HKSAR v. LE VAN THO

HCMA947/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 947 OF 2002

(ON APPEAL FROM ESCC 2311, 2333 & 2385 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted on his own plea of three offences relating to his dealing with dutiable cigarettes, in respect of charges 1 and 3, and his possession of dutiable cigarettes, in respect of charge 2, in breach of the provisions of section 17(1) of the Dutiable Commodities Ordinance, Cap.109 ("the Ordinance").

2. The 1st charged offence involved 7,000 cigarettes and was committed on 31 July 2002. The 2nd charged offence involved 5,600 cigarettes and was committed on the following day, 1 August 2002. The 3rd charged offence involved 4,200 cigarettes and was committed on 13 August 2002. The 2nd and 3rd charged offences occurred whilst the appellant was respectively on police bail and court bail. The appellant was sentenced to six months' imprisonment in respect of each offence. The sentences for the 2nd and 3rd charged offences were ordered to run consecutively to each other so far as two months only of their terms were concerned and to run wholly consecutively to the sentence imposed in respect of the 1st charged offence. That was a totality of sentence of 14 months' imprisonment.

3. The appellant complains that the sentences of imprisonment imposed in respect of each charged offence and in their totality were excessive.

4. The facts of each offence were identical for present purposes. The appellant was arrested on each occasion as he attempted to sell or was selling the cigarettes to passers-by on a street in Chai Wan.

5. In so far as the appellant's complaint is concerned that the individual sentences imposed in respect of each offence were excessive, Mr Surman, who appears on the appellant's behalf, relies on the relatively small number of cigarettes involved in respect of each offence and the correspondingly relatively low duty avoided (about 80 cents a cigarette on a grand total for all three charged offences of $13,500) and the unsophisticated nature of the appellant's offences.

6. Mr Surman argues, that given that the maximum penalty for the offence is only two years' imprisonment, that a starting point of sentence of nine months' imprisonment as taken by the magistrate was excessive, given that the facts of the offence suggest it to be at the lower level of culpability. In this regard, for example he points out that in HKSAR v. Tang Wai Chung, HCMA 337/1998, a case involving some 2.65 million cigarettes and prosecuted also pursuant to the provisions of section 17(1) of the Ordinance, sentences of six months' imprisonment were imposed after trial.

7. It is true that in other, usually earlier, cases involving far more cigarettes than those the subject of each of the present offences significantly lower starting points have on occasion been adopted by the sentencing court. Sentences of about three to four months' imprisonment after plea have often been imposed in respect of quantities of cigarettes of the sort involved in the present offences. And it seems to me that so far as the present offences are concerned, in the absence of any aggravating factors, a starting point of sentence of no more than six months' imprisonment would be warranted given the quantities of cigarettes involved.

8. But matters do not rest there. In his reasons for sentence, the magistrate pointed to three features of the appellant's offences which he regarded as aggravating factors so far as sentence was concerned. In that regard, he said :

" This type of offence is, and had been for some time, extremely prevalent. This Court deals with many cases every week, many originating in Chai Wan.

By his persistence in committing this type of offence the Defendant demonstrated a complete lack of regard for the law and I felt justified in taking a higher starting point for sentence. (c.f. NG Chi-man [1999] 1 HKC 632.)

It was an aggravating feature that the Defendant had committed the 2nd offence the day after his arrest for the first and committed the 3rd offence within 2 weeks of the first offence."

9. So far as the magistrate's comments concerning the prevalence of the offence are concerned, his own knowledge in that regard is something he is entitled to act upon : AG v. Jim Chong Shing [1990] 1 HKLR 131. Indeed he is in perhaps one of the best positions to assess the level of prevalence of an offence within his geographical jurisdiction.

10. Further, so far as the appellant's persistence in this category of offence is concerned, the magistrate was perfectly entitled to arrive at that finding given the appellant's 12 previous convictions for similar offences and regard that as an aggravating factor : HKSAR v. Ng Chi Man [1999] 1 HKC 632 and HKSAR v. Chan Pui Chi [1999] 3 HKC 848.

11. The appellant's commission of the 2nd and 3rd charged offences whilst on bail was also justifiably regarded by the magistrate as an aggravating factor : HKSAR v. Yuen Gang Shing, CACC 303/1997.

12. The learned magistrate was entitled to take these matters into account in increasing his starting points of sentence. As I say the starting point he arrived at after doing so was one of nine months' imprisonment in respect of each offence. In his Reasons for Sentence he does not quantify his original starting point of sentence but given that, in the absence of any aggravating features, a starting point of sentence of no more than six months' imprisonment would have been appropriate, the starting point taken by the magistrate, in respect of each offence, represented a 50% enhancement.

13. In the normal course that would seem a somewhat excessive increase over the level of increase usually imposed in respect of any single aggravating factor. But in the present case there were three aggravating factors, at least in respect of the offences the subject of charges 2 and 3. All three aggravating factors were significant and one of which, the appellant's commission of further offences whilst on bail, showed a complete contempt for the law.

14. At the end of the day, given the number and significance of aggravating factors present, I do not think the magistrate's starting point of sentence of nine months' imprisonment can be said to be excessive, so far as the offences the subject of the 2nd and 3rd charges are concerned.

15. So far as the 1st charged offence is concerned that was not committed whilst the appellant was on bail. For that reason, in my view, the starting point of sentence for that offence should have been lower. That offence warranted a starting point of sentence of eight months' imprisonment to reflect the remaining two aggravating factors relied upon by the magistrate of the appellant's persistent offending and the prevalence of the offence in the magistrate's geographical jurisdiction. That would reduce to a sentence of five months ten days' imprisonment so as to give effect to the appellant's plea of guilty.

16. So far as the totality of sentence is concerned, the magistrate in his Reasons for Sentence, as I have said, properly regarded the appellant's commission of the 2nd and 3rd charged offences whilst on bail as an aggravating factor.

17. In his reasons for sentence given at the time of sentencing he also relied upon that same aspect of the appellant's offending on the occasion of the 2nd and 3rd charged offences as a reason to order the sentences imposed in respect of those offences to run wholly consecutively to the sentence imposed in respect of the 1st charged offence.

18. In other words the magistrate regarded the appellant's commission of the 2nd and 3rd charged offences whilst he was on bail as reason for both enhancing the level of sentence imposed in respect of those offences and as reason for ordering them to be served wholly consecutively to the 1st charged offence. In my judgment, there is in that a danger of "double counting", that is, of the same aggravating factor being counted fully against the appellant on two separate occasions during the sentencing process.

19. The circumstance of an appellant committing an offence whilst on bail is fortunately somewhat unusual. It is unique for the simple reason that circumstance can be regarded as both a factor aggravating the offence, and so increasing sentence, and as giving reason to impose a wholly consecutive sentence. But generally speaking it seems to me that if it is to do both in respect of a particular defendant in sentence, there should be good reason for it.

20. In the present case the same aspect of the appellant's offending was counted against him to its full effect both in the imposition of an enhanced sentence in respect of the 2nd and 3rd charged offences and in ordering those sentences to run wholly consecutively to the 1st charged offence. In that regard only can the magistrate's reasoning be criticized.

21. In my judgment, in the absence of some special reason not to do so, some allowance should have been given the appellant when the court came to consider the question of totality for the fact that the appellant's commission of offences on bail had already increased the level of sentences imposed in respect of the 2nd and 3rd charged offences. To allow for that, in my view, there should have been some concurrence between the three sentences and therefore a lower totality of sentence.

22. As Mr Surman says this was an unsophisticated operation involving considerably less than the larger number of cigarettes which have been on occasion the subject of cases before the courts. There can be easily envisaged much worse cases than the present.

23. In my view a totality of sentence of 10 months' imprisonment would have been adequate to reflect the overall culpability of the appellant and do so without negating the effect of the aggravating factors so far as his sentences are concerned.

24. Accordingly, the appeal is allowed to this extent : I order that the sentence imposed by the magistrate in respect to the 1st charged offence be set aside and replaced with a sentence of five months ten days' imprisonment. I order that all sentences be served concurrently except that four months of the sentence imposed in respect of the 2nd charged offence be served consecutively to the sentences imposed in respect of the other offences. That is a totality of 10 months' imprisonment.