Q
Out of foolishness, he acceded to the request.
R R
S 14. Mr Davies accepted that immediate custodial sentence is S
inevitable but he urged the court to consider that the Defendant did not take
T T
U U
V V
-5-
A A
B B
an active role in the organization of transporting the cigarettes and he was
C not specifically paid to do the job. C
D D
15. Defendant and his mother, in their letters, pleaded to the court
E for leniency. E
F F
Reasons for sentence
G G
16. There are no sentencing guidelines for importing
H H
unmanifested cargo. The maximum sentence, upon indictment, is 7 years’
I imprisonment and a fine of HK$2 millions. I
J J
17. In HKSAR v Tam Wai Po [1998] HKC 291, an authority
K referred to by Mr Davies, Tam pleaded guilty to 2 charges of importing K
unmanifested cargo. The cargo involved was 8 million cigarettes valued
L L
at HK$9,840,000 with duty potential of HK$5,874,000 and 8.46 million
M cigarettes valued at HK$10,485,000 with duty potential of HK$6,116,580 M
(i.e. a total of 16.46 million of cigarettes, valued at around HK$20 million
N N
with duty of potential of approximately HK$12 million). Tam set up a
O trading company, arranging and warehousing as well as transportation O
workers to import the cigarettes into Hong Kong. The sentencing judge
P P
determined that a starting point for sentence after trial, before the
Q consideration for the enhancement being an organized crime as applied by Q
the Prosecution, on each charge was 2 years’ imprisonment. On appeal,
R R
the Court of Appeal held that the starting point adopted by the judge is
S correct. S
T T
U U
V V
-6-
A A
B B
18. I accepted that the Defendant’s culpability is less serious than
C Tam. However, the number of cigarettes in the present case far exceed C
those in Tam. It should also be noted that Tam was decided in 1998. The
D D
price of the cigarettes together with the duty potential involved has risen
E significantly over the years. E
F F
19. In HKSAR v Tsang Chui Kin, CACC 228/2012, the Court of
G Appeal held that in considering the sentence for the charge of importing G
unmanifested cargo, the sentencing court could refer to the value of the
H H
cargo in determining the appropriate sentence. In that case, the cargo
I involved is 50 silver bars valued at HK$8.5 million. The Court of Appeal I
confirmed that a 3 years starting point after trial is not manifestly excessive.
J J
K 20. Taking into account all the circumstances and the mitigations K
advanced by Mr Davies, I am of the view that the appropriate starting point
L L
for importing 30.4 million of cigarettes, valued at around HK$136.8
M million with a duty of potential of approximately HK$100.5 million is 4 M
years’ and 6 months’ imprisonment. The Defendant is entitled to one third
N N
discount for his timely guilty plea.
O O
21. The Defendant is sentenced to 3 years’ imprisonment for
P P
Charge 1.
Q Q
R R
S ( W H Ko ) S
Deputy District Judge
T T
U U
V V