CEO Customs v CHS Enterprises Pty Ltd & 3 Ors No 2

Supreme Court of NSW|2007-12-05|Before: Smart AJ

CITATION : CEO Customs v CHS Enterprises Pty Ltd & 3 Ors No 2 [2008] NSWSC 47

CATCHWORDS : Customs prosecutions for pecuniary penalties - accessorial liability - penalties to be imposed - measure of responsibility - payment of costs - amounts to be paid and assessment thereof

CASES CITED : L Vogel & Son Pty Ltd (1967-1968) 120 CLR 157 CEO Customs v Labrador Liquor Wholesale Pty Ltd & Others [2006] QCA 558

TEXTS CITED : Gillies, The Law of Criminal Complicity

PARTIES : CEO Customs v CHS Enterprises Pty Ltd & 3 Ors (No 2)

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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

In my judgment of 12 October 2007 I indicated at paras 375 and 376(b) that I would be prepared to hear further argument as to export shipments 2, 3 and 4. The argument as to these took place at the end of the earlier hearing and was not comprehensive. I heard further argument on 5 December 2007.

The prosecution disagreed with the legal analysis contained in the section of the judgment headed "Amendment to Statement of Claim" (paras 326 and following). The prosecution submitted that the question whether any amendment of the charges involving exports 2, 3 and 4 is either necessary or permissible in the circumstances of this case is to be determined by an examination of the charges and a proper understanding of ss 236 and 251 of the Customs Act.

The prosecution submitted that: (i) Section 236 is an aider and abetter provision; and

(ii) Section 236 does not create a substantive offence in itself but is dependent on the commission of an offence against the Customs Act by another - cf cases on s 5 of the Crimes Act 1914 (Cth) ; and

(iii) a person can be convicted of an accessory offence without the conviction of a person as a principal - Gillies, The Law of Criminal Complicity , p 24; and

(iv) where a person is charged as an accessory s(he) can be convicted of the principal offence, on proof that s(he) participated as a principal offender. 4. In support of the fourth proposition the prosecution relied on Gillies (p24): "This is because of the accessory's implied status as a principal … This flexibility results from the compendious form of the count; if the defendant is charged as a principal he may be convicted upon proof of participation as a principal or as an aider and abetter or counsellor or procurer by reference to s 5, ie, this form of charge comprehends all three common law modes of complicity." 5. Customs relied heavily on the decisions on s 5 of the Crimes Act 1914 (Cth). Section 236 of the Customs Act seems to be based on s 5 of the Crimes Act (Cth). Pursuant to s 5 any person who "aids, abets, counsels or procures" or who is by any act or omission "in any way directly or indirectly concerned in, or party to" the commission of an offence against any law of the Commonwealth is deemed to have committed that offence and to be punishable accordingly.

Section 236 of the Customs Act provides that for the purposes of a Customs prosecution (within s 244 - proceedings by Customs for recovery of penalties) whoever aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against the Customs Act shall be deemed to have committed such offence and shall be punishable accordingly. Gillies appears to suggest that the form of the count may be of some consequence.

In para 17 of the Amended Statement of Claim it is alleged that Mr Hu and Ms Jing through AK Unicargo and Mr Lam arranged for all of the 1.7 million litres of honey to be repacked, initiated the creation of new export documentation and exported all 1.7 million litres of honey to the USA, describing it as Australian Honey.

In para 57(ii) of the Amended Statement of Claim (p72) it is stated that the ten containers of honey in the Customs Entry for Import Shipment 2 were included in the Customs Export Clearances described as Export Shipments 2, 3 and 4. That is not in dispute. As to export shipment 2, the Amended Statement of Claim alleged that on 12 October 2001 Mr Lam on behalf of CHS (desired to be amended to Ms Jing) and on the instructions of Mr Hu and Ms Jing, used AK Unicargo to access the Customs Export Integrated System (EXIT) and by transmitting purported details of the consignment generated an Export Clearance Number (ECN) for the goods in three specified containers. It was alleged that all defendants knew that the honey was of Chinese origin, not Australian. It was alleged that on or prior to 25 October 2001 Mr Lam on behalf of CHS (desired to be amended to Ms Jing) and on the instructions of Mr Hu and Ms Jing used AK Unicargo to transmit the same details to the shipping company ANZDL as it had to Customs. I have not summarised all the allegations made and particulars supplied.

Subject to a minor variation in the dates substantially the same allegations were made in relation to export shipments 3 and 4.

In para 59 of the Amended Statement of claim, on the basis of the particulars and averments, Customs charged CHS did, when Export Clearances were sought from Customs, on each of the four dates and for each of the four export shipment numbers 1, 2, 3 and 4, intentionally make a statement to an officer reckless as to the facts that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act in that CHS made to Customs for each of those four export clearance shipments a statement that the honey being exported was Australian bees honey whereas the honey was Chinese.

As to each of these four export shipments Customs charged that each of Mr Hu, Ms Jing, AK Unicargo and Mr Lam was directly concerned in the commission of these four offences 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 (paras 60-63).

Again, as to each of these four export shipments Customs charged that each of Mr Hu, Ms Jing, AK Unicargo and Mr Lam was directly concerned in the commission of these four offences of intentionally exporting goods to which a false description was applied contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act 1905 (CTD Act) (paras 73-76).

I did not and do not think that I should permit the Amended Summons to be further amended after the case has been heard, addresses have concluded and judgment has been reserved. I remain of this view after having heard further argument. There is the strength of the words "and the Court shall at all times make any amendment necessary to determine the real question in dispute or which may appear desirable" in s 251 of the Customs Act.

Finality in Customs prosecutions is important. Customs should endeavour to present its case in its final form during the hearing and not seek to make amendments at the end of or after the hearing. This was not a case where the relevant facts were not known to Customs prior to the hearing. Customs relied on many documents obtained from a variety of sources and was able to hand up and rely upon two volumes of documents as to imports and two volumes of documents as to exports. Customs had Ms Jing's statement and affidavit and the lengthy statement of Mr Lam.

As to Export Shipments 2, 3 and 4 Customs ultimately sought to allege in its proposed Further Amended Statement of Claim that Mr Lam, on behalf of Ms Jing using the unregistered name of JW International Trading Company Pty Ltd and on the instructions of Mr Hu and Ms Jing used AK Unicargo to access EXIT and, by transmitting purported details of the consignment to Customs, generated an ECN for the goods in the specified containers (for each such export shipment - i.e., 2, 3 and 4).

This was, in effect, a recognition that the exporter of export shipments 2, 3 and 4 was Ms Jing.

I took the view that the amendments were not required to overcome technical points which had arisen at a late stage but that the need for the amendments had been known for some time.

On the averments and on the whole of the evidence I was not satisfied beyond reasonable doubt as to export shipments 2, 3 and 4 that Mr Hu had committed the offences alleged pursuant to s 234(1)(d)(i) of the Customs Act and s 12(1)(b) of the Commerce (Trade Descriptions) Act, namely of being concerned in the commission of offences against either statutory provision.

Ms Jing was apparently sentenced in respect of the charges contained in the unamended statement of claim filed 27 August (or 27 July) 2004. The document bears both dates. At [16] of his reasons [2007] NSWSC 1354 Howie J stated that the entity alleged to be the principal in all of the export offences is AK Unicargo Pty Ltd with Ms Jing being charged with being directly concerned with the commission of those offences pursuant to s 236 of the Customs Act. That statement may be based on what appears in the Bills of Lading.

In the Statement of Claim filed 27 August (or 27 July) 2004 while it is alleged in respect of the s 234(1)(d)(i) offences as to export shipments 1, 2 3 and 4 that CHS was the principal offender (para 59), it is alleged as to similar offences as to export shipments 6, 7, 9, 12, 13 and 14 that Ms Jing was the principal offender (para 64). It is alleged that as at the dates of export shipments 5, 8, 10, 11, 15, 16 and 17 the then registered Jing Wei International Trading Pty Limited committed offences under s 234(1)(d)(i) as to those export shipments. By the time the Statement of Claim was filed that company had apparently been deregistered and Customs appeared in effect to treat her as the principal offender (para 68) if not technically.

Turning to the false trade description offences, similar patterns of charging were followed as to export shipments 1, 2, 3 and 4 (CHS) (para 72) and 6, 7, 9, 12, 13 and 14 (Ms Jing) ( para 77 in the original Statement of Claim).

As to export shipments 5, 8, 10, 11, 15-39 (both inclusive) Customs alleged that about the dates of these export shipments and for the 29 Export Bills of Lading Ms Jing 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 contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act in that Jing Wei International Trading Pty Ltd exported the honey the subject of those 29 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 goods, that the country of origin of the goods was Australia whereas it was China (para 81 of the original Statement of Claim).

In the Amended Statement of Claim handed up in Court on 23 July 2007 pursuant to leave granted on 16 July 2007 para 81 was in the same terms as para 81 of the original Statement of Claim.

There were charges in both the Statement of Claim and the Amended Statement of Claim against each of Mr Hu, AK Unicargo and Mr Lam of being directly concerned in the commission of the 29 offences by the then registered company Jing Wei International Trading Pty Ltd contrary to s 12(1)(b) of the Commerce (Trade Descriptions) Act.

This brief review of the pleadings highlights the difficulties. AK Unicargo and Mr Lam are in a different position from Mr Hu. The former were directly involved in organising and obtaining the export clearances and the bills of lading. If, as charged, each was directly concerned in the commission of any offence against the Customs Act each shall be deemed to be have committed such offence. On further considering this matter after further argument that is the position here. The result is that AK Unicargo and Mr Lam should be convicted of he offences under s 234 (1)(d)(i) and s 236 of the Customs Act and the offences under s 12(1)(b) of the Commerce (Trade Descriptions) Act as to export shipments 2, 3 and 4.

Penalties 26. Customs submitted that since the first importation and the first exportation established the pattern for all the future importations and exportations, the offences of which Mr Hu and CHS have been found guilty merit the maximum available penalties.

Customs submitted that the maximum penalties were also merited because Mr Hu continued to assist Ms Jing in the further conduct of her business, permitting her to use his office facilities and helping her in labelling the drums of honey. Customs submitted that although this conduct may not have involved Mr Hu in any offence against the Customs Act or the Commerce (Trade Descriptions) Act, it should nevertheless be reflected in the penalties imposed for the offences of which he has been found guilty.

While I follow the approach to Customs penalties of Kitto J in L Vogel & Son Pty Ltd (1967-1968) 120 CLR 157 at 164, affirmed on appeal, it is important not to overlook the facts of this particular case. The importation/exportation plan was devised by the Chinese principal and it determined that one container should be imported and exported virtually as a test run. Mr Hu allowed his wife to use his company to do the importing and exporting of one container pending the registration of a company controlled by her. The Chinese principal controlled the operation and Ms Jing, with the assistance of AK Unicargo and Mr Lam ran the Australian aspect of the operation.

There was no suggestion that Mr Hu had any previous convictions. In the circumstances of this case in determining penalties I do not attach weight to him permitting her to use his office facilities and helping her in labelling the drums of honey. Amongst other things that was subsequent conduct.

The conduct of CHS and Mr Hu as to importation 1 and exportation 1 was serious. While no Australian Customs duty was avoided Customs was not told the truth as to the country of origin of the honey and Chinese honey was represented as Australian honey. In the earlier judgment at paras 308-311 I set out the position of CHS as to Import Shipment 2 and the basis upon which it was liable. It was a case of apparent authority. This offence is less serious than that as to Import Shipment 1.

It is unlikely that the export of 1 container of Chinese honey as Australian honey would inflict commercial or other harm on the Australian honey industry in the United States of America but it may set a bad precedent.

Customs pointed to the large number of import and export charges of which AK Unicargo and Mr Lam have been convicted. While Customs asserted, correctly, that Ms Jing was the principal in Australia of the honey import and export business it submitted that the business could not have operated without the advice and expertise of Mr Lam and that the penalty imposed on Mr Lam and AK Unicargo should adequately reflect this. The staff of AK Unicargo also played a role in the Scheme, albeit that they had nothing or little to do with Ms Jing. The staff were split into import and export sections and these sections appeared to have little to do with each other. If AK Unicargo and Mr Lam had refused to act for Ms Jing she would have found somebody else and perhaps adopted a different approach. She was a resourceful lady.

The Court was told that AK Unicargo had, in effect, two equal partners. Mr Lam handled Ms Jing as he spoke some Mandarin.

Mr Hu introduced Ms Jing to Mr Lam and left Ms Jing to decide whether to do business with him. She decided to do so on a limited basis. Mr Lam did not seek her or her business. She came to him. Neither he nor AK Unicargo acted as her Customs Agent but instructions were given to the Customs Agent via AK Unicargo and Mr Lam. Mr Lam and AK Unicargo caused export clearances to be procured.

Ms Jing had considerable charm and personal magnetism which enabled her to have done what she wanted. I adhere to the findings made in my earlier reasons. Of importance is that contained in para 292 that 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. No Australian duty was being avoided or was unpaid.

Mr Lam and AK Unicargo knew that the honey was of Chinese origin but because no duty was being avoided they did not attach importance to the correct information being provided to Customs both on the imports and exports as to the country of origin.

While there is no evidence of any harm being occasioned to USA-Australian trade relations or harm being occasioned to the reputation of the Australian honey industry and the capacity of Australian honey producers to sell Australian honey as a quality product at a premium, the potential for harm existed. Customs procedures all over the world have to battle with attempts to avoid their reach. There is a never ending war. The Customs systems of all countries are dependent on the importers and exporters telling the truth. It is highly undesirable for Australia to be used as a medium for avoiding United States duties or those of other countries

While the harm could be described as intangible and hard to assess it must be recalled that the offences were committed over approximately one year, there were many of them and a large quantity of honey having a value in excess of $5 million was involved. The scheme was highly organised by the Chinese principals. They organised the overseas shipments. However, Ms Jing, AK Unicargo and Mr Lam ensured that the local arrangements were made and dovetailed. Ms Jing was the liaison person in Sydney with the Chinese principals.

In his affidavit of 4 December 2007 Mr Lam states that he has never been convicted of any offence. This was not challenged.

Mr Lam has stated: (a) the judgment against the company and him will have a huge impact; some of their clients may lose confidence in their operation and take their business elsewhere, and

(c) Depending upon the amount the company has to pay, there may well be retrenchments or the company will have to be liquidated. In the latter event eighteen people will be out of jobs, most of whom have young families, and

(d) He is 51 years of age, his wife works part time and was planning to give up work. His daughter is aged 23 and his son is aged 18. If he has done satisfactorily in his HSC he will be studying at University in 2008, and

(e) He and his wife have been working hard to support their family, pay off the mortgage on their house and educate their children, and

(f) He has at the moment around $249,000 worth of superannuation. 41. Mr Lam pointed out that this case had dragged on over five years since the Customs investigation began and had taken a heavy toll on his family and a business partner.

AK Unicargo received no more than its usual fees and mark-up on international transport and local handling fees for services provided by its contractors. Customs, which was provided with the job files of AK Unicargo, including billing details did not suggest that AK Unicargo was making an unusual or a large profit out of its work. Mr Lam did not receive any personal benefit or advantage except sharing in Unicargo's receipts.

It appears that the job profits on imports 1-28 made by AK Unicargo totalled $14,181 and those on exports 1-39 totalled $30,238. These are modest amounts, particularly when regard is had to the amount of work done.

The Australian Taxation Office assessed the taxable income of Mr Lam for the year ended 30 June 2007 at $65,950. While accounts for the year ended 30 June 2007 of AK Unicargo were placed before the Court a detailed examination of these was not undertaken. While there were accumulated losses, property, plant and equipment were stated to be carried at cost, independent or directors valuation. All assets excluding freehold land and buildings were stated to be depreciated over their useful lives to the company.

In the Notes To The Financial Statements Land and Buildings are shown as worth $484,125, accumulated depreciation as $28,775 and the net value as $455,350. I do not know how realistic these figures are. The Profit and Loss figures do not suggest other than a relatively modest small business.

While Mr Lam, and consequently AK Unicargo, realised that Ms Jing was importing Chinese honey and exported that honey as Australian honey and AK Unicargo and Mr Lam facilitated this, neither appreciated the gravity of what was being done by them because no Australian Customs duty was being avoided. Neither AK Unicargo nor Mr Lam paid sufficient attention to the untruths being told and their consequences. They thought that the statements as to the country of origin of the honey was a matter for Ms Jing and acted on her instructions. Neither AK Unicargo nor Mr Lam realised that more was required of them. AK Unicargo should have realised that untrue information on a material matter was being lodged with Customs. Mr Lam probably did not see it as material but should have.

Section 16A(1) of the Crimes Act requires the Court to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case. The Court is required under s 16A(2) to take into account a series of factors to the extent that they are relevant and known to the Court. They include the nature and circumstances of the offence, the course of conduct of which the offence forms part, the degree to which the person has co-operated with law enforcement agencies in the investigation of the offences. There was a course of conduct. AK Unicargo and Mr Lam did produce documents. Mr Lam made a statement and submitted to an interview. The prospect of rehabilitation of AK Unicargo and Mr Lam is strong. Neither appreciated the gravity of that in which they had become involved. They do now. They are very unlikely to offend again. They were led into participation in the scheme by Ms Jing. Of course they should not have allowed themselves to be so led. The probable effect of the fines on the members of Mr Lam's family cannot be stated with precision but they will not be so well placed. In the present case this is not a factor of consequence. I am not entitled to have regard to the effect that the fines imposed on Unicargo or Mr Lam or both of them will have on the employees of Unicargo and their families. In R v Ooi 1995 2 Crim LN 4 at 29 it was held that generally the Court will not consider the hardship caused to persons employed by or associated with a business operated by the person appearing for sentence. The evidence in the present case was in general terms and no special case or exceptional hardship was established. See also R v El Hani [2004] NSWCCA 162 dealing with s 16A(2)(p) of the Crimes Act (Cth).

The Crown stressed that neither AK Unicargo nor Mr Lam had pleaded guilty.

Under s 16C(1) of the Crimes Act and subject to s 16C(2) before imposing a fine on a person for a Federal offence, a court must take into account the financial circumstances of the person. The evidence does not enable me to say whether AK Unicargo and Mr Lam can afford to pay the fines imposed. I do not doubt that the fines imposed will have a major impact on the financial health of each of them. CEO Customs v Labrador Liquor Wholesale Pty Ltd & Others [2006] QCA 558 held that the minimum penalties imposed by statute, the seriousness of the criminality of the offenders and the weight which had to be given to general deterrence, left no scope for s 16C to perform any useful function.

In the present case the sections do not impose minimum penalties but the course of conduct, the number of offences and the period over which they were committed despite the unusual circumstances leave little room for s 16C to operate so as to mitigate the fines especially having regard to the limitations of the financial evidence.

I agree with Howie J that there is a degree of double charging in the offences in that the same conduct resulted in breach of two statutes and that the principle of totality has a very significant role to play when sentencing in that situation. Howie J said, "Full rein can be given to the principle where, as here, the minimum penalty provisions do not apply because there was no evasion of duty."

I agree with Howie J that the offences were not in the most serious category, but they were serious.

AK Unicargo and Mr Lam submitted: (i) Howie J found that Ms Jing's actions did not fall into the worst category of offences (para 30 of his judgment).

[Comment: She pleaded guilty and gave evidence against both of them. That evidence was of limited value but some of her evidence did tie up with the documents and some of the evidence of Mr Lam and Ms Patrick]

(ii) Neither of them believed that there could be adverse consequences - there was no loss of revenue. [Comment: This belief was mistaken in that Customs were not told the tru e facts and potential harm existed]

(iii) They acted without malice or for self gain and to please a charming client where they could see no harm in doing so.

[Comment: AK Unicargo and Mr Lam treated the various imports and exports as routine transactions. They received standard remuneration for the work which they did. They did not receive extra remuneration or an "illegality loading"]

(iv) But for the deceitful scheming of Ms Jing, AK Unicargo and Mr Lam would not have been put in the position they were. She was the instigator and they were her naïve servants.

[Comment: Ms Jing was the instigator but I would not describe AK Unicargo and Mr Lam as naïve. Ms Jing was not inclined to tell others what she was doing. She was economic with the information she supplied. Nevertheless, AK Unicargo and Mr Lam participated in the supply of documents containing information which was known to be untrue]

(v) The critical error made by AK Unicargo and Mr Lam was being untroubled by the false statement as to the country of origin because it did not result in Australian duty being payable. This one decision made by Mr Lam led to the chain of events which followed. He did not make a conscious decision before each and every breach occurred.

[Comment: I doubt if this assists either AK Unicargo or Mr Lam. A routine developed which, while understandable, was not permissible] 54. My overall impression was that Mr Lam did not realise the gravity of that in which he was participating. Ms Jing did not spell it out. She said that she did not realise that what she was being asked to do was illegal. She had been told by her Chinese principal at one stage not to ask questions. AK Unicargo and Mr Lam quickly fell into the trap of treating these transactions as routine commercial ones and processing them without further thought. That was a major error when the initial decisions were so flawed.

Neither AK Unicargo nor Mr Lam was the moving force behind the offences. Their commission was orchestrated from China. The responsible entity there managed and dictated the imports and exports. AK Unicargo and Mr Lam were involved in the conveying of untrue information but probably did not appreciate that what was being done was illegal. They failed to enquire sufficiently and failed to withdraw from the scheme initially or at an early stage. They probably thought, to the extent that they considered the matter that the responsibility for correctly stating the country of origin rested on Ms Jing.

Section 4K of the Crimes Act 1914 (Cth) relevantly provides: "(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same … summons if those charges are founded on the same facts, or form or are part of, a series of offences of the same or similar character.

(4) If a person is convicted of 2 or more offences referred to in subsection (3) the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence." 57. It is appropriate to apply s 4K(4) in some instances. The maximum penalties are as follows: (a) for an offence against s 234(1)(d) of the Customs Act - making a false statement or intentionally omit from a statement - $11,000

(b) for an offence against s 9 of the Commerce (Trade Descriptions) Act (CTD Act) - $10,000

(c) for an offence against s 12 of the CTD Act - $10,000 58. CHS and Mr Hu played a limited and subsidiary role. The shots were called from China. Ms Jing ran the operation in Australia in accordance with the instructions she received from China. He allowed her to use CHS for the first import and the first export but then she was to carry on business through her company which was to be registered promptly. The use of CHS was a temporary and interim measure. While Mr Hu gave Ms Jing the assistance described in the earlier judgment with the labelling and with transporting and allowed her to use the office facilities of CHS he was not involved in the making of false statements or the lodging of documents with Customs. Ms Jing, AK Unicargo and Mr Lam attended to the preparation of the documents lodged with Customs.

While AK Unicargo and Mr Lam are separate entities and each committed a separate offence, the offences were closely connected. The offences of AK Unicargo were committed as a result of the activities of Mr Lam. AK Unicargo acted at Mr Lam's behest. The problem of double punishment for some substantially similar wrongful conduct has to be taken into account. The conduct of each of them has to be taken into account. I also have to bear in mind that the prime offender and moving spirit behind the offending was Ms Jing acting on the instructions from the Chinese principal.

The following penalties are imposed on CHS Enterprises Pty Limited:

Entry 1 - for offences both under s 234(1)(d)(i) of Customs Act and s 9(1) of CTD Act applying s 4K(4) of the Crimes Act: A fine of $2500

Entry 2 - for an offence under s 234(1)(d)(ii) of Customs Act:

Export Charge - Clearance 1 - for offences both under s 234(1)(d)(i) of Customs Act and s 12(1) of CTD Act applying s 4K(4) of Crimes Act:

A fine of $2500 61. The following penalties are imposed on Robin Hu: Import Charge - Entry 1 - for offences both under s 234(1)(d)(i) of CustomsAcand s 9(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $2500 Export Charge -

Clearance 1 - for offences both under s 234(1)(d)(i) of Customs Act and s 12(1) of CTD Act applying s 4K(4) of Crimes Act:

A fine of $2500. 62. While separate offences there is a degree of overlapping between those involving CHS and Robin Hu.

The following penalties are imposed on AK Unicargo: Import Charges - Entry 1 - for offences both under s 234(1)(d)(i) of Customs Act and s 9(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $2500

Entries 2 and 5 - for offences under s 234(1)(d)(ii) of Customs Act applying s 4K(4) of Crimes Act:

Entries 3 to 26 (both inclusive) - for offences under s 234(1)(d)(i) of Customs Act and s 9(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $57,600

Export Clearance 1 - for offences both under s 234(1)(d)(i) of Customs Act and s 12(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $2350

Export Clearances 2 to 17 (both inclusive) for offences under s 234(1)(d)(i) of Customs Act and s 12(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $32,000 Export Clearances 18-39 (both inclusive) - for offences under s 12(1) of CTD Act applying s 4K(4) of Crimes Act: A fine of $33,000 64. The same penalties as are imposed on AK Unicargo are also imposed on Mr Pia Lam (aka Gordon Lam) in respect of the same offences. In determining these penalties I have taken into account the conduct of AK Unicargo and Mr Lam and that to a large extent in respect of each entry the wrongful conduct was that of Mr Lam and that the profit on each transaction was made by AK Unicargo. Costs 65. All parties requested that the Court determine who should pay the costs of the proceedings and assess the amount each party should pay (s 263 of Customs Act). I was told that the expenses of a costs assessment in a complicated matter such as this would be high and that it is not uncommon for a Court to make an assessment and consequential orders.

The solicitor now handling the matter in the office of the Australian Government Solicitor (AGS) has deposed to the following: (a) AGS costs (as itemized) $138,756 (b) AGS disbursements (as itemized) $118,919 (c) Total recorded and unrecorded AGS costs $257,675 (d) Proportion of costs attributed in these proceedings to Ms Jing 25 per cent (e) AGS seeks costs in these proceedings of $193,000 being about 75 per cent of the sum of $257,675.
The overall costs assessment of the AGS is reasonable as to amount and nobody sought to query individual amounts. The assessment is moderate compared to others which I have seen.

Customs explained that no order for costs had been sought against Ms Jing. She had pleaded guilty and given evidence in support of Customs' case in accordance with her earlier undertaking.

While a great deal of the investigative work had involved Customs establishing a case against Ms Jing and she was in China in the early stages, a relatively small proportion of the Court hearing time was occupied by Howie J in dealing with her. The extended hearing time before me was occupied in dealing with CHS, Mr Hu, AK Unicargo and Mr Lam. The hearing was delayed by interpreter problems with Ms Jing, but not to a great extent.

AK Unicargo and Mr Lam were wholly unsuccessful and must meet some of the costs. CHS and Mr Hu were convicted of a few offences but his conduct and that of CHS required investigation, analysis and assessment. I was not satisfied beyond reasonable doubt that he should be convicted of the balance of the offences. CHS and Mr Hu had no defence in respect of the charges as to Import Entry 1 and Export Clearance 1. CHS had no sustainable defence in respect of the charge as to Import Entry 2.

In all the circumstances it would be reasonable and just that CHS Enterprises and Mr Hu pay between them $38,600 on account of the costs and disbursements of Customs of these proceedings, with each being liable for such sum (but liable to contribute equally as between themselves). This is about 15 per cent of Customs' costs. It would also be reasonable and just that AK Unicargo and Mr Lam should pay between them $141,700 on account of the costs and disbursements of Customs of these proceedings, with each being liable for such sum (but liable to contribute equally as between themselves). This is about 55 per cent of Customs' costs.

CHS Enterprises Pty Limited, Robin Hu, AK Unicargo Pty Limited and Pia Lam are convicted of the offences detailed in this judgment. Imposed on each of them are the several penalties specified in this judgment.

I order: (a) CHS Enterprises Pty Ltd and Robin Hu pay Customs $38,600 on account of the costs and disbursements of Customs of these proceedings; and (b) AK Unicargo Pty Limited and Pia Lam pay Customs $141,700 on account of the costs and disbursements of Customs of these proceedings. **********

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