HKSAR v. LIU SHING LAP

HCMA616/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 616 OF 2003

(ON APPEAL FROM FLCC 713 OF 2003)

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. On 7 May 2003, the appellant (who was then aged 24 and of good character) was convicted after trial at the Fanling Magistrates' Court of an offence of attempting to export unmanifested cargo which comprised a car chassis containing vehicle parts. On 28 May he was sentenced to a term of seven months' imprisonment, and it is against that sentence which he appeals.

2. The prosecution's case at trial was that at 11.14 a.m. on the 23 January 2003 a lorry (registration number KV 9043) driven by the appellant passed through the Lok Ma Chau Control Point on its way to the Mainland. He tendered an export manifest declaring an empty vehicle but, when it was searched, a Mercedes Benz chassis (inside which were numerous vehicle parts) was found concealed under a black cloth. Those items had not been declared on the manifest, and were thus unmanifested cargo.

3. The appellant gave evidence at trial to the effect that when he drove the vehicle from Hong Kong he had no reason to believe that it was other than empty. His evidence was rejected by the magistrate who (in effect) added that, even if she was wrong about that, the appellant had been duty bound to check the contents of his vehicle before he set off on his journey.

4. In her Reasons for Sentence, the magistrate said this :

"The maximum sentence on summary conviction for an offence under section 18(1)(b) is a fine of $500,000 and imprisonment for two years."

She then referred to a number of authorities before concluding as follows :

"Although I did not accept the appellant's evidence, there is no evidence that he knew the vehicle parts were in his lorry, or that he had anything to gain personally from the incident. The admitted facts state the value of goods to be $80,000. Taking these into account, as the value of goods and culpability were not as great as in Ng Wai Hong's and Ng Choi Yau's case, I took 9 months as a starting point.

The appellant is aged 25, and lives with his girlfriend in Shenzhen. He works as cross border driver, and contributes approximately $3,000 to his family in Hong Kong. He has parents and two elder brothers in Hong Kong. The community service report shows that although the appellant is a suitable candidate, provisions for community service could not be made and was not recommended.

In mitigation and in the background and CSO reports, the appellant acknowledged his negligence and carelessness in the matter, and that he should bear responsibility. I also took this as an indication of remorse.

From the starting point of 9 months, I gave him 2 months discount for his previous clear record, background and remorse, arriving at 7 months imprisonment."

5. Issue has been taken before me as to whether or not the value of the goods had, in fact, been formally admitted as being $80,000 as the magistrate understood that it had been. In my view (upon hearing counsel and reading the transcript) such fact was never formally admitted but, given the careless manner in which the question of 'admitted facts' was dealt with at trial by the then legal representatives of the parties (neither of whom were before me on appeal), it is of no surprise to me that the magistrate was under a misapprehension. It is not an appropriate way of presenting admitted facts to a tribunal simply to hand in a charge sheet which contains a summary of facts above which appears a list of witnesses; an estimated value; and other extraneous information. In any event whether the car chassis and its contents was worth $80,000 or a half of that amount (as was suggested by the appellant's employer who gave evidence for the appellant and who, in reality was transporting the car and its contents to the Mainland for his own profit) does not impact at all on the appropriate sentence in this case.

6. The grounds of appeal perfected by Mr Iu on behalf of the appellant read as follows :

(1) That in all the circumstance, the imposition of an immediate custodial sentence as a deterrent is wrong in principle, in that this offence :

(a) involved low or minimal loss of revenue as the car body concerned was of low value;

(b) was not a sophisticated operation;

(c) did not involve any sophisticated method of concealment indicating habitual and/or professional smuggling;

(d) was a case of lack of due diligence; and

(e) was not prevalent in that semi-damaged car bodies have not been the object of smuggling.

(2) Further or alternatively, the sentence of seven months' imprisonment is manifestly excessive, having regard to :

(a) (1) (a) - (e);

(b) clear record of the appellant;

(c) excellent background report; and

(d) the appellant's remorse and unlikelihood to re-offend.

7. Mr Lo's response to those grounds of appeal (on behalf of the respondent) is, in short, this : an immediate custodial sentence for an offence of this kind is appropriate upon authority and that the magistrate gave full and due consideration to all relevant factors in arriving at her decision that a sentence of seven months' imprisonment was the right sentence.

8. For my part I do not question any of that for a moment. All that I do question is whether the magistrate, having seen fit to call for reports concerning the appellant, gave sufficient credit to him for the content of those reports in determining the appropriate length of the immediate prison term (bearing in mind that she had already accepted that there was no evidence that the appellant knew what was in the lorry, and that he personally had nothing to gain from transporting the goods across the border).

9. I do not accept, with respect, the first ground of appeal advanced by Mr Iu. In my judgment offences of this type (whether involving the 'due diligence provisions' or not) merit and for good reason an immediate term of imprisonment. However, I can see considerable force in the second ground of appeal.

10. In my judgment given all the circumstances of this case (that is the facts of the offence and the background of the offender) the appropriate sentence was one of three months' imprisonment. Accordingly I allow this appeal to the extent that I order that a sentence of three months' imprisonment be substituted for the seven months imposed by the magistrate.