HKSAR v. GOLDEN LINE (HK) LTD

HCMA 975/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 975 OF 2003

(ON APPEAL FROM NKS 9761-9778/2003)

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J U D G M E N T

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1. The Appellant Company pleaded guilty, through its representative, to 18 summonses of failing to keep safe custody of Import Notifications and transferring it for use by another person, contrary to Regulation 6(3B) and 6(4) of the Import and Export (General) Regulations under the Import and Export Ordinance, Cap. 60. The company was ordered to pay total fines amounting to $117,500.00. The Appellant Company now appeals against that sentence.

2. Mr Li who represents the Appellant, first of all, raised a Notice of Motion to admit the caution statement made by the Company's representative on the basis that, should the court admit the caution statement, the court will then realise that the representative of the Company would say in his caution statement that after he had purchased the import notification blank forms, when he was walking past the Ho In Company on 20 July 2000, Mr Chan of Ho In Company asked for the forms and thus the forms were then all given to that Mr Chan go. Thus Mr Li submitted that the learned Magistrate not having the caution statement in front of him did not properly sentence all 18 summonses as one transaction.

3. I note from the Statement of Facts, admitted by the representative of the Appellant Company, that it sets out very simply that the Appellant Company had purchased these forms and that subsequently the Trade and Industry Department had found that these forms that were purchased by the Appellant Company had been used to cover textiles imported by Ho In Company.

4. It was never alleged that the representative of the Company had given these forms at separate times to the Ho In Company or all at one time to the Ho In Company or in two or three different lots.

5. As was pointed out by Mr Wong, each summons to the Appellant Company states very clearly that on a certain date such a document or "the Import Notification form was transferred from you to Ho In" and the summons is based on the date of the import which is applicable to the separate import notification form.

6. At the end of the day, whether the Appellant Company had given all these forms at the same time to Ho In Company or in separate occasions is not the crux of this matter. The crux of the matter is that the Appellant Company should have kept these forms in safe custody for their own use and they committed the offence once they gave it to somebody else to use.

7. So having heard from Mr Li, I rejected the motion to allow the Appellant Company to adduce this additional evidence of the caution statement of the Appellant's representative. It is also a fact that at the time when pleas were taken, the Magistrate had made it very clear to the Appellant Company's representative that, if he disputed the fact, this matter would go to trial. The Appellant Company's representative then insisted on pleading guilty and had admitted the facts. It would appear therefore that upon being fined, the Appellant Company now says that it was wrong for the learned Magistrate to have relied on the facts which had been admitted by them.

8. As Mr Wong correctly pointed out, this Court would be slow to set a precedent for any Defendant in the Magistrate's Court to adopt the practice that, when the sentence does not appear to be one that they find acceptable, to come before this court and ask this court to re-open the issue.

9. In the second ground of appeal, Mr Li submitted that the learned Magistrate had failed to consider the totality principle. Mr Li and Mr Wong both rely on the case of HKSAR v. Lau Koon Leung HCMA Nos. 648 & 669/2003. That case deals with fine imposed on the medical practitioner for failing to keep proper records and Deputy Judge Longley at paragraph 20 of his judgment said this:

"The court must be particularly careful to ensure that a sentence which would be appropriate on a single charge if it stood alone does not become manifestly excessive if the Defendant faces a very large number of charges involving similar misconduct."

I would totally agree with the words of Deputy Judge Longley.

10. The learned Magistrate when sentencing the Appellant Company knew that the penalties ranged between $5,000 to $30,000 on each summons and at p. 64 of the appeal bundle letter P he actually said:

"However, in order to arrive at a reasonable figure, I've kept them as low as possible."

11. As Mr Wong pointed out the learned Magistrate must have had totality in mind when he said those words. The learned Magistrate also at paragraph 5 of his reasons for sentence was conscious of the fact that:

"In setting each fine I had regard to the maximum fine which was $500,000."

He then imposed separate fines of different amounts for each of these summonses making a total of $117,500.00. The total FOB value of the goods was $1,272,962.00.

12. It is not correct to say that the learned Magistrate did not consider the totality principle when he was assessing the fines. It is also in the outline submission of the Appellant that the learned Magistrate was criticised for taking into account matters like the FOB value of the goods, the protection of Hong Kong's international reputation and the cumulative effect of the maximum fine.

13. Certainly, the learned Magistrate was correct to consider the reputation of Hong Kong and the effect, offences of this nature would have on the international reputation of Hong Kong and in looking at these offences, the total of the FOB value should be applied when assessing the fine.

14. Mr Li also criticised the learned Magistrate for saying that the Company's representative had chosen not to inform him of any financial problems the Company may have had. He was simply as Mr Wong said saying that the Company has not put forward in mitigation that it had financial difficulty. The individual fine that was imposed on the Appellant Company and the total fine that was imposed was certainly not manifestly excessive.

15. Even if I had acceded to the submission of Mr Li and regarded this as a one-transaction matter, the fine imposed of $117,500 is not manifestly excessive. So despite the hard work by Mr Li to try to persuade me of the merits of this appeal I find that there is no merit in the appeal and therefore the appeal is dismissed.