HKSAR v. LO LIN FUNG

HCMA 357/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 357 OF 2006

(ON APPEAL FROM KTCC 8525/2005)

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J U D G M E N T

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1.  The appellant was convicted after trial of one charge of dealing with goods to which the Dutiable Commodities Ordinance applies and one charge of possession of such goods.  The goods concerned were cigarettes -700 cigarettes in respect of the first charge and 2600 cigarettes in respect of the second charge. 

2.  She was sentenced to serve periods of one and two months imprisonment respectively, the sentences to be served concurrently with one another.  At the time of commission of the offence she was subject to a suspended sentence of four months imprisonment for identical offences.  That sentence was activated and the sentences in the present matter were ordered to be served consecutively thereto.

3.  The appellant appeals both conviction and sentence.

4.  In brief, the facts that the magistrate found proved were that the appellant had been seen by a police officer in the street: her conduct had aroused his suspicions: he stopped her and searched a plastic bag that she was carrying: buried beneath other items he found the 700 cigarettes: he cautioned her: in response she indicated that she had been given the cigarettes the previous day by a person from the mainland to take out to sell: she indicated that she had more cigarettes at home: she was taken there by that police officer and his colleague and she pointed out a bag the contents of which was found to be the cigarettes which were the subject matter of the second charge.  On this occasion the appellant was again cautioned and arrested and indicated that she intended to sell the cigarettes for spending money. 

5.  In a subsequent interview she amplified her answers saying that the person from the mainland had told her that if she sold cigarettes she would earn $50 a day: she was unable to contact the person from the mainland: she knew that duty had not been paid on the cigarettes.

6.  The admissibility of the admissions made by her was challenged.  The magistrate dealt with this issue by way of the alternative procedure.  Two witnesses gave evidence on behalf the prosecution on this issue as well as the general issue.  The appellant gave evidence on her own behalf.  The magistrate, for compelling reasons, accepted the evidence of the prosecution witnesses and rejected that of the appellant. He was correct to do so. 

7.  The appellant testified on the general issue and called two witnesses.  The evidence given was completely at variance with the admissions made by the appellant in the course of her interview, the record of which had been admitted into evidence.  The magistrate explained why he rejected their evidence.  He saw and heard the witnesses and was entitled to make the findings he did.

8.  One issue was raised in particular, which was the probability of the appellant having left the cigarettes lying around in her flat when, to her knowledge, police were making occasional unannounced visits there as a result of an earlier complaint of burglary: the magistrate dealt with this issue by pointing out that whilst, based upon a police occurrence book, he accepted a report of a burglary had previously been made, the only evidence of the unannounced visits came from the appellant and her witnesses, which evidence he rejected.

9.  The magistrate accepted the evidence of the prosecution witnesses and also relied upon the content of the admissions made by the appellant in the course of the interviews.  No valid criticism can be made of this approach.

10.  The appellant now says that she has found a fresh set of witnesses as a result of the court not accepting her evidence or that of the previous witnesses she called.  In essence the appellant today repeats what she and the witnesses she produced at trial said:  that evidence was entirely disbelieved, correctly so, by the magistrate.  There are no justifiable grounds for hearing further evidence in this matter.

11.  There is no substance to the appeal against conviction which is dismissed.

12.  Insofar as the appeal against sentence is concerned, the appellant has nine previous convictions of which the last three occurred in 2003 and related to the same offence as the first charge in these proceedings.  In respect of those three offences she was sentenced to serve an aggregate of four months imprisonment suspended for two years.

13.  The sentences imposed by the magistrate in this matter are well within current sentencing practice.  He properly ordered the two sentences to be served concurrently with one another.  Although the instant offences occurred a little over one month before the expiry of the period suspended sentence, as a matter of principle it was correct that that sentence be activated and that it be served consecutively to the present sentences.

14.  Nothing that the appellant has said today entitles her to any reduction in these sentences.

15.  The appeal against sentence is also dismissed.

16.  I would add one observation:  given the length of the aggregate sentences and the basis of the conviction, the appellant was unusually fortunate to have been granted bail pending appeal.