Pago Pago, AMERICAN SAMOA — The government case against a Chinese fisherman accused for failing to declare that he had in his possession a huge amount of cash when his fishing vessel arrived in American Samoa at the beginning of this year was dismissed last week by District Court Judge Elvis P. Patea, after the court was unable to find probable cause and sufficient evidence to bind the case over to High Court for arraignment.

In delivering his decision, Patea pointed out that according to the government’s witness, it was the captain of the fishing vessel who filled out the form when the vessel arrived at the main port in American Samoa.

He also asked the government’s attorney why the captain was never charged regarding this matter.

Yuehong Xu, who was out on a $10,000 surety bond was represented by private attorney Gwen Tauiliili-Langkilde, while Assistant Attorney General Laura Garvey represented the government.

Xu was charged with the single count of unlawful import into the territory of American Samoa currency of more than $10,000 without declaring it to the Customs Office, a class D felony, punishable by a term of imprisonment of up to 5 years, a fine of up to $5,000, or both.

Lead investigator, Det. Lam Yuen was the only witness the government called to testify during last week’s PX.

According to Lam Yuen, it was around Jan.16, 2019 when she received a call from a Customs agent, notifying her regarding a huge amount of cash found on a fishing vessel, which was at the main dock in Fagatogo.

Furthermore, Lam Yuen stated that according to the Customs agent, the person who owns the huge amount of cash did not declare anything when he filed the declaration form, which was provided by the Customs office.

Upon arrival at the main dock, the copy of the declaration form was provided to Lam Yuen by a Customs agent, and according to the lead investigator, nothing was written on the form to prove that the defendant declared anything about the cash. The cash was $47,184 — all in US currency.

The captain of the vessel along with the defendant were both brought to the Central Police Station on that day for questioning.

According to Lam Yuen’s testimony, it was the captain who filled out the declaration form for the vessel. She asked the captain why he had not declared the huge amount of cash on the boat, and the captain told the lead investigator that he didn’t know anything about the money. The defendant never notified him about the money.

When questioned by police, the defendant, through a translator told officers that he did not know anything about declaring the money that was in his possession.

In cross examination, Tauiliili-Langkilde asked the government witness whether she knew if Customs agents explained to her client how to fill out the declaration form. Lam Yuen said, no.

The defense attorney asked the witness again whether there is any section of the declaration form, which states that a person must declare if he or she is bringing more than $10,000 into the territory. The witness said, she doesn’t know.

The defense attorney reached out to the copy of the declaration form and handed it over to the witness who was on the witness stand. The defense attorney then asked the witness, in what language the form was written. The witness’ response was, “The form is in English language, not in Chinese or Korean language.”

“Do you see any Chinese or Korean language on that form?” Tauiliili-Langkilde asked the witness. She replied, “Not at all.”

In the closing arguments, the prosecutor asked the court to find probable cause to bind the defendant’s case over to the High Court for arraignment — for Xu not declaring on the form that he was bringing into American Samoa cash more than $10,000.

Tauiliili-Langkilde stated in her closing submission that it was not her client who filled out the declaration form, it was the captain of the vessel. She also pointed out to the court that the government charged her client under Treasury and Excise Tax laws, because the form that was given to the captain to fill out is the form for Treasury and Excise Tax, not a Customs entry and declaration form.

The defense attorney stated that under 27.1005 (a) it stated that, “all passengers and crew-members regardless of citizenship must make a customs entry and declaration upon arrival in American Samoa. All articles and merchandise acquired abroad and their value must be declared in writing. Written declarations must be signed and presented to the customs officer on duty before examination pursuant to the inspection.”

Tauiliili-Langkilde argued that her client was never presented with a copy of a declaration form as required by law, only a form for excise tax from the Department of Treasury.

In delivering his decision after a 30 minutes recess, Patea said, the government charged the wrong person because the defendant did not fill out the declaration form. It was the captain of the fishing vessel who filled out the form.

“We also know that the form was only in the English language and not in Samoan, but the defendant speaks Chinese. So, the court feels that there was a translation problem when this case first came up at the main wharf and even at the Central Police Station, because the Captain speaks Korean and the defendant speaks Chinese,” Patea said.

Patea also stated that the defendant had no intention to violate any laws of the territory, and it’s clear from the evidence that the government failed to prove their burden beyond a reasonable doubt.

“If the Captain filled out the form, he’s the one who failed to declare the money. He should be charged, not the defendant.”

Patea then read out in open court all the information written on the declaration form the government claimed that was filled out by the Captain. Nothing on that form stated that a person must declare to the Custom office if he or she brings into the territory more than $10,000.

Patea then dismissed the case against the defendant for lack of probable cause to bind the case to the High Court.