THE QUEEN v. SO LO

IN THE HIGH COURT

1992, No.1178
Magistracy Appeal

Headnote

Sentencing - Smuggling Offences - Importance of deterrence in sentencing - cartons of fresh fruit conveyed by sea as a “commercial undertaking” - Sentence of 3 months' imprisonment upheld.

IN THE HIGH COURT

1992, No.1178
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. On 1 December 1992 the appellant So Lo appeared before Mr. McKee at the Kwun Tong Magistracy. 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. He was sentenced to three months’ imprisonment.

2. The facts are these. At 6.45 a.m. on 16 November 1992 the Marine Police intercepted a fishing vessel off Basalt Island. The appellant was the owner and in charge of the vessel. On searching the vessel, the police found a total of 263 cartons of fresh fruit, with a value of $33,000.

3. The appellant is aged 43 and makes his living as a fisherman. His wife works as a metal worker earning low wages and they have three children, the oldest 12 and the youngest 8.

4. Five months before his appearance before Mr. McKee on this charge, the appellant was convicted on a similar charge - involving 205 cartons of fruit - and sentenced on his own plea to a fine of $10,000 by Mr. Candy at the Kwun Tong Magistracy. For taking the 263 cartons to China, the appellant was to earn a reward of $500 and to receive reimbursement for fuel amounting to $500.

5. From the statistics produced by Mr. Coghlan, Senior Crown Counsel, it seems clear that the smuggling of fresh fruit into China is not a prevalent offence. It concerns products of low intrinsic value and it is difficult to see such smuggling being conducted on a large scale. On the other hand, the maintenance of legitimate trade between Hong Kong and China is of vital importance to the community and erosion of the scheme of regulation under Cap. 60 is an erosion of Hong Kong’s “system and life style”. Further, as has been repeatedly stressed in judgments in these courts, smuggling, unless contained, threatens to damage Hong Kong’s relationship with China. The magistrate, in imposing an immediate custodial sentence in this case, plainly had these factors in mind. He adverted to the fat that the maximum fine for contravening section 18(1) of Cap. 60 was increased tenfold by Ordinance No. 22 of 1991. The magistrate also drew attention to the fact that although the Import and Export (Carriage of Articles) Regulation 1991 seemed primarily to be focussed on the smuggling of vehicles and electrical appliances, smuggling of other goods also disturbed the proper conduct of trade. The magistrate was plainly reluctant to send the appellant to prison, having regard to his family circumstances. He also observed, quite rightly, that “the sentence should be in proportion to the offence”.

6. However, the point which stood large in the magistrate’s mind was the fact that only five months before the appellant was caught committing this offence. The sentence of $10,000 then imposed was plainly inadequate to deter. Given the number of cartons involved, 263 boxes of assorted fruits, this was, as the magistrate said “no minor contravention of the law. It was a commercial undertaking”.

7. I confess to having considerable difficulty with this case. The appellant probably belonged to the class of persons on whom, as Bewley J. remarked in the case of Ma Man Ho (MA 89 of 1992, 25 May 1992, unreported) “the nuances of shipping manifests and customs procedures would be lost”. Moreover, an immediate custodial sentence would clearly impose hardship on the appellant’s family. Having regard to the way the court had previously dealt with the smuggling of fruit, the appellant probably did not expect to be sent to prison. On the other hand, the community plainly requires the assistance of the courts to contain, if not to stamp out, smuggling of all kinds and the courts would be failing in their duty if they did not keep the factor of deterrence firmly in mind in imposing sentence.

8. If the magistrate had, in this case, imposed a substantial fine, with imprisonment in default of payment, or alternatively had given a suspended sentence, I do not think that he would have erred in principle. This is one of those cases where the range of discretion was considerable. An immediate custodial sentence of three months for smuggling fruit may appear, to some, to be harsh. But in my judgment it is neither incorrect nor manifestly excessive. The appeal is therefore dismissed.