R. v. KI CHOR ON

IN THE HIGH COURT OF JUSTICE

APPELLATE JURISDICTION

Magistracy Appeal No 836-843 of 1996

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J U D G M E N T

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1. I am grateful to counsel for their helpful and able submission and I feel able to give my decision now.

2. The Appellant pleaded guilty to a total of eight summonses issued against him under the Animal and Plant Protection of Endangered Species Ordinance. In respect of each of the five summonses under section 6(1) of the Ordinance, for which a maximum fine of half a million dollars is prescribed, he was fined $25,000. In respect of each of the three summonses under section 6(3) of the Ordinance, for which a maximum fine of $5 million was prescribed, he was fined $100,000. The total fine involved in the eight summonses was, therefore, $425,000.

3. The background of this case indicates that the Appellant was the proprietor of two traditional Chinese medicine shops, one in Canal Road and the other in Bowerington Road. He was also a Chinese herbalist by occupation.

4. Of the subject matter of the eight summonses, the pangolin scale, the musk grains, sea turtle scales and the bear gall bladder powders would be used in his medical prescriptions for his patients. The others were, in fact, ready made medicines presumably produced in China.

5. Such medicines had been analysed and it had not been proved conclusively that they, in fact, contained the objectionable items, namely rhinoceros horns or tiger bone as their packaging claimed. But by virtue of section 2B(a) and (b) of the Ordinance they were deemed to contain what had been claimed in their packaging.

6. The Appellant claimed that the items that he used in his medical prescriptions were of very small quantity and the demand for them was little. He did not bother to apply for a licence from the Agricultural and Fishery Department.

7. As for the ready made medicines he said he had asked the supplier to withdraw them from his shop, or to exchange them for items without the offending ingredients or packaging.

8. I must confess at some stage of the argument, I was much concerned about section 113(c) of the Criminal Procedure Ordinance, which on the face of it seems to suggest a minimum fine of $25,001 for an offence under section 6(ii) of the Ordinance, and a minimum fine of $50,001 for an offence under section 6(iv) of the ordinance.

9. Miss CHAN, on behalf of the Crown, quite fairly referred the court to section 113(b) of the Criminal Procedure Ordinance, and in fact, conceded that the appropriate guideline to refer to is schedule 8 of the Criminal Procedure Ordinance rather than the table in section 113(c) of the Criminal Procedure Ordinance.

10. That in my view is the correct approach. Unless the court adopt that approach it will be very difficult to justify the various fines imposed by magistrates on similar offences as set out in the schedule of fines produced by the Crown.

11. I therefore proceed with this matter on the assumption that the Criminal Procedure Ordinance had not, in fact, prescribed any minimum fine for the offences in question, a point, which as I said, is fairly conceded by Miss CHAN on behalf of the prosecution.

12. In imposing the total fine of $425,000 the learned magistrate relied heavily on the decision of Mr Justice Duffy in the case of Both Prime Company Limited which is magisterial appeal 1023 of 1995. In that particular case Mr Justice Duffy reduced the fine from a sum of $500,000 to a sum of $200,000.

13. It cannot be overlooked, of course, that in the case of Both Prime Company Limited the court was dealing only with one summons involving a larger quantity in terms of number of pills of the medicine. The Appellant in that particular case clearly was a much more substantial entity as it was a limited company in the wholesale business of over 2,000 types of Chinese medicines.

14. Speaking for myself, I do not argue with the observation that for the offences in question the fine should reflect an element of deterrence. But in my view, the amount of fine sufficient to deter owners of small Chinese herbalist shops may not be the same as that which is necessary to deter substantial limited companies in the wholesale of more than 2,000 types of Chinese medicines.

15. Further, it is well established that the fine imposed by the courts must be within the ability of the defendant to pay, and must not have a crippling effect on the financial situation of an offender.

16. The Appellant is a 71 year old Chinese herbalist with a clear record. Although he ran at the material time two Chinese medicine shops, he produced tax returns through his counsel in mitigation to show that he only paid less than $10,000 tax a year in connection with his business.

17. The learned magistrate in his reasons for decision or statement of findings said that without supporting documentation those tax demands were of little value. I do not know what documentation he meant, but speaking for myself, presumably before issuing any tax demand the Inland Revenue Department would have checked all relevant documentation. In my view it is not proper for the learned magistrate just to brush aside the income tax demand and say that those demands were of little value.

18. Although the court is dealing in this particular case a total of some eight summonses, in my view, it is the totality of the fine which is important and not the fine for individual summonses. After all, all the offending articles or items were seized from these two shop premises of the Appellant.

19. I have considered carefully the nature of the offences, the facts of this case and the background of the Appellant. I also bear in mind the schedule of fines for offences of a similar nature which show that for possession offences the range of fine is $500 to $20,000, and for highly endangered species the fine ranges from $1,000 to $30,000, and for controlled medicines the fine ranges from $1,000 to $250,000.

20. I have no doubt that the total fine of $425,000 imposed on the Appellant is far too excessive and must be reduced. This is particularly so bearing in mind the affidavit of means produced by the Appellant in support of the present appeal, which clearly demonstrates that he would be unable to pay this high fine, and that such a fine would have a crippling effect on him financially.

21. That being the case I think the fine imposed on the Appellant must be reduced, and I consider the following reduction appropriate.

22. In respect of the five summonses for which a fine of $25,000 was imposed, a fine of $10,000 for each summons will be substituted. In respect of the offence which the fine of $100,000 was imposed, a fine of $15,000 for each offence will be substituted. The total fine in respect of all eight summonses will therefore be $95,000 instead of $425,000. In my view, the figure of $95,000 would be of sufficient deterrent effect and the sum is an adequate penalty in the circumstances of the case.

The appeal is therefore allowed to the extent as indicated. I order that the fine be reduced accordingly and the balance of the fine, if paid by the Appellant, to be refunded to him.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the tape recording taken of the above proceedings

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Dated the 22nd day of October 1996