IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1089 OF 2008
Before: Deputy District Judge J. Lam
Date: 9 June 2009 at 4.37 pm
Reasons for Sentence
1. After trial, D1 is convicted of Charges 3 and 4, which are alternatives to Charges 1 and 2 respectively.
2. D1 has tried to plead guilty to Charge 3. He says he was plainly not diligent enough as driver of MZ 8628. He says he knew therewere altered fittings inside his lorry but he was not aware there were goods concealed in such altered fittings on 13 March 2008.
3. In relation to Charge 4, D1 at first tries to plead guilty but he has to change his plea because of his claim of lack of knowledgeof the presence of goods inside the altered fittings.
4. In any event, the prosecution do not accept D1’s plea of guilty to Charge 3. After trial, D1 is convicted of Charges 3 and 4. I find as I am sure D1 knowingly committed both offences. He is acquitted of the main Charges 1 and 2 because I cannot be surewhat happened on those days prior to 13 March 2008. However, I am sure on 13 March 2008 D1 took those goods later found in his lorryand he let those goods be hidden in the altered fittings of his lorry to be smuggled out of Hong Kong.
5. D1 is now aged 47. He has one previous conviction in 1992 for employing a person not lawfully employable. His counsel submits thatD1 has family burdens. D1 has an aged mother and a handicapped sister in China. He has to look after both as well as his own family. In his own letter, D1 says he had to repay debts incurred from his pervious business. Due to the stringent financial condition,he committed the present offences in early 2008. Since then, he was unable to secure a job. He and his family thus have to sufferfurther financial predicament, and D1 himself has been suffering depression for some time.
6. Counsel asks me to consider putting D1 on Community Service Order. Alternatively, he asks me to give D1 a short sentence or a suspendedsentence. He cites two Magistracy Appeals, HCMA1177/2006 and HCMA794/2001, for my reference.
7. Counsel submits that the quantity and value of the goods found on D1’s lorry were not huge. Even according to prosecution’soriginal estimation, such goods were worth only about $200,000.
8. D2 is convicted upon his own plea of Charge 5, which is an alternative charge to Charge 1. He is acquitted of Charge 1 and the otherconspiracy charge, Charge 2.
9. D2 is now aged 44. He has a clear record.
10. Counsel says D2 resides in China with his family. They live in poor conditions. Counsel asks me to be lenient towards D2. He agreesthat D2 on 13 March 2008 worked as part of a group for the purpose of smuggling. Counsel asks me not to adopt the estimation valuesprovided by the prosecution in respect of all the goods found at Area A including those found on D2’s lorry, LF 5652.
11. The prosecution estimates the value of those goods to be around HK$17 million. Mr Loftus for the prosecution says that such figuresare arrived at by assuming those goods are sold in Hong Kong. But the evidence is clearly that such goods, though of China originapparently, were to be smuggled back into China. Thus, I think the correct approach should be to estimate the value of those goodsas if they were to be sold or dealt with in China. We do not have good evidence or concrete evidence about that, so it is all amatter of educated guess.
12. Mr So on behalf of D1 and Mr Lo on behalf of D2 both agree and submit that the estimated values of all those goods if they were dealtwith or sold in China would only fetch about 20 to 30 per cent of the estimation values provided by prosecution. I agree that itis an educated guess in the absence of any good evidence, so I work on the basis that all the goods seized were actually of about20 to 30 per cent of the estimation values provided by prosecution. We are then talking about 3 to 5 million worth of goods forall the goods that were seized by C&E in this case.
13. Counsel for D2 tries to compare D2’s case to a certain defendant in the appeal case CACC115/2007. He asks me to be lenient towardsD2.
14. D3 is convicted of Charge 6 and D5 is convicted of Charge 8. Both are convicted upon their own pleas. The facts pertaining to theircase are that they worked as packaging workers at Area A on 13 March 2008 without knowledge of smuggling there.
15. D3 is aged 45. He has a clear record.
16. D5 is aged 34. He has one similar conviction in 1997. Counsel says that year he just overstayed in Hong Kong in order to fightfor his right of abode.
17. Both counsel submit on behalf of their clients, i.e., D3 and D5, as to their personal backgrounds and history. Both counsel saythe offences D3 and D5 are now convicted of would only attract a starting point of about 3 months’ imprisonment in the Magistracyif their cases were dealt with there. They say both defendants have actually been detained since late October last year, i.e., D3and D5 both had been detained for about 8 months. Counsel ask me to impose such sentence that can enable both defendants to be releasedimmediately.
18. I disagree with counsel for D1 that I could only consider the value of the goods found on MZ 8628 in sentencing D1. A defendantis to be sentenced on the charges he is convicted of according to the pertaining facts. Although the goods found on MZ 8628 werenot huge in quantity and value, one has to note that D1, and D2 as well, on 13 March 2008 were actually working as lorry driversto help to smuggle goods out of Area A into China.
19. Area A was no doubt a smuggling hub, there were lots of goods to be smuggled into China and these goods were found at Area A on 13March 2008. I am sure these goods would be smuggled out of Area A and into China by and by. The goods found on D1’s and D2’slorries on 13 March 2008 were just a part of the whole lot of goods to be smuggled in that way. Thus, D1’s case should not beconsidered merely as he was transporting a limited quantity of smuggled goods into China. He should be considered in the light ofthe proven facts, i.e., on 13 March 2008, he went to Area A to take those goods assigned to him to be hidden in the altered fittingsof his lorry to be smuggled out of Hong Kong and into China. D2 is similarly liable. In my view, D1 and D2 are of equal culpabilityin the present case despite the fact that they are convicted of different charges of different descriptions.
20. D1 is convicted of Charges 3 and 4, these two charges are just part and parcel of each other. D2 is convicted of Charge 5. Thesethree charges are actually similar in nature and one can see from the ordinance that they have the same maximum penalty.
21. D1’s previous conviction is an old one and it is not of similar nature. As such, I shall treat him on the same footing as D2,who has a clear record.
22. Despite counsel’s mitigation, I feel the right sentence should be meted out in order to deter people from getting themselves involvedin smuggling, particularly organised smuggling, as in the present case.
23. In D1 and D2’s case, any Community Service Order, suspended sentence or short sentence are out of question. The cases cited bycounsel do not assist very much. They are not tariff cases. One must remember that each case is to be sentenced on its own facts.
24. About D3 and D5, their criminality is much lighter, but there is an aggravating factor in their case. Of course they merely workedas packaging workers at Area A without knowledge that they were helping in any smuggling but the fact remains that what they dideffectually assist others’ smuggling misdeed.
25. D5 has an old previous conviction, though it was of similar nature, but counsel explains for him that in that year he only overstayedhere in order to fight for his right of abode. As such, I shall treat D5 on the same footing as D3, who has a clear record.
26. Taking everything into consideration, in D1’s case for Charge 3 I adopt 18 months’ imprisonment as a starting point. D1 hastendered a guilty plea, which I find is a half hearted one, so I shall not give him the full one-third discount. I think in suchcircumstances D1 is only entitled to a one-sixth discount for his so-called guilty plea in respect of Charge 3. I thus reduce thesentence to one of 15 months’ imprisonment in respect of Charge 3.
27. For Charge 4, I also adopt 18 months’ imprisonment as the starting point. I see no reasons why I should give D1 any discount forthat. Counsel says D1 is very co-operative in this trial, he does not challenge the facts presented by the prosecution. That isso, but that is simply an approach adopted by a defendant or defence counsel as they deem fit. In any event, I do not think theevidence tendered against D1 can be challenged, so I do not think D1 is entitled to any discount for that.
28. Charges 3 and 4 are part and parcel of the same criminality. I thus order both sentences to run concurrently, so D1 has to servea total of 18 months’ imprisonment.
29. In respect of D2, I also adopt 18 months’ imprisonment as the starting point. D2 pleads guilty to this Charge 5 and he is convictedupon his own plea, I give him the full one-third discount. On this Charge 5, D2 is sentenced to 12 months’ imprisonment.
30. For D3 and D5, I adopt 6 months’ imprisonment as the starting point. In each of their case, they plead guilty to their own charge andthey are so convicted. They are entitled to the full one-third discount, so on Charge 6, D3 is sentenced to 4 months’ imprisonment,while D5 on Charge 8 is sentenced to 4 months’ imprisonment.