HKSAR v. LEE CHUN WA

[English Translation – 英譯本]

HCMA 438/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 438 OF 2006

(ON APPEAL FROM FLCC 32 OF 2006 and FLS 15895 & 15896 OF 2005)

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JUDGMENT

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1. The appellant was convicted on his own plea of the following four offences: Charge (1), ‘Dealing with goods to which the Dutiable Commodities Ordinance applies’, contrary to section 17(1) of the Dutiable Commodities Ordinance, Cap. 109, Laws of Hong Kong, for which he was sentenced to 40 days’ imprisonment; Charge (2), ‘Possession of goods to which the Dutiable Commodities Ordinance applies’, contrary to the same section of the same ordinance, for which he was sentenced to 80 days’ imprisonment; Summons FLS 15895, ‘Storage of dangerous goods without licence’, contrary to sections 6(1) and 14(1) of the Dangerous Goods Ordinance, Cap. 295, Laws of Hong Kong, for which he was sentenced to 7 days’ imprisonment; and Summons FLS 15896, ‘Possession of controlled substance’, contrary to regulation 19(1) of the Fire Services (Fire Hazard Abatement) Regulation, Cap. 95, Laws of Hong Kong, for which he was sentenced to 7 days’ imprisonment. All the above sentences were ordered to run concurrently, making a total of 80 days’ imprisonment. He now appeals against sentence.

FACTS OF THE CASE

2. The facts revealed that on 8 November 2005 the appellant sold 50 litres of petrol to a police constable who posed as a customer (Charge (1)) inside a metal-fenced area by the side of a cable pole on Ping Che Nai Road, Lei Uk Sun Chuen, Ta Kwu Ling, the New Territories. Subsequently, the police, customs and fire services officers found a further 375 litres of petrol (Charge (2)) at the place where the appellant sold petrol. These two lots of petrol, totalling 425 litres, were the dangerous goods and controlled substance referred to in the two summonses.

REASONS FOR SENTENCE

3. The magistrate’s written reasons for sentence are set out below (only relevant parts are extracted):

5. The defendant admitted that he sold petrol illegally. He personally operated this ‘fuelling station’ rather than working there as an employee. The amount of petrol involved was 425 litres in total, which was not a small amount. The storage place was only about 10 metres from the residence of the defendant and his mother, and it can be seen from the photographs produced that there were other residential premises nearby. The consequences would be serious in case of fire. Besides, the court cannot ignore the impact of oil stains on the nearby environment.

6. The illicit sale of petrol is still prevalent in the northern part of the New Territories. Such cases are brought before the Fanling Magistracy from time to time. The problem involves not only illicit storage and sale, but also illegal smuggling of petrol to Hong Kong from Mainland China. Paragraph 2 of the summary of facts states that the petrol involved is octane number 97 fuel from the Mainland. As the fuel was smuggled into Hong Kong from the Mainland, there is a cross-border element to the offence. It has not been alleged that the defendant illegally smuggled the petrol into Hong Kong, but undeniably the defendant did assist offenders of this type of crime in dealing with the smuggled petrol. I make frequent weekend visits to the Mainland, and I am aware that the retail price per litre of such fuel on the Mainland does not exceed HK$5. Therefore, the profits that the defendant gained were not as meagre as his legal representative contended.

7. Although the defendant has a clear record and has frankly admitted the charges, he was an operator with the knowledge that what he did was against the law and he committed the offences solely due to monetary inducement.

8.       Having considered decided cases including HCMA 50/2004 and HCMA 1065/2000, I am of the view that an immediate custodial sentence is appropriate. Since the quantity of fuel involved was not as large as that in HCMA 50/2004, I make a downward adjustment to the term of imprisonment as mentioned above.

THE PRESENT APPEAL

4. The appellant has raised three grounds of appeal. They are reproduced as follows:

1. In respect of the location of the offences, the magistrate: -

a) wrongly held that it was the residence of the appellant’s mother when in fact it was not; and

b) failed to consider, sufficiently or at all, the fact that ‘residential premises nearby’ were in fact far away from the location of the offences.

2. In respect of the profits that the appellant gained from the offences concerned, the magistrate: -

a) failed to consider, sufficiently or at all, that the appellant did not buy the petrol in question from the Mainland at such retail price as known by the magistrate personally for the purpose of resale;

b) failed to consider, sufficiently or at all, that the prosecution did not object to and/or did not have evidence to disprove what the appellant had said in the record of interview and in mitigation about the price and profits as being untrue; and

c) should not have at the stage of (preparing) the Reasons for Sentence calculated and found on the basis of his personal experience that the profits which the appellant had gained were actually more than what he had said in the record of interview and in mitigation.

3. For the above reasons, and in light of the facts of the case as a whole as well as the mitigating factors, the sentence imposed by the magistrate was manifestly excessive and/or wrong in principle.

5. However, as the Respondent pointed out, it was defence counsel who submitted to the magistrate that the appellant lived with his mother and that his mother ran a grocery shop at the location in question, and these were evidenced by photographs. These were of course denied in the probation officer’s report and the appellant instead claimed that his mother in fact lived with his elder sister. Nevertheless, the appellant still agreed that he ran the grocery shop jointly with his mother and the shop was located just about 10 metres from the side of the fenced area where petrol was sold.

6. As to the actual distance between the other residential premises and the location of the offences, I do not regard this as an issue of great significance. This is because the fact that the appellant and his mother ran a grocery shop at the said location means that there must be human traffic at that location or that the shop was able to attract customers in the vicinity. Indeed, the probation officer’s report also mentioned that the shop mainly catered for the staff of nearby companies. Therefore, the fuelling station in question would certainly present a serious threat to human lives.

7. Similarly, whether the two points mentioned in ground of appeal (2) are valid is not too important since there is a decided case which shows that, for an offence that involved 750 litres of motor fuel and was committed in To Kwa Wan, a sentence after trial of 9 months’ immediate imprisonment was imposed: HKSAR v. Wong Ka Ming HCMA 965/2004. In comparison, the imprisonment for 80 days, i.e. 2⅔ months, which was imposed on the appellant on a plea of guilty, is by no means excessive.

JUDGMENT

8. The appeal is dismissed.