R. v. TSUI CHIT FAN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1422 OF 1994

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J U D G M E N T

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1. This was an appeal against sentence. The appellants, the first two of whom were directors of the third, had pleaded guilty to a number of offences against the Ozone Layer Protection Ordinance, Cap.403 and some offences against s.36(1)(c) of the Import and Export Ordinance, Cap.60. Fines were imposed for all the offences. The appellants appealed only against certain of the fines.

2. Before Mr Grossman, Q.C., who appeared for the appellants on the appeal, began his submissions, I reminded him of the power I had to increase sentences upon appeal against sentence, and I advised him that in my preliminary review these fines were inadequate. I granted him an adjournment to take further instructions from his clients, and thereafter he advised me that he sought leave to abandon his appeal. I granted that leave.

3. I then advised the appellants in general terms why I thought that these fines were inadequate. I told them that it was in my view incumbent upon the courts of Hong Kong to ensure that the message of this legislation, i.e. the Ozone Layer Protection Ordinance, is clearly and without equivocation brought home to all those who are involved commercially or otherwise with substances which endanger our environment. It was, in my view, the deliberate policy of our legislature to enact that the penalty for each offence could be one million dollars and two years imprisonment. The courts, I said, must ensure that the penalties that they impose adequately reflect the community's determination to protect its own environment, and to observe its international obligations under the various environmental protection agreements, and they must ensure that these penalties are a real deterrent against those whose priorities list profit above our ecological well-being.

4. Pleas of guilty in this case were entered on 71 summonses. Total fines of $703,500 were imposed. The appellants appealed against only some of the fines imposed.

I entirely agreed with the learned magistrate when he said :

"Offences contrary to section 4 of the Ozone Layer Protection Ordinance are in my view very serious offenses. The Ozone Layer Protection Ordinance was enacted to give effect to Hong Kong's international obligations towards the protection of the environment. The damage caused by CFCs to the Ozone Layer is patent. The seriousness is reflected in the maximum sentence of $1,000,000 and 2 years imprisonment. I was of the view that the case of Attorney General v. Marvels Clothing Co. Ltd. [1987] HKLR 839 was not applicable to cases involving ozone depleting substances - the value of the goods bearing no relation to the damage caused to the environment by such substances."

I have already expressed my own views as to the seriousness of these offences and to the need for deterrent sentences, particularly as these offences reflect upon Hong Kong's determination to observe its international commitments in the area of environmental protection. I did not regard the 1st and 2nd appellants' claim that they were not aware of the need for a licence as in any way being a mitigation factor.

5. Without going into the detail of individual sentences, the fines I would have imposed would in total have been substantially more than fines that were imposed by the learned magistrate. The flagrant and frequent contempt for this legislation displayed by these appellants was not, in my view, having regard to the maximum penalty available, adequately punished by fines between $20,000 and $40,000 in relation to each offence.

6. It is clearly not appropriate to have regard to the commercial gain which the appellants have derived from this enterprise when assessing the proper level of fines. The seriousness of the offences speaks for itself and is reflected in the maximum penalties available. The level of fines should in my view be governed by the amount of damage that can result from the indiscriminate use of the offending substances, the amount of the substances involved, the frequency of the breaches of the legislation, the degree of deceit involved, and the number of countries to which these offending goods had been exported. Eventually a body of jurisprudence will be built up to assist sentencing courts when dealing with these offences. For the moment, I simply say that taking the factors I have set out into account, the total fines I would have imposed in the present case would have been at least double the total fines of $703,500 imposed by the learned magistrate. Offences against environmental protection legislation are, in my view, of significantly greater seriousness than offences against ordinances which protect Hong Kong's commercial credibility. The former can cause irreversible damage.