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Cigarette Smuggling

Appeal Bid By Absent Tobacco Tycoon Fails

Ruling on bugging of defendant upheld

Yvonne Tsui – Updated on Jun 18, 2008

The appeal court yesterday rejected an application by the director of a tobacco company – who has absconded – to argue in the top court against the continuation of his criminal trial in the District Court.

The challenge was mounted after lawyers cited what they said was a deliberate breach of legal privilege, by anti-corruption officers who bugged the office of a defendant, as grounds for halting the trial. The trial judge rejected that argument, and a subsequent request for a judicial review of that decision was also rejected.

Lu Dayong, 57, former executive director of Nanyang Brothers Tobacco Co Ltd, failed to appear last week at a District Court hearing on his alleged involvement in the illegal smuggling of Double Happiness cigarettes. A warrant for his arrest was issued.

Lawyer Martin Lee Chu-ming SC said outside court that Lu’s failure to appear at that hearing had not affected the application. He said he had been given detailed instructions on the application before Lu absconded.

Mr Lee, who acted for Lu and two other applicants – both co-defendants in the trial – in the judicial review application, argued yesterday that legal privilege should be recognised as an absolute right.

The appeal stemmed from a ruling on May 16 by Mr Justice Michael Hartmann, who refused to grant leave for a judicial review of District Court Judge Joseph Yau Chi-lap’s decision on April 3 not to stay the criminal proceeding.

Mr Justice Hartmann said it would be inappropriate for him to hear the case as Judge Yau had properly exercised his power to decide on the application for a stay of proceedings. He said the merits of the decision should be heard in the Court of Appeal upon a criminal appeal, not in a judicial review.

Upholding that decision, yesterday’s ruling by Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock, of the Court of Appeal, brought an end to the matter.

The criminal trial will continue in the District Court next Wednesday.

Lu – along with Ko Kit, 36, director of Hang Chun Trade Development, and Chan Kai-san, 37, a sales manager for the same firm – had asked for a stay of the criminal proceedings on the grounds that the Independent Commission Against Corruption’s covert surveillance operation “constituted an affront to public conscience” by bugging a conversation between Ko and her lawyer.

Lu and Ko face one count of conspiracy to arrange for Lu to accept an advantage. All three face a charge of conspiracy to defraud and another count of conspiracy to arrange for Lu to accept an advantage.

Smuggling Trial To Go On Without Suspect

Chandra Wong – Updated on Jun 13, 2008 – SCMP

A district court judge presiding over a HK$50 million cigarette-smuggling case has decided to go ahead with the trial of two co-defendants even though a third, the former chairman of a tobacco manufacturer, has absconded.

District Court Judge Joseph Yau Chi-lap yesterday exercised his discretion to resume the trial, which started last October, without the presence of Lu Dayong, 60, former chairman of Nanyang Brothers Tobacco Company.

The judge issued an arrest warrant for Lu and confiscated his HK$3 million bail on Tuesday after he failed to appear for a hearing.

The judge also refused a request to either step down from the trial or hold a separate trial for the co-defendants, Lu’s girlfriend Ko Kit, 39, director of Hang Chun Trade Development, and Chan Kai-san, 40, sales manager of the same firm.

Cheng Huan SC, for Ko and Chan, said his clients had prepared their case on the understanding that Lu would call expert witnesses to counter the government forensics accountants’ findings concerning Lu’s bank accounts. The judge said Lu’s disappearance would not influence his handling of the case.

Ko and Chan are free on bail of HK$700,000 and HK$500,000, respectively.

Lu and Ko have pleaded not guilty to a joint charge of conspiracy to arrange for Lu to accept an advantage. Lu, Ko and Chan have pleaded not guilty to joint charges of conspiracy to defraud, and conspiring to arrange for Lu to accept an advantage.

The case involves Hang Chun’s suspected involvement in the illegal smuggling of Double Happiness cigarettes to the mainland.

Warrant Issued After Businessman Fails To Appear

Danny Mok – SCMP – Updated on Jun 11, 2008

A former chairman of a tobacco manufacturer is being sought by graft-busters on an arrest warrant after he failed to appear in court for his alleged connection to a HK$50 million cigarette-smuggling case.

Lu Dayong, 60, former chairman of Nanyang Brothers Tobacco Company, had been facing two counts of conspiracy for an agent to accept an advantage and one of conspiracy to defraud.

Lu was earlier granted court bail of HK$3 million in cash. He was required to appear in court yesterday for the resumption of the hearing, which had gone on for 54 days, the Independent Commission Against Corruption said.

District Court Judge Joseph Yau Chi-lap issued a warrant for Lu’s arrest after he failed to turn up.

The commission said people who had information on the whereabouts of Lu or any other information that could lead to his arrest should call its 24-hour hotline, 2526 6366.

Co-defendants Ko Kit, 39, director of Hang Chun Trade Development; and Chan Kai-san, 40, sales manager of the same firm, had their case adjourned to today. One of the bribery charges alleges Lu, Ko and Chan conspired together and with other people for Lu to accept advantages from purchasers of cigarettes from the mainland between March 2003 and February 2004.

The alleged advantages were for Lu to cause Nanyang Brothers to sell Double Happiness cigarettes to Hang Chun so that they could be supplied to the mainland purchasers.

The other conspiracy charge alleges Lu, Ko and Chan conspired to defraud the tobacco company by concealing from the firm that Lu had interests in Hang Chun. The defendants were alleged to have caused the tobacco company to supply Double Happiness cigarettes to Hang Chun, knowing that the cigarettes would be sold on the mainland, violating the contracts between the two firms.

Another suspect in the case, mainlander Lin Jianding, 42, a former director of Hang Chun, is still being been sought by the ICAC.

Consultation on the future of tobacco control

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Should The Tax On Tobacco Be Increased?

Updated on Apr 23, 2008 – SCMP

Hong Kong has forbidden smoking in public areas since last year. This policy has had some success, in that people can breathe cleaner air.

Now there are calls for increasing the tax on tobacco.

I think such a proposal has advantages and disadvantages. On a positive note, raising the tobacco tax would lead to more people quitting smoking because they are not prepared to buy expensive cigarettes. This would lead to more smokers escaping from the addiction, which is the aim of those calling for a higher tax.

However, on the down side, we could see an increase in cigarettes being sold on the black market, rather than legally in shops. Also, the tobacco sold illegally may be of questionable quality because it is not subject to the strict tests undertaken by cigarette companies. Therefore, it could put smokers at even greater risk than brand cigarettes sold over the counter.

I think the government should think very carefully before deciding whether or not to increase the tobacco tax.

Sandy Cheung, Sau Mau Ping

Lax Tobacco Tax Remains Unattended

Written by ADRIAN WAN CHUN-HO – Thursday, 10 April 2008 00:00

Although many had voiced support for the idea of raising the tobacco tax, the government thinks education is a better way of cutting smoking, and so left the tax unchanged in the Budget.

Some experts believe that a rise in tobacco tax can highly reduce youth smoking, yet the government is still leaving the current law unattended.

Secretary for Finance John Tsang Chun-wah announced in the Budget on February 27 that “education is more important than a tax increase when considering stamping out the smoking habit in Hong Kong”.

Anti-tobacco campaigners such as Committee on Youth Smoking Prevention (YSP), Hong Kong Council on Smoking and Health (COSH) and Clear the Air, however, believed that a tobacco tax increase would be very effective.

Chief Executive of YSP Li Cheong-lung said that he was disappointed at the government for not taking his committee’s demand of doubling the tax into account in the Budget.

“Since 2005, we have been urging the government to lift the duty to reduce underage smoking,” he said, “when the price of cigarettes goes up, many teenagers smoke less or quit altogether.”

If such an increase were introduced, the tax payable on a pack of 20 cigarettes would be raised from about $16 to $32.

James Middleton, a member of Clear the Air, a volunteer group committed to combat air pollution in Hong Kong, said a ten per cent increase in tobacco tax can reduce youth smoking by seven per cent and overall smoking by four per cent.

“Tobacco tax is proven worldwide the most effective way of preventing and reducing smoking. It is the most feared available preventative measure by the tobacco companies,” he said.

The World Bank (WB) and World Health Organisation (WHO) both advocate population-wide prevention of chronic diseases.

Tobacco use is alongside other detrimental factors like improper diet, inadequate physical activity and excessive alcohol consumption, which cause chronic diseases, according to the WHO Framework Convention on Tobacco Control (FCTC), an international treaty for tobacco control.

“The government is obliged under FCTC rules to regularly increase tobacco tax,” Mr Middleton said.

The WB has issued guidelines on appropriate tax level. They admonish high-income regions, like Hong Kong, to impose a 65 to 80 per cent tax on each cigarette.

In Hong Kong, the retail price of a pack of cigarettes is $32, of which $16.08 is tax. Tax per cigarette is thus tad higher than 50 per cent.

A regular smoker, said that if the tobacco tax were doubled, it would undoubtedly affect his accustomed smoking pattern.

If a pack of cigarettes cost as much as $48, I don’t think I could afford a pack a day. It would be a luxury, he said.

Albert Kwan Yui-leung, 19, a regular smoker, said that if the tobacco tax were doubled, it would undoubtedly affect his accustomed smoking pattern.

“If a pack of cigarettes cost as much as $48, I don’t think I could afford a pack a day. It would be a luxury,” he said.

Mr John Tsang said in the Budget: “We need to take a more balanced approach. We already have a high tax there, if we raised it at this time, it would increase smuggling.”

Mr Middleton from Clear the Air argued that, “He [John Tsang] is pandering to the business lobby and playing with peoples’ lives in doing so.”

Concerned groups such as YSP, COSH and Clear the Air said the current tobacco tax in the city is relatively low compared with New York and Britain where the tax on a packet of cigarettes is $28 and $62 respectively.

Mr Li from YSP commented, “The government can say whatever it justifies. I should say, however, that every time the tobacco tax was increased in the recent 20 years, the number of smokers fell.”

Tsang’s comment in the Budget may call into question the government’s confidence in guarding against smuggling.

C. K. Ng, Senior Inspector from the Customs and Excise Department, said reassuringly that “Tobacco smuggling in Hong Kong has been subsiding.”

According to Mr Ng, the quantity of each illicit shipments has shrunk from 200 cases (two million sticks) several years ago to around 100 cases (one million sticks) in the recent two years; a steady rise in revenue collected from tobacco suggested the shift of consumption from illicit to legitimate cigarettes; and illicit cigarettes are usually sold by means of telephone orders instead of blatant touting in streets.

Asked to comment on the enforcement against smuggling tobacco, Ng said, “The current enforcement against illicit cigarettes is deemed effective. However, when there are any signs of rampant smuggling, we [the Excise and Customs Department] would consider stricter measures.”

Mr John Tsang said in the Budget: “”If all the children and the adults of Hong Kong can learn all the bad things about smoking, I think that would be a more permanent way of reducing smoking. We could raise the tax further. But there are other things we can do better.”

Dr Barry Tam, Head of Tobacco Control Office (TCO), elucidated how his team plans to educate the public through various means.

He said there would be promotion of the harmful effect of smoking and second-hand smoke, smoke cessation and smoke free environment through media publicity, community involvement programmes, interactive education theatre programmes, youth tobacco control advocate training programmes and outreaching school-based health talks.

“1,324 people a year die of passive smoking in Hong Kong; 50 per cent of smokers will be killed by their addiction,” Mr Middleton said.

Dr Tam said the Department of Health (DH) would also strengthen publicity such as TV and radio announcements or public interest (APIs) in order to enhance public support so as to help building a smoke-free environment in Hong Kong.

Tobacco facts

* Tobacco causes around 13,500 deaths per day.
* Half of children are exposed to tobacco smoke at home.
* 47.5% of males smoke.
* 10.3% of females smoke.
* A cigarette is the only legally available consumer product that kills through normal use.

Source: WHO

Illegal Cigarettes

Billions of cigarettes are smuggled each year, equal to about one third of the cigarette market. Cigarettes are the World’s most widely smuggled legal consumer product. They are smuggled across almost every national border and along constantly changing routes.

Read more about illegal cigarettes.

British American Tobacco And Cigarette Smuggling In Asia

Complicity in contraband: British American Tobacco and cigarette smuggling in Asia 

Objectives: To examine the complicity of British American Tobacco (BAT) in cigarette smuggling in Asia, and to assess the centrality of illicit trade to regional corporate strategy.

Methods: Analysis of previously confidential documents from BAT’s Guildford depository. An iterative strategy combined searches based on geography, organisational structure, and key personnel, while corporate euphemisms for contraband were identified by triangulation.

Results: BAT documents demonstrate the strategic importance of smuggling across global, regional, national, and local levels. Particularly important in Asia, contraband enabled access to closed markets, created pressure for market opening, and was highly profitable. Documents demonstrate BAT’s detailed oversight of illicit trade, seeking to reconcile the conflicting demands of control and deniability.

Conclusions: BAT documents demonstrate that smuggling has been driven by corporate objectives, indicate national measures by which the problem can be addressed, and highlight the importance of a coordinated global response via WHO’s Framework Convention on Tobacco Control.

See the full document on  British American Tobacco and cigarette smuggling in Asia here.

Poland Cracks Cigarette Smuggling Gang

(AFP) 6 March 2008 – Khaleej Times Online

WARSAW – Polish police announced Thursday they cracked a major gang smuggling cigarettes from China and the former Soviet republics to Western Europe, detaining 27 suspects including alleged gang kingpins.

‘One of the smuggling routes ran through the former Soviet Union via Poland to Britain. Another maritime route began in China to Poland and further west,’ Lublin regional police spokesman Janusz Wojtowicz told Poland’s PAP news agency.

One alleged kingpins, a 49-year-old Pole, was questioned by German police in Aachen, Wojtowicz said. ‘This is the first international organised crime organisation of such substantial size to be cracked in Poland,’ he said.

According to police, the gang was created more than a year ago by the owners of transport companies based in Lublin, eastern Poland.

Police found a truck loaded with 340,000 packs of cigarettes without excise tax seals. Law enforcement agents have also frozen 29 bank accounts and vehicles owned by the suspects.

Police also found milk jugs containing two million euros (3 million dollars) and around 500,000 pounds sterling (1 million dollars, 653,000 euros) as well as nine kilograms of items in gold in one of the raided homes.

Toronto Judge Reinstates Charges Against Cigarette Executives

Judge reinstates charges against cigarette executives – The Gazette
February 22, 2008

Peter Brieger

A Toronto judge has put Canada’s biggest cigarette-smuggling case back into play by ordering that fraud and conspiracy charges be reinstated against six former executives of tobacco giant JTI-Macdonald Corp.

Ontario Superior Court Justice Ian Nordheimer this week quashed a decision last year to throw out the case against the six men for lack of evidence, saying a preliminary hearing judge made legal errors in his ruling.

Crown lawyers appealed that ruling.

“Put simply, the conduct of JTI and its employees is conduct that a reasonable person could see as dishonest,” Nordheimer wrote in his Feb. 19 decision. “The decisions to discharge these six individuals cannot stand.”

The 37-page ruling also denied a bid by Ed Lang, JTI’s former chief executive, to void seven counts of fraud and conspiracy to commit fraud against him.

The other JTI employees are: former vice-president of operations Pierre Brunelle, former vice-president of finance Paul Neumann, director of finance Roland Kostantos and managers Dale Sisel, Jaap Uittenbogaard and Peter MacGregor.

The seven are accused of defrauding federal and provincial governments out of more than $1 billion in tax revenue during early 1990s by operating a smuggling ring through the United States and First Nations reserves.

JTI and its former employees were charged in 2003 after a four-year police probe. None of the allegations has been proven.

Evidence at the 19-month preliminary hearing is subject to a publication ban.

But Nordheimer, who overturned former Bay Street investment banker Andrew Rankin’s insider-tipping conviction last year, said he disagreed there isn’t enough evidence to put the former tobacco executives on trial.

“Presumably, each of these employees believed, in acting as they did, that they were just doing their jobs,” Nordheimer wrote. “However, if the manner by which they chose to undertake their responsibilities was criminal in nature, the fact that they also acted within the scope of their employment will not absolve them from criminal liability.”