HKSAR v. KWOK SAU CHUN

HCMA 543/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 543 OF 2010

(ON APPEAL FROM ESCC 2270/2010)

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J U D G M E N T

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1.  On 3 June 2010, the appellant pleaded guilty to two charges of dealing with goods, contrary to Section 17(1) as read with Section 46(3) of the Dutiable Commodities Ordinance, Cap. 109, when she appeared before the Acting Principal Magistrate, Ms Bina Chainrai, at Eastern Magistrates’ Court. Following the preparation of a background report, the appellant was sentenced on 17 June 2010 to a term of 4 weeks’ imprisonment on the 1^st charge and to 4 months’ imprisonment on the 2^nd charge. These sentences were ordered to run concurrently. These proceedings are concerned with an appeal against her sentence.

2.  The two offences committed by the appellant occurred on 26 May 2010.  The 1^st charge related to “1,400 sticks of cigarettes” which were in the appellant’s possession when she was stopped by Customs and Excise Officers on the pavement outside 193 King’s Road in North Point.  She was then taken back to 300 Electric Road which she had been seen to leave a few moments before her arrest where a further “59,800 sticks of cigarettes” were found. The cigarettes were in assorted brands and it was clear from the packaging that the duty had not been paid on then.  The appellant told the arresting officers that she was being paid by a clansman for storing the cigarettes for 2 months and that she was taking some of the cigarettes to the tram stop where she would have given the cigarettes in her physical possession to the clansman.

3.  The value of all the cigarettes in the case was $122,400 of which the potential duty included in that figure value was $73,807.20.  In other words, the duty is included in the value of the cigarettes.

4.  The magistrate took a starting point on the 1^st charge of 6 weeks and reduced this by a third to reflect the plea of guilty.  On the 2^nd charge, she took a starting point of 9 months, and discounted this by a third and then took a further 2 months off on account of the appellant’s age and health.

5.  There was a further important factor to be taken into account.  This was that at the time of the present offences, the appellant, who was 82 years old, was in breach of a 4-month suspended prison sentence imposed on 1 August 2008 for two offences of an identical kind to the present offences.  The magistrate next considered totality when, rightly on any view, finding that there was no reason not to activate the earlier sentence, which had been suspended for 2 years.

6.  In the event, the suspended sentence was activated with an order that only 2 months should be served consecutively, making 6 months’ imprisonment in all.

7.  The appellant’s ground of appeal in these proceedings is on the basis that the sentence imposed on her was too severe.

8.  The appellant is no stranger to the courts.  She had 4 previous convictions, all for exactly the same kind of offence which now bring her before the court.  These included the 2008 conviction for which she had received the suspended sentence.

9.  In the appellant’s account to the probation officer who prepared the background report which I have read in detail, she made out that she only received a $1,000 government allowance and supplemented this by collecting and selling cardboard boxes.  However, this was contradicted by a Social Welfare Report which disclosed that the appellant had been receiving comprehensive social security assistance since 1989 and was, at the time of these offences, receiving $5,440 a month which included allowances for rent, disability and a special diet for her diabetes.  The appellant, according to the account given to the probation officer who prepared the report, also sought to minimise her culpability in these offences.

10.  There are no hard and fast guidelines for sentencing in offences of this kind but the magistrate made reference to HKSAR v Mok Chun Wing, HCMA 727/2000 which involved 124,400 dutiable cigarettes on the 1^st charge and 572,160 dutiable cigarettes on the 2^nd charge.  The total duty avoided was $533,564.  Stock JA held that 14 months and 18 months’ imprisonment, respectively, were appropriate sentences to impose after trial, with a one-third discount for the guilty pleas.  In the result, concurrent sentences of 9 and 12 months’ imprisonment were imposed.  In that case, the appellant did not have a prime or proprietary role and he was a second-time offender.

11.  The magistrate also considered the judgment in HKSAR v Tran Van Ha, HCMA 1000/2002 where the appellant had possession of 21,420 cigarettes but was “at a higher level in the distribution of the cigarettes than a mere street vendor”.  Deputy High Court Judge McMahon (as he then was) concluded that a starting point of “no more than 10 months’ imprisonment” would have been appropriate after trial.

12.  Having considered these cases, the magistrate said that the appellant was storing and delivering cigarettes and, as a persistent offender in her later years of life, this being the fifth time the appellant had been prosecuted for an offence under the same Ordinance, as well as being in breach of a suspended sentence, the only appropriate course was to impose an immediate imprisonment sentence.

13.  The appellant has stated in today’s proceedings that she is in fact not 82 but 85 because she has been telling people that she is younger than she really is in order to be able to find a job.  However, from all the case papers which are before me, it is quite apparent that in fact she is 82.  At the same time, she is hard of hearing and she walks with difficulty, using a stick.

14.  The magistrate had taken all of these matters into account herself.  In fact, she had gone to the additional lengths of obtaining a medical report to confirm that the appellant’s health was satisfactory.  This was duly confirmed subject to the fact that the appellant was suffering from diabetes.  The magistrate’s Reasons for Sentence were a model of correctness.  In particular, having regard to the appellant’s rather advanced age, the magistrate had paid close attention to what was said in various authorities including, for example, McMahon J’s judgment in HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894 at 895-6 in which it was said that advanced age and ill health were not, in principle, mitigating factors but could be used to reduce sentence as an act of mercy.  The magistrate, in referring to this and other cases of a similar kind, was seeking to achieve the right balance in her approach.

15.  In my opinion, having reviewed the magistrate’s approach in these proceedings, she found exactly the right balance.  The magistrate had, as an act of mercy in view of the appellant’s advanced years, reduced the sentence which would normally have been passed for a person who was not as old as the appellant.  It was in her view, as it is in mine, very sad to see somebody of the appellant’s age going to prison.  But what the appellant did was done with eyes wide open.  In effect, the court had said on the last occasion that the appellant had one more chance when giving her a suspended sentence.  However, the appellant took the risk and was caught.  She knew what would happen if she was caught so that, in fact, the magistrate had shown considerable leniency towards the appellant when imposing this reduced sentence.

16.  I cannot find anything wrong in the approach that the magistrate adopted.  Accordingly, this appeal must be dismissed.