區域法院（刑事）Deputy District Judge Bernard Chung29/8/2022
DCCC870/2021
A A
B B
DCCC 870/2021
C [ 2022 ] HKDC 936 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 870 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I DENG Rixin I
----------------------------
J J
K Before: Deputy District Judge Bernard Chung in Court K
Date: 30 August 2022
L L
Present: Mr Chow Ho Fung, Martin, Public Prosecutor, for HKSAR
M Miss Wu Joyce H S, instructed by Lee & Chow, assigned by M
the Director of Legal Aid, for the defendant
N N
Offences: [1] Importing unmanifested cargoes（輸入未列艙單貨物）
O O
[2] Dealing with goods to which Dutiable Commodities
P Ordinance applies（處理《應課稅品條例》適用的貨品） P
Q Q
--------------------------------------
R REASONS FOR SENTENCE R
--------------------------------------
S S
T 1. The defendant (D) pleaded guilty before me to 2 Charges, T
Charge 1 being “Importing unmanifested cargoes”, contrary to section
U U
V V
-2-
A A
B B
18(1)(a) of the Import and Export Ordinance, Cap. 60; Charge 2 being
C “Dealing with goods to which the Dutiable Commodities Ordinance C
applies”, contrary to sections 17(1) and 46(3) of the Dutiable Commodities
D D
Ordinance, Cap. 109. Both offences occurred at the same time and place,
E viz., 3 September 2020 at the Cargo Examination Platform, Inbound Cargo E
Examination Building, Lok Ma Chau Control Point. Charge 1 involved 20
F F
gold bullions while Charge 2 involved 66 sticks of cigarettes of assorted
G brands. G
H H
Facts of case
I I
2. According to the Summary of Facts admitted by D, at around
J J
17:10 hours on 3 September 2020, D drove a medium goods vehicle
K bearing registration mark VZ 4437 from the Mainland to Lok Ma Chau K
Control Point for customs clearance into Hong Kong. D submitted a set of
L L
manifest to the Customs Officer before the vehicle examination. Upon
M search of the driver’s compartment, Customs Officers found from a storage M
underneath the passenger’s seat 2 plastic bags containing a total of 20 gold
N N
bullions, each weighed 1 kg and wrapped by packing material, and another
O 66 sticks of cigarettes of assorted brands from a storage between the O
driver’s seat and the passenger’s seat. Both items were not covered by the
P P
manifest. D was arrested.
Q Q
3. D admitted under caution that the gold bullions were given to
R R
him by a friend who lived in the Mainland. He personally put them in the
S storage underneath the passenger’s seat and intended to sell them to make S
a profit for the higher gold price in Hong Kong. As to the cigarettes, it was
T T
U U
V V
-3-
A A
B B
for his own consumption. He knew that he had to declare these items to
C the Customs but he failed to do so. C
D D
4. The Government Chemist confirmed that the gold bullions
E composed of gold with gold composition not less than 99%. An E
independent valuer assessed the gold bullions to have a fair market value
F F
of HK$9,653,000 as at the date of the offence.
G G
Defendant’s Background
H H
I 5. According to the Background Report, D is 39 years old, born I
in the Mainland on 1 February 1983. After completing primary education,
J J
he stayed idle for a few years until he was old enough to work, and became
K a factory worker. His mother and sister came to Hong Kong to join his K
father in 1999, leaving him in the care of his maternal grandparents. He
L L
married in 2008. His elder son was born in Hong Kong in 2010 while his
M younger son was born in the Mainland in 2011. He and his elder son came M
to settle in Hong Kong in 2014 and his younger son joined them in 2015.
N N
They lived with his parents in a public housing unit under the names of his
O parents, as unauthorized tenants. His wife deserted the family and could O
not be contacted for a few years prior to the present offence, leaving him
P P
to take care of his 2 sons and his elderly parents, who are both in poor
Q health. Both his sons suffered from some form of speech problem with his Q
elder son needing to attend psychiatric treatment in Tuen Mun Hospital on
R R
a regular basis.
S S
6. D was the sole bread-winner of the family, with his parents on
T T
CSSA. After settling in Hong Kong, he worked as a night-shift security
U U
V V
-4-
A A
B B
guard, a vegetable delivery worker in the market and by 2018 he became a
C cross-border driver. His income in this job was about HK$13,000 per C
month as his working time was limited by the need to attend to the special
D D
education needs of his sons as well as the health problems of his aged
E parents. His income was further reduced to about HK$7,000 to 8,000 per E
month as a result of the COVID-19 pandemic. He was unemployed since
F F
his arrest as he was forbidden to leave Hong Kong pending the present
G criminal proceedings. He has a clear criminal record. G
H H
Mitigation
I I
7. In mitigation, Ms Wu representing D, submitted that D
J J
committed the offences due to financial hardship. At the time he was
K under-employed and his savings were running out. He could not even K
afford to buy a computer for his sons to attend classes on line. D’s elder
L L
son was said to be suffering from ADHD and Asthma. A psychiatric report
M and 3 medical reports of this son were also submitted in support. Under M
such circumstances, he was offered HK$10,000 reward to bring the gold
N N
bullions in question to Hong Kong. It is to be noted that in the Background
O Report he told the probation officer he committed the offence “for quick O
monetary return of about $5,000 to meet the living expenses of the sons”.
P P
In any event, without considering the consequences and seriousness of the
Q offences, he took the chances and committed Charge 1. For Charge 2, only Q
a small quantity of cigarettes was involved and they were for D’s own
R R
consumption only. Ms Wu submitted that D is remorseful for what he had
S done and pleaded guilty to the offences at the first opportunity. S
T T
U U
V V
-5-
A A
B B
8. Mitigation letters written by D himself, his younger sister and
C Rev LAM Kai Hung, Chaplain of the Christian Prison Pastoral Association C
Limited were submitted, all stated that D is extremely remorseful and asked
D D
the court to be as lenient as possible to him.
E E
9. Ms Wu further submitted that the offences did not involve
F F
meticulous, sophisticated planning or special skills, no structural alteration
G to the vehicle was involved. The gold bullions were put inside the storage G
compartment underneath the passenger’s seat without any other
H H
concealment and were easily found. Ms Wu cited 6 authorities, notably
I HKSAR v Tsang Chiu Kin unrep CACC 228/2012, to assist the court in I
assessing the appropriate sentence.
J J
K Sentence K
L L
10. There is no tariff for the offences under consideration. The
M maximum sentence for Charge 1 upon conviction on Indictment is 7 years’ M
imprisonment and HK$2 million fine, and for Charge 2, 2 years’
N N
imprisonment and HK$1 million fine. In Tsang Chiu Kin (supra), the
O cargoes involved were 50 slabs of silver bullions worth over HK$8.4 O
million. The CA considered 3 years was a proper starting point. It must
P P
be noted that the appellant in that case was convicted on the basis that he
Q was not aware of the presence of the cargoes concerned, only that he could Q
not satisfy the statutory defence available to him. In the other cases cited
R R
by Ms Wu, including HKSAR v Tsang Kwok Choi unrep CACC 227 of
S 2019, HKSAR v Lam Kwan Ying DCCC 1103 of 2020, HKSAR v Chock S
Kwai Leung DCCC 1118/2018, HKSAR v Lee Wing Kin DCCC 60 of 2018
T T
and HKSAR v Tang Kwai Wa, unrep. HCMA 556 of 2019, the general
U U
V V
-6-
A A
B B
starting point for offences of similar nature falls in the region of 2 years
C and 9 months to 3 years and 3 months with most of these cases involved a C
deliberate commission of the offences.
D D
E 11. For Charge 1, having considered the authorities cited and the E
facts of the present case, I adopt 3 years as the starting point.
F F
G 12. D has a clear criminal record prior to the commission of the G
present offences. I also take into account his family background and the
H H
reasons for breaching the law on this occasion. I agree with Ms Wu’s
I submission that this case does not involve any sophisticated planning or I
special skills in the commission of the offences. The cargoes involved
J J
were “hidden” in a way that they could easily be found by the Customs
K Officers when the vehicle was searched. I will reduce the starting point by K
6 months to 2 years and 6 months for these factors.
L L
M 13. D pleaded guilty at the first available opportunity. I will give M
him the full 1/3 discount. For Charge 1, D is sentenced to 1 year and 8
N N
months’ imprisonment.
O O
14. For Charge 2, only 66 sticks of cigarettes were involved. I
P P
accept that they were for D’s own consumption. I adopt 3 weeks as the
Q starting point, reduce it by 1/3 for his timely guilty plea and impose 2 weeks’ Q
imprisonment for this offence.
R R
S 15. The 2 offences were committed on the same occasion. I order S
the sentences for the 2 Charges be run concurrently.
T T
U U
V V
-7-
A A
B B
Conclusion
C C
16. The sentences imposed on D are as follows:
D D
E Charge 1 : 1 year and 8 months E
Charge 2 : 2 weeks, concurrent to Charge 1
F F
Total sentence : 1 year and 8 months.
G G
H H
I I
( Bernard Chung )
J Deputy District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 870/2021
C [ 2022 ] HKDC 936 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 870 OF 2021
F F
G ---------------------------- G
HKSAR
H H
v
I DENG Rixin I
----------------------------
J J
K Before: Deputy District Judge Bernard Chung in Court K
Date: 30 August 2022
L L
Present: Mr Chow Ho Fung, Martin, Public Prosecutor, for HKSAR
M Miss Wu Joyce H S, instructed by Lee & Chow, assigned by M
the Director of Legal Aid, for the defendant
N N
Offences: [1] Importing unmanifested cargoes（輸入未列艙單貨物）
O O
[2] Dealing with goods to which Dutiable Commodities
P Ordinance applies（處理《應課稅品條例》適用的貨品） P
Q Q
--------------------------------------
R REASONS FOR SENTENCE R
--------------------------------------
S S
T 1. The defendant (D) pleaded guilty before me to 2 Charges, T
Charge 1 being “Importing unmanifested cargoes”, contrary to section
U U
V V
-2-
A A
B B
18(1)(a) of the Import and Export Ordinance, Cap. 60; Charge 2 being
C “Dealing with goods to which the Dutiable Commodities Ordinance C
applies”, contrary to sections 17(1) and 46(3) of the Dutiable Commodities
D D
Ordinance, Cap. 109. Both offences occurred at the same time and place,
E viz., 3 September 2020 at the Cargo Examination Platform, Inbound Cargo E
Examination Building, Lok Ma Chau Control Point. Charge 1 involved 20
F F
gold bullions while Charge 2 involved 66 sticks of cigarettes of assorted
G brands. G
H H
Facts of case
I I
2. According to the Summary of Facts admitted by D, at around
J J
17:10 hours on 3 September 2020, D drove a medium goods vehicle
K bearing registration mark VZ 4437 from the Mainland to Lok Ma Chau K
Control Point for customs clearance into Hong Kong. D submitted a set of
L L
manifest to the Customs Officer before the vehicle examination. Upon
M search of the driver’s compartment, Customs Officers found from a storage M
underneath the passenger’s seat 2 plastic bags containing a total of 20 gold
N N
bullions, each weighed 1 kg and wrapped by packing material, and another
O 66 sticks of cigarettes of assorted brands from a storage between the O
driver’s seat and the passenger’s seat. Both items were not covered by the
P P
manifest. D was arrested.
Q Q
3. D admitted under caution that the gold bullions were given to
R R
him by a friend who lived in the Mainland. He personally put them in the
S storage underneath the passenger’s seat and intended to sell them to make S
a profit for the higher gold price in Hong Kong. As to the cigarettes, it was
T T
U U
V V
-3-
A A
B B
for his own consumption. He knew that he had to declare these items to
C the Customs but he failed to do so. C
D D
4. The Government Chemist confirmed that the gold bullions
E composed of gold with gold composition not less than 99%. An E
independent valuer assessed the gold bullions to have a fair market value
F F
of HK$9,653,000 as at the date of the offence.
G G
Defendant’s Background
H H
I 5. According to the Background Report, D is 39 years old, born I
in the Mainland on 1 February 1983. After completing primary education,
J J
he stayed idle for a few years until he was old enough to work, and became
K a factory worker. His mother and sister came to Hong Kong to join his K
father in 1999, leaving him in the care of his maternal grandparents. He
L L
married in 2008. His elder son was born in Hong Kong in 2010 while his
M younger son was born in the Mainland in 2011. He and his elder son came M
to settle in Hong Kong in 2014 and his younger son joined them in 2015.
N N
They lived with his parents in a public housing unit under the names of his
O parents, as unauthorized tenants. His wife deserted the family and could O
not be contacted for a few years prior to the present offence, leaving him
P P
to take care of his 2 sons and his elderly parents, who are both in poor
Q health. Both his sons suffered from some form of speech problem with his Q
elder son needing to attend psychiatric treatment in Tuen Mun Hospital on
R R
a regular basis.
S S
6. D was the sole bread-winner of the family, with his parents on
T T
CSSA. After settling in Hong Kong, he worked as a night-shift security
U U
V V
-4-
A A
B B
guard, a vegetable delivery worker in the market and by 2018 he became a
C cross-border driver. His income in this job was about HK$13,000 per C
month as his working time was limited by the need to attend to the special
D D
education needs of his sons as well as the health problems of his aged
E parents. His income was further reduced to about HK$7,000 to 8,000 per E
month as a result of the COVID-19 pandemic. He was unemployed since
F F
his arrest as he was forbidden to leave Hong Kong pending the present
G criminal proceedings. He has a clear criminal record. G
H H
Mitigation
I I
7. In mitigation, Ms Wu representing D, submitted that D
J J
committed the offences due to financial hardship. At the time he was
K under-employed and his savings were running out. He could not even K
afford to buy a computer for his sons to attend classes on line. D’s elder
L L
son was said to be suffering from ADHD and Asthma. A psychiatric report
M and 3 medical reports of this son were also submitted in support. Under M
such circumstances, he was offered HK$10,000 reward to bring the gold
N N
bullions in question to Hong Kong. It is to be noted that in the Background
O Report he told the probation officer he committed the offence “for quick O
monetary return of about $5,000 to meet the living expenses of the sons”.
P P
In any event, without considering the consequences and seriousness of the
Q offences, he took the chances and committed Charge 1. For Charge 2, only Q
a small quantity of cigarettes was involved and they were for D’s own
R R
consumption only. Ms Wu submitted that D is remorseful for what he had
S done and pleaded guilty to the offences at the first opportunity. S
T T
U U
V V
-5-
A A
B B
8. Mitigation letters written by D himself, his younger sister and
C Rev LAM Kai Hung, Chaplain of the Christian Prison Pastoral Association C
Limited were submitted, all stated that D is extremely remorseful and asked
D D
the court to be as lenient as possible to him.
E E
9. Ms Wu further submitted that the offences did not involve
F F
meticulous, sophisticated planning or special skills, no structural alteration
G to the vehicle was involved. The gold bullions were put inside the storage G
compartment underneath the passenger’s seat without any other
H H
concealment and were easily found. Ms Wu cited 6 authorities, notably
I HKSAR v Tsang Chiu Kin unrep CACC 228/2012, to assist the court in I
assessing the appropriate sentence.
J J
K Sentence K
L L
10. There is no tariff for the offences under consideration. The
M maximum sentence for Charge 1 upon conviction on Indictment is 7 years’ M
imprisonment and HK$2 million fine, and for Charge 2, 2 years’
N N
imprisonment and HK$1 million fine. In Tsang Chiu Kin (supra), the
O cargoes involved were 50 slabs of silver bullions worth over HK$8.4 O
million. The CA considered 3 years was a proper starting point. It must
P P
be noted that the appellant in that case was convicted on the basis that he
Q was not aware of the presence of the cargoes concerned, only that he could Q
not satisfy the statutory defence available to him. In the other cases cited
R R
by Ms Wu, including HKSAR v Tsang Kwok Choi unrep CACC 227 of
S 2019, HKSAR v Lam Kwan Ying DCCC 1103 of 2020, HKSAR v Chock S
Kwai Leung DCCC 1118/2018, HKSAR v Lee Wing Kin DCCC 60 of 2018
T T
and HKSAR v Tang Kwai Wa, unrep. HCMA 556 of 2019, the general
U U
V V
-6-
A A
B B
starting point for offences of similar nature falls in the region of 2 years
C and 9 months to 3 years and 3 months with most of these cases involved a C
deliberate commission of the offences.
D D
E 11. For Charge 1, having considered the authorities cited and the E
facts of the present case, I adopt 3 years as the starting point.
F F
G 12. D has a clear criminal record prior to the commission of the G
present offences. I also take into account his family background and the
H H
reasons for breaching the law on this occasion. I agree with Ms Wu’s
I submission that this case does not involve any sophisticated planning or I
special skills in the commission of the offences. The cargoes involved
J J
were “hidden” in a way that they could easily be found by the Customs
K Officers when the vehicle was searched. I will reduce the starting point by K
6 months to 2 years and 6 months for these factors.
L L
M 13. D pleaded guilty at the first available opportunity. I will give M
him the full 1/3 discount. For Charge 1, D is sentenced to 1 year and 8
N N
months’ imprisonment.
O O
14. For Charge 2, only 66 sticks of cigarettes were involved. I
P P
accept that they were for D’s own consumption. I adopt 3 weeks as the
Q starting point, reduce it by 1/3 for his timely guilty plea and impose 2 weeks’ Q
imprisonment for this offence.
R R
S 15. The 2 offences were committed on the same occasion. I order S
the sentences for the 2 Charges be run concurrently.
T T
U U
V V
-7-
A A
B B
Conclusion
C C
16. The sentences imposed on D are as follows:
D D
E Charge 1 : 1 year and 8 months E
Charge 2 : 2 weeks, concurrent to Charge 1
F F
Total sentence : 1 year and 8 months.
G G
H H
I I
( Bernard Chung )
J Deputy District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V