CEO of Customs v Liang [2004] NSWSC 1240

Supreme Court New South Wales

Medium Neutral Citation: CEO of Customs v Liang [2004] NSWSC 1240 Hearing dates: 19/08/03-21/08/03,17-21/11/03,2/08/04- 4/08/04,15/10/04 Decision date: 21 December 2004 Jurisdiction: Common Law Before: James J Decision: Verdict for the Plaintiff Catchwords: CUSTOMS PROSECUTION - importations of clothing in 1998 - alleged offences of – smuggling - evading payment of duty - intentionally making a statement to a Customs officer, reckless as to the fact that the statement is false in a material particular - circumstantial case - tendency evidence - coincidence evidence Legislation Cited: Customs Act (Cth) Evidence Act Financial Transaction Reports Act (Cth) Cases Cited: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 201 ALR 1 Wilson v Chambers (1926) 38 CLR 131 Category: Principal judgment Parties: Chief Executive Officer of Customs v Jian Wei Liang (also known as Victor Liang) & 2 Ors Representation: Counsel: C O'Donnell - Plaintiff G Drake - Defendants

Solicitors: Mary Hawkins - Australian Government Solicitor - Plaintiff Chan Li & Co - Defendants File Number(s): SC 20087/02

JUDGMENT 1. HIS HONOUR: These proceedings were brought by the Chief Executive Officer of Customs against Jian Wei Liang, also known as Victor Liang, whom I will refer to as Victor Liang or the first defendant, and his de facto wife Elaine Qili Wang, also known as Elaine Wong, whom I will refer to as Elaine Wong or the second defendant. There was originally a third defendant, a company New Century Clothing Co Pty Limited, but this company is no longer registered and the plaintiff discontinued the proceedings as against the third defendant. Wherever in this judgment I refer to "the defendants", I am referring simply to Victor Liang and Elaine Wong. 2. The proceedings are a Customs prosecution under Pt XIV of the Customs Act 1901 (Commonwealth) ("the Act") for the recovery of penalties for alleged offences under Pt XI11 of the Act in respect of importations of clothing in 1998. 3. In pars 2-10 of the statement of claim by which the proceedings were commenced the plaintiff averred a number of background facts, nearly all of which were admitted by the defendants in their defence. The following background facts were admitted in the defence or otherwise not disputed (apart from admissions in the defence the plaintiff has the benefit of s 255 of the Act, under which an averment in the statement of claim is prima facie evidence of the matter averred). 4. In 1995 the name "New Century Clothing Co" was registered as a business name in New South Wales. The defendants were the registered proprietors of the business name and carried on under that name the business of importing clothing. 5. The company New Century Clothing Co Pty Limited was incorporated in July 1998. From 10 July 1998 this company owned and controlled the business of importing clothing which had formerly been carried on by the unincorporated business. At all times Victor Liang was the sole director and the sole shareholder of the company. Both of the defendants were involved in the management of the activities of the company. 6. Between 2 January 1998 and 9 July 1998 there were twenty-three importations of clothing by the unincorporated business (which were referred to in the proceedings as importations or shipments 1 to 23). The defendants or one of them gave instructions for the compiling and lodgement of an entry for home consumption for each of these importations. 7. Between 10 July 1998 and December 1998 there were fifteen importations of clothing by the company (which were referred to in the proceedings as importations or shipments 24 to 38). The defendants or one of them gave instructions on behalf of the company for the compiling and lodgement of an entry for home consumption for each of these importations. 8. All of the importations, except importation 15, were importations of clothing from the same overseas supplier Wing Hung Knitwear Garment Factory of Hong Kong ("Wing Hung"). Importation 15 was an importation of clothing from a supplier Li de Jia (Hong Kong) Trading Development Company ("Li de Jia"). 9. With respect to each importation or shipment, the defendants admitted in their defence that they or the company had ordered the goods from Wing Hung (or in the case of importation 15, Li de Jia); that they or the company had caused the goods ordered to be imported into Australia; and that they or the company had employed Hecny (Australia) Pty Limited ("Hecny"), a freight forwarding company, to arrange the entry of the goods into home consumption and for this purpose had given Hecny a set of shipping documents including a commercial invoice. Although not admitted on the pleadings, it was not contested at the hearing that Hecny had employed a company Gibson Freight International Pty Limited ("Gibson") to make and lodge with Customs an entry for home consumption in respect of the goods. The defendants further admitted in their defence that the defendants or the company had caused the entry which had been made by Gibson to be produced to Customs; that the entry had represented that the value of the goods for the purpose of the calculation of Customs duty was a certain figure; and that Customs duty had been calculated on that figure and paid. 10. A critical allegation which was made by the plaintiff but denied by the defendants, was that the amount represented in the entry as the value of the goods, as being the price paid for the goods, was false and that th true value of the goods was a higher amount, being the actual, higher price paid for the goods by the defendants or the company.