HKSAR v. CHOW TAK SUNG

HCMA1190/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1190 OF 2000

(ON APPEAL FROM FLCC 2117 OF 2000)

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J U D G M E N T

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1. The appellant, Chow Tak Sung pleaded guilty to one charge each of importing textiles without a licence, contrary to section 6(C)(1) and of importing unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance. The goods involved were various items of garments which were seized on 25 June 2000 at the Lok Ma Chau Control Point as the appellant was driving a truck to Hong Kong from Mainland China. The goods when seized, were not in any way concealed. Upon the appellant's arrest, he was fully co-operative with the police.

2. The magistrate imposed a fine of $5,000 on each charge, and in addition, he imposed a one month prison term, suspended for 18 months for each charge. The appellant appeals against the prison sentences.

3. The goods have a market value of around $220,000. It is not in dispute that the appellant admitted to paying $15,000 for the same in the Mainland. In passing sentence, the learned magistrate took the view that this is a serious offence and the appellant was knowingly trying to conceal the fact of importing the goods from the authorities. He also concluded that there is a sinister tone to these activities but without giving any reasons. This court is being told at this appeal that the garments in question do not attract any Hong Kong import duties.

4. Putting the prosecution's case based on the summary of facts to its highest, even if the appellant is going to sell the entire consignment, the profit to be made would be the difference between the purchase price of $15,000 and the assessed market value of $220,000. However, I note from the summary of facts that there were 4,600 pieces of semi-finished items and 1,489 sets of component parts for men's woven shirts. These two items are clearly not designated for high-street retail business. Even if the appellant is to make a profit from the imported goods, the Hong Kong Government would not have suffered any revenue loss since no import duty is levied on the goods.

5. I was told that the licence required under section 6(C)(1) is for statistics purposes only.

6. Mr Duncan for the appellant submitted that based on the background and nature of this offence, the magistrate was wrong in principle in passing a prison term. The respondent, through Mr Chiu, argued otherwise. He submitted that the learned magistrate was correct in indicating that the activities of the appellant had a sinister connotation.

7. I have been referred two very useful cases of R v. Chan Sai Yiu, HCMA1084/1998 and R v. Chung Chi Wing HCMA1165/1986. Penalties imposed on cases of similar nature ranged from a fine to an immediate custodial sentence. As I have indicated earlier, this is not a case where the government is being cheated out of any revenue because of the activities of the appellant. He is a man of clear record and he had been co-operative with the police from the moment when he was intercepted. I would think, and I am persuaded by Mr Duncan, that the magistrate was wrong to impose a custodial sentence for the present offences in view of the facts of this case. It should not, however, be taken to mean that a custodial sentence is inappropriate for cases brought under the same sections of the ordinance.

8. For the reasons given, I would allow the appeal to the extent that the prison sentences are set aside.