HKSAR v. CHU NAM SHING

HCMA874/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.874 OF 2004

(ON APPEAL FROM TMCC 2743 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of “driving a motor vehicle with marked oil in its fuel tank”, contrary to regulation 5B(1)(d) as read with regulation 13(2) of the Dutiable Commodities (Marking and Colouring of Hydrocarbon Oil) Regulations, Cap.109 sub leg C, and was sentenced to a fine of $3,500 and disqualification from driving for six months.  He now appeals against that sentence.

2. The following is what the sentencing Magistrate said about the facts and, amongst other things, his approach to the subject :

“3.       The admitted facts revealed that in the morning of 7 July 2004 Customs Officers had intercepted a medium goods vehicle which was being driven by the defendant in Tuen Mun.  One of the Customs officers had demanded an inspection of the vehicle’s fuel tank and a ‘red’ fuel sample (indicating marked oil) was taken from it.  The defendant admitted the offence under caution.

4.        The charge alleged as did the brief facts that the defendant had 200 litres of marked oil in his fuel tank whilst the defendant insisted that only 170 litres of marked oil had been drawn by the Customs officers from his fuel tank.  I found however that this did not in any way affect the defendant’s guilty plea.

5.        The defendant admitted 1 previous conviction in 2003 when he had been fined HK$1,000 (his criminal record refers).

6.        Whilst noting the defendant’s guilty plea to the charge in sentencing I also took into account the prevalence of these offences in the Tuen Mun area.  I considered therefore a significant financial penalty of HK$3,500 appropriate albeit that this represents a small fraction of the maximum financial penalty for the offence namely HK$1,000,000.

7.                As this was the defendant’s second conviction under Regulation 5B of the Dutiable Commodities (Marking and Colouring of Hydrocarbon Oil) Regulations Cap.109 the defendant was liable to a 6 month disqualification order under section 46AA(2)(a) of the Dutiable Commodities Ordinance Cap.109 unless there were special reasons.  I found none in the defendant’s case and accordingly imposed the 6 month disqualification order in addition to the financial penalty.  I so sentenced.”

3. The appellant has filed one ground of appeal which in standardized form claims that the sentence is too severe.  Also in the file is a letter by the vice-chairman of the Yuen Long District Council indicating how remorseful the appellant is, and how deeply the livelihood of the appellant and the appellant’s family has suffered because of the disqualification.

4. As clearly stated in the Magistrate’s reasons for sentence, the 6-month disqualification is mandatory in the absence of “special reasons”.  “Special reasons” are well defined in the case law and do not cover the dire consequences that disqualification brings to a defendant.

5. For the reasons given by the Magistrate, I do not find the fine imposed to be excessive either.

6. The appeal is dismissed.