Regina v Namtasaeng [2010] SBHC 9; HCSI-CRC 113 of 2010 (9 April 2010)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 113 of 2010

REGINA

V

ADUL NAMTASAENG, ANON TALABNIN, AMPHON BOONLOM, ANUSORN KAOYANGYUEN, ARNON NUCHTHONGKAM, AUNG KYAW MYAT, CHATCHAY NILDUM, JAMRAS NAKPREM, KATANYU TEPOTHONG, ONG-ATCHAPUE, PRASIT KAEWKANHA, SAMROENG CHOMWONG, SAMROENG KAOHOM, SIRIPHUM NOONTRAKUL, SOMBOON NOICHAYA, SUCHIN SAKULDREW, SUPHITUK NOGMUN, SUTCHAT MUNKONG, THANANAN HOONTRAKUL, TANAKRIT RACHATATANAKUN, VINAI VISETRI and WILSAWAT CHONGMEESUK.

(Mwanesalua, J)

Date of Hearing: 1 April 2010
Date of Judgment/Sentence: 9 April 2010

Ms. Christensen and Mr. Ninamo for the Crown
Ms. McSpedden for the Accused

JUDGMENT/SENTENCE

MWANESALUA J: The M.V. Topaz is a General Cargo Vessel. It is owned by Navee Co. Ltd based in Thailand. Its Port of Registration is Bangkok in Thailand. It was built in Japan in 1969, and, is a vessel of no less than two hundred and fifty tons in burden. Its latest port of call was in Viet Nam before it arrived at Noro on 4 February 2010. It came to load log cargo for export. On arrival at Noro Port, its Master, Mr. Somboon Noichaya completed relevant declarations, including the ‘Crew Effects Declaration’, which all crew have signed. These declarations were accepted by Customs Officials and the vessel was granted inward clearance on 5 February 2010.

The MV Topaz, was then moored at the Noro Port, for a period of almost two weeks while the crew (the accused) waited for confirmation for a loading port for its log cargo. During this period, the crew were involved in exchanging 9 televisions, 16 DVD decks, 19 speaker sets, 2 mobile phones and 6 sleeves of cigarettes, (the imported goods) valued at SBD$19,226.64, for brass cables and refrigerator radiators weighing 659 Kgs and 2 bags of unknown weight, with a total value of SBD$26,949.84 from unidentified local villagers who came to the vessel. The imported goods were not declared by the crew in the ‘Crew Effects Declaration’ and had no intention to pay export duty on the brass and radiators.

On 18 February 2010 Gizo customs and Police acting on information conducted a joint operation into the offending; the vessel was moored at Parara where the log cargo was being loaded. The brass loaded on board by the crew were seized by customs and the police. The accused, except Mr. Somboon Noichaya and Mr. Samroeng Chomwong, were each charged with one count of evasion of customs duty on importation of goods, contrary to S. 213 (e), evasion of customs duty on exportation of goods, contrary to S. 213 (e), one count of smuggling, contrary to S. 193 (b), and one count of false declaration, contrary to S. 212 (b) of the Customs and Excise Act (Cap. 121) (the Act) respectively. Mr. Somboon Noichaya and Mr. Samroeng Chomwong knew the other crew had brass loaded on board the vessel without intention to pay export duty on them. For their part, they were each charged with one count of evasion of customs duty on exportation of goods, contrary to S. 213 (e) of the Act. All the accused appeared before this court on 1 April 2010, and pleaded guilty to the charges. I convict each of them on their own guilty pleas accordingly. Having convicted them of their offences, it is now my duty to pass sentence on them.

Sentence: Your offending is very serious. You have acted deliberately in purchasing goods abroad with the express intention of not declaring them when you imported them to be exchanged for items which you deliberately loaded for export without paying duty on them. Your criminality extends to making false declarations to customs and using your work on the vessel for the purpose of your illegal activities. However, these mitigating factors are taken in your favour including those made by your counsel. That you have entered early guilty pleas, that you have cooperated with customs officials and have made admissions to your offending. I will impose pecuniary penalty on each of you. But before I do that, I will deduct 25% of the penalty where it is treble the value of goods either imported or loaded for export without payment of the relevant duty. Further, I will deduct 20% on the prescribed penalties for offences under SS. 193 (b) and 212 (b) of the Act. These deductions reflect all mitigating factors taken into account by this court in your favour.

Mr. Adul Namtasaeng. You are the third engineer on the vessel with a salary of approximately USD750 per month. You failed to declare 1 x TV 17" Screen, 1 x Speaker set and 1 x DVD deck. You loaded for export 40kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $3,686.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $7,391.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Anon Talabnin. You are employed as oiler on the vessel at a salary of approximately USD150 per month. You did not declare 1 x TV 17" Screen, 1 x Speaker Set and 1 x DVD deck. You loaded for export 60kgs of brass. You pleaded guilty to four offences. I sentence you as follows;

Count 1: S. 213 (e) evasion of import duty on goods penalty of $3,696.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $5,542.00
Count 3: S. 393 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Amphon Boonlom. You are employed on the vessel as able seaman at a salary of USD300 per month. You did not declare 2 x DVD decks and 1 x Speaker Set. You loaded for export 30kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $1,958.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $4,732.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Anusorn Kao Yangyuen. You are employed as oiler on the vessel on a salary of approximately USD150 per month. You did not declare 1 x DVD deck and 1 x Speaker Set. You loaded for export 60kgs of brass. You intend to sell this brass abroad for income. You pleaded guilty to four offences. You are sentenced as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,032.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $5,542.00
Count 3: S. 193 (b) Smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Arnon Nuchthongkam. You are employed as an ordinary seaman at a salary of approximately USD150 per month. You have not declared 1 x Speaker set and loaded for export 25 Kgs of brass. You intend to sell them abroad for income. You plead guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $1,293.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $1,155.00
Count 3: S. 193 (b) Smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Aung Kyaw Myat. You are employed as fourth engineer on the vessel at a salary of approximately USD700 per month. You have not declared 1 x DVD deck and 1 x Speaker set. You loaded for export 20kgs of brass to sell for income. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,586.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $4,435.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Chatchay Nildun. You are employed on the vessel as a wiper at a salary of approximately USD130 per month. You have not declared 1 x TV 17" Screen, 1 x Speaker set and 1 x DVD deck. You loaded for export 50kgs of brass for sale abroad for income. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $1,570.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $5,618.00
Count 3: S. 194 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Jamras Nakprem. You are employed as Chief Officer at a salary of approximately USD700 per month. You have failed to declare 1 x 21" TV Screen, 2 x DVD decks and 1 x Speaker set. You loaded for export 50kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,586.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $7,207.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Katanyu Tepothong. You are employed as Chief Engineer at a salary of USD1000 per month. You have not declared 1 x mobile phone and 5 x sleeves of cigarettes. You loaded for export 10kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,401.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $3,238.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Ong-At Chatpue. You are employed as an ordinary seaman on the vessel at a salary of USD150 per month. You have not declared 1 x 17" TV Screen, 1 x DVD deck and 1 x Speaker set. You loaded for export 50kgs of brass to sell for income. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,031.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $6,651.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Prasit Kaewkanha. You are employed as the Boson of the vessel at a salary of approximately USD250 per month. You have not declared 1 x 21" TV Screen, 1 x DVD deck and 2 x Speaker sets. You loaded for export 50kgs of brass. You pleaded guilty to four offences. I sentence as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $3,850.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $8,368.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declarations penalty of $8,000.00

Mr Samroeng Chomwong. You are employed as the third officer at the vessel with a salary of USD1,000 per month. You were aware when the vessel was at Nor Port that the crews were exchanging brass with goods but turned a blind eye to their illegal activity. You pleaded guilty to a single count under S. 213 (e) evasion of export duty on brass. Total penalty $1,600.00.

Mr. Samroeng Kaohom. You are employer as an electrician at a salary of USD700 per month. You did not declare 1 x Speaker set and loaded for export 25kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $1,294.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $3,200.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Siriphum Noon Trakul. You are employed as wiper on the vessel. You did not declare 1 x Sleeve cigarette and loaded for export 1kg of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $258.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $93.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Somboon Noichaya. You are employed as the Master of the vessel at a salary of USD2,000 per month. You knew that the crew were exchanging un declared goods for brass but did not stop them. You accepted responsibility for this illegal activity. You pleaded guilty to one count of evasion of export duty on goods by the crew under S. 213 (e) of the Act. I impose penalty of $1,600.00 on you.

Mr. Suchin Sakuldeaw. You are employed as a fitter on the vessel at a salary of approximately USD300 per month. You did not declare 1 x Speaker set and loaded for export 13kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $462.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $1,201.00
Count 3: S. 193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Suphituk Nogmun. You are employed as an ordinary seaman on the vessel at a salary of approximately USD150 per month. You fail to declare 1 x 14 "TV Screen, 1 x Speaker set and 1 x DVD deck. You loaded for export 50kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $1,293.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $6,281.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Sutchat Munkong. You employed as oiler on the vessel at a salary of USD150 per month. You fail to declare 1 x 21" TV Screen, 1 x DVD deck and 1 x Speaker set. You loaded for exported 50kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $2,770.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $4,618.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Thananan Hoontrakul. You are employed as Wiper on the vessel at a salary of USD130 per month. You did not declare 1 x mobile phone and loaded for export 15kgs of brass. You pleaded guilty to four offences and I will sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $461.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $1,386.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Tanakrit Rachatakun. You are employed as an ordinary seaman at a monthly salary of approximately USD150. You did not declare 1 x DVD deck and 1 x Speaker set. You loaded for export 20kgs of brass. You pleaded guilty to four offences. I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $720.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $2,567.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Vinai Visetri. You are employed as able Seaman on the vessel at a salary of approximately USD300 per month. You have not declared 2 x Speaker set and 1 x DVD deck. You loaded for export 2 x bags of brass. You pleaded guilty to four offences and I sentence you as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $3,879.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $4,804.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

Mr. Wisawat Chongmeesuk. You are employed as able Seaman on the vessel at a salary approximately USD300 per month. You failed to declare 1 x 17" TV Screen, 1 x Speaker set and 1 x DVD deck. You loaded for export 40kgs of brass. You pleaded guilty to four offences. I sentence as follows:

Count 1: S. 213 (e) evasion of import duty on goods penalty of $3,695.00
Count 2: S. 213 (e) evasion of export duty on goods penalty of $7,392.00
Count 3: S.193 (b) smuggling penalty of $1,600.00
Count 4: S. 212 (b) false declaration penalty of $8,000.00

The controller of Customs and Excise made an application under S. 195 of the Act for the condemnation of the ship MV. Topaz in a penalty of ten thousand dollars. I accept the submission by the crown that the purpose of this section is to provide for a significant deterrence to ship owners and operators to ensure that the crew they employ act in accordance with the customs laws and do not involve in acts that result in significant losses of revenue to Solomon Islands. In this case, it is obvious that the owners of the ship have failed in their obligation. The MV Topaz is accordingly condemned in the penalty of ten thousand dollars.

ORDERS OF THE COURT

1. Convict accused on all the offences which they have been charged.

2. Impose penalties as follows:

Mr Adul Namtasaeng: Count 1: penalty of $3,686.00
Count 2: penalty of $7,391.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $20,677.00 payable by midday on 12 April 2010.

Mr Anon Talibnin : Count 1: Penalty of $3,696.00
Count 2: Penalty of $5,542.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $18,838.00 payable by midday 12 April 2010.

Mr Amphon Boolom: Count 1: Penalty of $1,958.00
Count 2: Penalty of $4,732.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $16,290.00 payable by midday 12 April 2010.

Mr Anuson Kao Yang Yuen: Count 1: Penalty of $2,032.00
Count 2: Penalty of $5,542.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $17,174.00 payable by midday 12 April 2010.

Mr. Arnon Nuchthongkam: Count 1: Penalty of $1,293.00
Count 2: Penalty of $1,155.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $12,048.00 payable by midday 12 April 2010.

Mr. Aung Kyaw Myat: Count 1: Penalty of $2,586.00
Count 2: Penalty of $4,435.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $16,621.00 payable by midday 12 April 2010.

Mr. Chatchay Nildum: Count 1: Penalty of $1,570.00
Count 2: Penalty of $5,618.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $16,788.00 payable by midday 12 April 2010.

Mr. Jamrass Nakprem: Count 1: Penalty of $2,586.00
Count 2: Penalty of $7,207.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $19,393.00 payable by midday 12 April 2010.

Mr. Katanyu Tepothong: Count 1: Penalty of $2,401.00
Count 2: Penalty of $3,238.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $15,239.00 payable by midday 12 April 2010.

Mr. Ong-At Chatpue: Count 1: Penalty of $2,031.00
Count 2: Penalty of $6,651.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $18,282.00 payable by midday 12 April 2010.

Mr. Prasit Kaewkanha: Count 1: Penalty of $3,850.00
Count 2: Penalty of $8,368.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $21,818.00 payable by midday 12 April 2010.

Mr. Samroeng Chomwong: Count 1: Penalty of $1,600.00 payable by midday 12 April 2010.

Mr. Samroeng Kaohom: Count 1: Penalty of $1,294.00
Count 2: Penalty of $3,200.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $14,094.00 payable by midday 12 April 2010.

Mr. Siriphum Noon Trakul: Count 1: Penalty of $258.00
Count 2: Penalty of $93.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $9,951.00 payable by midday 12 April 2010.

Mr. Somboon Noichaya: Count 1: penalty of $1,600.00 payable by midday 12 April 2010.

Mr. Suchin Sakuldeaw: Count 1: Penalty of $462.00
Count 2: Penalty of $1,201.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $11,263.00 payable by midday 12 April 2010.

Mr. Suphituk Nognun: Count 1: Penalty of $1,293.00
Count 2: Penalty of $6,281.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $17,174.00 payable by midday 12 April 2010.

Mr. Sutchat Munkong: Count 1: Penalty of $2,770.00
Count 2: Penalty of $4,618.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $16,988.00 payable by midday 12 April 2010.

Mr. Thananan Hoontrakul: Count 1: Penalty of $461.00
Count 2: Penalty of $1,386.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $11,447.00 payable by midday 12 April 2010.

Mr. Tanakrit Rachatakum: Count 1: Penalty of $720.00
Count 2: Penalty of $2,567.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $12,887.00 payable by midday 12 April 2010.

Mr. Vinai Visetri: Count 1: Penalty of $3,879.00
Count 2: Penalty of $4,804.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $18,283.00 payable by midday 12 April 2010.

Mr. Wisawat Chongmeesuk: Count 1: Penalty of $3,695.00
Count 2: Penalty of $7,392.00
Count 3: Penalty of $1,600.00
Count 4: Penalty of $8,000.00
Total penalty $20,687.00 payable by midday 12 April 2010.

3. Order forfeiture of the goods in this matter to the Government.

4. Order for the condemnation of the MV Topaz in the penalty of $10,000.00, payable by midday 12 April 2010.

THE COURT