HKSAR v.YEUNG BIK SHAN

HCMA 1183/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1183 OF 2001

(ON APPEAL FROM FLCC 1400/2001)

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J U D G M E N T

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1. This Appellant appeals against the sentence imposed on him after he pleaded guilty to one charge of Attempting to Export Unmanifested Cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance, Cap. 200.

2. The facts were simple. The Appellant was driving a private car across the Man Kam To Border Control Point with a passenger on board. He did not make a customs declaration, nor did he produce an export manifest. When his vehicle was searched, 183 kg of dried shark's fin, which had an estimated value of HK$73,200.00, was found in the boot. Under caution, the Appellant admitted he intended to take the goods to his restaurant in Shenzhen for commercial consumption.

3. The Appellant had a clear record. In mitigation, the Magistrate was told that there had been no attempt to conceal the goods, for instance by use of a hidden compartment. The Magistrate took into account in sentencing that this was a serious offence, as reflected by the maximum penalty of $500,000.00 fine and two years imprisonment.

4. He also considered it serious because it attempted to breach a scheme of control which helped to maintain the integrity of the HKSAR as a trading port and business centre. He noted too that this was a prevalent offence and he, being a Magistrate sitting in Fanling Magistracy, was in a position to make such an observation.

5. The Magistrate noted the Appellant's previous clear record and the lack of attempt to conceal the goods, but expressed his scepticism, a scepticism I share, at the Appellant's stating he was unaware of the need to make a declaration in respect of goods such as these when crossing the border. He accepted this was an isolated incident and imposed what can be regarded as a low fine of $25,000.00.

6. There was an application to review that sentence. Counsel on review agreed that the sentence was a light one and made it plain to the Magistrate that he considered it a fair sentence, which was neither manifestly excessive, nor wrong in principle. The review was sought so the Appellant could benefit from section 2(1) of the Rehabilitation of Offenders Ordinance, Cap. 297. The Magistrate, unsurprisingly, and quite correctly, refused to alter the sentence, or tailor it, so the Appellant could benefit from that section.

7. On appeal, Mr Lok SC for the Appellant, also conceded that this was not a sentence which was manifestly excessive, or wrong in principle, despite Ground 4 of the perfected Grounds of Appeal which stated the opposite.

8. On appeal the Court was urged to take into account what, it was suggested, might be regarded as additional mitigatory matters, or grounds for seeking that mercy be exercised. It was submitted that for reasons of "sensitivity" they were not put to the Magistrate. One is that the Appellant may have some expectation of being appointed to the Municipal Government of Jie Yan She, and the other is that he is involved with a Mainland company that is about to be listed, or might be listed, on the Hong Kong Stock Exchange. Both of these events would require him to disclose his criminal record. He sought a reduced fine. It is difficult to understand how a reduced fine would help him in his political and corporate ventures, when he would still have a conviction that would have to be advised to those who have the right to know, regardless of the level of fine.

9. I must say this is a most unmeritorious appeal. I can see no justification for bringing an appeal when the penalty has already been admitted to be fair, slight and not excessive. The matters put forward in respect of the possible government appointment, or the possible listing of the company, are not matters which should be taken into account by the court. I do not take them into account and the Magistrate, if he had been made privy to this information, would not, or should not, have taken them into account either. As for exercising mercy, the Magistrate did just that when imposing the low fine and I can see no justification for this court exercising greater mercy than did the Magistrate.

10. This appeal against sentence is dismissed.