Citation: CEO of Customs v Hui Min Jing [2007] NSWSC 1354
Court: Supreme Court of New South Wales
Date: 30 November 2007
Judge(s): Howie J
Background
The Chief Executive Officer of Customs prosecuted the defendant, a businesswoman, for her role in a large-scale customs fraud involving Chinese honey. Between August 2001 and May 2002, 28 consignments totalling 1.7 million litres of Chinese honey, with a declared customs value of over $5 million, were imported into Australia using false documentation. That documentation falsely represented the honey as originating from a fictitious Singaporean company and consigned from Singapore or Malaysia.
Once in Australia, the honey was re-packaged and re-labelled as a product of Australia, then exported to the United States across 39 separate consignments. The false labelling was commercially significant: Chinese honey attracted US anti-dumping duties of between 34 and 184 per cent, while Australian honey entered duty free. In addition, the honey was found to contain a carcinogenic antibiotic banned in US food products.
The defendant was one of five defendants in the proceedings, which also included her former husband and associated companies. She pleaded guilty to all charges on 16 March 2007 and agreed to give sworn evidence against the remaining defendants in related proceedings before Acting Justice Smart.
Legal Issues
- What penalties were appropriate for the defendant's multiple offences under the Customs Act 1901 (Cth) and the Commerce (Trade Descriptions) Act 1905 (Cth)?
- How should the totality principle and the rule against double punishment (under s 4K(4) of the Crimes Act 1914 (Cth)) apply when sentencing for numerous related offences?
- What weight, if any, should be given to the defendant's guilty plea and her assistance to the prosecutor in the related proceedings?
Decision
Howie J sentenced the defendant to fines only, noting that none of the offences carried a term of imprisonment. The maximum penalty for each Customs Act offence was $11,000 (100 penalty units at $110 each), and $10,000 for each offence under the Commerce (Trade Descriptions) Act. The court applied s 4K(4) of the Crimes Act 1914 (Cth), which requires that where multiple related offences are grouped, they be treated as a single offence for penalty purposes, preventing the simple multiplication of maximum penalties across all counts.
The court grouped the numerous import and export charges into clusters based on their timing and character, imposing a single fine for each cluster. The individual fines ranged from $1,600 to $25,000 per group, reflecting the varying scale and seriousness of the conduct within each cluster.
In assessing penalty, the court considered the defendant's guilty plea and the assistance she provided to the prosecution in the related proceedings. Senior counsel for the prosecutor confirmed that her evidence was of importance to the case, particularly against two other defendants. However, Acting Justice Smart, who heard the related proceedings, had described the defendant as "wily and manipulative and anxious to have her share of responsibility and wrong-doing reduced," a characterisation the sentencing court took into account.
The total fine imposed across all import and export charges was $129,200.
Orders Made
Import Charges (grouped by entry):
- Entry 1: Fine of $1,600
- Entries 2 and 5: Fine of $3,000
- Entries 3, 4 and 9 to 13: Fine of $12,000
- Entries 14 to 20: Fine of $12,000
- Entries 21 to 24 and 26: Fine of $9,000
- Entry 25: Fine of $1,600
Export Charges (grouped by clearance):
- Clearance 1: Fine of $4,000
- Clearances 2 to 5: Fine of $10,000
- Clearances 6 and 7: Fine of $6,000
- Clearances 8 to 13: Fine of $17,000
- Clearance 14: Fine of $4,000
- Clearances 15 to 17: Fine of $9,000
- Clearances 18 to 30: Fine of $25,000
- Clearances 31 to 39: Fine of $15,000
Total fine: $129,200
Key Takeaways
- Section 4K(4) of the Crimes Act 1914 (Cth) requires that related offences charged together be treated as a single offence for sentencing purposes, preventing the accumulation of maximum penalties across a large number of counts.
- A guilty plea and cooperation with the prosecution can reduce penalty in customs fraud proceedings, but the court retains the ability to weigh that cooperation against the manner in which it was given and the credibility of the offender's evidence.
- Where customs fraud involves the misdescription of goods to avoid the duties of a foreign country rather than Australian duties, this does not necessarily reduce the seriousness of the conduct for Australian sentencing purposes.
- The Supreme Court grouped offences into temporal and factual clusters when applying the totality principle, rather than imposing separate penalties on each individual charge.
- No term of imprisonment was available for any of the offences charged; the sentencing court's task was confined to determining the appropriate level of financial penalty within the statutory maximum for each grouped cluster.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), Part XIV, ss 234(1)(d)(i) and (ii), 236
- Commerce (Trade Descriptions) Act 1905 (Cth), ss 9(1), 12(1)
- Crimes Act 1914 (Cth), ss 4K(4), 16C
Cases:
- CEO Customs v CHS Enterprises Pty Ltd [2007] NSWSC 1133
- CEO Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558; 63 ATR 1158
- Pearce v The Queen [1998] HCA 57; 194 CLR 610