HKSAR v. LEUNG MAN PANG

HCMA340/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.340 OF 2002

(ON APPEAL FROM FLCC 428 OF 2002)

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

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

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

J U D G M E N T

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

1. The appellant pleaded guilty on 1 March 2002 before Mr A.B. Wahab at Fanling Magistrate's Court to a charge of possessing prohibited goods, namely, 240 carton boxes of fireworks, total gross weight 2,083.7 kg, contrary to sections 7 and 14(1) of the Dangerous Goods Ordinance, Cap.295 and was sentenced to seven days' imprisonment. He now appeals against the sentence on the ground that the sentence was manifestly excessive and/or was wrong in principle.

2. The statistics supplied to the appellant's legal representative by the Department of Justice show that in Tuen Mun Magistracy, from January 2000 to April 2002, the majority of the penalties imposed were fines except for two cases where, in one case involving 1,113 kg of fireworks, the defendant was sentenced to four weeks' imprisonment and, in another case involving 7,059 kg of fireworks, a community service order was passed. The other cases all involve quantities much less than the 2,000 kg that we have in this case except for one case where the amount was 1,436 kg and the defendant was fined $20,000.

3. Ms Chan for the respondent is certainly correct when she says that carrying such a large quantity of fireworks in a goods vehicle not equipped to carry these dangerous goods poses a real threat to society and that is for the obvious reason that if there should be a fire, these fireworks will be ignited and can cause damage to life and property.

4. However, I take into account the fact that this appellant had a clear record and he pleaded guilty to the offence. He, until the present transgression, was a law-abiding lorry driver. He has a wife and three young children, the youngest of whom was only born in April this year. He committed the present offence because he was in financial difficulties which were caused not least by the fact that at one stage he was owed $1,000,000 by some debtors but he managed with hard work and determination, to pay off his debts to the bank and presently only owes about $28,000 to the bank. Life in Hong Kong, he says, is not easy and the drivers' sector has also been affected by the economic depression.

5. The appellant obviously has the heavy responsibility of having to support his family. I think justice in this case will be done if I were to suspend the sentence of imprisonment imposed by the magistrate. So I will allow the appeal to the extent that the sentence of seven days' imprisonment imposed by the magistrate is suspended for one year but the appellant is also fined $5,000 to be taken out of his bail money.