THE QUEEN v. OR KWONG CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 22 of 1986

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BETWEEN

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JUDGMENT

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1. In this matter it was alleged the appellant had between December 1933 and July 1984 lodged with the Commissioner of Customs and Excise eight export declarations relating to eight consignments totalling 11 units of used motor cars exported to Australia. The F.O.B. value of the cars declared on the export declarations totalled $183,000. Investigations, in which it seems the appellant cooperated, revealed that the value had been understated by $107,000, and that the actual declared value should have been HK$290,000. The appellant being charged under 8 summonses with recklessly lodging inaccurate declarations, pleaded guilty to all 8 charges. He was convicted upon his own plea and fined $2,500 upon each charge, making a total fine of $20,000.

2. The learned magistrate in his Statement of Findings sets out that the profit that was expected to be gained from the eight consignments was in the vicinity of $29,000. It is suggested in the submission that was handed up to the Court by the appellant that the magistrate did not take into account that the appellant had overstated value on some other occasions. The Crown conceded that the investigations revealed that on three occasions, the appellant did overstate by an amount not more than $1,200 the value of exported cars. I find it difficult to see how this really assist the appellant. The matter must be dealt with upon the basis that he recklessly understated value, and that this reckless understatement of value was such as would assist other persons who would rely thereon to pay less duty than should have been paid to the Australian Customs authorities. This is, it is true, not a case which the Court deals with upon the basis that the acts were knowingly done. It seems to me that, nonetheless, a serious matter that they were recklessly done.

3. The learned magistrate was in possession of all the facts and correctly stated them. He referred to three authorities: Popular Machinery Co. v. The Queen, and The Attorney General v. Marvels Clothing Co. Ltd., and The Attorney General v. Eagle's Wire (Hoes Kong) Ltd. These cases, it is true, dealt with offences where persons had misstated value but it seems to me having read the Statement of Findings that the learned magistrate was perfectly well aware that he was dealing with a case of a reckless misstatement, and that he in no way misunderstood or misapplied the principles stated in those cases. Indeed he cited the Court of Appeal judgment in the Popular Machinery Co. case which reads as follows :

"The true damage occasioned by offences of this kind is not to the Revenue. It lies in the distortion of export figures, in the intangible but real effect upon international relations of the inhabitants of one country assisting those of another to defraud the Revenue of that other and in the loss to commercial confidence occasioned by the knowledge that declarations intended to be "accurate and complete" cannot be relied upon."

4. The learned magistrate went on to say that he wasn't imposing a penalty which would ensure that no profit was occasioned, which was a penalty suggested by the Court in the Marvels Clothing and the Eagle's Eye cases, where there had a knowing commission of the offence, and that he was not imposing a fine which would be 40% of the value of the exported goods, which was another suggested guideline in those cases. He, indeed, imposed fines which were substantially less than the suggested guidelines in knowing cases. I have considered all of the facts in the matter and I am quite satisfied that the learned magistrate was not in any way misled either as to the law or as to the facts, and that the fines he imposed were appropriate ones, and the appeal against the sentences will therefore be dismissed.