HKSAR v. YIP SHUK TAT

CACC 496/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 496 OF 2000

(On Appeal from District Court Case DCCC No 564 of 2000)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

This is an appeal against sentence brought by YIP Shuk-tat, D1 at the trial before Judge Wright in the District Court. Leave for the appeal was granted by Stock JA on 20 April 2001, for the stated reason that the role and background of the Appellant had better be heard by the Court of Appeal.

2. The Appellant and CHAN Wai-sum, D2 at the trial, faced two charges. The first charge was a conspiracy to handle stolen goods, in that the Appellant and D2, between 22 February 1999 and 10 July 1999, conspired together and with a person or persons unknown to handle certain stolen goods, namely stolen motor vehicles, knowing or believing the same to be stolen goods. The second charge was conspiracy to import unmanifested cargoes, contrary to s 18(1)(a) of the Import and Export Ordinance, Cap 60 and ss 159A and 159C of the Crimes Ordinance, Cap 200. The particulars of the offence of the second charge were that the Appellant and D2, between the same period, conspired together and with a person or persons unknown to import unmanifested cargoes, namely, stolen motor vehicles.

3. After trial, the Judge acquitted the Appellant of the first charge and found him guilty of the second charge. The reason for the acquittal was that the prosecution was unable to prove that the Appellant knew or believed the items in seven imported containers, namely containers A to G, that were transported in the period referred to in the charges by a company, Tat Hing Transportation Company of which he was the sole proprietor, were stolen goods.

4. In respect of the seven containers, there was no evidence as to the contents of the containers F and G. Regarding the other containers, A to E, there was evidence, which was in the facts admitted by the Appellant, that their contents were different from those described in the shipping documents, namely,

(a) container A, which was stated to contain cases of shampoo and conditioner, in fact contained 2 Lexus motor cars;

(b) container B, which was stated to contain cases of concentrated detergents, in fact contained 2 Mercedes Benz motor vehicles;

(c) container C contained 3 Mercedes Benz motor vehicles whereas it was stated that it contained canned food;

(d) container D contained 3 Mercedes Benz and 1 Porsche motor vehicles whereas it was stated that it contained canned food; and

(e) container E contained 3 Mercedes Benz motor vehicles whereas it was stated that it contained mixed food salad.

5. Containers F and G were stated to contain detergents and shampoos. They were transported by the Appellant's company into the Mainland when they were described as shoe materials. However, there was no evidence as to the true contents of these two containers.

6. In sentencing the Appellant, the Judge said:

"... I must approach the question of the correct sentence to be imposed upon the basis that there is no finding that the Accused [the Appellant] knew that he was dealing with stolen motor vehicles. However, it is equally correct that the approach to the question of sentence must be upon the basis that the Accused was quite willing to import whatever had been contained in those containers. Whilst I accept that there is no evidence that shows that he knew that the containers contained stolen motor vehicles, for all he knew they may have contained anything of any description whatsoever, be it drugs, weapons, motor vehicles or something entirely innocent. The court cannot be expected to assess an appropriate starting point in a vacuum and what in fact was imported in pursuance of the conspiracy is relevant."

7. The Judge adopted a starting point of 4 years' imprisonment and imposed that upon the Appellant. It is against this sentence that the Appellant now appeals.

8. In the grounds of appeal annexed to his application for leave to appeal, the Appellant stated that he listened to his lawyer citing authorities before the Judge where sentences ranged from 6 months to 1 1/2 years. He heard the Judge say that it was detrimental to his interest to have abandoned his right of giving evidence in defence. He said, therefore, that his counsel had misled him in not giving evidence. He explained that he did not know the English language sufficiently to understand what was contained in the cargo manifest and the shipping documents for collecting the containers. He had been told by the consignees of the containers that they contained something like shampoo. He did not realise the seriousness of what he had done. Had he been aware of the seriousness, he would not have placed the documents and his company chop at home and in his car, which were seized by the police. He felt that the sentence was too harsh on him. He also talked about his wife who is jobless, a 14 year-old daughter studying Form 3 and a 13 year-old son studying Form 2. He hoped we should reduce his sentence so that he would be allowed to integrate into society as soon as possible and turn over a new leaf. Today, he has repeated the same grounds before us.

9. His daughter has also written a letter dated 20 April 2001 to this Court, describing how miserable the family has become since the imprisonment of the Appellant and urges the Court to exercise leniency over her father.

10. Section 18 of the Import and Export Ordinance, Cap 60, provides as follows:

"(1) Any person who-

(a) imports any unmanifested cargo; or

(b) exports any unmanifested cargo,

shall be guilty of an offence and shall be liable-

(i) on summary conviction to a fine of $500,000 and to imprisonment for 2 years;

(ii) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 7 years."

11. Mr Madigan, for the respondent, relies on the outline submissions of Ms Winsome Chan, which refer us to five authorities on sentence regarding the offence of which the Appellant was found guilty and similar offences.

12. In R v NG Choi-yau [1993] 1 HKCLR 90, the accused pleaded guilty to two charges, the first one being in possession on board a vessel of 83 used motorcycles, contrary to regulation 3(1) and (5) of the Import and Export (Carriage of Articles) Regulations, Cap 60, and the second charge being in possession of restricted articles, namely, 12 used motorcycles, with intent to evade the restriction. The second charge was brought under s 35A(1)(a) of the Import and Export Ordinance. The maximum penalty for each of the offences was the same, being a fine of $500,000 and imprisonment for 2 years. The accused was sentenced by the trial magistrate respectively to 9 and 2 months' imprisonment. Yang CJ overturned the sentences and imposed a sentence of 12 months on the first charge and one of three months on the second charge, to run concurrently. Yang CJ said:

"I am of the view that in the light of the increasing number of these offences, where a substantial number of articles (as in the present case) is involved, the proper range of sentence should be between 12 to 15 months. It follows that the sentences imposed here are inadequate."

13. In R v NG Wai-hong [1993] 1 HKCLR 307, the appellant had pleaded guilty to attempting to export unmanifested cargo, contrary to s 18(1)(b) of the Import and Export Ordinance and to making use of a specially altered compartment of a vehicle for the purpose of smuggling, contrary to s 14(1) of the same Ordinance. The goods in question consisted of a large quantity of electronic goods. After referring to NG Choi-yau, R v MA Man-ho, MA No 89/1992 (25 May 1992, unreported) and R v CHENG Wai-man, MA No 302/1992 (27 May 1992, unreported), Litton JA, as an additional judge of the High Court, refused to interfere with the sentence of 12 months' imprisonment imposed by the magistrate, although he viewed that that sentence was at the uppermost end in sentences for this type of smuggling. Litton JA noted that defendants in similar cases had generally been sentenced to imprisonment, with an upper limit at 12 months. He referred to Bewley J's observation in MA Man-ho, that seen from the point of view of defendants, an immediate custodial sentence might seem excessively harsh, because the defendants were often gainfully employed in legitimate business and breaches of regulatory rules concerning shipping manifests might not appear to them highly reprehensible. Litton JA expressed that he could not see any valid distinction between the smuggling of motorcycles in NG Choi-yau and of electronic equipment such as videocassette recorders, in the case before him. He observed that they were all high value products, and the smuggling of them was prevalent in Hong Kong and brought substantial rewards. However, he said:

".... Obviously, in low value products, where the gain from smuggling would be low, and the incidence is rare, the magistrate can afford to take a more relaxed view."

14. In R v TSE Kwok-keung [1995] 1 HKCLR 1, relating to the construction of a vessel of less than 250 gross tons for the purpose of smuggling, contrary to s 14(A)(1) of the Import and Export Ordinance, Bewley J was of the view that 6 months' imprisonment after trial was not excessive. The penalty for that offence was also the same as that for an s 18 offence.

15. In R v LAM Ting, MA No 11/1997 (24 June 1997, unreported), the appellant was sentenced to 9 months' imprisonment by a magistrate for his conviction after trial on the offence of attempting to export unmanifested cargo. On appeal, Leong J (as he then was) set aside the sentence and imposed one of 6 months' imprisonment in substitution. The judge gave his reasons as follows:

"... Having regard to the nature of the goods, being mainly cosmetics and that there was no evidence that this was not a rare incidence of smuggling of this nature, and that the appellant's lacking in diligence to supervise the loading was partly, if not mainly, due to his illness, the sentence of 9 months is manifestly excessive."

16. HKSAR v ZHENG Wan-tai [2000] 1 HKC 627 was an appeal against conviction regarding handling stolen goods and importing an unmanifested cargo, both charges relating to a consignment of 136 motorcycles from Taiwan to Hong Kong. Although the application for leave to appeal against sentence was abandoned, this Court, differently constituted, commented as follows:

"We note, in passing, that the sentence of 21/2 years for this well-planned criminal enterprise, involving 136 motorcycles, was remarkably lenient."

However, in that case the principal allegation was the handling charge which was established after a contested trial.

17. Apart from the above five authorities referred to in the outline submissions, there were two cases before this Court, differently constituted, which are most relevant. Both of them related to exporting motor vehicles. In The Queen v Wong Kwong-hei [1994] 1 HKCLR 39, where the appellant was convicted after trial on one charge of handling stolen goods, namely a motor car, and six charges of exporting unmanifested cargo (contrary to s 18 of the Ordinance), each of which related to stolen motor vehicles, the District Judge sentenced him to 41/2 years' imprisonment for the handling charge and 18 months for each of the exporting charges, all concurrent. The Court of Appeal considered that the sentences were not unreasonable and dismissed his application for extension of time to apply for leave to appeal against sentence.

18. In HKSAR v Choi Gin-ngon & Ors [1998] 1 HKLRD 902, three defendants were convicted after trial of knowingly dealing with cargo with intent to assist another person to export the cargo without a manifest. The shipping documents stated that the cargo comprised "decoration boards" but the containers held 17 cars. On D1's appeal against his sentence of 20 months' imprisonment, a differently constituted Court of Appeal held that the sentence was neither wrong in principle nor manifestly excessive. D1's involvement was not inconsiderable as he had made the initial enquiries for the shipping of the cars and had also been physically present when the containers were loaded.

19. It appears that the sentence of 4 years' imprisonment imposed by the Judge in the instant case is the highest sentence imposed for importing an unmanifested cargo or for similar offences so far. In NG Choi-yau which involved 95 used motorcycles, Yang CJ stated that the offence was prevalent and held that for deterrence, the proper range of sentence should be between 12 to 15 months. That appears to have been the range after a plea of guilty because the Chief Justice eventually adopted 12 months as the proper sentence for the applicant who had pleaded guilty. In NG Wai-hong, Litton JA affirmed a sentence of 12 months' imprisonment after plea relating to a large number of items of electronic goods. One has no doubt that the goods involved in the present case, being motor vehicles, are also high value goods. No value was given in respect of the motorcycles, electronic goods and motor vehicles, the subject matters in these three cases. On the other hand, in LAM Ting, the value of the unmanifested goods, being HK$1,132,000, was mentioned in the judgment. In ZHENG Wan-tai, the goods involved were 136 motorcycles, stolen from Taiwan. The observation of this Court in that case must, however, be viewed in the particular circumstances of that case, which was that it was a well-planned criminal enterprise involving not only the offence of importing unmanifested cargo but more seriously, also handling stolen goods. In Wong Kwong-hei and Choi Gin-ngon, both of which involved the exportation of a number of unmanifested motor vehicles, the respective sentences after trial of 18 months and 20 months were held to be correct.

20. In the present case, it was established by the prosecution, partly through the admitted facts, that what the Appellant did was to agree to transport the containers containing the motor vehicles in accordance with the instructions of his customers. His involvement in each incident was to present to the shipper the original bill of lading in order to obtain a release order. After he or his wife had obtained the release order, he instructed his driver, ie, D2, to drive the container away from the shipping company's container park. Although the Appellant did not give evidence, when he was interviewed he explained that he had been employed by a person called 'Ah Ming'. He indicated that Ah Ming had paid an amount of $5,000 in cash to transport a container. He accepted in the course of his interview that he had been suspicious of the contents of the containers, and that these suspicions had partially been created by the generous payment which Ah Ming had made to him, as compared with the normal price of about $1,000 for each container, as well as the fact that the payment had been in cash.

21. Reviewing the authorities cited above, it appears that the Court of First Instance, on appeal from magistrates, have all along adopted no higher than a starting point of 12 months for the same or similar offence after plea. Even in the case of ZHENG Wan-tai, in which a well-planned criminal enterprise relating to the importation and handling of 136 stolen motorcycles, where this Court was of the view that 21/2 years' imprisonment was remarkably lenient, it did not, however, state the proper sentence that should have been imposed, in particular, if there had been no handling charge. In Wong Kwong-hei and Choi Gin-ngon, both of which related to motor vehicles, the sentences after trial, as approved by this Court, were respectively 18 and 20 months.

22. The Appellant's alleged little knowledge of English so that he did not understand how the cargo was described in the shipping documents shows only that he operated his business in a way that generated a high risk to himself of being implicated, but that does not increase his criminality. While his attitude of not caring what in fact was contained in the containers ought to be deprecated and reflected in sentence, in our judgment, in adopting a starting point of 4 years' imprisonment, the Judge was plainly out of line with the authorities and the sentence is manifestly excessive.

23. We also consider it inadvisable, in the light of the acquittal of the Appellant on the first charge, for the sentence to possibly give rise to any wrong impression that he was punished for handling the stolen vehicles, which obviously is a much more serious offence.

24. However, the fact that smuggling of motor vehicles was involved in this case makes it serious. They were all luxury cars, being 2 Lexus, 8 Mercedes Benz and 1 Porsche, obviously of a value roughly of about $2,000,000. Indeed, the Appellant told us this morning that the vehicles were worth several million dollars. As the Judge said, although the Appellant did not know that the containers contained stolen motor vehicles, they might have contained anything of any description whatsoever, be it drugs, weapons or anything else. Notwithstanding, bearing in mind that the Appellant committed the offence out of stupidity, ignorance and blindness to the obvious caused by greed rather than deliberate contravention of the law, we are of the view that the proper sentence should have been 2 years' imprisonment after trial.

25. For the reasons given, we allow the appeal, set aside the sentence of 4 years' imprisonment and order that in substitution therefor, a sentence of 2 years' imprisonment be imposed.