HKSAR v. IP CHI KEUNG

HCMA943/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.943 OF 1999

(On appeal from Tuen Mun Magistracy

Case No.TMCC 2943 of 1999)

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J U D G M E N T

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1. The appellant was convicted on his own plea on 3rd September 1999 of dealing in 1,610 litres of light diesel oil from which the marker or colouring substance had been removed, contrary to Regulation 9(d) of the Dutiable Commodities (Marking and Colouring of Hydrocarbon Oil) Regulations. He was convicted by Mr T.S. Jenkins and was sentenced to six weeks' imprisonment.

2. The facts were that in the afternoon of 12th July 1999, officers from the Customs & Excise Department mounted a patrol to gather information on suspected activities dealing in illicit oil in Sheung Che, Pat Heung, New Territories. The appellant was seen taking a hose out of a boot of a car and putting it into a plastic tank on board a light goods vehicle. He did so when that light goods vehicle arrived on the scene. The officers went forward, revealed their identities and found that another accused was detreating marked oil at a 40-foot container nearby, and the 2nd accused, who was the appellant, the driver of the light goods vehicle, admitted that he went to the scene to take delivery of the detreated oil and to distribute it from the van. On the light goods vehicle was found a plastic tank containing 1,000 litres of detreated oil, together with the balance of the oil, the subject of the charge. The appellant admitted that he had done the job on 12 occasions and was earning $400 a day as remuneration.

3. The Magistrate was given certain statistics dealing with the offences of dealing in detreated marked oil, light diesel oil, marked oil and petrol. Of those categories, the light diesel oil category and the petrol category necessarily involve fuel which must have been brought into Hong Kong from outside and had been brought in with duty not paid. The offences of dealing with detreated marked oil and marked oil can involve the use of locally purchased oil upon which no duty is paid, there being no provision for duty upon them, or can involve oil brought in from other places.

4. In this case, the Magistrate approached the matter partly on the basis of an inference that the oil had been brought in from outside Hong Kong. He said in his Reasons for Sentence :

"...I was satisfied that in D2's [the appellant ] case the end user of the detreated oil would have been a private/commercial road user. As such I also took into account environmental concerns when sentencing D2 in the sense that detreated marked oil contains several times the maximum legal level of sulphur for fuel used by road vehicles. If therefore used by motorists it would have contributed to the ever increasing air pollution in Hong Kong. I also took into account the fire risks posed by activities such as D2's and the loss of revenue suffered by the evasion of duty on the fuel (in D2's case HK$3220)."

5. There was no evidence before the Magistrate as to the source of the marked diesel oil from which the marker had been removed. It may have been smuggled into Hong Kong, or it may have been purchased locally. Given that the facts were silent as to the origin of the oil, the inference that must be drawn was the one in favour of the appellant, and that is that the oil was acquired from legitimate sources in Hong Kong and was oil available openly on the market in Hong Kong.

6. Miss Chan for the Department of Justice very properly agrees that the light diesel oil which causes the damage to the environment of Hong Kong is that which is smuggled in from the Mainland. It is a different quality of oil than that which is sold on the markets in Hong Kong. The Magistrate fell into error in assuming that this oil was oil from the Mainland.

7. Mr Ng, for the appellant, argues that the Magistrate was wrong in taking a global approach. What the Magistrate had done is firstly to look at the prevalence of the offences. He said this :

" I have been acting in the plea court a Tuen Mun as a principal magistrate since October 1998. During the 10 odd months period I have dealt with illicit fuel cases on a weekly basis & I consider them prevalent."

I am satisfied that the Magistrate had every reason for making that statement and finding that the dealing in illicit fuel is an offence which is on the increase in Hong Kong.

8. Secondly, Mr Ng objects to the Magistrate dealing with this particular offence in the same global terms as other offences involving the sale or possession and dealing with illicit fuel. The basis for the legislation, it seems to me, is not primarily one which deals with the environment, but was enacted under the Dutiable Commodities Ordinance to prevent the avoidance of the proper payment of duty upon various classes of oil. In this case, the removal of the dye marker was to sell the oil at a price approaching that of unmarked light diesel oil, being an oil upon which duty has to be paid whereas marked oil has no duty payable upon it.

9. That being so, this case does fall within the same type of offence as all the other cases involving the sale of fuel where the intent is to gain a market advantage by the non-payment of duty upon that fuel. The Magistrate did not err in approaching it in that manner.

10. The last matter objected to by Mr Ng is that the learned Magistrate relied in part upon R v Ng Wai Ching, MA1309 of 1996, which is a case involving the imprisonment of those persons dealing in CDs, music CDs and VCDs which infringe copyright. In my view, there is little to distinguish the principles and I am satisfied that the learned Magistrate was correct in coming to the conclusion that where an offence of this type is prevalent, an immediate custodial sentence may be imposed.

11. In this case, however, given his reliance upon environmental factors which were not part of the facts properly before him, I am of the view that I would allow this appeal and that the sentence be amended to suspend the period of six weeks' imprisonment for a period of two years. The appeal is allowed to that extent.