CASE ON APPEAL INVOLVING ADMINISTRATIVE PENALTIES
Cai ZhengXiong: captain of Everbright II, Taiwan vs. Gongbei Customs Administration.
Appellant: Cai Zhengxiong, Male, and 52 years of age. From Nanjing, Ji Captain of Everbright II, Taiwan. Residing in 11, Lane 90, Dengsh Gaoxiong, Taiwan.
Attorney: Ye Qing, Ye Laifu, Lawyers, Nanyue Law Firm, Guangdong.
Appellee: Gongbei Customs Administration, People's Republic of China.
Legal Representative: Yang Junshen, Director, Gongbei Customs Administra
Attorney: Xu Zhuopu, senior customs supervisor, Gongbei Customs Administrat
Attorney: Luo Pinglong, lawyer, Zhuhai Law Firm.
Not accepting the administrative judgement (1989) Zhu Zhong Fa Shen Zi N the Zhuhao Municipality Intermediate People's Court with respect administrative sanctions imposed on him by Gongbei Customs Administration his cigarettes smuggling activities, the appellant Cai Zhengxiong appeal the Guangdong High People's Court on October 16, 1989. The court forms collegial panel according to the law and ascertains through second hearings:
Very early on the morning of March 3, 1989, the anti-smuggling patrol discovered and forced to stop the freighter Everbright II at east longitude 114.35'45'' and north latitude 22.10'50'' on the Inland Sea of China. To the adjacent sea areas to Danggang lsland, Zhuhai. The deadweight capacity the freighter is 3,000 tons with a crew of 31 on board and loaded cabin waste iron 500 Tons, porcelain clay 500 tons and on the deck foreign made cigarettes as "555", "KENT" etc. 4,760 boxes (238,000 specially packaged and sealed with plastic bags. The Cargo list along the freighter only indicates the quantity of waste iron and porcelain clay loaded on board and there is no records for the 4,760 boxes cigarette accordance with the provisions of the Customs Law of the People's Republic China and The Implementation Rules for Customs Administrative Sanction the People's Republic of China, the Gongbei Customs Administration on 11, 1989 affirmed that the acts of Cai Zhengxiong are smuggling acts f carrying a large quantity of foreign made cigarettes into the inland without any lawful certifying papers. Consequently, a decision concerned sanction is made: I, the 4,760 boxes smuggling cigarettes under deduct shall be confiscated. II All crew members, the freighter herself a porcelain clay, waste iron loaded on board shall be released by clearance.
Cai Zhengxiong brought a suit before the Zhuhai Municipality Interimidate People's Court for he was not satisfied with the decision on sanctions Gongbei Customs Administration. The Intermediate Court holds after hearing: The Everbright II driven by the plaintiff carried a large of cigarettes on the inland sea of China without any legal certificate which should be deemed and dealt with as smuggling according t provisions of the Customs Law. The decision on sanctions by the G Customs Administration is established on conclusive evidences and solid for sanctions and through lawful procedures. A judgement is made on 17, 1989 to affirm the decision on the administrative sanction and reject plaintiff's suit.
Cai Zhengxiong again refused to accept the judgement by the Municipality Intermediate People's Court and appealed to the Guangdong Province High People's Court stating: The Site affirmed by the first in where the Everbright was forced to stop by the customs anti-smuggling boat is not on the inland waters of the People's Republic of China and are legal certificates for the cigarettes carried, thus requesting the to abrogate the original judgement and the sanctions decision by the Gongbei Customs Administration and to order the appellee to bear the litigation of the first and the second instance as well as the lawyers fees paid appellant for the litigation and other relevant expenses. The appellee Gongbei Customs Administration defended by answering: The site where Everbright II was discovered land captured is within the inland that China which is evidenced by the sea map marked by the appellant. The ca of a large quantity of foreign cigarettes is without any legal certificate thus requesting the court to affirm the original sanctions decision a judgement of the first instance.
The High Court conducted public hearing and holds:
The site where the appellee Gongbei Customs Administration inspects captured the Everbright II is on the inland waters of China. The diagram the record of words used by the Gongbei Customs anti-smuggling patrol boat signed by the appellant Cai Zhengxing to take the freighters bearings she was forced to stop as well as the site and time marked with pencil Zhengxiong himself when the Everbright II was forced to stop approve th freighter was inspected and captured at east longitude 114.35'45'' and latitude 22.10'50'' on the inland waters of China. The appellant state the Hongkong Government Export License has been obtained for the quantity of foreign made cigarettes carried by the Everbright I circumstances have been reviewed by the Court with the result the License can only prove the permission of the Hongkong Government f Cigarettes to be exported, but can not prove the legality of the load carrying by the freighter. There are totally no records for the carried cigarettes in the cargo list of the Everbright II. In accordance with provision of Subparagraph (2) Paragraph 1, Article 49 of the Customs la transport, purchase or sale on inland or territorial waters articles importation or exportation is restricted by the state and which relatively large quantities without legal certification, and pursuant provisions of subparagraph (2), Paragraph 1, Article 4 of the Implement Rules for the Customs Law, shall be deemed and dealt with as smuggling and the Customs shall have the power to confiscate the smuggled good grounds produced by the appellant Cai Zhengxiong for the appeal can established and the original judgement is clear in determining the fact correct in the application of law. Based on the above, the Guangdon People's Court made a decision on December 15, 1989 to order to reject appeal lodged by the appellant Cai Zhengxiong and affirm the or judgement.
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