On December 7, 2015 Yao was charged with 12 counts, comprising of a Count of ‘Attempting to obtain money or a Financial Advantage by deception contrary to section 28 and 130B of the Penal Code (Count 1) and 11 Counts of offences contrary to Customs Act No.7 of 2013.
Yao arrived in Vanuatu in 1998 and worked in the family’s retail business in Port Vila before moving to Luganville.
In 2006, ‘Tapusia store’ was registered by the defendant’s brother as a retail and wholesale business and the defendant was appointed its manager.
In 2013, the defendant personally registered another retail/wholesale business “Shunfa store” in his mother’s name also located in Luganville which the defendant managed on her behalf.
Besides managing the two businesses he is also a well trained chef who has worked in Belgium and is an active member of the Chinese community in Luganville and participates well in community events an activities.
According to the Court’s outlined fact as admitted by the defendant, sometimes between January and July 2015, the accused made an order to a supplier or suppliers in China who the State alleges are not licensed to export, rather were persons who were known or had an existing relation with Yao though business, family connection or otherwise.
The accused’s cargo was shipped on board the Kiribati vessel on May 27, the accused was specified in the Bill of Lading as the consignee and the party to be notified in relation to the imported cargo and the Freight Manifest also specifically named the accused as the consignee and the person to be contacted and notified.
Sometimes in June 2015 before the accused left for China, he advised the cashier and sales officer of the Tapusia store that cargo in the name of Shunfa store will be arriving sometimes in July and instructed her to obtain monies from Tapusia store to pay for freight expenses.
Sometimes in July 2015, the accused obtained the services of the Customs Agent on Santo who has been facilitating his importations since 2014, who declared his import to Customs via the ASYCUDA on July 20, 2015 based on the information provided by the accused.
Subsequent to the lodgement of the accused’s declaration, the Automated System for Customs Data (ASYCUDA -a computerized system automated system designed by the UNCTAD to assit customs Custom authorities throughout the world to automate and control their core processes, obtain timely and accurate information as well as enforce customs laws and regulations) assessed the accused’s tax liabilities, automatically categorized and profiled the accused and automatically recommended Customs to effect physical examination of his goods.
When the declaration of the accused was physically assessed by Customs, they noted that the invoice provided by the accused contained obvious discrepancies and appeared to be a forgery.
On July 22, 2015 Customs officers in Luganville commenced with the physical inspection of the accused’s 40 foot container, located in front of the Tapusia store, next to the Espiritu Santo Motel in the presence of the accused’s wife Mrs. Chen Xizhen, a Mr. Minhui She who introduced himself as the Assistant Manager of Tapusia store and father of the accused including several staff. The accused was overseas at this time.
It was during subsequent inspections by Customs officers on August 4, 2015 that Customs officer noticed 14 pieces of galvanized bars which the accused declared as Iron Square Tubes, both ends of the galvanized bars were welded.
When questioned as to what the bars would be used for and whether there was anything inside the response was the bars would be used for construction purposes and that there was nothing inside.
But the examining (Customs) officer noticed that similar bars similar to the ones in the container were displayed in the Tapusia store and both ends of the bars displayed in the shop were cut opened and not welded. When the shop owners were informed that the bars will be cut open, both then made haste to the shop and made calls on their cellular phones, both speaking in Chinese.
An electric grinder was borrowed from the Department of Public Works to cut open the welded ends of the bars.
According to the Court’s outline of facts, when the first bar was cut open, the officers discovered 21 sleeves of Double Happiness Cigarettes concealed inside the bar. The remaining 13 bars were also cut opened and all 13 also contained sleeves of the aforementioned brand of cigarettes and Septwolves cigarettes. There were 45 sleeves of Double Happiness cigarettes and 249 sleeves of Septwolves cigarettes hence a total of 294 concealed cigarettes contained in the 14 pieces of the galvanized bars.
Ten packets were contained in one sleeve and 20 cigarettes were contained in a packet. In addition, the cigarette packets did not display the “Smoking Kill” signage in Bislama, English and French, did not display the required health messages and other information prescribed under the Tobacco Control Act No.19 of 2008 and were not packaged and labeled in a manner that complied with the requirements and regulations under the said Act.
The cigarettes and other surplus goods and undeclared goods were thus impounded. The final examination examination of the accused’s goods recommenced on August 11 in the presence of the accused who by now had returned from China and staff of the Tapusia store.
The officers again discovered surplus and undeclared goods. Total taxes on surplus and Undeclared Goods that should have been paid amounted to Vt2.5million.
Apart from the 45 sleeves (450 packets or 9,000 sticks) of Double Happiness Cigarettes and 249 sleeves (2,488 packets or 49,760 sticks) of Septwolves cigarettes, the undeclared goods also included clothes,kitchen utensils, audio speakers toothbrushes.
Surplus goods ranged from plastic chairs, tables, chainsaw fuel tank, eski, aluminium pots to handgloves.
Yao was arrested on August 12, 2015. He was cautioned, searched and temporarily detained pending consideration of remand in the Magistrate’s Court. He was re-cautioned and questioned on August 12. When the allegations were put to him, he accepted that he worked as the Manager of Tapusia but denied any knowledge to the operation of Shunfa Store.
A search warrant was executed on the three Tapusia branches in Luganville on August 24, 2015. A laptop, 152 pornographic DVDs and certain documents were obtained.
Supreme Court Judge Daniel Fatiaki last Friday handed the following verdict:
- Count 1:Attempting to obtain a financial advantage by deception-a sentence of 12 months imprisonment.
- Counts 2 and 5:Failing to make a Customs entry-a fine of Vt250,000 for each count.
- Counts 3 and 6:Declaration of an incorrect entry-a fine of Vt250,000 for each count.
- Counts 4 and 7:Knowingly providing an incorrect entry to Customs-a fine of Vt350,000 and imprisonment for a term of two months on each count.
- Counts 8 and 9:Making a false declaration-a fine of Vt350,000 and imprisonment for two months on each count.
- Counts 10 and 11:Knowingly producing an incorrect and false declaration- a fine of Vt500,000 and three months imprisonment on each count.
The total fines that the Court ordered Yao to pay within 28 days are: Count 2-Vt250,000, Count 4-Vt350,000, Count 7-Vt350,000, Count 8-Vt350,000 and Count 10-Vt500,000, a total of Vt1,800,000.
The remaining fines on Counts 3, 5 and 6 being for a total sum of Vt750,000 (excluding alternative counts 9 and 11) are due and payable 28 days or after the determination of any appeal. Altogether the fines stand at Vt2.5 million.
Justice Fatiaki also considered the defence submissions but rejected the possibility of suspending the imprisonment sentences as inappropriate in this case.
Yao has 14 days to appeal his sentence.
