HKSAR v. MOK CHUN WING

HCMA727/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.727 OF 2000

(ON APPEAL FROM TMCC No.26/2000)

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to two charges; the first that outside a flat at Nam Fung Industrial City in Tuen Mun, he dealt in 124,400 cigarettes otherwise than in accordance with the requirements of the Dutiable Commodities Ordinance ("the Ordinance"). Duty had not been paid on the cigarettes and almost all of them had no health warning. This was the first charge. The magistrate took a starting point of 18 months' imprisonment and sentenced the appellant to a term of 12 months' imprisonment after plea.

2. The second charge was that the appellant dealt in 572,160 cigarettes otherwise than in accordance with the Ordinance. Again, duty had not been paid and almost all this large quantity carried no health warning. For this offence the magistrate took a starting point of 24 months' imprisonment and sentenced the appellant after his plea to a term of 16 months. He ordered both sentences to run concurrently, making a total of 16 months.

3. The facts that were agreed were these : On 9 December 1999, the police, who were engaged in a specific operation in relation to dutiable cigarettes, saw the appellant and another man coming out of a flat of the Industrial Centre and he was pushing a trolley which was loaded with boxes containing the cigarettes that are the subject of the first charge. He was searched, and he had on him keys which were used to open the flat, and inside the flat there was a storeroom with the cigarettes that are the subject of the second charge. Also found on the premises were adhesive tapes, cutters and another trolley. In short, this place was obviously being used as a store and centre from which unlawfully to distribute a very substantial quantity of cigarettes.

4. Upon arrest and later at the Customs Offices, the appellant said nothing and refused to answer any questions. This was, of course, his right and he is not to be penalized for that, although he cannot pray in aid any suggestion of co-operation with the authorities. In the circumstances, one does not precisely know what his role in this operation was or who ran this business.

5. The magistrate pointed out that those sitting in the courts of Tuen Mun have come to recognize how prevalent is this offence of selling dutiable cigarettes merely in the street, and that, for that type of offence, it is common now to send offenders to prison for up to six months after trial. This offence by contrast is, he points out, a wholesale operation of quite a different level. He bore in mind the quantity of cigarettes and their value and the duty avoided. I am told that the duty avoided was $533,564. He adds in his Reasons for Sentence,

"Whilst the appellant may not have been the prime mover in the case, he was clearly an important link in the chain of supply of the cigarettes to others."

The appellant had put forward in mitigation the suggestion that he had been employed by somebody called "Mr Chan" to move goods; had been to the premises previously but it was only on this day that he was aware that the goods he was that day to move were cigarettes. On previous days, the goods had been clothes. It is, frankly, mitigation which rings very thin, not least because the appellant gave no such story on arrest and because he has, as far as I am aware, done nothing at all to tell the authorities who this man was. Still, one was bound to proceed, as it seems the magistrate was prepared to, on the basis that the appellant was not the prime mover and was employed in some subsidiary capacity.

6. The appellant is aged 29 years. He has one previous conviction for theft in 1993 when he was fined $1,500.

7. When reviewing the sentence, as he had been asked to do, the magistrate referred to the fact that it had been the experience of his court that there had been an explosion of cases involving the sale of cigarettes on which duty had not been paid and on which health warnings did not appear, and he said that the offence was to be distinguished from street sales where the tariff was before four to six months.

8. Given the explosion of offences to which the magistrate refers and the experience of that court, one has every sympathy with the magistrate in taking a stringent line; and nothing that I say in this case should be taken to suggest that these offences are to be treated leniently, or that they should be met with anything other than significant terms of imprisonment. But the problem with the sentence which the magistrate imposed is that he took as his starting point a term which represents the maximum allowed by law. Section 46 of the ordinance provides for a maximum penalty of two years imprisonment and a fine of $1 million. What has happened, therefore, is that the magistrate has left no room, as it were, to cater for the repeat offender, or for the prime mover, in such an offence. It may well be in the light of the explosion of offences to which the magistrate has referred, and given the inadequate room that exists for the courts to distinguish between a street trader, a repeat offender, the large quantities, and the main operators, that the legislature would wish to give consideration to an increase in the maximum penalty. But as things are, sentencing must permit leeway for the aggravating features to which I have just referred, neither of which attach to this appellant.

9. Where the maximum is so low, that leeway will be small, but I think there must be some. I agree with counsel for the respondent that the approach cannot be mathematical. A proprietor or prime mover in such a case as this might expect the maximum as the starting point even for a first offence, but this appellant did not fall within that category. The magistrate said that he was an important link in the chain of supply of the cigarettes to others. It is not clear to me what role the magistrate quite categorized this appellant as falling within. The contention was that he was working there as an odd job casual worker and had the keys for the premises. The magistrate did not say that he disbelieved that mitigation or did not accept it. Therefore, the appellant was not to be sentenced as one acting in a prime or proprietary role. On the other hand, the fact that he had keys to these premises with a vast store of these cigarettes was hardly to be ignored.

10. In my judgment, starting points in relation to the first count of 14 months' imprisonment, and in relation to the second charge of 18 months' imprisonment, were appropriate. Giving a one-third discount for the pleas of guilty, that would result in terms of nine months and 12 months respectively. I think that 12 months was an appropriate totality of sentence after plea for these two offences. I will therefore allow the appeal to that extent, substitute for the first charge a sentence of nine months' imprisonment; a sentence of 12 months' imprisonment for the second, to run concurrently with each other, making a total of 12 months' imprisonment.