CEO Customs v CHS Enterprises Pty Ltd & 3 Ors

COUNSEL : (P) P Roberts SC (Customs) (D) Bateman (CHS Enterprises & Hu)

(P) Australian Government Solicitor (Customs) SOLICITORS : (D) Galloways (CHS Enterprises & Hu) J Law (Unicargo & Lam)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST

20304/2004: CHIEF EXECUTIVE OFFICER CUSTOMS (Customs)

v CHS ENTERPRISES PTY LTD (CHS), Robin HU, HUI Min Jing, AK UNICARGO INTERNATIONAL PTY LTD (Unicargo) and Pia LAM JUDGMENT Introduction

1 These Customs prosecutions arise out of the importations during the period from about 1 July 2001 until about 1 June 2002 of 125 container loads (each container housing 68 x 200 litre drums) of Chinese honey into Australia, mostly declared as Singaporean honey in the Entries for Home Consumption and the subsequent export of the honey, often within a short period of its arrival, to many destinations in the United States of America under the description of Australian honey or words to that effect. The imports and exports each involve 1.7 million litres of honey having a value for Customs purposes of about $5,027,289. Between July 2001 and May 2002 there were 28 separate consignments to Australia of Chinese honey, many of the consignments consisting of more than one container load. There were 39 separate export consignments comprising 125 container loads. The increase in the number of export consignments over import consignments was due in part to the export consignments going to different ports and parts of the United States. Broadly, and with some exceptions Customs claimed, in summary, that material false and misleading statements were made in the documents lodged both in relation to the imports and exports and that false descriptions were applied to the goods imported and exported. The detailed charges are discussed later.

2 Requiring consideration are some disputed late proposed amendments to the voluminous Statement of Claim (exceeding 150 pages). Initially, it is sufficient to proceed on the basis that the owner and consignee of the honey the subject of the first shipment and importation was CHS and that the owner and consignee of the subsequent shipments and importations of honey was Ms Jing using her (apparently unregistered) business name of JHM Trading Company except that Import Shipment 2 will require separate treatment.

3 CHS was a registered company controlled by Mr Hu and primarily carried on a printing business. There was an issue whether from about May 2001 it also carried on an importing business but I do not think it did so. Ms Jing, Mr Hu's former wife, was the moving spirit behind the import/export of the honey and she controlled the operations in Australia. She had the contact and dealings with the Chinese supplier. She was a shrewd and very intelligent lady with considerable managerial and business skills. She had a keen eye for financial matters. Her English expression and comprehension were limited. They appeared to be poor. Her language was Mandarin and she dealt with those who could speak that language. While she called on her husband to utilize his contacts to point towards those who could supply the right assistance she ran the honey importation/exportation business and made the decisions. He was quiet and somewhat retiring. She used the company's facilities such as the telephone and the FAX as well as its printing equipment to print labels and other documents. She also enlisted the help of Holly, a staff member of CHS, to help with the operation of the computer and the printing of documents. Mr Hu took messages for his wife if she was away from the premises at Petersham and answered those queries to which he knew the answers.

4 Unicargo was a freight forwarding company and was controlled by Mr Lam who spoke some Mandarin. Mr Lam was its general manager and a director. Mr Hu had had previous dealings with Unicargo and Mr Lam when earlier importing some printing machinery for the printing business. Mr Hu introduced Ms Jing to Mr Lam. Ms Jing held a discussion with Mr Lam as to the importing and exporting of Chinese honey. Mr Hu was present. Mr Lam preferred to treat Mr Hu and Ms Jing as business partners and one party but she was the controller and the person who unilaterally made the decisions. Mr Lam was reluctant to dismiss or sideline Mr Hu. Eventually, Ms Jing retained Unicargo to arrange to have the imported honey cleared through Customs but did not retain Unicargo to act as freight forwarder from Singapore to Sydney. Mr Lam and Unicargo retained a Customs broker to clear the goods through Customs etc. Unicargo and Mr Lam arranged for the containers to be collected from the wharf and delivered to a storage facility or warehouse where the drums of honey were unpacked and repacked into different containers for their journey to the USA. Unicargo was retained to attend to exporting the honey to the USA. This involved arranging for space on a ship, the collection of the containers from the storage facility and their delivery to the wharf and lodging documents with Customs.

5 There are serious charges arising out of the imports and the exports and the manner in which they were effected. Customs lost no revenue as a result of the imports and exports. No duty is imposed on honey. Nor were there any restrictions on the importation of honey from either China or Singapore. Customs contended that statements as to the origin of goods were always highly material to Customs not only in respect of imposing duties but also for quarantine and "policing" purposes. Customs also contended that the origin of goods exported or re-exported from Australia was of material concern to Customs. False labelling of goods as Australian produce, especially when the non-Australian goods differ in quality from Australian produce, can have adverse trade ramifications on Australia as a trading nation as well as on individual Australians engaged in the export of similar goods

6 Customs initially alleged that the exports of honey to the USA were carried out in the names of CHS as to Export Shipments 1, 2, 3 and 4, JW International Trading Pty Ltd or Jing Wei International Trading Pty Ltd or a similar name as to the remainder of the Export Shipments. The position as to Import Shipments 2, 3 and 4 is a little unusual and is dealt with later.

7 Ms Jing pleaded guilty to all the charges against her arising out of the imports and exports. She sought a reduction in the penalties imposed, offering to give evidence against the other defendants. She did so in the proceedings which I have heard . The proceedings against her instituted by the subject statement of claim are presently part-heard before Howie J. This was not regarded as an obstacle to these proceedings being heard and determined. She lives with and cares for the young daughter of Mr Hu and herself. She has no paid employment.

8 The first import shipment was taken by the carrier to the warehouse premises of AAMAC. Each of the subsequent shipments was taken to the warehouse premises of White Heavy Haulage (White's), a general transport company with a bond store at its premises at Sydenham. Some of the containers were nominated for inspection by the Australian Quarantine Inspection Service. (AQIS). They were inspected at the warehouse and after the steps required by AQIS were carried out they were cleared by Customs.

9 At the warehouses the containers were unpacked by the warehouse staff and the drums were cleaned by Ms Jing and helpers who had been enlisted for the task. AQIS required every drum to be labelled showing, amongst other things, the origin of the contents. Subsequently the drums were relabelled with labels indicating the contents were produce of Australia. There was no modification of the honey imported nor any blending with Australian honey. The drums as re-labelled were packed into a container ready for export to the USA.

10 As at August 2001 - May 2002 Chinese honey attracted anti-dumping duties in the USA in the range of 34 per cent to 184 per cent whereas Australian produced honey was duty free. By falsely claiming that the honey was of Australian origin, USA anti-dumping duties were avoided. Further, Chinese honey had been found to contain chloramphenicol, an antibiotic which is a carcinogenic agent linked to the rare blood disease aplastic anaemia. The antibiotic chloramphenicol was banned in food products in the United States. China is probably the largest honey producing country in the world. Australian honey tends to be of premium quality and attracts a higher purchase price.

11 Customs alleged that it was an integral part of the overall scheme in which the defendants participated that false entries for home consumption be lodged. They would not have wanted it officially recorded that the honey being imported was Chinese honey.

Section 234(1) of the Customs Act provided (as at 2001-2): "(1) A person shall not: … (d) either:

(i) intentionally make a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular; or

(ii) intentionally omit from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular; or … …" The penalty for these offences is/was in s 234(2)(c) and s 234(3) of the Customs Act as follows: "(2) A person who contravenes subsection (1) is guilty of an offence punishable upon conviction: …

(c) subject to subsections (3) and (4), in the case of an offence against paragraph (1)(d), by a penalty not exceeding 100 penalty units; or …

(3) Where a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5000 and twice the amount of the duty payable on those goods."

Section 236 of the Customs Act provided: "For the purposes of a Customs prosecution (within the meaning of section 244), whoever aids abets counsels or procures or by any act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly."

The current prosecutions are Customs prosecutions within the meaning of s 244 as they are proceedings by the Customs for the recovery of penalties under the Customs Act and do not fall within the exception.

Section 255 of the Customs Act provided: "(1) In any Customs prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.

(2) This section shall apply to any matters so averred although: (a) evidence in support or rebuttal of the matter averred or of any other matter is given by witnesses; or

(b) the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only. (3) Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.

(4) The foregoing provisions of this section shall not apply to: (a) an averment of the intent of the defendant; or

(b) proceedings for an indictable offence or an offence directly punishable by imprisonment. (5) This section shall not lessen or effect any onus of proof otherwise falling on the defendant."

Section 257 of the Customs Act provided: "(1) Where, in a Customs prosecution in respect of any conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind. (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b) by any person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent. shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate. (3) Where, in a Customs prosecution in respect of any conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind. (4) Any conduct engaged in on behalf of a person other than a body corporate: (a) by a servant or agent of the person within the scope of the actual or apparent authority of the servant or agent; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;

shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion belief or purpose of the person and the person's reasons for his or her intention, opinion, belief or purpose."

Section 2 of the Commerce (Trade Descriptions) Act 1905 (C'th) provided: "This Act shall be incorporated and read as one with the Customs Act 1901."

Section 9 of the Commerce (Trade Descriptions) Act 1905 (C'th) provided: "(1) A person shall not import any goods to which a false trade description is applied.

Penalty: $10,000. (2) In a prosecution for an offence against subsection (1) it is a defence if the defendant proves that he did not intentionally import the goods in contravention of that subsection." Section 12 of that Act provided: (1) No person shall: (a) … … (b) intentionally export or enter for export or put on any ship or boat for export any goods to which a false trade description is applied. (2) A person who contravenes subsection (1) is guilty of an offence and is punishable on conviction by a fine not exceeding $10,000."

"Trade description" and "false trade description" which were defined in s 3 of that Act provided: " Trade description , in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect: … …

(b) as to the country or place in or at which the goods were made or produced; or … …

False trade description means a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, which makes the description false or likely to mislead in a material respect." The Charges

13 21 of the 28 imports have given rise to a false/misleading statement charge based on the Entries for Home Consumption lodged by Woodford whom Customs described as an innocent Customs broker. Imports 6, 7, 8, 15, 16, 27 and 28 have not given rise to such a charge as the country of origin was shown as China. There is a difficulty in import shipment 6 in that the copy Entries for Home Consumption obtained from Mr Woodford differ. That purporting to be prepared on 4 January 2002 states the origin as unknown whereas that prepared on 7 January 2002 states the origin as "China". In both instances the supplier is shown as "New World Food Co Ltd." Both entries contain similar particulars. I assume that the later entry was probably the one lodged with Customs. This discrepancy was not noticed at the hearing. There are similar but not identical problems with some of the other imports. In each of the false/misleading charges, Customs alleged that the relevant false/misleading statement was made in the Entry for Home Consumption for the particular importation. In relation to most, but not all, of the imports there is also a charge under s 9 of the Commerce (Trade Descriptions) Act . The false trade description alleged is as to the origin of the goods which was contained in the Entries for Home Consumption, that is, the same statement which is the subject of the false statement charge under the Customs Act .

14 Customs explained that as to the exports, charges of false/misleading statements under s 234(1)(d)(i) of the Customs Act have been laid in respect of some 17 exports and that charges of false trade description have been laid in respect of all 39 exports under s 12(1)(b) of the Commerce (Trade Descriptions) Act . Customs stated that in each of the 39 exports, the false statement and false description were alleged to be contained within the details transmitted to Customs to generate an Export Clearance Number (ECN), that is in the EXIT declaration and/or within the bill of lading. The false statements and descriptions relate to the origin of the honey as Australia(n).

15 Customs explained that the person on whose behalf the particular clearance was alleged to have been made was charged with a substantive offence. That applies to export shipments 1, 5-39. As to export shipments 2, 3 and 4 Customs sought to achieve the same result when it applied to further amend the Statement of Claim. There were problems with that application. These are dealt with later when the further amendment application is resolved. Initially CHS was charged with a substantive offence in respect of export shipments 1, 2, 3 and 4. It became clear that Ms Jing not CHS should be charged with a substantive offence in respect of export shipments 2, 3 and 4. As later appears as to export shipments 5-39 there were various entities alleged to have committed a substantive offence. All were controlled by Ms Jing.

16 As to import shipment 1, entry on 2 August 2001 CHS has been charged under s 234(1)(d)(i) of the Customs Act of intentionally making a false statement to an officer reckless as to the fact that the statement was false or misleading in a material particular in that the Entry for Home Consumption stated that the country of origin was Singapore whereas it was China. As to import shipment 1 CHS was also charged under s 9(1) of the Commerce (Trade Descriptions) Act of importing goods to which a false trade description was applied in that the Entry for Home Consumption stated that the country of origin of the honey being imported was Singapore whereas it was China.

17 As to import shipment 2, Entry on 10 October 2001, CHS was charged under s 234(1)(d)(ii) of intentionally omitting from a statement made to an officer a matter or thing reckless as to the fact that without the matter or thing the statement was misleading in a material particular in that the Entry for Home Consumption stated that the country of origin was stated to be unknown whereas it was known it was China.

18 18 charges under s 234(1)(d)(i) were preferred against Ms Jing in that on the following 18 occasions a false statement was made in each Entry for Home Consumption that the country of origin of the goods (honey) being imported was stated as Singapore whereas it was China: Import Shipment 3, Entry on 15 November 2001 4, 19 December 2001 9, 17 January 2002 10, " 11, 8 February 2002 12, 27 February 2002 13, 27 February 2002 14, 11 March 2002 17, " 18, 13 March 2002 19, " 20, 19 March 2002 21, 26 March 2002 22, " 23, " 24, " 25, 6 May 2002 26, "

19 A charge under s 234(1)(d)(ii) was preferred against Ms Jing as to import shipment 5, entry on 31 December 2001 of an intentional omission so that without the matter omitted the statement made was misleading in a material particular in that the country of origin was stated to be unknown whereas it was known and was China.

20 Ms Jing was charged with being directly concerned in the commission by CHS of the offence under s 234(1)(d)(i) as to import shipment 1. She was also charged with being directly concerned in the commission by CHS of the offence under s 234(1)(d)(ii) as to shipment 2. As to each of the 18 import shipments listed above Ms Jing was charged with the offence of importing goods to which a false trade description was applied contrary to s 9(1) of the Commerce (Trade Descriptions) Act 1905 in that it was stated that the country in which the goods were produced was Singapore whereas the true country of origin was China.

21 I have referred to the charges against CHS and Ms Jing first because they face substantive charges. Mr Hu, Unicargo and Mr Lam face charges of aiding and abetting. As to the first and second shipments Customs alleged that Mr Hu managed the activities of CHS and that whatever was done by CHS was done by Mr Hu or under his direction. Customs alleges that Mr Hu and Ms Jing used their corporate structures and registered and unregistered business names to carry out the deception practised. Customs also alleges that, acting on behalf of Mr Hu and Ms Jing, Mr Lam using Unicargo gave instructions to an innocent Customs broker to clear the honey through Customs and, on the instructions of Mr Hu and Ms Jing have the Customs broker documentation include documents from a fictitious Singaporean supplier. The evidence established that the suppliers named in the Commercial invoices supplied with some of the shipments did not exist nor did the addresses stated on the Invoices.

22 Mr Hu was charged with being directly concerned in the commission of the import offences by: (a) CHS - shipments 1 and 2 - s 234(1)(d)(i) & (ii)

(b) CHS - shipment 1 - S 9(1) of Commerce (Trade Descriptions) Act

(c) Ms Jing - being the 18 offences earlier specified against s 234(1)(d)(i) of the Customs Act , and being the offence earlier specified against s 234(1)(d)(ii) of the Customs Act - shipment 5

(d) Ms Jing - being the further 18 offences earlier specified against s9(1) Commerce (Trade Description) Act 23 Unicargo and Mr Lam were each charged with being directly concerned in the commission of the same import offences as Mr Hu.

24 The links between the imports and exports were as follows: Import Shipment Export Shipment 1 (1 container) 1 (1 container) 2 (4 containers) 2 (10 containers) 3 (3 containers) 4 (3 containers) 3 (4 containers) 5 (4 containers) 4 (2 containers) 6 (2 containers) 5 (3 containers) 7 (3 containers) 6 (10 containers) 8 (9 containers) 10 or 11 (1 container) 7 (3 containers) 9 (3 containers) 8 (7 containers) 10&11 (7 containers to which 1 container from Import Shipment 6 was added) 9 (5 containers) 12 (5 containers) 10 (3 containers) 13 (3 containers) 11 (4 containers) 14 (4 containers) 12 (2 containers 15 (2 containers) 13 (3 containers) 16 (3 containers 14(2 containers) combined with 12 containers from 15, 16 & 17 17,18,19 & 20 (14 containers in total) 15 (6 containers) combined with 8 17,18,29 & 20 (14 containers in total) containers from 15, 16 & 17 16 (2 containers) combined 17,18,19,20 (14 containers in total) with 12 containers from 14,15 & 17 17(4 containers) combined with 10 containers from 15, 16 & 18 17,18,19 & 20 (14 containers in total) 18(6 containers) combined with 7 containers from 19 & 20 21,22,23 & 24 (13 containers in total) 19(3 containers) combined with 10 containers from 18 & 20 21,22,23 & 24 (13 containers in total 20 (4 containers) combined with 9 containers from 18 & 19 21,22,23 & 24 (13 containers in total 21(3 containers) combined with 12 containers from 22 & 23 25,26,27 & 28 (15 containers in total) 22 (6 containers) combined with 9 containers from 21 & 23 25,26,27&28 (15 containers in total) 23 6 containers combined with 9 containers from 21 & 22 25,26,27 & 28 (15 containers in total) 24 (4 containers) 29 & 30 25(4 containers) combined with 18 containers from 26,27 & 28 31,32,33,34,35,36,37,38&39 (22 containers in total) 26(8 containers) combined with 14 containers from 25,27 & 28 31,32,33,34,35,36,37,38&39 (22 containers in total 27(5 containers) combined with 17 containers from 25,26& 28 31,32,33,34,35,36,37,38&39 (22 containers in total) 28(5containers) combined with 17 vcontainers from 25, 26 & 27 31,32,33,34,35,36,37,38&39 (22 containers in total)

25 17 of the 39 exports gave rise to a false/misleading statement charge based on the Export Clearances lodged by Unicargo. In the Statement of Claim filed on 27 August 2004 CHS was charged under s 234(1)(d)(i) of the Customs Act as to export shipments 1, 2, 3 and 4 of intentionally making a false statement to Customs, reckless as to the fact that the statement was false or misleading in a material particular namely that the honey being exported was Australian bees honey, whereas the honey was Chinese. In the Amended Statement of Claim handed up during the hearing these charges against CHS remained. It was during the final address of Customs and in the proposed Further Amended Statement of Claim that CHS was only so charged as to export shipment 1. As to export shipments 1, 2, 3 and 4 both in the Statement of Claim and the Amended Statement of Claim CHS was also charged with intentionally exporting goods to which a false trade description was applied contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act 1905 in that CHS exported the honey having intentionally procured a Bill of Lading for its transport stating that the country of origin of the honey was Australia whereas it was China. Again, during the final address of Customs and in the proposed Further Amended Statement of Claim CHS was only so charged as to export shipment 1. These matters are further considered later when I deal with the application to file the Further Amended Statement of Claim.

26 There are six charges against Ms Jing under s 234(1)(d)(i) of the Customs Act of intentionally making a statement to an officer, reckless as to the fact that the statement was false or misleading in that for each of these 6 Export Clearances she stated that the honey being exported was Australian bees honey whereas the honey was Chinese. Shipment 6 Export Clearance 31 December 2001 " 7 " 31 December 2001 " 9 " 21 January 2002 " 12 " 21 January 2002 " 13 " 21 January 2002 " 14 " 12 February 2001

27 There are 7 charges against Ms Jing under s 234(1)(d)(i) and s 236 of the Customs Act that she as to each of the Export Clearances for each of the following seven exports directly concerned herself in the commission of an offence of the then registered company Jing Wei International Trading Pty Ltd which intentionally made a statement to an officer reckless as to the fact that the statement was false and misleading in a material particular in that the company for each of those seven Export Clearances shipments made a statement that the honey being exported was Australian bees honey whereas the honey was Chinese: Shipment 5 Export Clearance 21 November 2001 " 8 " 16 January 2002 " 10 " 16 January 2002 " 11 " 16 January 2002 " 15 " 1 March 2002 " 16 " 4 March 2002 " 17 " 14 March 2002

28 There are 6 charges against Ms Jing that, contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act 1905 , she exported honey having intentionally procured six respective Bills of Lading for the following exports of the honey to which a false trade description was applied stating the country of origin of the honey was Australia whereas it was China: Shipment 6 Export Bill of Lading 8 January 2002 " 7 " " " 9 " 23 January 2002 " 12 " 6 February 2002 " 13 " 21 January 2002 " 14 " 2 February 2002

29 There are 29 charges against Ms Jing that as to each of the following 29 Export Bills of Lading, contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act and s 236 of the Customs Act she directly concerned herself in the commission of an offence by the then registered company Jing Wei International Trading Pty Ltd which intentionally exported goods to which a false trade description was applied in that the company exported the honey having intentionally procured Bills of Lading which stated the country of origin in which the honey was produced was Australia whereas it was China. (i) Shipment 5, Export Bill of Lading dated on or about 21 November, 2001 (ii) Shipment 8, Export Bill of Lading dated 22 January 2002 (iii) Shipment 10, Export Bill of Lading dated 25 January 2002 (iv) Shipment 11, Export Bill of Lading dated 25 January 2002 (v) Shipment 15, Export Bill of Lading dated 19 March 2002 (vi) Shipment 16, Export Bill of Lading dated 19 March 2002 (vii) Shipment 17, Export Bill of Lading dated 2 April 2002 (viii) Shipment 18, Export Bill of Lading dated 5 April 2002 (ix) Shipment 19, Export Bill of Lading dated 2 April 2002 (x) Shipment 20, Export Bill of Lading dated 2 April 2002 (xi) Shipment 21, Export Bill of Lading dated 2 April 2002 (xii) Shipment 22, Export Bill of Lading dated 2 April 2002 (xiii) Shipment 23, Export Bill of Lading dated 2 April 2002 (xiv) Shipment 24, Export Bill of Lading dated 2 April 2002 (xv) Shipment 25, Export Bill of Lading dated 16 April 2002 (xiv) Shipment 26, Export Bill of Lading dated 16 April 2002 (xvii) Shipment 27, Export Bill of Lading dated 12 April 2002 (xviii) Shipment 28, Export Bill of Lading dated 10 April 2002 (xix) Shipment 29, Export Bill of Lading dated 12 April 2002 (xx) Shipment 30, Export Bill of Lading dated 12 April 2002 (xxi) Shipment 31, Export Bill of Lading dated 31 May 2002 (xxii) Shipment 32, Export Bill of Lading dated 31 May 2002 (xxiii) Shipment 33, Export Bill of Lading dated 24 May 2002 (xxiv) Shipment 34, Export Bill of Lading dated 24 May 2002 (xxv) Shipment 35, Export Bill of Lading dated 24 May 2002 (xxvi) Shipment 36, Export Bill of Lading dated 24 May 2002 (xxvii) Shipment 37, Export Bill of Lading dated 31 May 2002 (xxviii) Shipment 38, Export Bill of Lading dated 31 May 2002 (xxix) Shipment 39, Export Bill of Lading dated 31 May 2002. 30 In the Statement of Claim and the Amended Statement of Claim Ms Jing was charged with being directly concerned in the commission of the offences by CHS as to export shipments 1, 2, 3 and 4 contrary to s 234(1)(b)(i) of the Customs Act and see also s 236 of the Act. In those pleadings Ms Jing was also charged with being directly concerned in the commission of the offences by CHS as to Export Bills of Lading for those export shipments contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act . During the final address of Customs and in the proposed Further Amended Statement of Claim Ms Jing was only so charged in both instances as to export shipment 1. While I am not dealing with the charges against Ms Jing, they and her conduct are at the core of the prosecution.

31 In the Statement of Claim and the Amended Statement of Claim Mr Hu, Unicargo and Mr Lam were each charged with being directly concerned in the commission of the offences by CHS as to export shipments 1, 2, 3 and 4 contrary to s 234(1)(d)(i) of the Customs Act . See also s 236 of that Act. Each was charged with the further offence of being directly concerned in the commission of offences by CHS as to each of such four export shipments contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act . See also s 236 of the Customs Act. In the proposed Further Amended Statement of Claim (which was not allowed) they were each charged with being concerned in the commission of the offences by CHS as to export shipment 1, Export Clearance of 7 August 2001 contrary to s 234(1)(d)(i) of the Customs Act and in the offence by CHS as to export shipment 1 contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act . As to export shipments 2, 3 and 4 it was proposed in the proposed Further Amended Statement of Claim to charge them with similar offences save that Ms Jing was nominated as the principal offender.

32 Mr Hu, Unicargo and Mr Lam have each been charged with being directly concerned in the commission of: (a) 6 false statement offences by Ms Jing contrary to s 234(1)(d)(i) of the Customs Act (Shipments 6, 7, 9, 12,13 and 14) and the related Export Clearances.

(b) 6 false trade description offences by Ms Jing contrary to s 12 (1)(b) of the Commerce (Trade Descriptions) Act . This applies especially to the related 6 export Bills of Lading.

(c) 7 false statement offences by the then registered Jing Wei International Trading Pty Ltd contrary to s 234(1)(d)(i) of the Customs Act (Shipments 5, 8, 10, 11, 15, 16 and 17 and the related Export Clearances).

(d) 7 false trade description offences by the then registered Jing Wei International Trading Pty Ltd contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act . This applies especially to the related 7 export Bills of Lading.

(e) 29 false trade description offences by the then registered Jing Wei International Trading Pty Ltd contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act. This applies to Export Shipments 5, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 and the related export Bills of Lading. 33 In addition to substantial evidence from a number of witnesses Customs' case was supported by four volumes of documentary material including as to the Imports the many Entries for Home Consumption, Invoices, Packing Lists, Packing Declarations, Australian Quarantine Inspection Service documents and Bills of Lading. Customs had obtained possession of documents held by Woodford (Customs broker), Unicargo and Whites. As to exports the documents obtained by Customs included Standard Export Record Advices, Commercial Invoices, Interim Receipts - Bills of Lading. Customs had obtained possession of export documents held by Unicargo, Fine Quality Master Print (CHS) and Whites. An examination of the documents was helpful. They enabled amongst other things, the identification of the various alleged offences.

34 Defences of CHS and Hu Both filed long detailed defences. These put many matters in issue. At the trial the issues were somewhat narrower.

35 Defences of CHS As to import shipment 1, the false statement offence CHS submitted that Customs had failed to establish beyond reasonable doubt that it (CHS) intentionally made or caused to be made a statement to an officer, reckless as to the fact that `the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act . As to import shipment 2 and the false statement by omission charge CHS submitted that Customs had failed to establish beyond reasonable doubt that it, (CHS) intentionally omitted or caused to be omitted from a statement to an officer any matter or thing, reckless as to the fact that without the matter or thing, the statement was misleading in a material particular contrary to 34(1)(d)(ii) of the Act.

36 As to import shipment 1 and the false trade description charge CHS submitted by way of defence in reliance upon s 9(2) of the Commerce (Trade Descriptions) Act that it did not intentionally import the honey in contravention of s 9 (1) of that Act, namely that a person shall not import any goods (honey) to which a false trade description is applied.

37 CHS' defence was based on Mr Hu not having the requisite knowledge or intent and therefore in the circumstances, CHS did not have the requisite knowledge to have committed the offence alleged.

38 Exports As to Export Shipment 1 and Export Clearance on 7 August 2001 CHS submitted that Customs had failed to establish beyond reasonable doubt that CHS intentionally made or caused to be made a statement to an officer, reckless as to the fact that the statement was false or misleading in a material particular.

39 As to export shipment 2, export clearance on 12 October 2001, export shipment 3, export clearance on 15 October 2001, export shipment 4, export clearance on 16 October 2001 Customs did not press its case against CHS in its final address on 23 July 2007, contending that the reference in each of the sub-paragraphs (i) of the allegations as to these shipments to the First Defendant should read the Third Defendant. This is reflected in the Amendments included in the proposed Further Amended Statement of Claim. Senior Counsel for Customs explained the position at T250. Similar considerations apply to the false trade description charges allegedly against CHS following those shipments and the related Bills of Lading. These charges were also not pressed as at 23 July 2007, Customs anticipating that it would be given leave to further amend its statement of claim.

40 However, in the event of such leave being refused Customs pressed the case it originally made against CHS as to export shipments 2, 3 and 4. It also contended that s 251 of the C ustoms Act applied to cure any defect or variance, but I did not agree as different principal offenders were being nominated and different intentions were involved. See later where I have discussed the proposed amendments. I subsequently made findings as to those export shipments.

Defences of Mr Hu 41 Counsel for Mr Hu contended: "Principally, the allegations against Mr Hu are aid and abet charges, Therefore they require knowledge. His defence is that he did not have the knowledge of the particular matters."

43 Imports As to import shipments 1 and 2 Mr Hu submitted that as CHS did not commit an offence therefore he did not aid and abet the commission of an offence by CHS.

44 As to import shipments 3, 4, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 and the 18 charges against Ms Jing arising from these 18 shipments of a false statement in each Entry for Home Consumption that the country of origin of the honey was Singapore Mr Hu submitted that he had no specific knowledge of the 18 particularised Import shipments or any statements made by Ms Jing to an officer in relation to such shipments. It was further submitted that there was no established criminal act or criminal intent of Mr Hu in relation to any statement made by Ms Jing to an officer in relation to such shipments.

45 As to import shipment 5 and the offence alleged under s 234(1)(d)(ii) - false statement by omission - Mr Hu said that he had no specific knowledge of import shipment 5 or any intentional omission from a statement of Ms Jing to an officer as to such shipment. Mr Hu denied any established criminal act or intent on his part as to any statements made by Ms Jing to an officer as to such shipment.

46 Further, Mr Hu denied that CHS intentionally imported the honey in contravention of s 9(1) of the Commerce (Trade Descriptions) Act and denied aiding and abetting the commission of an offence by CHS.

47 As to the 18 shipments 3, 4, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 and the 18 false trade description charges under s 9(1) of the Commerce (Trade Descriptions) Act Mr Hu denied any specific knowledge of the 18 import shipments to which a false trade description was applied in the Entry for Home Consumption. Mr Hu also denied aiding and abetting Ms Jing's importation of the 18 import shipments in contravention of s 9(1) of the Commerce (Trade Descriptions) Act . Although no reference is made to s 9(2) of that Act in Mr Hu's written submissions on this point, I have assumed that this is covered in his denial, but whether an aider and abettor can rely on s 9(2) is debatable.

48 Exports As to Export Shipments 6, 7, 9, 12, 13 and 14, the related Export Clearances and the charges that Mr Hu was directly concerned in the commission by Ms Jing as to each such Export Clearance of intentionally making a statement to an officer reckless as to the fact that the statement was false and misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act in that Ms Jing made a statement to Customs that the honey was Australian bees honey whereas the honey was Chinese, Mr Hu denied that he had any specific knowledge of such export shipments or of any intentional statement made by Ms Jing to an officer in relation to such shipment; Mr Hu denied any established criminal act or criminal intent on his part in relation to any statements made by Ms Jing to an officer in relation to such shipments.

49 As to Export Shipments 5, 8, 10, 11, 15, 16 and 17, the related Export Clearances and the 7 charges that Mr Hu was directly concerned in the commission by the then registered Jing Wei International Trading Pty Ltd as to each of such export clearances, of intentionally making a statement to an officer, reckless as to the fact that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act in that Jing Wei International Trading Pty Ltd for each shipment stated to Customs that the honey was Australian bees honey, whereas the honey was Chinese

Mr Hu denied that he had any specific knowledge of such shipments or of any intentional statement made by Ms Jing (acting on behalf of Jing Wei International Trading Pty Ltd) to an officer in relation to such shipments. Mr Hu denied any established criminal act or criminal intent on his part in relation to any statements made by Ms Jing to an officer in relation to such shipments. I interpolate that any statement, ostensibly made by Jing Wei International Trading Pty Ltd was probably made by Ms Jing acting on its behalf. Mr Hu was asserting that he had nothing (or virtually nothing) to do with what Ms Jing told Customs even if via Unicargo and Mr Lam.

50 As to Export Shipment 1, the related Bill of Lading and the false trade description charge against CHS contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act that the country of origin of the honey was Australia whereas it was China and the charge that Mr Hu was directly concerned in the commission of that alleged offence, Mr Hu asserted that CHS did not intentionally procure a Bill of Lading for the transport of that shipment stating that the country of origin of the honey was Australia whereas it was Chinese. Mr Hu denied that he aided and abetted the commission of an offence by CHS.

51 As to Export Shipments 6, 7, 9, 12, 13 and 14 and the related Export Bills of Lading and the 6 false trade description charges contrary to s 12(1)(b) of the Commerce Trade Descriptions) Act against Ms Jing and the 6 charges against Mr Hu of being directly concerned in the commission of the offences by Ms Jing, Mr Hu denied that he had any specific knowledge of such shipments or any intentional statement made by Ms Jing to an officer in relation to such shipments. Mr Hu denied any established criminal act or criminal intent on his part in relation to any statement made by Ms Jing to an officer in relation to such shipments.

52 As to the 29 Export Shipments 5, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 and the associated Export Bills of Lading and the 29 alleged false trade description offences contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act committed by the then registered Jing Wei International Trading Pty Ltd and the 29 charges against Mr Hu that he was directly concerned in the commission of the 29 alleged offences by Jing Wei International Trading Pty Ltd, Mr Hu denied that he had any specific knowledge of such shipments or Ms Jing's intentional procurement of Bills of Lading for the transport of such export shipments. This defence proceeds on the basis that the intention of Ms Jing and that of her company Jing Wei International Trading Pty Ltd were identical or at least substantially identical. Mr Hu further denied that there was any established criminal act or criminal intent on his part in relation to Ms Jing's intentional procurement of Bills of Lading for the transport of such export shipments. Mr Hu denied having any actual knowledge of Ms Jing's contraventions of s 12(1)(b) of the Commerce (Trade Descriptions) Act 1905 .

53 Defences of Unicargo It was contended that it was merely an agent or conduit for passing the documents supplied by the importing defendants to the Customs broker. As to the application of false trade description charges, Unicargo contended it had nothing to do with the preparation or the application of the labels applied to the goods (drums of honey). Unicargo contended it had no knowledge of the alleged illegal activities of the honey importers and so could not have aided and abetted such activities.

54 As to the charges against it under the Customs Act relating to the exports, Unicargo's case was that it was acting as the agent of the honey exporters and made declarations to Customs on the basis of documents provided by the honey exporters.

55 As to the charges against it under the Commerce (Trade Descriptions) Act relating to the exports Unicargo contended it had nothing to do with the preparation or application of the labels and did not aid or abet false descriptions being applied to the goods. It also contended that it had no knowledge of the alleged illegal activities of the honey exporters and so could not have knowingly been a part of the exporters' alleged illegal activities.

56 In its closing submissions Unicargo contended that it was the innocent dupe of the importers and exporters of the honey and so could not have: (i) aided and abetted any false declarations to Customs by the importers (or exporters) of the honey when the honey was imported (or exported) and

(b) aided and abetted any false commerce markings being applied to the imported or the exported goods.

57 Unicargo denied that it was directly concerned in the commission of each of the 29 alleged offences by the then registered company Jing Wei International Trading Pty Ltd contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act - false trade description in Export Bills of Lading stating the country of origin of the goods (honey) was Australia (Australian) whereas it was China.

58 Unicargo denied the claims for conviction of Unicargo of these alleged aiding and abetting offences: (a) of the alleged false statement offence by CHS contrary to s 234(1)(d)(i) of the Customs Act - import shipment 1; (See para 4 of Unicargo's defence and para 114 of the Amended Statement of Claim - "A/S/C")

(b) of the alleged false statement by omission offence by CHS contrary to s 234(1)(d)(ii) of the Customs Act - import shipment 2; (See para 4 of Unicargo's defence and para 115 of the A/S/C )

(c) of the alleged 18 false statement offences by Ms Jing contrary to s 234(1)(d)(i) of the Customs Act - import shipments 3, 4, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26; (See para 4 of Unicargo's defence and para 116 of the A/S/C) (d) of the alleged false statement by omission offence by Ms Jing contrary to s 234(1)(d)(ii) of the Customs Act - import shipment 5; (See para 4 of Unicargo's defence and para 117 of the A/S/C) (e) of the alleged false trade description offence by Ms Jing contrary to s 9(1) of the Commerce (Trade Descriptions) Act - import shipment 5 ( See para 4 of Unicargo's defence and para 118 of the A/S/C) (f) of the 18 alleged trade description offences by Ms Jing contrary to 9(1) of the Commerce ( Trade Descriptions) Act - import shipments as stated in sub-para (c) above; ( See para 4 of Unicargo's defence and para 119 of the A/S/C)

(g) of the alleged 4 false statement offences by CHS contrary to s 234(1)(d)(i) of the Customs Act - (export shipment 1, 2, 3 and 4 (1 alleged false statement offence in the proposed Further Amended Statement of Claim - export shipment 1) (See para 4 of Unicargo's defence and para 120 of the A/S/C)

(h) of the 6 alleged false statement offences by Ms Jing contrary to s 234(1)(d)(i) of the Customs Act - export shipments 6, 7, 9, 12, 13 and 14 and the related export clearances; (See para 4 of Unicargo's defence and para 121 of the A/S/C).

(i) of the 7 alleged false statement offences by Jing Wei International Trading Pty Ltd contrary to s 234(1)(d)(i) of the Customs Act export shipments 5, 8, 10, 11, 15, 16 and 17 and the related export clearances; ( See para 4 of Unicargo's defence and para 122 of the A/S/C) (j) of the 4 alleged false trade description offences by CHS contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act - export shipment 1, 2, 3 and 4 (1 alleged false trade description offence in the proposed Further Amended Statement of Claim - export shipment 1); (See para 4 of Unicargo's defence and para 123 of the A/S/C) (k) of the alleged 6 false trade description offences by Ms Jing contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act - export shipments as stated in sub-para (h) above and related Bills of Lading; (See para 4 of Unicargo's defence and para 124 of the A/S/C) (l) of the 29 alleged false trade description offences by Jing Wei International Trading Pty Ltd contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act - Export Shipments 5, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 and the related Bills of Lading. (This duplicates an earlier paragraph) (See para 4 of Unicargo's defence and para 125 of the A/S/C)

59 In the above list I have briefly referred to the number of alleged offences by CHS, Ms Jing and the then Jing Wei International Trading Pty Ltd. Unicargo was charged with aiding and abetting each such offence.

60 While paragraph 4 in Unicargo's defence denied each of the claims to relief in paras 114 -125 of the A/S/C I have taken them to also be a denial that it was directly concerned with the commission of the alleged offences. That was the basis on which the trial was conducted. In para 7 of Unicargo's defence it is stated, "Further each and every allegation that is not specifically admitted is deemed denied. …".

61 Unicargo also denied Customs claims to penalties against it not exceeding $1.002,000 and an order for costs.

62 Defences of Mr Lam In both his opening and closing submissions the solicitor for Mr Lam stressed that Mr Lam had no knowledge of the alleged illegal activities of the honey importers and exporters and so could not have knowingly been a part of any of the importers' and exporters' alleged illegal activities and could not have knowingly aided and abetted any of the actions of the principals engaged in importing and exporting the honey.

63 It was further submitted that any actions of Mr Lam were in the normal course of his employment with Unicargo and so it was vicariously liable for any actions of Mr Lam and so Mr Lam could not be found guilty of the charges laid against him. This submission must be rejected. An employee is not relieved of liability for his acts simply because his employer is vicariously liable. The terms of s 236 of the Customs Act also render the submission unsustainable.

64 The formal Defence of Mr Lam is in the same terms as that of Unicargo, subject to different paragraph numbers. He faces the same charges of aiding and abetting and being directly concerned in the commission of the alleged offences by CHS, Ms Jing and the then Jin Wei International Trading Pty Ltd. He resists the claim for penalties not exceeding $1,002,000 and an order for costs being made against him.

65 The Evidence There was no dispute that the various imports and exports of honey alleged occurred and the relevant details of these were averred in the A/S/C. Electronic Entries for Home Consumption were submitted to Customs by the Customs Broker. Instructions were given by Ms Jing to Mr Lam along with the relevant documents, Mr Lam arranged for members of Unicargo, principally Mr Cho to forward the necessary information and materials to the Customs broker so that the goods could be cleared through Customs. Instructions were given by Ms Jing to Mr Lam to obtain an Export Clearance from Customs and this was arranged by Unicargo. No Customs broker was employed to procure an Export Clearance. The requisite documents were prepared.

66 What was principally in issue in these proceedings was the knowledge and intention of Mr Hu, Unicargo and Mr Lam. Mr Hu's knowledge and intention played a major role in determining the knowledge and intention of CHS. However, in the case of the two imports and four exports where it was nominated there are further factors to be considered.

67 Mr Hu and Ms Jing married on 8 June 1998. In 2001 and previously he and his company (CHS) were running a printing business which traded under various names. Ms Jing said that she attended the business/factory and assisted with tasks such as packaging and folding. Ms Jing visited her family in Kunshan China in early 2001. The verified statement attached to her affirmation conveys the impression (mistakenly) that this visit occurred in mid-2001. She returned to Australia in late March 2001.

68 Ms Jing said that during that visit her brother introduced her to his friend, Tony Xiao Gang, the general manager of a Chinese Government-owned food corporation, Kunshan Xinlong Food Company (Kunshan Food). Mr Jing also met a woman called Ni Ping, its Vice-President. Mr Gang outlined a proposal to send honey from Asia to Australia and then to re-export it to the USA labelled as Australian honey. Although Mr Gang was not specific about where the honey was produced Ms Jing gathered that the honey was of Chinese origin. Mr Gang referred to the USA's anti-dumping laws against Chinese honey and said that USA importers were also involved in the venture and knew all about it.

69 She said that she was not involved in discussions for the shipments of honey to the USA as the arrangements were made directly between Kunshan Food and importers in the USA. She said that she was to receive $50 per day for her participation in the venture. Her role was to make arrangements in Australia for the importation of the honey and to arrange for its export to the USA in the quantities and to the consignees and destinations which Kunshan Food had arranged and nominated. She was to seek out and obtain assistance in Australia in the importing and exporting of the honey. Ms Jing said that she was told by the "Chinese side" that what was proposed was just a normal re-export business and that she understood that it was not an unlawful enterprise. She did not believe that the Chinese Government would ask her to do anything that was illegal. She said that she did not immediately agree to take part in the scheme.

70 On her return to Australia, initially fixed by her in about mid-2001 but subsequently shown to be in late March 2001, she said that she discussed with Mr Hu what had been proposed by Kunshan Food about importing and exporting honey. Ms Jing agreed that she told Mr Hu that she may have a chance of doing an import/export job because of the good contact with China through her brother's friend who worked for the Chinese Government doing export/import work. She was worried about her lack of English language skills and never having done previously the kind of work proposed. Ms Jing told Mr Hu that the job involved importing goods from Asia to Australia and then exporting them to the USA, labelled as Australian honey. She said that she did not tell Mr Hu that the proposal was designed to avoid paying extra fees in the USA. She had been told by the Chinese side that the reason for the proposal was to obtain "the tax refund from the Government."

71 Ms Jing said that she told Mr Hu that the Chinese side would be responsible for sending the goods (honey) to Australia, she would receive the goods and go through the Customs agent for all the paperwork and the Chinese would be responsible for all contacts with the clients in the USA. Ms Jing agreed that Mr Hu said that this sounded like a good job and she should have a try. He said that she could certainly handle such a business. Ms Jing stated Mr Hu said that he could help her, that it might be difficult, that slowly she would get used to the work and that she may obtain experience and increase her work skills. She told Mr Hu that she wished to engage in the import/export business but it would be difficult for her to make arrangements because of her very limited English.

72 Ms Jing said that she asked Mr Hu to look for some Customs agent to help them. He replied that he knew someone who was his agent for importing/exporting printing machinery and that this gentleman could also speak Mandarin and that this would be good for her. Mr Hu called him Mr Ling but later on she realised that Mr Ling was Gordon Lam. Ms Jing said that she agreed to see Mr Lam.

73 Ms Jing said that about a week later Mr Hu took her to Mr Lam's premises and introduced her to Mr Lam. She had a conversation with Mr Lam, Mr Hu sitting beside her in the small room. Ms Jing said that she explained the proposal to Mr Lam in Mandarin, that is, that honey was to be shipped from China to Australia and that it was to be re-labelled in Sydney as Australian honey before being sent to the USA. The Chinese side said that one container should be imported first as a trial. Mr Lam said that this was a good idea. She said that Mr Lam said to her, "One way you can export this honey as Australian honey is that you can buy some local honey and blend it with the Chinese honey." Ms Jing stated that Mr Lam said that he would use a storage depot where the incoming containers could be unloaded and their cargoes re-containered and sent for export. She later learned that the depots were AAMAC for the first import/export shipment and White Heavy Haulage for all subsequent imports and exports.

74 I interpolate the following which emerged during Ms Jing's cross-examination: (a) She was not aware of Mr Hu getting any money out of the 12 months importation and exportation of honey.

(b) Mr Hu was engaged in the business of printing and not that of importing.

(c) Mr Lam spoke Mandarin (Mr. Ling was the better pronunciation of his name in Mandarin).

(d) She opened several accounts (about six) at the HSBC Branch in George Street Haymarket and dealt there with a person who spoke Mandarin. She used an accountant who spoke Mandarin. 75 Ms Jing said that the instructions regarding the import/export of the honey from the Chinese side came either by telephone or by FAX and that sometimes Mr Hu received a telephone call or FAX and sometimes she received FAXES and telephone calls. She also said that she was not aware whether Mr Hu gave instructions to Mr Lam.

76 Ms Jing said that the instructions she received by FAX were written in Chinese. Telephone instructions received were relayed in Mandarin.

77 Ms Jing agreed that about mid-2001 she said to Mr Hu words to this effect, "I don't have a company", adding "What should I do?" She said that Mr Hu replied, "You can use my company." She said "he introduced CHS company for me to use that company." She added that, as she promised, she had her company registered very soon and then she used her company instead of his. She was to use CHS until her company was registered.

78 She said that she did not know why the staff of Gordon Lam's company (Unicargo) continued to use CHS after her company had been registered. CHS was the importer and exporter for the first importation of honey. It was after the first importation of honey that she had her company registered.

79 Ms Jing said that she understood that in Australia she had to have more than one person involved in a company. She said that she asked Mr Hu if she could put him down as a minority shareholder in her company. Some time later she recorded Mr Hu's name as a shareholder in Jing Wei International Trading Pty Ltd.

80 Ms Jing said that she asked Mr Hu to help her find honey locally so they could blend the Australian honey with the imported Chinese honey. Ms Jing said that her husband made some telephone calls but there was no Australian honey available to them. Bushfires and drought had caused a shortage of Australian honey.

81 Ms Jing said that when the first shipment arrived in Sydney about 2 August 2001 she was advised by Mr Lam that AQIS (Australian Quarantine Inspection Service) required labels showing the country of origin to be attached to each of the drums and that the containers and drums should be very clean. She told Mr Hu of these requirements. She said that she ensured that labels "Made in China" were attached to the drums. She said that accompanying commercial documentation referred to Singapore (or Port Kelang) as the country of origin.

82 Ms Jing stated that after the first shipment arrived she telephoned Vice President Ping at Kunshan Foods and asked her to confirm that the honey was Chinese. Ms Ping told her that she should not be concerned about the source of the honey because it was "normal transit trade" (that is a normal part of trade to import goods into one country on their way to another). Ms Ping told Ms Jing not to be "nosey" and just follow the Chinese instructions. Ms Jing said that she also mentioned to Ms Ping "mixing the imported honey with Australian honey" and that Ms Ping agreed that she (Jing) should try to get hold of some Australian honey.

83 Ms Jing said that she spoke to Mr Lam on the telephone and at a meeting about the unsuccessful inquiries to obtain Australian honey.

84 Ms Jing first said that she, Hu and Lam had a meeting at a coffee shop near Mr Hu's factory. She subsequently corrected this statement by deleting the reference to Mr Hu being present at the meeting. He was not present. She said that she told Mr Lam that there was no chance of obtaining Australian honey and asked him what she should do. She said Lam replied, "There's another way to do this. If all the costs of the importation together are over 30 per cent, in other words, if the costs like shipping, transport, Customs duties, clearance costs, storage and cleaning costs are taken together and are more than 30 per cent of the original price, you can say that it's Australian honey." She said that they did not discuss whether the imported Chinese honey would or could meet these criteria.

85 Ms Jing said that from 2 August 2001 onwards, the shipments of honey began to steadily arrive, that she did not mention the question of payment and costs as to the containers to Mr Lam at any stage, that she did not check the costs but left all that to Mr Lam, paying him what he asked from the money received for the exports to the USA. She was aware that Mr Lam used the Customs broker, Woodford, to clear the containers through Customs. She never met Mr Woodford. She said that Mr Lam organised the clearances, quarantine inspections and the later exports of the 125 container loads of honey and that he assisted her with everything which needed to be done.

86 She said that she provided Mr Lam with copies of all the commercial documents for the containers of honey and that she usually received these documents in the post from Kunshan Foods. Mr Lam notified her of a time when she could attend at White's to put the Australian origin labels on the drums of honey. She said that Mr Lam made arrangements for the export of the honey to the USA leaving sufficient time after the goods arrived so that Mr Hu and she could remove the existing "Made in China" labels on the drums and replace them with labels stating that it was Australian honey. In her unsigned statement she said that Mr Hu had these labels printed up. She said in paragraph 4 of her affirmation of 18 June 2007 that this statement was not true and correct and should be deleted.

87 Ms Jing said that Mr Lam organised for the exportation of the honey on suitable vessels in accordance with the instructions she received from China and passed on to Mr Lam including as to the split-up of the drums in incoming containers. If she did not hear from Mr Lam when she thought she should she telephoned his office. Her assertion that she never spoke to anyone at Unicargo other than Mr Lam on major matters is probably correct having regard to the language difficulties, and Mr. Lam speaking some Mandarin. Ms Jing said that on occasions she met Mr Lam at White's when Mr Hu and she were putting Australian labels on drums of honey.

88 Ms Jing said that the only physical work she did as to the Chinese honey was washing any leaking honey and other dirt from the outside of the drums, detaching the "Made in China" labels and putting the new ones on. She said that in this task she was always helped by Mr Hu who drove her to Sydenham each time that word was received from Mr Lam that a new consignment had arrive at White's. She added that on occasions Mr Hu hired someone to help with the cleaning and re-labelling.

89 Ms Jing was aware that millions of dollars were paid into the various bank accounts from the USA. She said that she remitted moneys from these accounts at HSBC to China as requested.

90 She said in her unsigned statement that as to the exportations of honey Mr Hu and she used the names Jing Wei International Trading Pty Ltd, JW International Trading Pty Ltd, JHM Trading Co and CHS Enterprises as owners of the goods (para 21). In paragraph 5 of her affirmation she said that paragraph 21 was incorrect and should read: "In relation to the exportations of honey, my ex husband and I used the name Jing Wei International Trading Pty Ltd (or abbreviated as, and also known as, International Trading Pty Ltd) and CHS Enterprises Pty Ltd, the first defendant, which belongs only to my ex-husband. As to the importations, JHM Trading Co which belongs to me was used and CHS Enterprises Pty Ltd was used."

91 I gathered from some of the documents that the abbreviated name of Jing Wei International Trading Pty Ltd was JW International Trading Pty Ltd

92 Ms Jing said that she went to China about 17 August 2002. There Ms Ping told her that similar honey import and export ventures set up in Thailand and Malaysia had been raided by Customs authorities in those countries. Ms Jing said that she was encouraged by Ms Ping to stay in China and she (Jing) stayed there for about 18 months. Ms Jing said that in late August 2002 Mr Hu telephoned her in China stating that Australian Customs had executed warrants at his commercial premises. She returned to Sydney from China about 29 March 2004.

93 Ms Jing said that Mr Hu was not in charge of the importing and exporting of honey during the period mid 2001 - mid 2002, that she was in charge but he assisted her. He drove her to Sydenham because she did not drive her motor vehicle as she was too scared to drive. She said that he not only transported her but he also assisted in detailed work. Generally Mr Hu would stay with her, do the tasks with her and they would leave together. Ms Jing said that the FAX and telephone services used by her when dealing with the Chinese side were located at Mr Hu's business premises. Generally she received the telephone calls and FAXES from China but when she was not present at Mr Hu's business premises Mr Hu passed these on to Ms Jing to whom they were directed.

94 It was pointed our that the statement of claim was filed on 27 July 2004, that Ms Jing and Mr Hu separated on 17 August 2004 and that they were divorced in March 2006.

95 At the hearing on 17 July 2007 there was some confusion as to the labelling of the drums. Cross-examining counsel endeavoured to clarify this matter early on 18 July 2007. Ms Jing said that when the drums of honey came in from China there were labels on those drums, sometimes the labels did not mention the place of manufacture or the manufacturer. AQIS required the importer to "put on the place of the product". She put labels on drums when AQIS required them to carry further information. The first set of labels was put on the drums on the same day as she cleaned the drums. She had a second set of labels stating the Australian origin of the honey. Such labels were put on the drums after they had been cleaned and on a different day.

96 Ms Jing agreed that it was she who gave instructions to Unicargo about anything that was to happen with the movement of the imported honey when it arrived in Australia and that she instructed Unicargo to have the imported drums of honey stored until she was ready to export them.

97 Ms Jing said that Mr Lam was not present at the warehouse for the first shipment of the goods (honey) but he was present once or twice at the warehouse when she put labels on other shipments. Ms Jing said that after she received instructions from the Chinese as to the export of containers to various places in the USA she sent a FAX to Mr Lam.

98 Ms Jing agreed that she provided all the documents to Mr Lam which were used to make her import declarations to Customs and that she provided the documents to Mr Lam to make her export declarations to Customs including the commercial invoices for her exports to the USA which stated that the goods were of Australia origin. She denied telling Mr Lam that the honey would be processed in Australia before it was exported to the USA.

99 Ms Jing was adamant that Mr Lam told her that if she wanted to import honey and then export to another country as Australian honey the imported honey had to be mixed with local Australian honey and also that if the total cost of exporting the honey is 30 per cent more than the import price the honey could be claimed to be of Australian origin. Ms Jing denied that at her first meeting with Mr Lam he told her it was necessary to have 50 per cent Australian content for the honey to be classed as Australian honey.

100 Ms Jing said that she was planning to mix Australian and Chinese honey but no Australian honey could be obtained and that she told Mr Lam about that. Ms Jing said that she told Mr Lam that the honey "should be all ready" because the Quarantine inspections always inspect the honey and they would take some samples and check the product and that the department always provided me the testing report, check the report, … that means the imported honey has already met the Australian requirements." She said Mr Lam then told her, "There should not be any problem, I am an honest man and I will not do any illegal things." This alleged conversation was in issue and I am unable to make a finding as to it.

101 Ms Jing, when asked whether she had told Mr Lam that when she put Australian origin on the export commercial invoices that that was not the truth replied that "because 'we' once mentioned about it."

102 Ms Jing agreed that she did not tell Mr Lam that she was not mixing or did not mix Chinese and Australian honey.

103 Ms Jing said that all the dealings with Whites were conducted by Mr Hu and that he came to White's once. None of Mr Lam's staff went to Whites to help her work on the drums.

104 After Ms Jing gave evidence before Howie J on her plea of guilty there was a telephone conversation between Ms Jing and Mr Lam. She stated that he said, "I hope you can say that I didn't know anything about this." However, Mr Lam stated that he said, "I hope that you are not going to distort the facts." She denied that and maintained that her version of what was said was correct. Ms Jing said that Mr Lam did not threaten her during the conversation. Both Mr Lam and Ms Jing impressed me as strong and determined. Mr Lam appeared to be blunt and forceful and Ms Jing as wily and manipulative and anxious to have her share of responsibility and wrong-doing reduced. I am not able to determine even on the balance of probabilities what was said.

105 Mr J S Woodford, Customs broker stated that he had dealt with Unicargo since 1989 and on a daily basis in 2001/2002. He described the procedure as to the processing/clearing of goods on Unicargo's behalf. When a shipment of goods is to be lodged Unicargo sent him a FAX stating the relevant information as to the shipment to be cleared. This FAX included at least copies of the commercial invoices, bill of lading for the shipment, an instruction sheet, packing list if held, packing declaration and, if needed, fumigation certificate and certificate of origin. He registered the documents internally, created a Customs Nature 10 Entry and electronically lodged this entry on behalf of Unicargo's client with Customs. If there was a query from Quarantine he notified Unicargo as to what had to be done and the created an electronic JEMS entry and they would deal directly with Quarantine. If there were no problems with the shipment once it had arrived and the status had been cleared by Customs, he made the appropriate payment to Customs.

106 Prior to this the consignee of the goods had received an arrival notice and Ms Jing advised Unicargo.

107 Mr Woodford agreed in cross-examination and as is evident from the Entry for Home Consumption that the Customs Entry declares the tariff heading from Schedule 3 of the Customs Tariff Act and the amount of duty and GST to be paid. Mr Woodford indicated that the Customs broker accepts the invoices supplied to him at face value unless he sees something that he feels is not correct. If he has no reason to query the value or description etc he does not make any checks.

108 Ms A Patrick was the owner and manager of White's Heavy Haulage. White's is a general transport company, one of whose clients is Unicargo. She dealt with Gordon Lam on major matters and David Cho , the office manager on operational matters. She said that in August 2001 Mr Lam contacted her about transporting and handling cargo on behalf of Unicargo's client, JHM Trading Company. She was advised that it would be importing and re-exporting drums of honey in 20 foot shipping containers. On the containers being transported to White's storage facility White's unpacked the drums from the containers, stored them in its warehouse, repacked the drums into new designated 20 foot shipping containers and transported the containers to the wharf for export.

109 Ms Patrick said that in the period August 2001 to May 2002 she met with Gordon Lam on about three occasions at White's Sydenham warehouse with such meetings being in response to telephone calls to him complaining about the messy and dirty state of the drums and the containers. He said that he would get on to the owners. He stated that the owners would arrange for the drums to be cleaned. He asked her to tell him when the drums were unpacked and said he would tell the owners. Shortly after her first complaint, Mr Lam attended with Mr Hu and Ms Jing (introduced as Robin Hood and Corina) whom Mr Lam said were the owners of JHM Trading Company. Ms Patrick had difficulty in understanding the English expression of Mr Hu and Ms Jing.

110 From time to time thereafter either Ms Jing or Mr Hu or one of them attended at White's premises and brought with them about five to six helpers. On most occasions it was Ms Jing who attended. She supervised the cleaning of the drums and cleaned some herself. This process took place from about 6pm to 9pm at least three times per week and sometimes on weekends in the period August 2001 - May 2002. Ms Patrick said that except when she was off site the owners came to see her. During the period mentioned and to date White's premises have always been secured by a locked gate when no-one was working there and by guard dogs. Some of the drums were stored in an unlocked shed and from time to time when there was insufficient room in the shed some drums were stored in the yard outside the shed. It was not suggested that there had been any outside interference.

111 In cross-examination Ms Patrick agreed that Ms Jing was usually driven to White's premises by Mr Hu. On some occasions Mr Hu dropped Ms Jing off and drove away. On other occasions he attended with her. He was not there as much as she was. Ms Patrick did not keep a record. She was unable to say whether he stayed on but about four occasions. She was aware that he operated a printing business.

112 Ms Patrick said that she did not deal with Mr Lam on an operational basis but with Unicargo's staff. She said it was not unusual for imported containers to be brought to White's premises and unpacked, the contents stored and then exported within a short period.

113 Mr M Hollis, a Customs officer, said that while assisting in the execution of a search warrant at the Petersham premises on 22 August 2002 he saw Mr Hu enter the premises. A little later he saw a black steel drum on the top row of a pallet rack. Mr Hollis drew a sample of the contents of the drum. In the afternoon he attended, again with other officers, at White's premises. A warehouse was full of black drums which bore labels which read: " CMS

NW 290 KGS GW 311.50 KGS Expiry Date July 2004 Made in China" 114 The date "22 August 2002" may need to read "23 August 2002".

115 On 4 September 2002 Mr M L Murray, a Customs Officer assisted by Mr Hollis conducted a lengthy interview with Mr Hu. Mr Murray told Mr Hu of the allegations he was investigating, namely, that : (a) JHM Trading, CHS Enterprises Pty Ltd, JW International Trading Pty Ltd, Jing Wei International Trading Pty Ltd and Mr Hu or persons using names on behalf of those bodies knowingly or recklessly made a statement to an officer of Customs that is false or misleading in a material particular.

(b) JHM Trading, CHS Enterprises Pty Ltd, JW International Trading Pty Ltd, Jing Wei International Trading Pty Ltd and Mr Hu or other persons using names on behalf of such bodies intentionally applied a false trade description to goods intended or entered for export etc.

The interview reveals that Mr Hu's English comprehension and expression are restricted but sufficient to do business and generally get by

116 I have listened to the tapes at length. There are parts which are not easy to follow and parts where it is not possible to ascertain what is being said. The latter are described in the tapes transcript as "indecipherable". There are frequent "beeping" sounds on the tapes and sometimes the various noises obscure what is being said. The transcript is substantially accurate and generally the differences between the transcript and what I thought was being said are too minor to trouble about. There is one matter I would mention. On p 24 of the transcript this is recorded: "Murray: Okay, so who is the company in Singapore that your wife might be dealing with

Hood: I think was called (indecipherable) or something." In lieu I thought Mr Hu's response was:

Mr Hu's response to further questions was that he did not know for a fact that they were in Singapore. Top Food Co., Ltd was the name on some of the Invoices used in connection with some of the imports.

117 I will briefly summarise in the following paragraphs some of what Mr Hu said in his interview.

118 Mr Hu stated that in Australia his wife (Ms Jing) was employed one night at a company he thought was Xinlong Food Company, a Chinese company handling food products. They did exporting and making (indecipherable but probably food products) She cannot speak much English. The company told her what she was to do. She was to import honey from Singapore and then export it to the USA. Ms Jing was told to open her own company by Xinlong. Ms Ping, on behalf of Xinlong told Ms Jing what to do in relation to an order.

119 Mandarin is the only language she really speaks. To operate the business people are found who are able to speak Mandarin. Most of the times the Chinese made contact with Ms Jing by FAX or telephoning her on Mr Hu's telephone (at the factory). Ms Jing did not undertake any written correspondence in English in Australia. Her accountant and her bank are Chinese and Mr Gordon Lam of Unicargo mainly speaks Cantonese but also a little Mandarin. Ms Jing was too scared to drive.

120 Mr Hu said that he and Ms Jing had a joint Savings account with ANZ Bank. He thought she had an account with HSBC, Chinatown Branch and that was her business account. Mr Hu was not able to remember the names of the people or companies with whom Ms Jing dealt overseas. He said that she made contact with people overseas by telephone. They spoke Chinese. In Australia Ms Jing made contact with the Bank and Unicargo.

121 When she used his company to import the goods the first time he did nothing to help Ms Jing because she did everything by herself. He believed she arranged for Unicargo to do everything. She spoke to Unicargo. Mr Hu said that when his company, CHS Enterprises was being used by Ms Jing to import honey she told him that the container came from Singapore. Mr Hu said that he did not know for a fact that the company Ms Jing was dealing with was in Singapore and that even his wife "don't know nothing". Mr Hu added, "so maybe she knew everything's from China … she knew when got to be in Australia and knows who's got to buy this work and the person or company buy the container and in America and that's everything all the information she getting from Singapore." Mr Hu agreed with Mr Murray that Ms Jing had "been directed by (indecipherable) in all the dealings in relation to honey".

122 Mr Hu stated that Ms Jing was still getting a wage in China, but the amount is far from clear Mr Hu believed that the Chinese were paying for the cost of his wife to stay in China. Mr Hu indicated that with his long working hours Ms Jing was lonely in Australia. She sought more contact with China. He thought that she probably went back to work with the Chinese company. He did not know whether the company she worked for was a commercial business or part of the Chinese Government. Mr Hu did not know whether the Chinese Government had any influence over companies.

123 Mr Hu said he knew nothing about a false trade description being applied to the goods (honey) being exported. He was not involved in any way. She never let him be involved. He did not help her in anyway other than ask a few questions. Mr Hu said he did not do any export work. He ran a printing business. CHS Enterprises Pty Ltd conducted just a printing business. He was a director and the "100 per cent shareholder" of the company. It used trading names, e.g. "Around the Clock Master Print" and "Fine Quality Master Print". The company has a small staff including himself. Ms Jing did a lot of the finishing work including a lot of packing.

124 Mr Hu said he knew nothing about JHM Trading Company. It was in Ms Jing's name and belonged to his wife. Nor did he know anything about JW International Trading Pty Ltd. He thought that maybe his wife registered this company. He thought that Jing Wei International Trading Pty Ltd was the first company she registered. It did import and export business. He said that he did not know whether he had any responsibilities within that company. He thought Ms Jing put his name on it and that maybe he was a shareholder. He thought that Ms Ping Ny and Mr Tong from Xinlong might be shareholders. Mr Hu said that he did not derive any income from Ms Jing's business. He did not provide any service whatsoever to Ms Jing's companies.

125 Mr Hu said that he had never done any printing for Ms Jing or her companies. He thought that Ms Jing could make labels on the computer and artwork and knew how to print out on the computer.

126 Mr Murray pointed out that on one of the computers at the factory premises there was a document referred to as honey labels, that they were put on on 22 August 2002 and thus after the police had given back the computer. Mr Hu replied that he never did honey labels and that he did not know who did them.

127 Mr Murray showed Mr Hu three documents referring to SYDAUSIA Trading Company, one a Quarantine Order for Customs entry dated 5 August 2002 as to three containers with the importer shown as Sydausia and the broker as Woodford, one a FAX from Unicargo to White's referring to 3 imported containers by Sydausia and one dated 13 August 2002 from White's to Sydausia as to 3 containers of honey. Mr Hu said that he had never seen any of these drums of honey. He said that he was not aware whether this shipment of honey was already in Australia. Mr Hu said that he had absolutely no involvement in this shipment.

128 It is not easy to follow the remainder of the interview on this matter. There was a reference to six containers and Sydausia. Mr Hu said, inter alia, ",,, my wife ring me ask to finding someone to put up she FAX from China there …" Mr Hu appears to be saying that after receiving a FAX from his wife in China he just let her call and she asked him to find someone. The remainder is indecipherable. It was probably either a request to produce labels or put labels on the drums. Mr Murray asked Mr Hu to describe the label he was asked to produce. Mr Hu said that he just received a FAX from the photocopier and made a copy. He used green coloured paper and printed off the labels. He could not remember what the label was meant to say.

129 Mr Hu's English expression and his comprehension of what he was being asked were questionable. Mr Murray, who conducted the interview with Mr Hu, was able to derive more than can be gained from listening to the interview and reading the transcript of it. This appears from his questions following difficult-to-follow statements or answers of Mr Hu. Mr Hu agreed that the labels he prepared contained the importer's company name and the exporter's company name. This appears to relate to the six containers. Mr Hu hired some students to put labels on the drums. These appear to be the labels required by AQIS. The drums appear to have been released by Customs.

130 Mr Hu said Ms Jing determined where the containers were to go and talked to Unicargo and made arrangements.

131 On a more general note Mr Hu said that he had been to White's three or four times. He took Ms Jing there and engaged students to assist putting labels on the drums. He drove her to White's but sometimes he could not do so and she caught a taxi. Usually he stayed for 15-20 minutes. He spoke to Annette (the manager). He did not see the honey but he saw the drums. When the work was finished she telephoned him to collect her. He did so when he could but often could not do so due to appointments with clients.

132 Mr Hu said Ms Jing caused invoices to be prepared by using his FAX, telephone and carrying out printing. There was a bill prepared for $5288 but Mr Hu did not think he (or CHS) was paid this sum. He believed that she was reporting to China how much had been spent. Mr Hu said that he did not know what the labels were for.

133 Mr Hu thought that Ms Jing was able to draft a report to China on how much had been spent and as to goods received from 26 December 2001 to 19 January 2002 and would have done so. Ms Jing left me with the firm impression that she would have been able to understand and master the costings. She did query Unicargo's charges.

134 After the interview tapes were changed and the interview resumed about 12 noon Mr Hu said that a long time ago when Ms Jing was starting up he told her that she should not label honey as a product of Australia if it came from China. He said he only knew that she was just doing some importing and exporting. She became more involved in everything. She followed the orders she received from China. She stated that the American company wanted Chinese products.

135 After some confusing statements about labelling Mr Hu seemed to accept that the document showed that the goods were imported from Singapore.

136 As to the poster on the wall of 327 Trafalgar Street, Petersham stating "Jing Wei Honey Product of Australia" Mr Hu said that this was artwork and Ms Jing wanted to have a look at it. She never used it. Mr Hu said he never saw her claim the Chinese honey was a product of Australia. This statement appears to be incorrect in view of the labelling of which he became aware. Mr Hu may have been referring to the documents she caused to be prepared. He did not think that Ms Jing ever intended to sell Australian honey. He thought that Xinlong was planning to have a "sort of like a factory in Australia".

137 Mr Hu said that he was given a list of honey suppliers and asked to telephone a couple of companies seeking Australian honey. He did so but he was unable to obtain Australian honey in substantial quantities. Mr Hu said he helped his wife sometimes, when she had a problem. She had come to him after her company in China had asked her to buy Australia honey, and asked him to ascertain the name of suppliers of Australian honey and ascertain if they had (substantial quantities of) honey for sale. If he were able to obtain substantial quantities of Australian honey he did not know what was going to be done with it.

138 He was shown a number of pages containing figures (possible extracts from a ledger). These reveal that large sums of money were involved. Mr Hu was aware that Australian honey was much more expensive than Chinese honey (about US $1500 per tonne against US $1000).

139 Mr Hu said that Ms Jing's company did not have the money to buy the Chinese honey. She was just the middle person and all she received was just normal wages paid by Xinlong. She needed a list to show how much she had had to spend. It was not clear how much was paid to her in Australia or China. She received an allowance to meet expenses incurred in Australia. Mr Hu said that she told him that she received $30 per day for working for the company (Xinlong). It was not clear whether she received $30 for each day she did work for Xinlong or $30 per day over the period she worked for Xinlong. Ms Jing mentioned an amount of $50 per day. She had her own bank account. Mr Hu said that out of the moneys she received she paid all the bills (for the import and exports) and took her wages.

140 The impression which the interview creates is that Mr Hu did not really know how much Ms Jing received. He was not able to explain the position in English with an acceptable degree of clarity. He appeared to have but a vague general idea. He said that some of the money came to Australia which he and his wife could use. Mr Hu also said that Ms Jing's wages were broken into two parts. One part was paid in China and one part in Australia He said that Ms Jing never told him how much she had in her bank account. Mr Hu was shown a series of documents about almost all of which he said he knew nothing. He had not seen them previously. He said that his wife sent documents she received straight back to China by FAX, even when written in the English language. Mr Hu agreed that Ms Jing had a mobile phone which she used a lot.

141 Mr Hu said that in the period in question (probably about February 2002) Ms Jing was in China at least a month. Sometimes she stayed in China more than three months.

142 Mr Hu agreed that White's took the drums out of the containers used for importing goods and subsequently packed them into different containers for the journey to the USA. Sometimes extra information had to be put on the drums because of Quarantine requirements. Sometimes Ms Jing did this. Most of the time when she was here she organised for this to be done. On one occasion when she was not in Sydney she told him to organise to have labels put on some drums. He paid two students $30 each in cash. Mr Hu said that previously on four to five occasions he had organised for two students to attach labels to the drums.

143 Mr Hu said the originals label stayed on the drums, with the additional label placed on them. One label said "Made in China" and the other said "who imported and who exported Made in China"? Mr Hu said he had not heard that these containers when opened in the USA had labels on the drums to the effect "Product of Australia". He did not know if, when the computers from his premises were examined, documents would be found matching the labels that say "Product of Australia" found on the honey drums. Mr Hu said that he told Ms Jing that the invoices issued to the purchasers of the honey could not describe the product as "Product of Australia": He could not guarantee what Ms Jing had put, or caused to be put on the computer. He never saw labels with "Product of Australia" on them. This appears to be incorrect. He could give no guarantee as to what was on the computer. Customs should be talking to Ms Jing as well about her companies but he could not control when she returned from China. He had told her of the actions of Customs since she left Australia and at her request had faxed copies of documents to her, for example, the search warrant and a newspaper article.

144 Mr Hu was questioned about the companies and trading names used. He understood he was a 10 per cent shareholder in the company Jing Wei International (Trading) Pty Ltd. He had never heard of Sydausia Trading Company. He was reminded that this was the entity which had imported the current shipment of honey to Australia and for which he had printed the green labels. Mr Hu said that he did not know that Ms Jing had registered that entity. He did not help her to register the companies. He did not appear to know who had. With her limited English she would have needed some help. Mr Hu appeared to know very little about his former wife's companies. Perhaps her accountant attended to these matters.

145 Mr Hu agreed that he had photocopied some labels on green paper or cardboard and paid some students whom he had taken out to White's to put labels on the current shipment of honey drums at White's. He said that the labels had a different company name. He saw the company name, but the company had nothing to do with him.

146 Mr Hu said that he was only involved with CHS and that he was not associated with any other companies. The investigating officer asked Mr Hu about Click Press and Mr Hu agreed that he was a shareholder. Mr Hu said that this company had nothing to do with this matter.

147 He did not know if Ms Jing had more companies than Jing Wei, JW, Sydausia. She was carrying on an import/export business.

148 Mr Hu said that when he went to White's he just said "Hello" to the people at White's and nothing else. I doubt if the conversation was as brief as this. There was probably an exchange of greetings and some reference to the work to be done. As to the allegation that he gave instructions to White's Mr Hu appears to be puzzled by this. He appears to be saying that sometimes at Ms Jing's request he made a telephone call to White's asking whether they could come and would they open the containers. She asked him to take her to White's. At her request, on occasions, he made telephone calls to White's to see if containers had arrived. Mr Hu said that sometimes Ms Jing asked him to find out when people could go to White's to affix labels. Mr Hu agreed that he and Ms Jing went to White's but he denied that he washed the drums (of honey). He said that he stayed there, may be about ten minutes or less. He seemed to be saying that once or twice he provided the mop for Ms Jing to clean the drums and a bucket of water upon her instruction. He referred to a lot of dust lying on the drums and to Ms Jing being scared of a big dog at White's.

149 Mr Hu said that Ms Jing told him everything was imported from Singapore. He believed everything was made in China. That is what he saw. He was not aware why the container went from China to Singapore and then Singapore to Australia.

150 The Customs investigator sought to have Mr Hu agree that during August 2001 to May 2002 he and his wife (Ms Jing) were associated with and imported 116 containers of honey into Australia. Mr Hu said that he did not know how many. He raised the question of imports from Singapore Ms Jing told him everything was imported from Singapore. The investigator also sought to have Mr Hu agree that he and his wife exported the same Chinese honey which had been received into Australia to the USA. Mr Hu seemed to be saying that the name of CHS was used for about a couple of exports - he did not know the number - that after those he was not involved and that Jing Wei International (Trading) Pty Ltd was involved thereafter. Ms Jing was responsible for the export to the USA of all Chinese honey that came into Australia. He did not know that on Customs documentation the export shipments were labelled as being Product of Australia. Ms Jing would know.

151 Mr Hu said he had never heard of Woodford or Woodford Cargo Management.

152 Mr Hu said that he had heard of a Bill of Lading and an invoice but he did not know who gave Ms Jing the invoice which she gave to Unicargo. He was not involved with this or any matter of payment or the procuring of documents given to Unicargo.

153 Mr Hu pointed out that with his wife (then Ms Jing) staying in his place he could not prohibit her using all his equipment (and presumably, the equipment of CHS).

154 Mr Hu said that he was aware that the honey was being sent to a number of different places in the USA but he did not know the names of the different companies to whom it was sent. Ms Jing contacted more than one person. Ms Jing organised with Mr Lam where the containers were to go.

155 Mr Hu said Ms Jing contacted people to ascertain how long it would take before the honey arrived at its destination in the USA and how much it would cost. This included all the transport and shipping costs. This data was relayed to Xinlong. He was not concerned in the costs but was aware that sometimes there was an argument over the costs.

156 Mr Hu did not tell Mr Murray the truth about a number of matters of varying degrees of importance. He had to be questioned extensively and confronted. He was trying to reduce the role he played. He did give his wife physical assistance with the imports as appears from the facts in this judgment and made enquiries on her behalf. He introduced her to Mr Lam and the selection of Unicargo was not a random one. However, as he maintained in the interview he was not concerned either directly or indirectly in the submission of documents to Mr Lam and Unicargo as to either imports or exports nor with the submission of import documents to Mr Woodford.

157 In his statement dated 31 March 2004 (verified by his affirmation of 13 September 2005) Mr M L Murray, Customs Case Officer refers to documents seized from the HSBC Bank Australia Limited. That statement includes this paragraph: "6. I have compared the records contained in the seized bank documents. I have determined that the four identified United States of America (USA) importers, Natural Food Products, D.F International (USA) Inc., Sun Beauty Products and MTE International made payments to the HSBC Bank accounts operated by or on behalf of Hui Min JING. The bank records show that during the period 28 September 2001 to 13 August 2002, these four companies made telegraphic transfer payments in Australia (AUD) of 42,849.57 and in United States dollars (USD) of 2,502,461.47 to the accounts previously mentioned. I also determined that payments in United States dollars (USD) of 1,733,892.63 had been paid to the Kun Shan Xin Long Food Company China. During the period 18 March 2002 to 2 July 2002, payments in United States dollars (USD) of 2,258.38 and in Australian dollars (AUD) 406,578.14 were also made to the Sydney based freight forwarding company A.K. Unicargo International Pty Ltd. I have determined that no payments were made to the alleged suppliers of the honey the Top Food Company and the New World Food Company in either China or Singapore. 158 Mr Murray's analysis reveals a large volume of transactions, that from 10 September 2001 to 31 May 2002 these took place on an account in the name of Jing Wei International Trading Pty Ltd, that from 18 June 2002 to 1 May 2003 on an account in the name of HM Jing T/A Jing Wei International Trading Company, that from 5 February 2002 to 31 May 2002 on an account in the name of Hui Min Jing Trading as JHM Trading Company and that from 14 June 2002 to 30 September 2002 on an account in the name of Australia Globe Trading Pty Ltd. Many of the entries in the analysis arouse interest and require explanation including some of the entries "Transfer to self" and "Transfer from self" and the transfers to various entities seemingly under the control of Ms Jing.. There is some overlapping with the accounts. The records reveal that large sums of money were involved and financial arrangements of some complexity under Ms Jing's control.

159 In his affirmation of 26 June 2007 Mr Hu said that he did not receive any money as a result of Ms Jing's participation in the importation and exportation of honey. Mr Hu said that he did not use the names Jing Wei International Trading Pty Ltd or the abbreviated name (JW) International Trading Pty and CHS Trading Pty and CHS in relation to the exports of honey, nor the names JHM Trading Co and CHS in relation to imports of honey. Mr Hu recounted a conversation with Ms Jing in or about mid-2001. In part she told him that her brother's friend works for the Government doing import and export and that they may give her a job organising an import from Asia to the USA. She was to manage the import/export in Australia. Her role was to organise the import and export paperwork in Australia. He thought that the job would be to her advantage. He asked why the Chinese did not go direct to the USA from Asia and she replied that the USA had a limit on how much honey can be imported from each country without paying over the limit fees, that's why they send the honey via Australia. She said that her role was to make arrangements in Australia for the receipt of the honey and to arrange for its export to the USA. After some further discussion she asked Mr Hu to find someone who could assist her. Mr Hu suggested Gordon Lam, who had done a good job for him and remarked that Mr Lam also spoke Mandarin. Mr Hu introduced Ms Jing to Mr Lam and the latter two conversed. Mr Hu said that he did not hear Ms Jing say to Mr Lam that the honey shipped to Australia from China was to be re-labelled as Australian honey before being sent to the USA. Nor did he hear Mr Lam say that one way she could export the honey as Australian honey was to buy some local honey and blend it with the Chinese honey. Words to this effect were probably uttered in Mr Hu's presence but he did not absorb them.

160 Mr Hu said that shortly before this meeting Ms Jing asked if she could use his company to do the first importation of a container of honey from Singapore until she got her company registered, saying that it would be registered very soon. In cross-examination (T129), Mr Hu said that the conversation with Mr Lam took place before the idea of CHS being used arose. Mr Hu agreed to her using CHS for the first shipment.

161 Mr Hu stated that Ms Jing told him that the Australia Government requirements were strict - the drums had to be cleaned up and labels had to be put on the drums with specific details. On one occasion she sought his personal help and on another his assistance to obtain helpers to clean and label the drums properly. Mr Hu recalled about two occasions when he carried a bucket and mop for Ms Jing and placed labels on drums. He recalled obtaining assistance for her. Mr Hu said that on about three occasions he observed about two people from White's assisting Ms Jing by putting labels on drums. Ms Patrick disputed that any workers from White's so assisted Ms Jing. She would not have allowed this if she had been aware of it happening. It may have happened for a very short period and would not have been substantial. Mr Hu in his affidavit tended to understate the assistance which he gave Ms Jing. He probably drove her to White's on more than about two occasions. He was anxious to emphasise, as was the fact, that his wife ran the import/export business in Australia and that any assistance he gave her was minor and did not relate to the completion and lodging of documents or the furnishing of information or any of the directorial activities as to the lodging of documens with Customs, Unicargo or Mr Lam or the organisation of the imports and exports. He had nothing to do with the financial aspects of the business. She used the FAX and telephone of CHS and its computer and printing facilities. The Sydausia imports and exports led to more involvement on his part, as outlined but they are not the subject of the current charges.

162 Mr Hu said that on about one occasion between about mid-2001 and mid-2002 he saw Mr Lam at White's when he was putting labels on the drums of honey.

163 Mr Hu said that about 15 August 2002 Ms Jing said she had to go straight away to China, that there may be some trouble in Australia and that there may be some problem from the American side. She departed for China on 17 August 2002. Some days later in August 2002 Customs executed a search warrant at his business premises. He subsequently spoke to Ms Jing by telephone She was aware that Customs officers had searched his premises regarding the honey.

164 In his affirmation of 16 November 2006 Mr Yu stated that he incorporated CHS Enterprises Pty Ltd about 18 June 1991 and that since that date it had conducted a printing business trading as "Around the Clock Master Print". In late 1999 he became an Australian citizen. This earlier affirmation covers much of the material set out in the later affirmation of 26 June 2007. Mr Hu:-

(a) denied providing any instructions to Unicargo or Mr Lam concerning any importation or exportation of goods, and

(b) occasionally answered telephone calls from Mr Lam for Ms Jing; he either handed the telephone receiver to her or took a message for her

(c) said he authorised Ms Jing to use CHS to import but one container of honey from Singapore which he did not understand to be an illegal activity and did not authorise her to use CHS for any illegal purpose or activity

(d) said that a couple of days later he authorised her to use CHS to carry out but one exportation of honey from Australia to USA which he did not understand to be an illegal activity and did not authorise her to use CHS for any illegal purpose or activity

(e) said that he was not involved in the importation of honey except when Ms Jing, occasionally, asked him to make a telephone call on her behalf because of her limited English expression. He fetched a bucket and mop for her, at her request

(f) said that he attended White's premises on about 4 occasions, driving Ms Jing there on about 3 occasions and travelling there on 1 occasion with 2 casual workers. On these occasions Mr Hu said he exchanged greetings with Ms Patrick

(g) said that he did not know the intricacies of Ms Jing's importation and exportation activities or which corporate structure she used for these activities

(h) denied each of the following matters, that he imported any goods to which a false trade description was applied or authorised CHS to do so, that he knew that such a description was applied to any goods in any alleged import, that he made or caused to be made a statement that was false or misleading to an officer of Customs as to import and export shipments, that he authorised CHS to make or cause to be made such a statement and that he knew such a statement was made or caused to be made to an officer of Customs as to any import or export shipments

(i) denied intentionally exporting any goods to which a false description was applied or authorising CHS to do so, knowing that a false trade description was applied to any goods in any alleged export shipment

(j) said he verily believed from conversations with Ms Jing during 2001 to about 4 September 2002 that she was employed by Xinlong Food Company, a Chinese manufacturing and exporting food products company, that Ms Jing received orders from Ping Ny of Xinlong Food Company to get honey imported from Singapore, export honey to the USA, open a company in Australia, travel to China and transfer money to specified accounts, that Ms Jing relied on an accountant, HSBC, Gordon Lam and Unicargo and Xinlong Food Company, that Ms Jing communicated with representatives of Xinlong Food Company, that she was told by such representatives when importations were to arrive and the purchaser of the export shipments in the USA, that she was paid about $30 per day by Xinlong Food Company, that it planned to have a factory in Australia and made enquiries about buying Australian honey and that USA purchasers paid about $1500 per tonne for Australian honey and about USD $1000 per tonne for Chinese honey.

165 Mr Hu said that about mid 2002 when Ms Jing was not in Australia he received a FAX, a copy of which he did not keep, from her requesting that the details she supplied be put on the goods in a shipping container otherwise the imported goods would not be released. Mr Hu said that he photocopied the FAX and engaged two casual workers to stick the labels onto the drums in the six containers. He drove these two workers to White's so they could do so. When he spoke to Ms Patrick he was told that unless the drums were correctly labelled with required information they could not be released. This appears to refer to the green labels earlier mentioned.

166 In cross-examination by Mr Law for Unicargo and Mr Lam, Mr Hu agreed that in 2001 and 2002 he took Ms Jing to Unicargo's premises. Mr Hu said that he did not remain and listen at those meetings but stayed in the car, He was not sure what the telephone calls from Mr Lam to Ms Jing were about. If Ms Jing was not there mostly he took a message. Sometimes if there was a question and he knew the answer he would answer the question. Mr Hu said that maybe once when he was doing work on the honey drums Mr Lam was there (at White's).

167 Mr Hu said that he thought Ms Jing made all the labels to go on the drums. Mr Hu said that he did not hear Mr Lam suggest to Ms Jing that local honey could be blended with Chinese honey to change the country of origin to Australia. Mr Hu said that he did not hear Mr Lam tell Ms Jing that unless the honey was 50 per cent Australian she could not claim that the honey was Australian nor that he would arrange a storage depot where she could unload and reload containers. Mr Hu said that he did not hear Mr Lam suggest to Ms Jing any way that she could make the honey into honey of Australian origin.

168 Mr Hu was extensively cross-examined by counsel for Customs. Mr Hu said that there was no mention of CHS at the first meeting of Ms Jing with Mr Lam and that he did not join in the discussion at that meeting. The meeting was as to the possibility of importing and exporting honey being discussed. It was before the idea of using CHS arose. Mr Hu said that after the introductory meeting he took Ms Jing to Unicargo on another couple of occasions either to pick up or deliver a document.

169 Mr Hu said that at their first meeting Ms Jing and Unicargo/Lam did not settle on an agreement that Unicargo would act for her. There was general discussion. He thought that about a couple of weeks later an agreement was reached. He was not exactly sure. At the introductory meeting matters were left on the basis Ms Jing was to telephone Mr Lam with her queries. There was no arrangement that Mr Lam was to contact Mr Hu about the proposal.

170 Mr Hu was taken to a FAX dated 31 May 2001 from Unicargo addressed to CHS Enterprises, Attention Mr Robin Hu. It contains two quotes. He said that the FAX was received at his place of business but he did not receive it personally, nor did he see it. It is probable that Ms Jing who was frequently at the Petersham premises took possession of it and did not tell her husband of its contents. She kept things to herself except when she wanted him to do something or thought he could otherwise be of use. Mr Hu pointed out that at that time Ms Jing did not have any contact telephone or FAX number.

171 Mr Hu was taken to a document headed Top Food Co., Ltd, Packing Weight List. Mr Hu said that he never sent any documents about the honey business (imports and exports) to Unicargo nor did he take or touch any documents about the honey business. He saw a document with the name Top Food Co. Limited in the office in the possession of Ms Jing. He seemed unsure whether he had seen such a document on more than one occasion. He said that he did not know where this document came from nor whether it was printed up in his office. He had nothing to do with it. He had no idea who wrote the signature appearing on the document. It was not his signature.

172 Mr Hu was shown a document appearing on a letterhead of "Top Food Co., Ltd" and called a Packing Declaration. This is an unusual way for a company's name to be printed or written. The document was undated but bears the FAX imprint "Jul, 30 2001 06.53 PM P1." The FAX imprint states that it was from "Fine Quality Masterprint". Underneath is written: "To: Chinese characters for Mr Lin and a FAX number which appears to be that of Unicargo. (Mr Hu agreed that what was written in Chinese characters was the name of Mr Lam)

173 Mr Hu denied that he created or sent this document which was found among the papers held by Unicargo. Mr Hu said that the handwriting on the top section of the document was that of Ms Jing. He did not know in whose handwriting the signature on the document was. He could only guess. He had no idea whether the Packing Declaration had been created in the Petersham premises of CHS.

174 As to the documents headed "Top Food Co., Ltd" Mr Hu said that he did not see whether they were printed up in his printing business. This passage next appears: "Q. I know you didn't but I am putting it to you that they were, weren' they? A. Should be.

Q. You knew that, didn't you, as at July 30, 2001 you knew that such a document was printed up, didn't you? A. How do I know. See, every day I am in the office only about two hour, one hour. So during the daytime I don't know what they are doing there." 175 That evidence is not clear. I would not take Mr Hu to be admitting that he was aware that the documents headed "Top Food Co., Limited" were printed in the office of CHS or with his knowledge or approval.

176 Mr Hu was taken to a document headed up 'CHS Enterprise Pty Ltd" in large letters and bold type with the sub-heading "Commercial Invoice" and a FAX marking at the top of "7 Aug 2001 09.57am"

177 Mr Hu said that as at August 2001 maybe he had a template for the letterhead of CHS Enterprises. On it being pointed out that the name of his company included the word "Enterprises" and the word used in the document was "Enterprise" Mr Hu said that he definitely had not made the template and that if he had made it he would have put the correct name on it. Mr Hu agreed that the mistake suggested there was no template for "CHS Enterprises Pty Ltd", that someone had to create a template and made a mistake. CHS had the bank account nominated on the document. Mr Hu said that he had nothing to do with the set-up and words in the Commercial Invoice of 1 August 2001. Mr Hu said that Ms Jing could have done it. He did not see her do it. The invoice specified that the goods were "Product of Australia", and described them as "Australia Bee's Honey". That is a curious way to express the description and suggests the author's English expression was not good. Further, payment for the goods was required by Telegraphic Transfer to the account of CHS Enterprises Pty Ltd at the National Australia Bank Ltd, Marrickville. The typed signatory is shown as "Robin Hu" but on the copy given to the Court the signature of Robin Hu does not appear.

178 Mr Hu believed that Ms Jing had inserted these details. He said that he was not quite sure whether he knew that his (CHS') account was being used as a bank account relating to the export of honey. He said that maybe she used his bank account before she had her own account. She did not have a business name.

179 Mr Hu agreed that he knew that honey was being imported in a container from China into Australia. He understood that that honey was going to be exported to the USA. She told him that it was Government business and that they did not worry "about money costing". It was not like a small business. When the transactions started he said he really didn't think anything. Ms Jing just told him it was import/export. He did not know when the transactions started the honey was to be exported as Australian honey. Later he learnt this was the case when he saw her putting labels to that effect on the drums.

180 Mr Hu said that as far as he was aware Ms Jing was responsible for the set-up of the Commercial Invoice (mentioned above) and what was contained in it. He was not responsible. He thought she must have had a template and made similar copies. He was not sure where she got the template or accompanying document. Mr Hu said that he did not know how to set up a commercial invoice and that the business invoices he sent were very different from the one earlier identified. Mr Hu said that as at 1 August 2001 he did not know how to create a Commercial Invoice for an export. He did not think his wife had that knowledge and he did not know where it came from. He thought Ms Jing must have obtained a copy Commercial Invoice from somewhere and adapted it. His assertion is probably correct. He said that she never let him have a look at a Commercial Invoice. He did not know how it arose. Mr Hu agreed that the Invoice had his name on it but not his signature. He said that he was never asked to sign the Invoice. He was not aware that the same format had been adopted for every other commercial export except that the exporter was shown as JW International and not CHS Enterprises Pty Ltd.

181 Mr Hu said that Ms Jing told him that the first shipment was to be a trial. If this import/export was a success and nobody said anything about it, Ms Jing expected further container loads of honey to arrive. She told Mr Hu of her expectation, stating that it was a government business.

182 Mr Hu was shown a letter dated 5 October 2001 on the letterhead of CHS Enterprises Pty Ltd (correctly spelt on this occasion) addressed to Mr Gordon Lam AK Unicargo advising "10 FCL (full container loads) would arrive in Sydney on 9 October and please make sure each goes to the contracted destination"; 3 specified containers were to go to Detroit, 3 to Philadelphia and 4 to Houston.

183 The letter purports to come from Robin Hu and to be signed by him. Mr Hu said the signature was not his, but similar to his. He said that he had never seen this document before. Mr Hu said that he took Ms Jing to wherever she wanted to go, to Mr Lam's premises or White's or somewhere else. Mr Hu said he did not do any import/export work but he knew documents had to be prepared to export goods. He later learned that the documents described the honey as Australian honey. Mr Hu said that he saw labels being affixed to the drums with words to the effect "Made in Australia", about the middle of the venture. He was asked "…when you saw the labels being put on with words to the effect of 'made in Australia', what did you think that meant?" Mr Hu replied, "I really didn't care." He did not think about the words. He just thought that affixing such labels was work to be done. That is probably correct.

184 Ms Jing told him that the other side (the American side) needed the labels. He did not ask any further questions. Mr Hu said that he really did not know that the whole point of this exercise was to call it Australian honey to get it into the USA. He said Ms Jing was working very hard and the job was making her very tired and accordingly, he tried to help with the labelling. He did not care what the goods were called, the labelling was a job to be done to meet the requirements of the other side. He just tried to help her.

185 Mr Hu was questioned about a colourful document (Exhibit C) found on the wall of the Petersham premises containing the details: "Jing Wei" in large red letters a Bee of good size and in colourful garb N.W.: 290 KGS GW: 311.5 KGS HONEY in large bold letters and highlighted in blue PRODUCT OF AUSTRALIA (in bold block capitals - but not in as large a print as HONEY)" 186 In the middle of the bee's chest was a big C. Ms Jing's Australian name was Corina. Mr Hu denied that he and Ms Jing were thinking of placing this label on the drums of honey. Mr Hu said that the label was not of his doing and had nothing to do with him. She must have put it on the wall. He denied that he discussed with Ms Jing sticking such a label on the drums. I accept this evidence of Mr Hu.

187 Jing Wei sounds Chinese. This label was never used. The name of the company Jing Wei International Trading Pty Ltd was not used in the exports. Jing Wei was abbreviated to JW. Customs contended that the abbreviation and the non-use of the labels containing the words Jing Wei was part of masking any connection between China and the goods exported.

188 The labels affixed to the drums contained the words "Produce of Australia" or "Made in Australia" . Mr Hu agreed that he stuck some of the labels on, using sticky tape. Mr Hu said that Ms Jing prepared and printed the labels on his premises. He did not see her do this. She prepared a bill by herself for the printing, but it was never paid. She said that she needed an invoice for the Chinese side.

189 Mr Hu agreed that he knew false labels were being prepared. He insisted that he did not know that false Commercial Invoices were being prepared for exports. He never saw them.

190 He said that he was not aware that false documents were being prepared in relation to the imports. She did not show him such documents. Mr Hu disagreed that from the nature of the import and export operation he must have known that false documents had to be prepared. I do not think that Mr Hu became aware during the period May 2001 - August 2002 that false documents had to be prepared or were prepared. He did not possess deductive ability of that order and Ms Jing kept him "in the dark".

191 Mr Hu agreed that on occasion he took telephone calls from persons whom he understood were from the Chinese end of the honey export business. He said that when they telephoned and he took the call such persons enquired when she was likely to be available and they either said they would telephone again or requested him to tell her to call them.

192 Mr Hu said that he was not sure that all the commercial documents involved in the imports and exports except the bills of lading were printed at his premises. Most of the day he spent away from his premises attending to matters related to his business. Clients had to be seen and orders obtained. Mr Hu said he did know that there was a template on his computer for the "Produce of Australia" or "Product of Australia" labels nor for the "Made in China" labels. He said that he did not delete such a folder or folders from his computer.

193 Mr Hu agreed that Customs arrived at his premises and spoke to him and that this was about a week after Ms Jing left for China. He was not sure of the exact date when Customs came to his premises. To his recollection a large number of drums had not yet arrived. Mr Hu may be mistaken on this point in that there were a large number of drums at White's. Mr Hu stated that he received a telephone call from his wife requesting him to place "Made in China" labels on the drums which had arrived (or were about to arrive). He told her that he did not have the time to do it and, as he told her, he found some people to help stick "Made in China" labels on the drums. Mr Hu said Ms Jing spoke to his secretary, Holly on the telephone and ordered her to produce the "Made in China" labels. Mr Hu said that he had a bundle of such labels which Holly had given him and some rolls of sticky tape. He met two Chinese students at Sydenham Station and took them to White's and told them to stick labels on each drum with sticky tape and showed them what had to be done. He came back when they finished. Mr Hu said that on about two or three occasions at Ms Jing's request he had organised for students to assist Ms Jing with sticking labels on drums. He paid the students.

194 On the basis that there were 28 importations and each importation involved two visits (for two sets of labels) Mr Hu agreed that most of the time he took his wife to White's. If he could not take her she went by taxi. This happened a couple of times. She telephoned him from Whites if she needed lunch and he would go and buy something to eat.

195 Mr Hu said that most of the time Ms Jing stuck the labels on the drums herself, sometimes the two of them did it. At other times she and the students stuck the labels on the drums.

196 Mr Hu said that in 2001 Ms Jing's spoken English was not very good. She read English directions with the aid of a hand-held computer. The operator types in a word and it comes up in Chinese characters. She could not read the English newspaper. She did not have enough English to prepare documents such as a Commercial Invoice or template for one. Someone who had enough English had to prepare these. Alternatively, she may have copied from other documents. He denied that he had to assist her in preparing the template type documents. Mr Hu's denial is probably true.

197 This evidence was then given at T164: "Q. They were all prepared, I suggest, on your computer weren't they? A. Yes, even my English is not good as to prepare this document as well." In the context Mr Hu was being asked about the preparation of all the template documents. His reply seems to be directed towards the preparation of one document, probably the Commercial Invoice.

198 Mr Hu seemed to accept that the template type documents were prepared on his computer. Mr Hu said that his English was not good enough to prepare the Commercial Invoice (or possibly, the template for such a document). This is probably true

199 Mr Hu agreed that once the templates were prepared all that needed to be done for subsequent importations was to change some of the details including the date, and, after the first importation, to change CHS Enterprises to JW International. She had enough knowledge to change the dates, container numbers and other details but not enough knowledge to create the templates. The templates were made so they could be used for future importations.

200 Mr Hu said that he thought that the templates were sent in from China. By that, because of Mr Hu's limited understanding of English and limited English expression I took Mr Hu to mean that the format and materials (or information) to be included in the templates. He agreed that creating the template meant putting information onto a computer screen and saving it. It was his belief that everything she needed, that is, everything on the China side was prepared for her in English or she was sent a copy which was easy to change to arrive at the document with the details to be inserted for the particular transaction. When it was put to Mr Hu that the information for the template could only come from Australia Mr Hu said that he did not know and was guessing. He never had time to sit down and do his own paperwork. That is why he said he did not have the time to help her do those sorts of things. Holly did the paper and computer work for his business. She would have done what Ms Jing requested.

201 While there were inconsistencies, even contradictions in the evidence of Mr Hu, I thought that some were due to his limited command of English and that he was rather dull. He did not appear to think quickly and had trouble grasping the thrust of some of the questions. At the end of the evidence I was persuaded that he was neither as agile nor as able as Ms Jing, that he did not participate in the preparation of the documents or templates, that Ms Jing caused these to be prepared using the services of Holly and that Ms Jing effectively sidelined him and dealt with Mr Lam, but called on Mr Hu when he could be of use to her. She did not disclose many of the details to him. Nevertheless, he felt that as she was his wife, he should assist her in the limited manner he did.

(a) Ms Jing informed Mr Hu of the nature of the enterprise in which she proposed to embark (para 6 of her affidavit).

(b) Mr Hu was present at the initial meeting with Mr Lam where the proposal was discussed and was fully aware that the enterprise involved the importation of Chinese honey and the export of that same honey as Australian honey. (This contention needs qualification).

(c) Mr Hu agreed to assist Ms Jing in carrying out her enterprise and did so.

(d) Mr Hu knew that false representations concerning the origin of the honey were to be made to Customs and others for both the import and exports of the honey. (I do not accept this contention).

(e) Mr Hu took part in the preparation of some false documents (those purporting to be from fictitious Singaporean exporters on the import side and commercial invoices on the export side to be used to assist in making those false representations). (I do not accept this contention).

(f) Mr Hu admitted that false documents were prepared on his computer (CHS computer) in the template form for the first import and export and that the template was to be used by his wife for the generation of documents for subsequent imports and exports. (That puts the position at too high a level). Reliance was placed on his cross-examination from TT 132-147 including the passage at R143, lines 37-48 that Ms Jing did not have the knowledge to create a commercial invoice. At T164 Mr Hu said that Ms Jing did not have enough English to prepare template type documents including a template for a commercial invoice. He agreed that someone with enough English had to prepare a template for a commercial invoice. (It is probable that Ms Jing was supplied with a precedent and adapted it. Mr Hu was not a party to this).

(g) Ms Jing at T45 said that she could not use the computer that if anything needed to be done on the computer she obtained the assistance of Holly.

(h) Mr Hu or one of his staff at his direction prepared the templates for the false documents. Such templates were used and were intended to be used for the generation of false documents as to future imports and exports of honey. (This was not the intention of Mr Hu. Mr Hu did not prepare the templates and he did not direct one of his staff to prepare such templates).

203 Customs contended that Mr Hu was either directly or indirectly involved in the making of all the false entries for Home Consumption for the imported shipments of honey. Customs also contended that Mr Hu was directly involved in the false information as to origin inserted in all of the bills of lading for the exports of honey. (I disagree with both contentions.)

204 I accept that Ms Jing told Mr Hu of the enterprise, that is, that she had been asked by Kunshan Food to handle the import of honey into Australia and its subsequent exports to the USA. It was about halfway through the venture that he realised that the honey was being exported as Australian honey. He saw labels being affixed to drums with words to the effect of "Made In Australia." He did not think about the meaning of the words; affixing such labels was work to be done.

205 Mr Hu agreed to and did assist Ms Jing, his then wife, in the venture but did not know or realise that the venture involved the making of false representations to Customs and others as to the origin of the honey both as to imports and exports. I do not accept that Mr Hu took part in the preparation of some false documents. Some documents containing false statements, namely, the Commercial Invoices for the exports were probably prepared on the CHS computer, but Mr Hu was not a party to such documents being prepared. Ms Jing ascertained what information had to be inserted in such invoices and the format of such invoices. The acceptable evidence does not enable me to make a positive finding as to the persons who informed Ms Jing as to the format and content required, either orally or by means of supplying a draft or a copy of an invoice used previously. Ms Jing was well capable of adapting a draft or a copy of an invoice used, in connection with a previous shipment of goods, even if the goods were a little different. While Ms Jing would have determined the contents and the overall format of such invoices in the light of the oral or written advice she received from a person or persons other than Mr Hu, their physical production was probably left in the hands of Holly, an employee of CHS. While Mr Hu was aware that Holly was assisting Ms Jing he was not aware of the extent or details of such assistance. Nor did he give Holly any directions.

206 As to the fictitious documents including the Packing Weight List, the Packing Declaration and the Invoice and, on occasions, the Certification, while they could and may have been produced on the CHS computer I am not satisfied beyond reasonable doubt that they were. I am satisfied that Mr Hu was not involved in their preparation or use. I am satisfied that he was not aware that fictitious documents were being produced or used. The most that can be said against Mr Hu is that he permitted Holly to carry out computer work for Ms Jing and did not supervise the work Holly did for Ms Jing and ensure that nothing unlawful was done.

207 The position of CHS and Mr Hu in relation to import 1 and export 1 is somewhat different in that Mr Hu permitted Ms Jing to use CHS for those and did not supervise what she did.

208 As to Customs' contention that Mr Hu was either directly or indirectly involved in the making of all the false entries for home consumption for the imported shipments of honey, I am satisfied that he was not directly concerned or involved. I do not think that he was indirectly concerned or involved. Ms Jing, not Mr Hu, provided the documentation to Unicargo and Mr Lam for transmission to the Customs Broker. Mr Hu was not aware nor did he realise that false material was being provided, or that material was being provided to the Customs broker from which he could draw conclusions as to the origin of the honey and insert false particulars in the Entries. Mr Hu was charged with being directly concerned with the commission of the offences. Customs at the hearing sought to broaden the allegation to Mr Hu being indirectly concerned. It pointed to the words in s 236 "procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act." It relied on s 251 of the Act

209 Section 236 of the Customs Act is cast in wide terms

210 Was Mr Hu indirectly concerned or indirectly involved in the making of all or any of the false entries for Home Consumption? These relate to the place of origin both under s 234(1)(d)(i) and (ii) of the Customs Act and s 9 of the Commerce (Trade Descriptions) Act. I do not think he was indirectly concerned or indirectly involved in the making of all or any of the false entries. I have found that Mr Hu had a very limited role to play. Section 236 covers the person who by an omission is in any way indirectly concerned in the commission of an offence. While Mr Hu could have attempted to supervise Ms Jing and what she was doing and what Holly was doing for Ms Jing closely it must be remembered that Ms Jing ran the venture and determined what Mr Hu should be told. He was not a party to her conversations with Mr Lam nor to her dealings with the accountant and the HSBC, Haymarket Branch or the finances of the venture. He was not privy to the representations which she made to Customs or others. Nor was he a party to her dealings with her Chinese masters or mistresses.

211 Both during the investigation and at the hearing Customs placed considerable reliance on Mr Hu and Ms Jing being husband and wife and the free flow of information and co-operation that normally characterises such a relationship. I am satisfied that there was no such free flow of information in this case and that Ms Jing did not tell Mr Hu much of what was happening. What was striking in this case was the difference in their capacities and abilities and the speed at which they thought. She was superior in these fields. She had an engaging personality. He did not. Mr Hu was prepared to assist her but she used him to make some recommendations and telephone enquiries, to drive her to and from White's, to engage and pay student helpers to affix labels and to himself affix labels. However, he had nothing to do with the submission of documents to Unicargo, or the preparation of documents, directing or managing the import/export business which she ran or the financial aspects of it. She conducted the dealings with her Chinese principals and did what they directed. Mr Hu was busy conducting the printing business of CHS. She limited the role he played in assisting her and was not forthcoming with information. As earlier mentioned, he was neither aware nor realised that she was conveying false information for transmission to Customs. In expressing these views I have not overlooked the evidence of Mr Lam who tended to over-state the part played by Mr Hu.

212 Mr Gordon Lam, the General Manager and a Director of Unicargo made a detailed statement to Customs Investigator Murray on 6 September 2002 and an affidavit on 29 June 2006 correcting portions of his earlier statement and adding further material.

213 Mr Lam said in his statement that in late 2001 he had a discussion with Mr Hu and Ms Jing about acting as Customs Clearance Agent for CHS for the importation into Australia of honey. Mr Lam is in error in stating that this conversation took place in late 2001. Ms Jing returned from China in late March 2001 and shortly thereafter spoke to Mr Hu, then her husband, about the proposed import/export job as to honey and within a further week was introduced to Mr Lam by Mr Hu. The best approximation of when the conversation involving Mr Lam, Mr Hu and Ms Jing took place is about April 2001, but there can be no certainty as to this and it could have been in May 2001. See also the quote of Unicargo of 31 May 2001 for imports and exports.

214 In his correcting affidavit Mr Lam explained that Unicargo was not involved in bringing containers of honey to Australia. Those goods came to Australia directly on a shipping company bill of lading. The position of Unicargo as to imports was to receive and provide the shipping and commercial documentation from the supplier to the Customs broker in Australia (Woodford) who attended to the Australian Customs declarations on behalf of the importer, that is complying with Customs procedures and lodging Entries for Home Consumption. Unicargo and he had no experience in the work of an Australian licensed Customs broker and had not done the formal training to become so licensed.

215 Mr Lam further explained that where he said in his earlier statement "Unicargo has been acting as a freight forwarder for Hu and Jing since this time" (late 2001 but should read "about mid 2001") that comment was made as to exports only and for the export shipments which are the subject of these proceedings. Mr Lam added that once the cargo, the subject of these proceedings was exported Unicargo and he did not act for CHS, Mr Hu and Ms Jing and that Unicargo never acted as the import freight forwarder.

216 In his affidavit (par 15) Mr Lam stated that Mr Hu and Ms Jing visited him and said they would be sending honey to Australia for processing and export to the USA. I doubt if Mr Hu and Ms Jing said that they would be sending honey to Australia as this was not the proposal. In his statement Mr Lam states: "22. Late in 2001, I had a conversation with Jing. I said to Jing words to the effect of:

'To describe the imported honey as Australian Honey or a product of Australia, the honey must have undergone some process in Australia or be blended with at least 50% Australian product'." 217 In par 29 of his affidavit Mr Lam said that when Unicargo were first engaged by CHS, Mr & Mrs Hu said words to him to the effect, "We want to bring honey to Australia and send it to USA" and that he replied to the following effect "You have to have 50 per cent Australian content to qualify for Australian origin." Mr Lam stated that they said, "We want to buy Australian honey to mix with imported product." While Mr Hu was present at the first meeting he did not utter the words suggested. Ms Jing probably did but I am not satisfied beyond reasonable doubt that she did. Mr Lam probably proceeded on the basis that she was speaking for both Mr Hu and herself. The substance of the conversation referred to in par 22 of the statement was between Ms Jing and Mr Lam and took place in about mid 2001 and not in late 2001. I do not accept Ms Jing's evidence that no such conversation took place. She had Mr Hu make enquiries to see if quantities of Australian honey could be obtained. The conversation occurred at the beginning of their association but not necessarily at the first meeting of Mr Lam and Ms Jing. I have earlier held that Mr Lam was mistaken as to the approximate date of his earliest meeting with both Ms Jing and Mr Hu. I do not accept that the conversation in question occurred some time after the importations of honey had commenced. Customs mounted a strong attack on Mr Lam's credibility and suggested that he had sought to change the approximate date of the conversation for base reasons. I do not accept that this was so. He was correcting a mistake as to date.

218 Mr Lam stated that initially the honey was imported by CHS but subsequent importations were carried out by JHM Trading Company (JHM) which appeared to be owned and operated by Ms Jing. In the normal course of business Mr Lam was instructed by Ms Jing but he said that in her absence he received instructions from Mr Hu. No details of these were given. In August 2002 an importation was made by an entity called Sydausia Trading Company which Mr Lam believed was part owned by Ms Jing. He received instructions relating to this importation from her.

219 Mr Lam stated that the company exporting the honey was JW International Trading Pty Ltd which met the export costs. It appeared to be owned and operated by Ms Jing In her absence he received instructions from Mr Hu. No details of these were given.

220 Mr Lam said that normally shipping documents were faxed to Unicargo and included a commercial invoice and a copy of the bill of lading issued by the shipping company. After the shipment was registered the documents were faxed to a licensed Customs broker (Woodford) who attended to Customs requirements including lodging an Entry For Home Consumption. Woodford faxed to Unicargo an Authority to Deal which is the authority to collect goods under Customs control.

221 Unicargo arranged with White's to collect the containers and transport them to its depot, unpack the drums and store them. Unicargo would then arrange for all requirements for the export of the drums to be met. This included generating bills of lading and processing Customs export clearances. Unicargo received instructions from Ms Jing as to where the honey was to be exported and in what quantities. Unicargo issued loading and shipping instructions to White's

222 Mr Lam stated that in all cases the containers were exported to the USA as instructed by Ms Jing except that he received instructions from Mr Hu that containers imported by Sydausia were to be exported to Singapore. He has since made such export arrangements. Mr Lam insisted that all descriptions of goods on official documents were based on information supplied to Unicargo by Ms Jing and, occasionally, by Mr Hu. The information which Mr Hu could supply was very limited as Mr Jing told him very little.

223 Mr Lam stated that from documents supplied to him by JHM and his conversations with Ms Jing and Mr Hu he believed that all the honey imported by JHM was manufactured in China. Mr Lam was referring to what he was told in the initial conversations. When Unicargo and Mr Lam got documents which indicated that the honey came from Singapore he asked Ms Jing where the honey came from, and she said that she was not sure (T190). Mr Lam's statement does not suggest that he thought that the honey may have come from anywhere other than China at some stage.

224 Unicargo produced to Customs the documents or copies usually generated in relation to a specific import, namely, Unicargo Job Sheet, Instruction FAX from Unicargo to White's, Copy Bill of Lading generated by the shipping company, Commercial invoice generated by overseas supplier of honey, listing goods, description, price, invoice number, date, consignee details and supplier details. This invoice was supplied to Unicargo by JHM. Also produced and usually generated for an import were Packing List, Packing Declaration, Commercial Certification that the honey does not contain specified contaminants or ingredients, Customs Entry for Home Consumption, Authority to Deal generated by Customs Broker by Access to the Customs commercial system, COMPILE, AQIS Release of specified goods from Quarantine Control.

225 Unicargo also produced to Customs the documents or copies usually generated in relation to a specific export, namely Unicargo Job Sheet, Unicargo Statement (freight charges pre-paid) Unicargo Invoice (for costs related to export - issued to JW Trading), Shipping Company Invoice, House bill of lading generated by Unicargo for export of honey by JW Trading, Booking Confirmation (issued by shipping company), Commercial Invoice issued by the supplier (JW Trading) for goods being exported to USA. Such invoice includes supplier and consignee details and goods description with the latter including "Australia Bee's Honey", Equipment Release and Export Receival Advice which contains consignment particulars.

226 In his affidavit Mr Lam said that he had been to White's about three times during the honey shipment period. He identified these three occasions by being curious to see what the honey drums looked like (apparently dirty), a honey drum damaged during unpacking including how bad it was and how AQIS officers took a sample of honey for testing. Mr Lam said that his function at Unicargo was administrative and not operational so there was no need for him to be involved with the physical movement of the cargo. Mr Lam said that Unicargo had nothing to do with the cargo when it was at White's Mr Lam said that CHS (and presumably JW Trading etc) did whatever they had to do at White's without assistance or intervention by Unicargo.

227 In par 47 of his affidavit Mr Lam stated: "In the beginning, I thought they said they were going to put Australian honey in with the imported honey and mix it. Mr & Mrs Hu said words with the affect (sic): 'We are looking for some of the honey to blend - it is not easy to find it'. There was no further discussion on this point. I did not know how they were blending the honey and it was not my business to ask the client about their business methods and it would have been very rude of me to do so.

I did not know what they were doing. After a few shipments I did not know how they were blending but I thought that the labour charges were properly enough as fees were very high but I did not know what they were doing and I was very busy with other clients and was not concerned. 228 I have proceeded on the basis that the conversation alleged was between Mr Lam and Ms Jing and that it probably took place shortly after Mr Lam's initial or early conversation about blending Australian and Chinese honey. As at the initial or an early conversation I doubt if Ms Jing appreciated the advantage of the exported honey containing a mixture of Chinese honey and Australian honey. Mr Lam alerted Ms Jing to this. Mr Lam has not identified the labour charges and fees to which he was referring. I doubt whether Mr Hu took part in or was present at the conversation.

229 In par 28 of his affidavit Mr Lam stated that Unicargo had no reason to believe that the labelling and other work that CHS said was being done to the honey did not satisfy the requirements for changing the origin to Australia before the honey was exported. I assume that the reference to CHS includes its successors as exporters.

230 Mr Lam said that Mr Hu or Ms Jing contacted him and spoke to him in Chinese and gave him instructions to be passed on to the Unicargo import and export operational people as to the destination of containers. Most of the contacts were by Ms Jing.

231 Mr Lam said that the Commercial Invoices to their overseas clients were produced by CHS (and presumably its successors). Mr Lam said that after the vessel had been booked Unicargo would insert "the Australian Origin" (of the goods) on to the export declaration as per the invoice. He added that after some time Australian Origin did not appear on the invoices and Unicargo did not declare Australian origin on the export declarations if Australian origin was not declared on the Commercial Invoice.

232 Mr Lam (par 52 of his affidavit) referred to Volume 7 of the Brief of Evidence (documents) numbers 30116 and 30117. As to import shipment 1, on 6 August 2001 Mr David Cho, Senior Import Clerk at Unicargo sent a FAX to AAMAC where the first container was delivered which read, inter alia: "2. FCL Trucking From Botany Wharf to AAMAC for unpacking

3. Unpacking, Once Unpacked, The Importer will re-label the drums at your premise. Once re-labelled

4. Trucking of a empty export cntr from CY to AAMAC

233 A further FAX was sent by Mr Daniel Cho to AAMAC on 7 August 2001 which read, inter alia: "5. Please advise us unpacking date, so we can send someone to re-label the product. We must do this by 10/8/01 AM latest

6. For export please arrange for 10/8/01 delivery to Wharf (Cut off date)" 234 While re-labelling to meet Customs or AQIS requirements is not unusual, there was a very tight timetable and very little time to mix the imported honey with Australian honey. Nor does it appear that the facilities existed at AAMAC for this to occur.

235 As to import 2, and the 10 containers of honey, Mr David Cho sent a FAX to White's on 11 October 2001 stating, inter alia: "4. All Cntr are to be unpacked at your yard … 7. Once unpacked, the importer will go to your yard to re-label each drums."

236 This again demonstrates that Unicargo was aware that re-labelling of each drum had to occur. A lot of drums were involved. Re-labelling was not of itself unusual.

237 Mr Lam agreed that part of what he did in relation to every import shipment was to forward the necessary documents from the consignee to Mr Woodford to get the goods cleared by Customs. Mr Lam said that most of the time Unicargo just passed the documents on. He might have looked at some of the documents (for the first shipment). His recollection was that nothing was said between him and Mr Hu or Ms Jing about the first shipment being a trial run. I am unable to determine whether Ms Jing told Mr Lam that the first shipment was a trial run, although that was the fact. Mr Hu did not say anything to this effect. Mr Lam agreed that he must have had a discussion with either Mr Hu or Ms Jing about what documents were required to clear Customs. While he could not recall exactly when and what he told them, he thought that he told one of them (Ms Jing) that the documents needed for Customs clearance for normal import procedure would be bill of lading, commercial invoice, packing declaration. The conversation took place at an early stage, that is either before or at the time when the first shipment arrived. Mr Lam said that he must have provided Ms Jing or Mr Hu with a sample of a packing declaration and the information required. Clients importing for the first time always have a commercial invoice and a bill of lading.

238 Mr Lam agreed that as to import 1, the FAX markings on the top of the document bearing the heading Top Food Co., Ltd and called Packing Declaration indicated that the document had been faxed to Unicargo. Mr Lam thought that he must have seen that document. The Chinese characters on the left hand side of the document read "Please pass it on to Mr Lam." He said that he must have noticed the address, "Singapore", on this document. Mr Lam said that he must have looked at the bill of lading relating to this first shipment. It had the origin of the cargo as Singapore. Mr Lam agreed that he noticed the documentation provided to him in relation to the first shipment showed that the shipment's origin was Singapore. Mr Lam agreed that he believed that the origin of the shipment was China. He knew there was a difference between China and Singapore. Mr Lam said that because honey has no duty he was not concerned. He added that if they were not sure as to the origin of the goods they rely on the documents and most of the time base themselves on the documents. Mr Lam was aware of the importance of supplying Woodford with the correct information. Mr Lam knew that the origin of the goods shown on the documentation for importation 1 was not true. Mr Lam said he (or rather his staff at Unicargo) passed the documents on to Mr Woodford and he inserted the origin of the goods as Singapore on the Entry for Home Consumption. Mr Lam denied that he knew when Mr Woodford looked at the documents he would conclude that the country of origin of the honey was Singapore.

239 The Packing Declaration on the letterhead of Top Food Co., Ltd appears from the markings to have been sent from Fine Quality Masterprint to Unicargo. The Invoice (or commercial invoice) from Top Food Co., Ltd of 20 July 2001 shows a shipment from Singapore to Sydney and the notation FOB Singapore. It does not state the place of origin of the honey as Singapore. The Combined Transport Bill of Lading shows the Port of loading as Singapore, the Port of Discharge as Sydney and the place and Date of Issue as "Singapore Jul 25 2001". It does not state the place of origin of the honey as Singapore. It shows the Consignee as CHS Enterprises Pt Ltd. The Entry for Home Consumption completed by Mr Woodford shows: "Load Pt: Singapore Origin/Pref: Sing S Owner: CHS Enterprises Pty Ltd Supplier: Top Food Co Ltd The Product is described: Natural Bee Honey."

240 It seems that Mr Woodford has assumed that the origin of the goods is the same as the Port of Loading.

241 Mr Lam agreed that he passed the documents Unicargo had received on to Woodford for the purpose of the goods being entered for home consumption knowing that the information on those documents would be so used. He knew that one of the pieces of information required to be placed on that entry was the country of origin of the goods being imported. He did not know that Mr Woodford when he looked at the documents would conclude that the origin of the goods was Singapore. Nor did he know that the goods would be entered as having Singaporese origin. If Mr Woodford had doubt as to their origin he would talk with Mr Cho of Unicargo's import staff. Some countries have special rates of duty for some products and that may prompt an enquiry. For duty purposes there was no gain to be had whether Singapore or China was inserted.

242 Mr Lam denied that he knew that false information would be entered on the Entry for Home Consumption as that entered merely followed the documents supplied. Mr Lam said that it was up to Woodford what he inserted as the country of origin and that if Woodford put China it was fine with him (Lam) and that if Woodford put Singapore it was fine with him. There was no duty rate on honey so Mr Lam could not see the problem.

243 This evidence was given by Mr Lam: "Q: You thought that because there was no duty involved, it didn't matter whether a false point of origin was placed on the entry for home consumption; is that what you're saying? A: More or less, yes."

244 As to import 1, Mr Lam said that he understood that the goods would "be under certain process before they export." Mr Lam was asked to assume that the imported container was collected on 7 August 2001 and the drums were packed in a new container on 10 August 2001. Mr Lam declined to speculate whether it would have been possible for the blending of large quantities of honey to have occurred in such a period. That is a matter for the clients, of whom he has many. He does not consider how the clients process their honey. He never thought about whether this Chinese honey was blended or processed with Australian honey. He agreed that there were not the facilities at AAMAC's premises to blend or process the Chinese honey.

245 Mr Lam agreed that he knew that the first container load of honey was to be shipped out to the USA as soon as possible and that he made arrangements accordingly.

246 Mr Lam denied that he supplied Mr Hu or Ms Jing with a draft commercial invoice or a draft copy of a commercial invoice. Mr Lam also denied giving either of them a lesson or instruction in what should be contained in a commercial invoice. Despite his denial, Mr Lam may well have supplied Ms Jing with a precedent that could be adapted.

247 Mr Lam agreed that after Unicargo (and he) received the Commercial Invoice it was able to make arrangements with the shipping company selected for the preparation of a bill of lading. About the same time Unicargo accessed the Customs computer system known as EXIT. As to export shipment 1 an employee of Unicargo must have entered information based on the commercial invoice of CHS Enterprises Pty Ltd. Mr Lam agreed that the goods exported must have been the goods that had previously been imported. The commercial invoice received contained the words "Product of Australia". Mr Lam agreed that he (possibly Unicargo) entered or caused to be entered "Product of Australia" or "Australian Produce" in the EXIT System as to this consignment. He denied that he knew this was false. He and Unicargo acted on the basis of what was contained in the commercial invoice of CHS Enterprises Pty Ltd. Unicargo's task was simply the mechanical task of entering what was on the commercial invoice. Unicargo does not question its customer's declaration (in the invoice).

248 Mr Lam said that he understood that "they" will process the honey and then re-label the drums. He understood from what the client told him that the drums which had been imported were to be re-labelled. Mr Lam said that he never knew what was on the new label and that it was not his duty to know. Mr Lam agreed that he understood that there was a problem as to the imported drums in that they did not have a label stating the place of origin, and other matters. His staff advised him of this and he passed on the message to the owner of the cargo.

249 Mr Lam agreed that he was aware that labels stating the place of origin on the honey had been put on the drums and that he was subsequently aware when those goods were exported they were to have labels stating "Product of Australia" or words to that effect. This was from as early as 11 October 2001, that is about the time of the second shipment (about 10 containers). Mr Lam said that he must have advised his staff when this shipment arrived that the importer would go to the place of storage and re-label each of the drums. He was aware that his staff had advised White's accordingly.

250 Mr Lam agreed that the instructions issued by Mr David Cho on 11 October 2001 as to what was to happen to the 10 containers imported and to be exported to various destinations in the USA contained nothing about any processing in relation to the honey imported. Such processing was not taken into account in the instructions. Mr Lam stated that certain processing would be done. It was not for them to assume that as soon as the unpacking had been done the drums should be ready to be shipped off to places in the USA.

251 Mr Lam agreed that instructions similar to those of 11 October 2001 continued to be given from Unicargo to White's for some of the earlier importations which followed. (Customs made the point after examining the documents that later on Unicargo did not advise White's of the importer re-labelling the drums, etc.)

252 Mr Lam said that Unicargo's instructions as to the bill of lading included the goods being described as Australian honey or something similar. So far as he remembered some, but not all, of the bills of lading as to the exports disclosed that the honey was of Australian origin.

253 Mr Lam emphasised in re-examination that Unicargo as a freight forwarder did not question their clients as to what they are doing. They rely on the documents and the information which their clients give them.

254 In the entries for Home Consumption as to imports 6, 7, 8, 15, 16, 27 and 28 Mr Woodford inserted that the goods were of Chinese origin although the Port of Loading was shown as Singapore and on the entries for imports 2 and 5 the origin was shown as unknown. Mr Lam relied on these nine entries to demonstrate that Mr Woodford had made his own determination as to the origin of the goods and that Unicargo and he could not be held responsible for what Mr Woodford inserted in the Entries for Home Consumption.

255 Duhee Cho (aka David Cho), was born in Korea and came to Australia aged 16 and has been in Australia for about 21 years. He does not speak Mandarin. He was the Senior Import Clerk at Unicargo. He said that the first thing he knew about the honey was when Gordon Lam said words to this effect: "We have a new client who is importing honey from China. These are the documents for their first shipment. I want you to have this cleared through Customs and Quarantine. Once the goods are Customs and Quarantine clear they have to be delivered to White Haulage."

256 There is no explanation why the first shipment went to AAMAC. Mr Cho said that he received a direction from Mr Lam to convey to White's the instructions set out in the FAX of 11 October 2001. Mr Cho said that he knew the cargo was to be exported to a destination other than Australia but he did not understand that this cargo was to go to USA nor was he aware of the time frame.

257 Mr Cho explained that AQIS made random selection of goods for inspection. Some goods (those not the subject of an AQIS selection for inspection) received Quarantine and Customs clearance at the wharf and were taken to White's. Others the subject of inspection were also taken to White's where the AQIS inspection took place. He and another member of Unicargo's staff assisted AQIS officers to carry out their inspections including taking samples from the drums of honey.

258 Mr Cho said that he did not know the names of the importer or importers of the honey and was never introduced to them. Because of the language barrier the directors always spoke with the clients. Mr Cho had nothing to do with the exporting of the honey.

259 Mr Simon S W Jung worked in the export section of Unicargo as an Export Operator. Most of the export shipments at Unicargo were handled by Mr J H Nam, who left his job there. Mr Jung did not know where Nam was. Mr Jung said he only dealt with a few shipments and that Mr Lam brought him the paperwork to do the documentation for the export shipments of honey including the client's faxed instructions for the exports. Mr Jung said that he cut and pasted the information required by the shipping company for each shipment in the company computer. The collection of the honey from White's was not organised by him. His job was to attend to the shipping company documentation. Mr Jung did not remember talking to the "honey clients" on the telephone, had not met the exporters and had not visited White's.

260 Custom's case was that Mr Lam admitted that he knew the honey came from China. He engaged Mr Woodford to clear the goods, and forwarded documents to him to enable him to do so. There was no contact between Mr Woodford and Ms Jing (or Mr Hu). Customs contended that Mr Lam knew that the documentation he sent to Mr Woodford falsely represented the country of origin of the honey as Singapore. In those circumstances, Mr Lam (and Unicargo ) was directly or indirectly concerned in the making of false statements in the Entries for Home Consumption.

261 Customs submitted that Mr Lam's position seemed to be that since Mr Woodford was engaged to effect Customs clearance for the imports, it was up to Mr Woodford to nominate the country of origin in the Customs entries. Further, Mr Lam claimed that as there was no Australian duty on the Chinese honey whether entered as Chinese or Singaporean honey it did not matter whether China or Singapore was entered in the Entries for Home Consumption. Neither of these propositions afforded a defence to the charges.

262 In one instance the import documents forwarded by Unicargo (probably at Mr Lam's instigation) included a copy of the Arrival Notice and there was information on that alerting the reader that the goods had come from Shanghai. This applies to Import Shipment 2. It is necessary to check that the documents seized by Customs from Mr Woodford included the Arrival Notice. That is a poor copy which is hard to read. It is next necessary to refer to the copy seized by Customs from Unicargo as the details on that can be read. A little detective work is necessary. I am not sure what the position is as to Import Shipment 3 as I cannot read document No 39036 and I am not sure whether it is a copy of the Arrival Notice (30081) or the Bill of Lading (30080), but I think that it is probably the latter.

263 As to the other import shipments it seems that a copy of the Arrival Notice was not sent to Mr Woodford. With some imports Unicargo held a copy of the Arrival Notice. With other imports they did not. Some of the Arrival Notices contained no Chinese reference.

264 The copy invoices from the purported supplier forwarded by Unicargo to Mr Woodford contained this heading: "From Singapore To Sydney". On occasions "Port Kelang" appeared in lieu of "Singapore" in the Invoice and the "Combined Transport Bill of Lading". This is immaterial.

265 In addition to those instances where the Entry with the latest date showed the country of origin as China there were instances where the AQIS Inspection Notes showed the country of origin as China. See, for example, Import Shipment 26 but Singapore was shown as the country of origin on the Entry. The Entry probably pre-dated the AQIS notes. I have also earlier noted the instances (Import Shipments 2, and 5) where the country of origin on the Entry for Home Consumption was shown as unknown. It is not known why Mr Woodford made these different Entries. He was not asked when called to give evidence. He may not have remembered given the lapse of time.

266 Mr Woodford sent a copy of the Entry for Home Consumption to Unicargo mostly, if not always in response to Unicargo's request as contained in its initial FAX from Mr David Cho. In the first instance the copy Entry for Home Consumption sent to Unicargo went to Mr D Cho as an operational matter. The evidence does not disclose whether Mr Lam saw them but the file was sent to him for costing (billing the client) once Mr Cho had completed his duties. Those copy Entries mostly showed the country of origin as Singapore.

267 Unicargo and Mr Lam seemed to think that each was a mere conduit for passing on the documents received by FAX from Ms Jing to Mr Woodford and that Unicargo and he were entitled to proceed on the basis of the statements in the documents, in the absence of any obvious error. It was not his or Unicargo's task to query the document or the details supplied by Ms Jing. It was for Mr Woodford who made the decision as to the country of origin to be inserted.

268 While Mr Woodford inserted the country of origin, the documents sent to Mr Woodford by Unicargo at the instigation of Mr Lam - and I include the Packing Declaration, the Packing/Weight List, the Invoice and the Combined Transport Bill of Lading - generally showed the Port of Loading as Singapore or Port Kelang. This applies in respect of the Import Shipments other than 6, 7, 8, 15, 16, 27 and 28 where Mr Woodford appears to have had further information. As to Import Shipments 2 and 5 , with the Entries stating the country of origin as unknown, for reasons which do not appear, Mr Woodford appears to have drawn a different conclusion.

269 While Unicargo and Mr Lam had to deal with a large volume of documents on a regular basis and would not have examined all the documents closely, there are many Entries which state the country of origin as Singapore including the first Entry. This must have been noticed. No attempt was made to correct the Entries. There is much substance in the view that Unicargo and Mr Lam were untroubled by the false statement as to the country of origin because it did not result in Australian duty being payable.

270 Customs contended that Mr Lam knew that the same drums of Chinese honey were, after being imported, to be exported to the United States and represented in Customs and in commercial documents as Australian honey. Mr Lam and Unicargo: (a) entered the goods on the Customs' EXIT system as Australian honey; and

(b) sent documents to the shippers with bills of lading describing the goods as Australian honey. 271 In such circumstances, Customs contended that each of Mr Lam and Unicargo was directly or indirectly concerned in the making of false statements as to the country of origin of the goods in the clearances for export and in the relevant commercial documents.

272 Customs contended that the Court should not accept Mr Lam's evidence that he told Ms Jing and Mr Hu at their initial meeting (or an early meeting) that in order to qualify as Australian honey the imported Chinese honey had to be blended with 50 per cent Australian honey. I think that the question of mixing Australian honey and Chinese honey was raised by Mr Lam at either the initial meeting or an early meeting. It was this that led to Ms Jing reporting this matter to her superiors in Kunshan, China, and gaining their approval to try and obtain Australian honey and her having Mr Hu make telephone calls in Australia to try and obtain substantial quantities of Australian honey. I think that probably when Mr. Lam raised this matter Ms Jing (but not Mr Hu) indicated that she would try and do this.

273 I find beyond reasonable doubt that Mr Lam and consequently Unicargo knew that the Chinese honey which was imported was to be re-exported in the same drums to the USA and that no blending with Australian honey had occurred. Many of the drums were re-exported quite quickly to the USA after being imported and there were no facilities at either AAMAC or White's for blending Australian and Chinese honey. Because of the large quantities of honey involved substantial blending facilities would have been involved.

274 I am satisfied beyond reasonable doubt as to the export shipments of honey that Mr Lam and Unicargo knowingly made false statements in the EXIT declarations that the honey being exported was Australian honey whereas it was Chinese honey and the country of origin was China.

275 While the documents in respect of each importation and exportation seized by Customs were tendered in evidence the parties tended to adopt an overall approach because of the repetitive nature of what occurred. I have to consider both the overall situation and each individual charge and the evidence as to each. That evidence will be both case specific and more general. I remind myself that Customs has to prove each charge beyond reasonable doubt. That involves proving each element of the charge beyond reasonable doubt. Customs has the benefit of extensive averments but it was common ground that they did not extend to matters of intention or knowledge.

276 I have already expressed some views as to the witnesses and their evidence. I recapitulate. Ms Jing came across as lively, shrewd and manipulative. She was intelligent and physically attractive and, as mentioned, not inclined to tell Mr Hu everything. She kept many matters close to her chest. Mr Hu was preoccupied with his printing business but prepared to assist her as far as he could when called upon to do so. The assistance took the form of letting her use his company and its name for the first import and the first export. She used the facilities at his office and factory without letting him know in any detail what was happening. She utilised and directed the services of Holly, the secretary/receptionist/computer operator at CHS as and when she needed them, for example, in the preparation and production of labels for the drums. Mr Hu further assisted Ms Jing by recommending and introducing Mr Lam to her, making telephone calls on her behalf because of her poor command of English, taking messages for her when she was absent, and answering queries when he was able. Mr Hu agreed that when he went to White's he spoke with White's personnel including Ms Patrick. He agreed that at times at Ms Jing's request he telephoned White's to see if containers had arrived and when Ms Jing and others could go to White's to affix labels. He referred to physically driving her to White's and collecting her from White's, and on a limited number of occasions assisting her to affix labels to drums. He also engaged and paid students to assist her with cleaning drums and labelling on a number of occasions. At her request he attended to the labelling and cleaning of drums imported by Sydausia and their subsequent export. She was out of Australia. She had issued instructions to Holly. He collected labels from Holly and engaged and paid students to fix them to the drums. Mr Hu met the students at Sydenham Station, took them to White's, told and showed them what to do and set them to work, returning at the end of the work to pay them. This appears to relate to an importation outside the period charged. While the Sydausia shipment is not the subject of a charge it is relied on as evidencing the extent of Mr Hu's involvement in the imports and exports charged.

277 Ms Jing regarded Mr Hu as having a larger role than he accepts. She said that he conducted all the dealings with White's. She said that he not only transported her to White's as she did not like driving, but he also assisted her with the detailed work. Generally he would stay with her, do the requisite tasks and then they left together.

278 Ms Annette Patrick said that after the first visit of Mr Lam to White's in response to her first complaint about the messy and dirty drums, on most occasions it was Ms Jing who attended at White's with her helpers. She attended to and supervised the cleaning of the drums. Ms Patrick had difficulty in understanding the English expression of Mr Hu and Ms Jing. Except when she was offsite Mr Hu and Ms Jing came to see her on their visits. Ms Patrick agreed that Ms Jing was usually driven to White's by Mr Hu. On some occasions he dropped her off and drove away. On other occasions he attended with her. She was unable to say on how many occasions he stayed.

279 As to Mr Hu's role with White's, I accept that as with all aspects of the importations and exportations, Ms Jing was in charge and that Mr Hu played a lesser role. At her request and direction, because of his better English expression and comprehension he telephoned White's on a number of occasions to enquire whether particular containers had arrived and when it would be convenient to attend at White's premises to fix labels and clean drums. He drove her to White's premises on the majority of occasions, and mostly collected her when she had finished. He did not normally stay and help but did so on about four or five occasions. He engaged students to help her and arranged for them to be paid. There were some occasions when he neither drove her to White's nor collected her. Mr Hu's role in relation to visiting White's and executing work there was a relatively minor one. His role was to make the enquiries and arrangements mentioned.

280 Mr Hu introduced Ms Jing to Mr Lam, took messages, often for her to return the call, answered questions where he knew the answer, made his company available for the first importation and exportation, allowed Ms Jing to use the facilities of CHS' office and factory, made telephone calls requested (e.g., as to the purchase of Australian honey), assisted to the extent outlined with and at White's, acted as translator and interpreter and was generally prepared to help Ms Jing if he could as and when requested. In summary this was minor. She ran the import/export business. She conducted the negotiations and dealings with Kunshan Foods, made the relevant arrangements with Mr Lam and controlled the finances. She retained the accountant and opened the bank accounts. She attended to the receipt of the moneys from overseas and the relevant payments and remittances. She attended to the major and crucial matters and controlled the Australian operation. She did not take him into her confidence; he picked up small segments of what was happening. He heard her arguing about transport costs. While Mr Lam made references to Mr Hu, the latter played a minor and subsidiary role. Mr Lam found it hard to accept that this was Mr Hu's role. The honey imported and exported had a value in excess of $5 million. I do not accept that Ms Jing's remuneration was as meagre as the evidence suggests. The evidence as to that struck me as highly improbable and incorrect.

281 I find that at their initial meeting Ms Jing explained to Mr Lam in Mandarin that honey was to be shipped from China to Australia, that such honey was to be re-labelled in Sydney as Australian honey before being exported (or shipped) to the USA. Ms Jing said that Mr Lam stated that one way she could export the honey as Australian honey was to buy some local honey and blend it with the Chinese honey. She denied that Mr Lam told her that it was necessary for the honey to consist of 50 per cent Australian honey before the honey being exported could be classed as Australian honey.

282 In his affidavit (par 15) Mr Lam was probably endeavouring to convey that Ms Jing stated that honey was being sent to Australia for processing and export to the USA. Ms Jing denied telling Mr Lam that the honey would be processed in Australia before it was exported to the USA. Mr Lam was troubled when he learnt that the honey was to be re-labelled in Sydney as Australian honey before being exported to the USA. He said that he told her for the honey to be described as Australian honey it must have undergone some process in Australia or be blended with 50 per cent Australian honey. He probably wanted the operation to have the air of legitimacy and that is why he wanted the Chinese honey to be blended with Australian honey to the required extent of 50 per cent. Ms Jing realised the good sense of blending Australian honey and Chinese honey, raised this with her principals in China and obtained their agreement to such a course. Whether she or her Chinese principals ever intended that Australian and Chinese honey should be blended in equal amounts is very doubtful. She caused enquiries to be made as to possible sources of Australian honey and had Mr Hu make some telephone enquiries on her behalf, but no Australian honey in substantial amounts was available.

283 Ms Jing said that she subsequently had a meeting with Mr Lam at a coffee shop near Mr Hu's factory, told him that there was no chance of obtaining Australian honey and asked him what she should do. She said that Mr Lam replied "There's another way to do this. If all the costs of the importation together are over 30 per cent, in other words, if the costs like shipping, transport, Customs duties, clearance costs, storage and cleaning costs are taken together and are more than 30 per cent of the original price you can say that it's Australian honey." This was not pursued. As previously pointed out, in par 47 of his affidavit, Mr Lam revealed that he was made aware of the difficulty being experienced in obtaining Australian honey to blend with the Chinese honey but his awareness probably came a little later than he suggests.

284 When it came to the exports Ms Jing did not tell Mr Lam that she had not mixed Chinese and Australian honey but Mr Lam must have realised this from what he had previously been told and from the absence of blending facilities and arrangements at AAMAC and White's.

285 I did not regard Ms Jing or Mr Lam as wholly truthful witnesses and have approached the evidence of each with caution and a degree of reservation.

286 On the balance of probabilities and not to the criminal standard of proof, I would hold: (a) Mr Lam probably told Ms Jing at their initial meeting or an early meeting that for the honey to be exported as Australian honey such exported honey had to have a 50 per cent Australian content and did not simply say that some Australian honey had to be blended with Chinese honey.

(b) Ms Jing probably told Mr Lam at a subsequent meeting that she could not obtain Australian honey because of the drought and bushfires. He probably did not tell her the alternative way of qualifying the honey as Australian honey. The meeting at the coffee shop probably occurred a short period after the initial meeting or at an early meeting. She advised Mr Lam of the inability to obtain Australian honey and asked him what she should do. I do not accept that he raised the alleged alternative.

(c) Ms Jing probably did not tell Mr Lam that the honey would be processed in Australia before it was exported to the USA. 287 After Ms Jing told Mr Lam that Australian honey could not be obtained she may have said to him words to the effect that if, after inspection and taking samples, the AQIS granted a quarantine clearance that would mean that the honey met the Australian requirements. Mr Lam may have replied, "There should not be any problem. I am an honest man and not do any illegal things." I am unable to say whether a conversation to this effect occurred.

288 Mr Lam was familiar with the premises of White's. I find beyond reasonable doubt that he could not have believed that any honey blending or honey processing took place at those premises. Given the nature of the premises, namely, an unlocked warehouse or unlocked warehouses containing many dirty messy drums, with drums stored around the open yards, Mr Lam knew that honey blending or processing could not take place. There were no adequate facilities for such operations.

289 I am also satisfied beyond reasonable doubt that there was insufficient time for any such blending of Chinese and Australian honey to occur as to shipment 1, import 1, that is from 7 August 2001 to 10 August 2001. In that short space of time the containers had to be unpacked, the drums cleaned, re-labelled and repacked. This was apart from blending or processing the honey. The work had to be completed by a.m. on 10 August 2001 to allow for the containers to be delivered to the wharf. There was no suggestion of honey blending or processing facilities being at AAMAC'S premises. Lengthier periods of time were often allowed for the later shipments.

290 I am satisfied beyond reasonable doubt that Mr Lam was aware that no blending or processing of the honey was taking place between the time the honey was imported and exported. The goods remained at White's during that period and there were no relevant facilities. Mr Lam was aware that Australian honey could not be obtained in sufficient quantities. I am satisfied beyond reasonable doubt that on the drums being delivered to White's labels stating that the goods were "Made in China" and other requisite details were placed on the drums, that the drums were subsequently re-labelled with the labels describing the honey as being Australian honey or "Product of Australia" or words to that effect, that such further labels were placed on the drums while at White's and that Mr Lam was aware of this. Mr Lam said that he visited White's on about three occasions. This was during the period August 2001 and May 2002

291 Mr Lam and Unicargo placed great emphasis on them relying on the documents they were given and that it was not for them to query a client's instructions. If Unicargo and Mr Lam had simply received documents and had no other knowledge, that submission would have considerable force. However, Mr Lam and Unicargo knew that the honey being imported was Chinese honey, had not been blended or processed in Australia and was being exported as Australian honey, or as a "Product of Australia". The EXIT Declaration completed was false and known by Mr Lam and consequently by Unicargo to be false.

292 Mr Lam and Unicargo were not concerned because there was no duty payable on honey imported from Singapore or China and on honey being exported from Australia to the USA. They were focussed on the point that no Australian duty was being avoided or was unpaid.

293 It was undisputed that CHS was to be used for this import shipment. It was shown as the owner or the consignee on the documents, that is, on the Arrival Notice, the Combined Transport Bill of Lading, the Commercial Invoice, the Packing/Weight List and the Job Sheet of Unicargo. On 1 August 2001 Unicargo sent Woodford an instruction by FAX to enter the one container under CHS. The Entry for Home Consumption lodged by Woodford shows the owner as CHS and the country of origin of the goods as Singapore. CHS, Mr Hu, Ms Jing, Unicargo and Mr Lam knew the country of origin was China. Copies of the Combined Transport Bill of Lading, the Commercial Invoice, the Packing Declaration, the "Packing/Weight List" were sent from Unicargo to Woodford and prior to that from CHS to Unicargo. CHS also sent Unicargo a copy of the Arrival Notice. It showed additionally that the place of Receipt of the Goods was Shanghai and that the place and date of issue of the Bill of Lading were Shanghai on 21 July 2001.

294 Section 234(1)(d)(i) provides that a person shall not intentionally make a statement to an officer reckless as to the fact that the statement is false or misleading in a material particular. The statement as to the country of origin of the goods is a material particular and the statement in the Entry was false. CHS did not directly make a statement but it had Unicargo arrange for the clearance of the drums of honey and engage a Customs broker. There is a chain of agents and CHS initiated the supply of documents to Unicargo which took over and delivered the documents which it considered appropriate to Woodford. Unicargo does not seem to have sent the Arrival Notice to Woodford which may have alerted him to the Chinese origin of the goods.

295 I reject the defence of CHS that Customs had failed to establish beyond reasonable doubt that CHS intentionally made or caused to be made a statement to an officer, reckless as to the fact that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act . CHS allowed itself to be used as the importer for this import shipment. Ms Jing was allowed to use CHS. She, Mr Hu and CHS knew the country of origin of the honey. CHS via Ms Jing precipitated the sending of the documents as earlier mentioned and used its facilities to do so.

296 Customs has established beyond reasonable doubt each of the ingredients required under s 234(1)(d)(i) of the Act as against CHS. Customs has also established beyond reasonable doubt that Mr Hu, Ms Jing, Unicargo and Mr Lam were each directly concerned in the commission of an offence by CHS against s 234(1)(d)(i) of the Act.

297 As to the charge under s 9(1) of the Commerce (Trade Descriptions) Act each of the ingredients of that offence has been established beyond reasonable doubt. Contrary to s 9(1) CHS imported goods to which a false trade description applied. The definitions of false trade description and trade description are important. Trade description covers the country in or at which the goods were made or produced and the Entry for Home Consumption wrongly described the country of Origin as Singapore whereas it was China. Again there was a chain of agents and the supply of documents as earlier mentioned.

298 I reject the defence of CHS that it did not intentionally import the honey in contravention of s 9(1) of the Commerce (Trade Descriptions) Act . It knew that the honey came from China as did Unicargo and Mr Lam, and caused documents to be sent to Woodford which did not state that the honey came from China but created the impression that it came from Singapore. CHS has not established the defence under s 9(2) of the Act.

299 Mr Hu's global defence to the aid and abet charges that they required knowledge and that he did not have the knowledge of the particular matters does not apply to import shipment 1 when he authorised his then wife to use CHS for that import.

300 Mr Hu submitted as to Import Shipment 1 that as CHS did not commit an offence therefore he did not aid and abet the commission of an offence by CHS. However, I have held that CHS did commit an offence under s 234(1)(d)(i) of the Customs Act and also an offence under s 9(1) of the Commerce (Trade Descriptions) Act .

301 Unicargo's defence that it was merely an agent or conduit for passing the documents supplied by the importing defendants to the Customs broker over-simplifies matters. Unicargo was aware that the honey being imported came from China. It was also aware that the documents it passed on to Woodford showed the Port of Loading as Singapore and that the Entry prepared by Woodford, a copy of which it received, at its request, showed the country of origin as Singapore. Unicargo promoted the clearance of the import and the delivery of Import 1 to AAMAC. Unicargo denied that it aided and abetted the alleged false statement offence by CHS.

302 Unicargo and Mr Lam denied that it and he respectively had any knowledge of the alleged illegal activities of the honey importers. That included CHS and thus, it was contended that it and he could not have knowingly aided and abetted any of the actions of the principal engaged in importing honey. Mr Lam was aware that the honey being imported came from China and of the other matters mentioned in the preceding paragraphs. Mr Lam was the directing force behind Unicargo . He was the one who dealt with Ms Jing. He insisted that he mentioned to Ms Jing, in the presence of Mr Hu, the need for the Chinese honey and Australian honey to be blended or mixed in equal amounts before the honey could be classed as Australian produce or Australian honey.

303 The defences of Unicargo and Mr Lam as to Import Shipment 1 are rejected as to aiding and abetting (being directly concerned with) the false statement charge and the false trade description charge. From the defences filed it seemed that Unicargo and Mr Lam may be relying upon having nothing to do with the preparation or affixing of the labels applied to the drums. Customs did rely on the knowledge of Unicargo and Mr Lam as to the labels being affixed as evidence in support of its case both as to the import and export shipments

304 Customs has established beyond reasonable doubt that Mr Hu, Unicargo and Mr Lam were directly concerned in the commission of the offence by CHS as to Import Shipment 1 against s 234(1)(d)(i) of the Customs Act and against 9(1) of the Commerce (Trade Descriptions) Act . CHS has not established the defence provided by s 9(2) of the Act. Further, none of Mr Hu, Ms Jing, Unicargo and Mr Lam have established that he, it and he respectively were not intentionally concerned in the commission of the offence by CHS against s 9(1) of the Act.

305 In par 26 of the Statement of Claim filed on 27 August 2004 and the Amended Statement of Claim handed up at an early stage of the hearing it was asserted as to Import Shipment 2, at sub-par (ii) and (iv) that the owner and consignee of the shipment was Ms Jing using her business name "JHM Trading Company". This covered the shipments both from Shanghai to Singapore and Singapore to Sydney. Customs further asserted that acting on the instructions of Mr Hu and Ms Jing, Mr Lam using Unicargo gave instructions to Woodford to clear the honey through Customs and on the instructions and advice of Mr Hu and Ms Jing, Unicargo gave Woodford documentation from which Woodford declared to Customs that the origin of the honey was not known. The allegation in the Statement of Claim that Mr Lam told Woodford that the origin of the honey was not known was deleted from the Amended Statement of Claim.

306 It was asserted by Customs that Mr Hu, Ms Jing, Unicargo and Mr Lam knew that the honey was not of unknown origin, but Chinese. Customs asserted that on 10 October 2001 Woodford on behalf of CHS produced to Customs a Nature 10 Entry for Home Consumption for the 10 containers of drums of honey stating the owner of the honey as CHS rather than Ms Jing (via the JHM Trading Company name) and the origin of the goods as unknown. Customs asserted and proved beyond reasonable doubt that CHS' statement to Customs as to the origin of the goods was false and known to be false by CHS, Mr Hu, Ms Jing, Unicargo and Mr Lam.

307 In para 32 of the Statement of Claim and the Amended Statement of Claim Customs charged CHS with an offence under s 234(1)(d)(ii). In each document in par 34 Customs charged Ms Jing with being directly concerned in the commission of the s 234(1)(d)(ii) offence by CHS. In the proposed Further Amended Statement of Claim, par 26, Import Shipment 2 the same allegations were made as in par 26 of the Statement of Claim and the Amended Statement of Claim. The same charges are laid against CHS (par 32) and Ms Jing (par 34). In substance both CHS and Ms Jing appear to be principals. The documents as to Shipment 2 reveal: (a) Arrival Notice is addressed to JHM Trading Company as Consignee

(b) The Combined Transport Bill of Lading is addressed to JHM Trading Company as Consignee

(c) The Commercial Invoice of Top Food Co., Ltd dated 24 Sep 2001 is addressed to JHM Trading Company

(d) The Packing/Weight List of Top Food Co., Ltd dated 24 Sep 2001 is addressed to JHM Trading Company (The Combined Transport Bill of Lading, the Commercial Invoice and the Packing/Weight List were sent by FAX from Fine Quality Masterprint (CHS) to Unicargo on 8 October 2001 at about 6.24pm).

308 However, Unicargo received a FAX from Fine Quality Masterprint about 12.27pm on 8 October 2001 dated 5 October 2001 on the letterhead of CHS purporting to be signed by "Robin Hu" marked for the attention of Gordon Lam advising of the anticipated arrival of 10 containers on 9 October 2001 and requesting that nominated containers be sent to three destinations in the USA. Mr Hu denied that his signature appeared on the FAX. He may well be correct. The instructions and the allocation would have emanated from Ms Jing acting on instructions from Kunshan Food in China. Ms Jing was in a position where she had access to and could use CHS letterhead and facilities.

309 On 9 October 2001 Woodford received instructions by FAX from Unicargo as to the 10 containers with an "ETA" in Sydney of 9 October 2001, namely "Entry Under - CHS Enterprises P/L"; and this request: "Please FAX Us Entry By 9am 10/10/01." Woodford, although sent copies of the Combined Transport Bill of Lading, Commercial Invoice and Packing/Weight List and the Arrival Notice which showed the Port of Loading as Singapore, followed the instruction in Unicargo's FAX of 9 October 2001 (prepared by David Cho), lodged a Nature 10 Entry For Home Consumption showing the owner as CHS, the Port of Loading as Singapore and the country of origin as unknown. The supplier is shown as Top Food Co Ltd. Woodford sent Unicargo a copy of this Entry by FAX.

310 The agreement between Ms Jing and Mr Hu was that she could use his company (CHS) for the first import and export, that she would have her "company" registered expeditiously and that she would thereafter use her own "company". Mr Cho acted on the instructions of Mr Lam. Neither Mr Lam nor Mr Cho explained or was asked why Woodford was instructed that the import shipment be entered in the name of CHS when the other documents were in the name of JHM Trading Company. When Mr Lam on 8 October 2001 received the FAX from Fine Quality Masterprint dated 5 October 2001 on the letterhead of CHS and purporting to be signed by Mr Hu he would not have cause to question that the honey should be entered in the name of CHS as authorised by CHS for the first shipment. This history and the instruction from Unicargo that the Entry was to be in the name of CHS would have justified Woodford in filling out the Nature 10 Entry for Home Consumption showing the owner as CHS. On the documents Woodford received it was understandable that he would state that the country of origin was unknown.

311 Section 234(1)(d)(ii) prohibits a person intentionally omitting from a statement made to an officer any matter or thing reckless as to the fact that without the matter or thing the statement is misleading in a material particular. CHS did not directly make a statement to an officer, but it had Unicargo arrange for the clearance of the containers of drums with honey and engage a Customs broker. Although there is a chain of agents Customs has established beyond reasonable doubt each of the ingredients required under s 234(1)(d)(ii) as against CHS. This was a case of apparent authority. Unicargo, Lam, Jing, Hu and CHS knew the honey came from China. Woodford was not told. It was known by Unicargo and Lam that the country of origin of the goods had to be included in the Nature 10 Entry . I would infer that Ms Jing knew but Mr Hu was probably not aware of this. The correct statement of the country of origin of the goods was and is a material particular.

312 As to Import Shipment 2 Mr Hu denied that he had the requisite knowledge of the particular matters that is, of the particular import shipment and of the lodging of the particular Entry and of the particular omission rendering the statement misleading. Mr Hu had a general knowledge that import shipments of honey were arriving and that they had arrived. He was aware that the imports of honey had to be cleared by Customs and AQIS and that Ms Jing was sending documents to Unicargo and Mr Lam to enable this to happen. Mr Hu knew that the drums of honey had to be unpacked, cleaned and repacked. He knew at an early stage that the imported drums had to be labelled with the required information for import purposes and then re-labelled for export purposes. I find that Mr Hu was not concerned directly or indirectly in commission of any offence. I do not think that it is sufficient that he allowed Ms Jing to FAX documents to Unicargo using CHS' FAX facilities. The Arrival Notice indicated that the honey had probably come from China. Mr Hu did not see the particular documents Ms Jing faxed to Unicargo. I reject the submission that CHS did not commit an offence and for that reason alone Mr Hu did not aid and abet the commission of an offence by CHS. However, notwithstanding the averments and the evidence which I have accepted it has not been established beyond reasonable doubt that Mr Hu was directly concerned in the commission of an offence by CHS as to Import Shipment 2 against s 234(1)(d)(ii) of the Customs Act nor has it been established beyond reasonable doubt that Mr Hu was indirectly concerned in the commission of such an offence. I have earlier set out the defences of Unicargo and Mr Lam dealing with Import Shipment 1 and explained why I rejected them.

313 Customs has established beyond reasonable doubt that Ms Jing, Unicargo and Mr Lam were directly concerned in the commission of an offence by CHS as to Import Shipment 2 against s 234(1)(d)(ii) of the Customs Act .

314 There were no false trade description charges as to Import Shipment 2.

Import Shipments 3, 4, 9, 10, 11,12, 13, 14, 17-26 (both inclusive)

315 As to each of these 18 Import Shipments JHM Trading Company, that is Ms Jing, was the owner and consignee of the drums of honey in the containers for the journey from Singapore to Sydney. Over the period 5 November - 15 May 2002 the containers the subject of these import shipments were shipped from Singapore or Port Kelang to Sydney. The same pattern was followed in respect of each shipment, namely the goods were cleared through Customs, taken on the instruction of Mr Lam, through Unicargo, to White's where the containers were unpacked, labelled and re-labelled, repacked into different containers for export to the USA. Those containers were taken to the wharf.

316 As to these 18 shipments Customs alleged and averred that Mr Lam acting on instructions from Mr Hu and Ms Jing and using Unicargo gave instructions to Woodford to clear the honey through Customs and on the instruction and advice of Mr Hu and Ms Jing, Unicargo gave Woodford documentation to clear the goods through Customs including documents from a fictitious Singaporean supplier. I am satisfied that Mr Hu did not give instructions as averred. Customs asserted and averred, correctly, that Ms Jing, Unicargo and Mr Lam knew that the honey was not Singaporean, but Chinese. Mr Hu was in a different position. He was not concerned with the preparation of the Entry for Home Consumption and the making of a false statement or a false trade description. While he knew that the honey being imported by Ms Jing came from China he was not directly or indirectly involved in organising those imports. However, he frequently took Ms Jing to White's and collected her, sometimes stayed with her and helped her and, on occasions, engaged and paid students to help her. While the assistance he provided is useful evidence as to his knowledge that Chinese honey was being imported and exported as Australian honey and that Customs procedures had to be followed he was not directly or indirectly concerned in making false statements to Customs or importing any goods to which a false trade description was applied nor did he realise that this was occurring.

317 Customs has proved beyond reasonable doubt that in respect of each of the 18 shipments specified when a false entry was produced to Customs Ms Jing intentionally made a statement to an officer, reckless as to the fact that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act in that each Entry for Home Consumption produced to Customs, whether in the name of CHS or JHM Trading Company (Ms Jing) stated that the country of origin of the honey being imported was Singapore, whereas the true country of origin in each case was China. Again Ms Jing caused documents to be transmitted to Mr Lam and he caused Unicargo to transmit documents to Woodford which led to him submitting the false Entries in question.

318 In dealing with Import Shipment 1, I referred to the defences of Unicargo and Mr Lam and rejected them. Unicargo and Mr Lam relied on the same defences in respect of all the 18 import charges mentioned. For substantially the reasons given earlier I would reject such defence to these 18 import charges.

319 Customs has proved beyond reasonable doubt that Unicargo and Mr Lam were directly concerned in the commission of the 18 specified offences by Ms Jing contrary to s 234(1)(d)(i) of the Customs Act . (See also s 236 of that Act). While Mr Hu exercised the functions which I have previously outlined both initially and during the import shipments and notwithstanding the averments I am satisfied that Mr Hu was not involved in or concerned with the submission of incorrect or incomplete documentation to Woodford or the making of the false entries which have been proved in respect of the 18 specified shipments. He was not directly or indirectly concerned in the commission of the 18 specified offences by Ms Jing. She in conjunction with Kunshan Foods arranged those shipments and arranged with Mr Lam, acting via Unicargo, for the submission to Woodford of the documents to clear the honey through Customs, including documents from a fictitious Singaporean supplier. Mr Hu was not a party to what Ms Jing did. I have not overlooked that she used the facilities of CHS. I would not convict Mr Hu of any of the offences charged.

320 Customs has proved beyond reasonable doubt each of the false trade description charges in respect of the 18 specified Import shipments, namely that Ms Jing imported goods (honey) to which a false trade description was applied, contrary to s 9(1) of the Commerce (Trade Descriptions) Act 1905. The Entry for Home Consumption produced to Customs, whether in the name of CHS or JMH Trading Company (Ms Jing) for each of the 18 specified importations stated as to the country in which the goods were produced, and in a manner likely to lead to the belief that that statement described the imported goods, that the country of origin of the honey being imported was Singapore whereas its true country of origin was China.

321 I reject the defences of Unicargo and Mr Lam to these charges for the reasons given earlier. Customs has also proven beyond reasonable doubt that Unicargo and Mr Lam were directly concerned in the commission of the 18 specified offences by Ms Jing contrary to s 9(1) of the Commerce (Trade Descriptions) Act 1905. I repeat that while Mr Hu exercised the functions and did the acts both initially and during the import shipments previously outlined and notwithstanding the averments I am satisfied that Mr Hu was not involved in or concerned with the submission of incorrect documentation to Unicargo, Mr Lam or Woodford or the making of the false entries which have been proved in respect of the 18 specified shipments. Mr Lam was not acting on the instructions of Mr Hu but those of Ms Jing. Mr Hu was not concerned in the commission of the 18 specified offences by Ms Jing. I would not convict Mr Hu of any of the alleged offences.

322 Customs alleges and avers that on or before 31 December 2001 and acting on instructions from Mr Hu and Ms Jing, Mr Lam, using Unicargo gave instructions to Woodford to clear the honey (204 drums in 3 containers) through Customs and on the instruction and advice of Mr Hu and Ms Jing, Unicargo gave Woodford documentation from which Woodford declared to Customs that the origin of the honey was not known. I am satisfied that Mr Hu did not give any instructions. Mr Hu, Ms Jing, Unicargo and Mr Lam knew that the origin of all honey imported was not unknown but Chinese. On 31 December 2001 Woodford, on behalf of Ms Jing produced to Customs a Nature 10 Entry for Home Consumption for the 3 containers imported, stating the owner of the honey as JHM Trading Company, the contents as "204 (drums) of natural bees honey" and the origin of the goods as unknown. Customs asserted that Ms Jing's statement to Customs as to the origin of the goods was false. Mr Lam, Unicargo and Woodford were not acting on instructions from Mr Hu but solely on those of Ms Jing.

323 Customs has proved beyond reasonable doubt that on or about 31 December 2001, for import shipment 5, when a false entry was produced to Customs, Ms Jing intentionally omitted from a statement made to an officer a matter or thing reckless as to the fact that without the matter or thing the statement was misleading in a material particular contrary to s 234(1)(d)(ii) of the Customs Act in that the Entry for Home Consumption produced to Customs in the name of Ms Jing for that shipment stated that the country of origin of the honey being imported was unknown whereas the country of origin was known, and was China.

324 I reject the defence of Unicargo and Mr Lam to the charge in respect of import shipment 5 for the reasons earlier given. Customs has also proved beyond reasonable doubt that each of Unicargo and Mr Lam was directly concerned in the commission of the offence as to import shipment 5 and the misleading entry by Ms Jing contrary to s 234(1)(d)(ii) of the Customs Act . See also s 236. Notwithstanding the averments and the conduct of Mr Hu, I am satisfied that Mr Hu was not involved in or concerned directly or indirectly with the submission of incorrect documentation to Unicargo, Lam or Woodford or the making of the misleading entry which has been proved in respect of import shipment 5. He was not concerned in the commission of the offence by Ms Jing. I would not convict Mr Hu of the alleged offence.

325 There was no false trade description charge for Import Shipment 5.

326 At the start of the hearing Customs sought to amend its Statement of Claim by amending sub-para (v) in para 26 as to each of Import Shipments 1, 2, 3, 4, 5, 9, 11-14, 17-26 by deleting the words "the Fifth Defendant told Woodford that the honey was Singaporean and gave him documents on the letterhead of a fictitious Singaporean supplier" and substituting "the Fourth Defendant gave Woodford documentation to clear the goods through Customs, including documents from a fictitious Singaporean supplier".

327 These amendments which had been earlier foreshadowed were not opposed and I granted Customs leave to make the amendments. Because the Statement of Claim was so lengthy and a substantial number of paragraphs needed to be amended it took some days to produce an Amended Statement of Claim, but one was handed up at the start of proceedings on 23 July 2007. I did not regard this as unreasonable. The opposed amendments relate to some of the export shipments.

328 In the closing written submissions of Customs (p.11) it was pointed out that as to the first export, the principal was alleged to be CHS and that as to the remaining exports the principal was alleged to be Ms Jing because the exports were made in the name of JW International Trading Pty Ltd which was not the registered name of her company which was Jing Wei International Trading Pty Limited. Customs intimated that each of the remaining defendants was charged with being directly concerned in the commission of the substantive offences.

329 During her address (T 258) counsel for CHS said that she understood that the claims against CHS had been amended to some extent, in that there was an allegation in relation to four exports but that was reduced only to the first export. Counsel for CHS said that she understood that sub-paras (ii), (iii) and (iv) of para 72 (p138 of the Amended Statement of Claim) and sub-paras (ii), (iii) and (iv) of para 59 (pp133 -134 of the Amended Statement of Claim) were to be deleted. There were minor consequential amendments. (Para 59 deals with false statement charges and para 72 with false trade description offences - s 12(1)(b) of the Commerce (Trade Descriptions) Act .

330 Counsel for Customs (T258) confirmed that it was alleging that CHS was involved in one shipment, namely Export Shipment 1.

331 In his closing submissions in reply counsel for Customs stated (T273) the changes which Customs wished to make to the Amended Statement of Claim as to the position of CHS. These are set out at TT274-276. Counsel for Customs stated that there were consequential changes that needed to be made as to offences alleged against the aiders and abettors etc.

332 Counsel for Customs explained that CHS was nominated as the principal for Export Shipments 2, 3 and 4 because CHS was nominated presumably by Mr Lam and/or Unicargo as being the exporter whereas the commercial documents were in the name of JW International Trading Pty Ltd and that made Ms Jing the principal.

333 Counsel for CHS and Mr Hu did not oppose the allegations against CHS being dropped, but she did oppose suggested amendments to para 60 (p134 of Amended Statement of Claim) and para 73 (p138). Customs was directed to serve a proposed Further Amended Statement of Claim on the defendants appearing before me setting out all the amendments it desired.

334 On 23 July 2007 I reserved my decision on the substantive merits and indicated that if, after the proposed Further Amended Statement of Claim was served there was no agreement, the question of amendments should be argued. There was no agreement and the question of the further amendments desired by Customs was argued on 3 August 2007. CHS did not oppose the proposed amendments deleting the charges against it as to the second, third and fourth exports. Mr Hu opposed the proposed amendments. Unicargo and Mr Lam neither consented nor opposed the amendments sought by Customs. Ms Jing was not a party to the application of Customs. That does raise a problem as further offences by her are being alleged. The proceedings against her are part heard before Howie J so that even if she had been given notice of Customs' application I doubt if it would be correct for me to deal with it so far as it affects her. It was not suggested that she had been given notice of Customs application. Its attitude was that she should be treated as a witness in the proceedings before me.

335 Counsel for Customs reminded me that as the evidence emerged there were some possible differences between the evidence and how Customs had pleaded the matter as to the second, third and fourth exports of honey. Unicargo and/or Mr Lam had shown CHS as the exporter whereas the exporter was Ms Jing according to the documents. She was responsible and therefore should be the principal in the offences arising out of the second, third and fourth exports. Because of the length and complexity of the Amended Statement of Claim the amendments desired were intricate and took some time to effect and check.

336 Customs relied on s 251 of the Customs Act 1901 . That provides, inter alia, that no objection shall be allowed to any originating process for any variance between such originating process and the evidence and that the Court shall at all times make any amendment necessary to determine the real question in dispute or which may appear desirable. The section envisages the defendant being given an adjournment to meet the position arising from the amendment.

337 Customs pointed out that in a case such as this and particularly with these exports the facts were peculiarly within the knowledge of the defendants. The facts were within the knowledge of Ms Jing but probably not within the knowledge of Mr Hu. Unicargo and Mr Lam apparently relied on what had happened previously, that is, with Export Shipment 1.

338 Customs submitted that as the amendments were required to fit in with the evidence, the Court was required to make the amendments sought. Customs conceded that if an adjournment was required by any of the defendants, that should be granted.

339 Customs submitted that Mr Hu could not reasonably oppose the amendments as Customs relied on the same factual matters as to the commission of the offences albeit by Ms Jing (his then wife) rather than CHS (his company) and the same matters are put as to how he was concerned in the offence.

340 Counsel for Mr Hu said that essentially the basis of the objection to the amendments was the very late stage at which they were sought to be made. Counsel submitted that after the close of both Customs' case and the cases of the defendants it was too late for amendments that prejudice a defendant. Counsel pointed out that not only had the cases of the parties closed, but addresses had finished, the hearing had concluded and judgment had been reserved. Counsel submitted that the time had been reached where s 251 could no longer have effect. Counsel contended that the prejudice to Mr Hu was that he was "being asked to meet a different charge, certainly different particulars as to those charges, once the whole case is over." Counsel urged the Court not to speculate whether the defence would be run in a different way.

341 I enquired of counsel for Mr Hu whether, if I were to allow the amendments sought, there would be any additional evidence to be called. Counsel replied that she would have to turn her mind to that, but probably not. She did not wish to close off the opportunity. She stated that the submissions in relation to those extra charges would be very similar to those in relation to the other charges. Counsel stressed the penal consequences attached to those charges found proved and that they involve convictions.

342 Customs submitted that Mr Hu was seeking to read into s 251 a limitation which does not exist. The Court was required "at all times" to make any amendment necessary. Customs contended that no prejudice would be suffered by Mr Hu as these were not new charges, that it was exactly the same charge on exactly the same evidence. The amendments just nominated a different principal.

343 Customs stated that if the Court thought that the presently proposed amendments should not be allowed then Customs withdrew the amendments previously made and adhered to the position as in the Amended Statement of Claim, that is Customs would not delete the sub-paragraphs as to Export Shipment 2, 3 and 4 alleging that CHS was the principal and that Mr Hu aided and abetted CHS. Customs contended that in such a case Mr Lam's (or Unicargo's) representation that the principal for the second, third and fourth Export Shipments was CHS would be sufficient. Customs also submitted that s 251 of the Customs Act would require the Court to ignore the differences between the charges and the evidence.

344 While Customs submitted that it was better for the amendments it now sought to be made because the charges and the evidence would fit together and the result would be tidier, Customs further submitted that the amendments sought would not, because of s 251, make any difference to the final outcome. It contended that Ms Jing, who was not a party as she has pleaded guilty, was the only person "who loses out" but she was not affected. Her proceedings are before Howie J.

345 It is necessary to return to the words of the sections creating the offences. Section 234(1)(d)(i) of the Customs Act makes it an offence for a person to intentionally make a statement to an officer reckless as to the fact that the statement is false or misleading in a material particular.

346 That involves looking at the intention of the person making the statement. Did that person intentionally make a statement to an officer? It also involves asking whether the statement made to the officer was reckless as to the fact that the statement is false or misleading in a material particular. The question is whether CHS made such a statement or Ms Jing (or both) made such a statement. If CHS intentionally made such a statement reckless as to the fact that the statement is false or misleading in a material particular that is one offence. If Ms Jing intentionally made such a statement reckless as to the fact that the statement is false or misleading in a material particular that is another. The intentions may differ and what may be reckless in one instance may not be reckless in another. It is a different offence to aid and abet etc an offence by CHS than to aid and abet etc an offence by Ms Jing.

347 Section 12(1)(b) of the Commerce (Trade Descriptions) Act makes it an offence for a person to intentionally export or enter for export etc any goods to which a false trade description is applied. The intention of the person exporting or entering for export etc the goods has to be ascertained. Did he, she or it intentionally export or enter for export the goods to which a false trade description is applied. The question is whether CHS or Ms Jing or both did so. If CHS did so that is one offence. If Ms Jing did so that is another. It is a different offence to aid and abet etc an offence by CHS than to aid and abet etc one by Ms Jing.

348 The curative effect of s 251 applies to any variance between any information, summons or other originating process and the evidence. The Court is required at all times to make any amendment necessary to determine the real question in dispute or which may appear desirable. It is one thing to have a variance between the originating process and the evidence on such matters as the destination of the containers, the dates of the export clearances and other matters of detail. It is another matter where there is a different substantive offence that is the subject of the alleged aiding and abetting etc. In my opinion s 251 cannot be used to support or justify the amendments now being sought. Nor can general common law principles be relied upon to justify the proposed amendment. I am not unsympathetic to the difficulties faced by Customs in dealing with the many matters which have arisen, their complexity and the mass of detail. The proposed amendments are sought at a very late stage of the proceedings in respect of matters that involve convictions and financial penal consequences . The maximum penalties which may be imposed are substantial.

349 Reference should also be made to the whole of s 257 of the Customs Act , the terms of which have been set out earlier. Amongst other matters, that facilitates proof of the state of mind of a body corporate and deems certain conduct by specified people to be engaged in on behalf of a body corporate or other person for the purposes of the Customs Act . Section 257 does not provide any direct or indirect warrant for the amendment sought.

350 In my opinion Customs should not be given leave to further amend its statement of claim as it proposes involving the substitution of Ms Jing as the principal offender as to Export Shipments 2, 3 and 4 and consequential amendments.

351 This means that Customs relies on its Amended Statement of Claim and CHS being shown as the principal offender as to Export Shipments 2, 3 and 4 and the related export clearances.

352 In my opinion Customs is not entitled to rely on s 251 of the Customs Act 1901 nor general common law principles to have the Court treat the different offences with different principal offenders as a variance between the charge or originating process and the evidence.

353 Ms Jing was only authorised to use CHS as the vehicle for the first export clearance. As to the second, third and fourth export shipments and the related export clearances Ms Jing was not authorised to use CHS as the vehicle for the export shipments and the related Export Clearances, nor were Unicargo and/or Mr Lam authorised to lodge Exit Declarations and arrange export clearances on behalf of CHS. Unicargo and Mr Lam appear to have carried on from Export Shipment 1 and to have assumed that that arrangement continued to apply to Export Shipments 2, 3 and 4.

354 As to each of Export Shipments 2, 3 and 4 it appears that Unicargo was supplied with a Commercial Invoice on the letterhead of JW International Trading Pty Ltd showing it as the exporter of drums of Australian Bee's Honey, the number of drums being specified. Each such invoice bore the signature of Corina Jing as Director and contained instructions as to payment. As to Export Shipment 2, the Bill of Lading showed the shipper as JW International Trading Pty Ltd. The Bill of Lading for Export Shipment 3 and that for Export Shipment 4 showed the shipper as Unicargo.

355 The statement of Ms K E Lathlean explains the Customs Export Clearance System. The reporting of exports can be electronic and exporters must utilise the Customs G & T system, Exporters may choose to register with Customs to connect to EXIT and communicate export entries to Customs directly, or may utilise the service of a third party or agent to communicate information about exports on their behalf. If the party lodging the export entry meets the minimum reporting requirements for an export entry, Customs will issue the party lodging the entry with an Export Clearance Number (ECN). A clear ECN is the legal authority to export goods from Australia. The Entry must contain the Commodity Classification Code, the Origin Code (specifying the State or Territory in Australia and goods of foreign origin re-exported) a Goods Description and the Owner's ABN/Name, inter alia. The person completing the Declaration declares whether he is the owner (including an employee of the owner) or agent of the owner and that the information provided is complete and correct.

356 The Entries for Export Shipments held by Customs reveal that on 12, 15 and 16 October 2001 export entries were lodged with the owner shown as CHS and the consignee as DF International (USA) Inc. The Goods Description given is "Australia Bee's Honey" . These are in addition to similar entries held and lodged on 7 August 2001 except that the consignee is National Food Products Inc. The entries lodged on 12, 15 and two on 16 October appear to correspond with Export Shipments 2 and 3 as they involve the same consignee. One of the entries on 16 October 2001 appears to correspond with Export Shipment 4, although the consignee should be Natural Food Products Inc according to the Commercial Invoice. In the averment as to Export Shipment 4 in the Amended Statement of Claim (para 58) it is stated that on 16 October 2001 Mr Lam on behalf of CHS and on the instructions of Mr Hu and Ms Jing, used Unicargo to access EXIT and by transmitting purported details of the consignment to Customs generated an ECN for the goods in specified containers being 204 drums of Chinese honey.

357 It is beyond argument that the description "Australian Bee's Honey" was false and known to be false by Ms Jing, Unicargo and Mr Lam.

358 In inserting "CHS" as the owner of the drums of honey Mr Lam and Unicargo made a mistake to which neither Mr Hu nor Ms Jing contributed. Unicargo and Mr Lam had no authority to insert the name of CHS as the owner of Export Shipments 2, 3 and 4. In each instance Ms Jing caused a Commercial Invoice to be sent to Mr Lam and Unicargo showing the owner as JW International Trading Pty Ltd. While Mr Hu was aware that the honey Ms Jing was importing and exporting was Chinese honey he did not issue any instructions to Mr Lam. Ms Jing did. She arranged for the export of the honey covered by Export Shipments 2, 3 and 4.

359 I would not convict Mr Hu of the offences with which he has been charged as to export shipments 2, 3 and 4 in the Amended Statement of Claim. The position of Unicargo and Mr Lam is somewhat different. They caused the wrong principal to be shown on the EXIT declaration, but in my opinion they were not directly or indirectly concerned with the commission of an offence by CHS. It did not commit the offence charged. The evidence suggests that Ms Jing did. The peculiar situation which has arisen as to these three charges as against Unicargo and Mr Lam was not argued before me as I doubt if the ramifications of the view I have taken were fully appreciated.

360 It will be apparent from what I have previously written that Customs has proved beyond reasonable doubt that as to this export shipment: (i) CHS was guilty of the offence under s 234(1)(d)(i) of the Customs Act and the offence under s 12(1)(b) of the Commerce (Trade Descriptions) Act. Mr Hu specifically agreed to CHS being used by Ms Jing to effect this export and with his concurrence used the facilities of CHS to do so. Ms Jing gave instructions to Mr Lam and sent the documents to him and Unicargo caused the EXIT declaration to be made, which falsely stated that the honey being exported was Australian bees honey whereas the honey was Chinese honey. Mr Hu, Unicargo and Mr Lam knew that the honey being exported was Chinese. At the very least they were reckless as to whether the statement made was false. The chain extends from CHS, through Mr Hu and Ms Jing to Mr Lam and Unicargo and thence to the EXIT declaration which was false in a misleading particular. As to the offence under s 12(1)(b) CHS exported the honey having intentionally procured a Bill of Lading for its transport stating that the country of origin of the honey was Australia whereas it was China.

(ii) Mr Hu, Mr Lam and Unicargo were directly concerned in the commission of the offences by CHS mentioned in the previous sub-paragraph. (I had not included Ms Jing as she is being dealt with by Howie J).

361 As earlier mentioned there are 6 charges against Ms Jing under s 234(1)(d)(i) of the Customs Act of intentionally making a statement to an officer reckless as to the fact that the statement was false or misleading in that for each of the Export Clearances she stated that the honey being exported was Australian bees honey whereas the honey was Chinese.

362 Again as earlier mentioned there are 6 charges against her as to these shipments that contrary to s 12(1)(b) of the Commerce (Trade Descriptions Act she exported honey having intentionally procured six respective Bills of Lading to which a false trade description was applied, stating the country of origin of the honey was Australia whereas it was China.

363 Ms Jing has pleaded guilty to these charges. I am satisfied on the evidence before me that the Crown has proved its case against her beyond reasonable doubt. This is of consequence because Mr Hu, Mr Lam and Unicargo have been charged with being directly concerned in the commission of these offences. As to Mr Hu I am satisfied that he was neither directly or indirectly concerned in the preparation and submission of documents (including electronically) or instructions containing false statements to Customs nor was he aware that this was happening. Likewise he was not directly or indirectly concerned with the application of false trade descriptions being applied to the goods in the related Bills of Lading nor was he aware that this was happening. As to Unicargo and Mr Lam I am satisfied that Customs has proved its case against each of them on each charge beyond reasonable doubt. Each was aware of the statement being made and the description being applied to the honey and each knew it was false.

364 Mr Hu, Unicargo and Mr Lam have each been charged with being directly concerned in the commission of 7 false statement offences by the then registered Jing Wei International Trading Pty Limited contrary to s 234(1)(d)(i) of the Customs Act and 7 false trade description offences by the then registered Jing Wei International Trading Pty Limited contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act . The latter applies to the related 7 export Bills of Lading. Again I am satisfied that Mr Hu was neither directly or indirectly concerned in the preparation and submission of documents (including electronically) or instructions containing false statements to Customs nor was he aware that this was happening. Ms Jing ran the business and communicated directly with Mr Lam and issued instructions. She did not tell Mr Hu what she was doing. I am satisfied beyond reasonable doubt that Customs has proved its case against Unicargo and Mr Lam as to each of the 14 charges mentioned. Each of Unicargo and Mr Lam was aware of the statement being made and description being applied to the honey and each knew the statement and the description were false. The honey came from China as each well knew. The statements were deliberately and intentionally made.

Export Shipments 5, 8, 10, 11, 15 to 39 (both inclusive)

365 Export Shipment 5 and the false description charge have been mentioned previously. Mr Hu, Mr Lam and Unicargo have each been charged with being directly concerned in the commission of 29 false trade description offences by the then registered Jing Wei International Trading Pty Limited. Nobody can be convicted twice of the charges as to export shipment 5.

366 While Mr Hu became aware about halfway during the course of the exports that labels were being attached to the drums stating in effect that the honey was a product or produce of Australia, he was not concerned either directly or indirectly in having intentionally procured a Bill of Lading in any instance for the transport of the drums of honey which was produced in a manner likely to lead to the belief that the statement described the country of origin of the honey was Australia whereas it was China. I would not convict Mr Hu of any of the 29 charges.

367 In paragraph 17 of his statement of 6 September 2002 Mr Lam stated that after White's were instructed to store the drums of honey on their premises Unicargo would then arrange all necessary requirements for export of the drums of honey. Mr Lam continued: "This included; arranging and procuring shipping containers for export, generating bills of lading, processing Customs export clearances, issuing instructions to Whites about transport and arranging shipping with a shipping company."

368 In paragraph 48 of his affidavit of 29 June 2006 Mr Lam stated that the commercial invoices to their overseas clients were produced by CHS. This work was done by Ms Jing mostly in the name of the entities she used and not by CHS. Mr Lam said that the invoices would be sent to rhe Unicargo export section "for actioning the export via a vessel". Mr Lam continued: "An export entry would be made and the cargo would be booked on a vessel to be exported. I was also involved in the export as I would negotiate the carriage rate with the shipping line and I would sign the export bills of lading also. After the vessel had been booked we would input the Australian origin on to the export declaration as per the invoice. This situation and pattern continued for quite some time." 369 Mr Lam stated that after some time "Australian did not appear on the invoices and Unicargo did not declare Australian origin on the export declarations if Australian origin was not declared on the commercial invoice."

370 By way of example, taking Export Shipment 17, the commercial invoice on the letterhead of JW International Trading Pty Limited and faxed to Unicargo on 27 March 2002 apparently using the FAX of Fine Quality Masterprint and signed by "Corina Jing" does not state that the honey was of Australian origin. However, the Bill of Lading describes the honey as "Australia Bees Honey" and "Product of Australia." Unicargo and Mr Lam knew that the honey was of Chinese origin. What was put on the Bills of Lading as to the produce was false and false to their knowledge.

371 In paragraph 81 of the Statement of Claim and Amended Statement of Claim reference is made to "Jing Wei International Trading Pty Limited" exporting the honey but in many of the Commercial Invoices the abridged name of JW International Trading Pty Limited is used. I regard that as a variation to which s 251 of the Customs Act should be applied, if necessary. That section should also be applied as to paras 83 and 84 of both the Statement of Claim and the Amended Statement of Claim.

372 On the evidence I am satisfied beyond reasonable doubt that as to these 29 export shipments Customs has established that each of Unicargo and Mr Lam was directly concerned in each of these instances in the commission of the offence by the then registered Jing Wei International Trading Pty Limited (abridged to JW International Trading Pty Limited) of intentionally exporting goods to which a false trade description was applied contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act 1905 in that Jing Wei International Trading Pty Ltd (as abridged) exported the honey the subject of those 29 export shipments having intentionally procured Bills of Lading for their transport which stated as to the country in which the goods were produced, and in a manner likely to lead to the belief that that statement described the country of origin of the honey as Australia whereas it was China.

373 In summary I would convict: (1) CHS as to import shipment 1 of an offence contrary to s 234(1)(d)(i) of the Customs Act and of an offence contrary to s 9(1) of the Commerce (Trade Descriptions) Act .

(2) CHS as to import shipment 2 of an offence contrary to s 234(1)(d)(ii) of the Customs Act.

(3) Mr Hu as to import shipment 1 of an offence contrary to s 234(1)(d)(i) and s 236 of the Customs Act and of an offence against s 9(1) of the Commerce (Trade Descriptions) Act allied with s 236 of the Customs Act.

(4) Each of Unicargo and Mr Lam as to each of import shipments 1, 3, 4, 9-14 (both inclusive), 17-26 (both inclusive) of an offence contrary to s 234(1)(d)(i) and s 236 of the Customs Act and of an offence contrary to s 9(1) of the Commerce (Trade Descriptions) Act allied with s 236 of the Customs Act .

(5) Each of Unicargo and Mr Lam as to each of import shipments 2 and 5 of an offence contrary to s 234(1)(d)(ii) and s 236 of the Customs Act . Export Shipment Convictions

374 In summary I would convict: (1) CHS as to export shipment 1 of an offence contrary to s 234(1)(d)(i) of the Customs Act and of an offence contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act.

(2) Mr Hu as to export shipment 1 of an offence contrary to s 234(1)(d)(i) and s 236 of the Customs Act and of an offence against s 12(1)(b) of the Commerce (Trade Descriptions) Act allied with s 236 of the Customs Act .

(3) Each of Unicargo and Mr Lam as to each of export shipments 1, 5 -17 (both inclusive) of an offence contrary to s 234(1)(d)(i) and s 236 of the Customs Act . (There were different principal offenders as to some of the charges).

(4) Each of Unicargo and Mr Lam as to each of export shipments 5, 8, 10, 11, 15-39 (both inclusive) of an offence contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act allied with s 236 of the Customs Act . 375 I propose to dismiss the other charges against CHS and Mr Hu. I am prepared to hear further argument if desired from Customs, Unicargo and Mr Lam as to export shipments 2, 3 and 4 consequent upon my refusal to allow the Amended Statement of Claim to be further amended.

376 I propose to stand these proceedings over for further hearing for these purposes: (a) to allow the parties to consider the reasons including pointing out any matter that may appear to have been omitted

(b) to hear any further argument as to export shipments 2, 3 and 4

(d) to hear argument on the question of costs 377 I will list these proceedings for further hearing on a date to be mutually arranged with my Associate being not later than the week commencing 3 December 2007.

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