R. v. LAM TING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.11 OF 1997

^{____________________}

^{____________________}

^{____________________}

J U D G M E N T

^{____________________}

1. This is an appeal against sentence. The appellant was sentenced to 9 months imprisonment for his conviction after trial on the offence of attempting to export unmanifested cargo.

2. The facts found by the magistrate were that the appellant drove a goods vehicle to the Lok Ma Chau Control Point for Customs examination and 113 cartons of Christian Dior assorted cosmetic items, one TV, 50 integrated circuits, 1 carton of iron on poster and 2 cartons of chicken powder were found on board. None of these were included in the manifest. The appellant admitted that he would receive $2,400 for delivery of these items to Shajing. He also admitted that he did not supervise the loading of the cargo which was done by the consignor.

3. The appellant adduced medical evidence before the magistrate that he was ill at the time. The medical report showed that he had tonsillitis and had received drugs and injection which caused him drowsiness, forgetfulness and cognitive impairment.

4. The magistrate found that the appellant did not have actual knowledge of the unmanifested articles on his vehicle but he was not satisfied that the appellant could not, with reasonable diligence, have known that part of his cargo was unmanifested.

5. In his reasons for sentence, the magistrate stated that the appellant had two previous similar convictions for which he had been fined and imprisoned. The value of the unmanifested goods was HK$1,132,000.

6. Relying on the guidelines in R. v. Ng Choi Yau M.A.262/92 which suggested the range of sentence should be 12 - 15 months imprisonment, and noting that the goods in question were not motor-cycle or electronic goods, the magistrate adopted a starting point of 12 months imprisonment. He gave allowance for his finding that the appellant did not have actual knowledge but merely failed to exercise reasonable diligence and he also gave allowance for the fact that the appellant was ill at the time.

7. Mr Grounds for the appellant submitted that in Ng Choi Yau a substantial number of motor vehicles were exported. He referred to R. v. Ng Wai Hong M.A.797/92 where the goods in question were large quantities of electronic goods and Litton JA considered a sentence of 12 months after plea was at the upper-most end of sentences for this type of smuggling.

8. Another case Mr Grounds referred to was R. v. So Lo M.A.1178/92 where the goods smuggled were 263 cartons of assorted fruits and the venture was described as a commercial undertaking. Litton JA considered in such a case a substantial fine, with imprisonment in default of payment or alternatively a suspended sentence would not be wrong in principle and a sentence of 3 months imprisonment was though harsh, not incorrect or manifestly excessive.

9. Mr Grounds submitted that since the appellant was not found to have had actual knowledge of the goods which were well hidden in the vehicle amongst other goods, it was wrong for the magistrate to determine the sentence by putting too much weight on the value of the goods and the magistrate should have drawn a distinction between the goods in question and those in the authorities cited in determining the sentence.

10. It should be noted that although Litton JA in Ng Wai Hong drew no distinction between motor vehicles and electronic goods, he nevertheless indicated that magistrates should not be prevented from drawing distinction between various types of products in imposing sentences. 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."

11. On the magistrate's findings, the present case cannot be regarded as one of deliberate smuggling as in the cases cited. 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. The appeal against sentence is allowed, the sentence of 9 months set aside and a sentence of 6 months substituted therefor.