HKSAR v. SHEK TAK TAI

HCMA795/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.795 OF 2000

(On Appeal From ESCC 2910 of 2000)

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J U D G M E N T

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1. The appellant was convicted on 26 July 2000 of two charges of dealing with cargo with an intent to assist another person to export the cargo without a manifest, contrary to section 18A(1)(c) of the Import and Export Ordinance, Cap.60. He had entered a plea of guilty to each of the two charges and was sentenced to three months' imprisonment on each, the sentences to run concurrently.

2. The facts that were agreed were that in the late evening of 23 July 2000, police officers on board two police vessels in the vicinity of the Po Toi Islands observed a fishing vessel loitering in the vicinity of Po Toi. The vessel stayed for some time and switched off its navigation lights. The vessel was kept under observation, and at 2255 hours two unlit vessels approached that vessel and boxes were seen removed from the first vessel to the other two which had berthed each side of it. The two vessels cast off and the three vessels were intercepted. In one of the two vessels onto which the boxes had been transshipped were found the quantity of unmanifested cargo referred to in Charge One, and on the second vessel the quantity of goods referred to in Charge Two.

3. The magistrate, in considering the matter, took into account that this was a clandestine transshipment as the vessels were without lights and that there had been a clear intention to do the acts done under the cover of darkness. He accepted that the goods were to go to the Mainland where they would be unmanifested and therefore clearly destined to avoid both the import duty and the value added tax which otherwise would be payable upon them. The magistrate considered the offence to be serious and said this :

"I considered the offences to be serious. This type of activity is akin to smuggling and is extremely prevalent in Hong Kong waters. A large quantity of goods of high-value had been transferred from the defendant's vessel to the mainland vessels. ..."

4. Mr Cheng, on behalf of the appellant, argues that the goods were not high value goods and had the learned magistrate been in possession of two demands for payment made by the authorities on the Mainland for similar goods, then he would not have imposed the sentences that he did.

5. Before the magistrate were agreed facts and among them was an agreement that the 4,400 kilogrammes of goods on board the vessel in the First Charge had a market value of HK$194,064. The documentation produced by Mr Cheng are special payment vouchers said, in the affidavit of the appellant, to come from the Zhuhai region for the import of 4,422 kilogrammes of live water turtles. There, it is disclosed that the market value, which is the purchase price together with the value of the tax, would be approximately HK$130,000. This calculation, of course, does not take into account the element of profit which would be added to that figure before a market value in the Mainland was reached. Therefore, the magistrate in coming to the conclusion that these were high value goods did so on the basis that the goods in the First Charge were worth HK$194,000 whilst Mr Cheng says he is in error because they were in fact only worth HK$130,000 plus whatever profit margin would be added in the Mainland. In my view, this factual difference is of small consequence. The magistrate was fully aware of the approximate value of the goods.

6. The basis of the grounds of appeal are that the sentence was too high in all the circumstances now known to me, so high as to either be wrong in principle or manifestly excessive. The first case to be considered in this regard is that of the Attorney General v. So Ma-por [1981] HKLR 696, where the Court of Appeal held that it was right to impose an immediate custodial sentence for the attempt to smuggle out of Hong Kong 250 rolls of silk in a fishing vessel - that sentence being one of three months' imprisonment.

7. Mr Cheng refers me to the case of The Queen v. Ng Wai Hong, HCMA No.797 of 1992 where Litton JA (as he then was) approved that case but commented :

"... In So Man-por (sic), the goods involved were rolls of silk. I do not take Roberts, C.J. as saying, in the passage just referred to, that magistrates should draw no distinction between various types of products in imposing sentences. That would plainly go against common-sense. 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. ..."

In the case before me, the magistrate took the view, and there is nothing before to say that it is wrong, that this is an extremely prevalent type of offence in Hong Kong waters. He secondly took the view that given the total value of the goods in each charge, it was not a low value product. Further, it is clear that some 23% of total tax would be saved by the smuggling of the goods which would not be said to be a small return.

8. The respondent has referred me also to a case delivered by Litton JA (as he then was) R. v. So Lo, HCMA No.1178 of 1992. There, the appellant had been convicted of attempting to export unmanifested cargo in respect of 263 cartons of fresh fruit for the value of $33,000. He had one previous conviction for similar offence some five months previously and was sentenced by the magistrate to three months' imprisonment. The court said this :

"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."

9. In the matter before me, some might think that the sentence passed in respect of this appellant for assisting in attempting to export unmanifested cargo of three months' imprisonment concurrent on each charge to be harsh, but I have to be satisfied that it is either manifestly excessive or wrong in principle. On the authority of So Ma-por, it is clearly not wrong in principle. On the authority of So Lo, it is clearly not manifestly excessive. The magistrate fully considered all the matters set out before him and did not err in coming to his decision. I cannot see that it would have made any difference had he had before him the material placed before me by Mr Cheng.

10. The appeal against sentence is dismissed.