R. v. CHUI CHUN WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 909 of 1995

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J U D G M E N T

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1. This was originally an appeal against a sentence of four months for the offences of dealing with cargo with intent to export the cargo without a manifest, and making use of the altered structure of a vessel for the purposes of smuggling.

2. The facts were that Custom Officers boarded the appellant's fishing vessel in Aberdeen Typhoon Shelter, and when they searched the vessel they found a false fuel tank in which was placed 69 bags of pearls. No export or import manifest was produced. The defendant admitted that he intended to take the pearls to China. In his findings the learned Magistrate said this :

"Had the pearls simply been unmanifested, I would have considered in those circumstances that the correct sentence would have been a substantial fine of at least $25,000 and possibly as much as $50,000. I would not have considered this to be an imprisonment offence. This is because I would have been prepared to accept that this was an offence of negligence rather than design."

Earlier in his findings, the learned Magistrate had conceded that pearls did not come into any of the most serious categories of smuggled goods, or that there was any advantage in smuggling the pearls. Then the learned Magistrate went on to say this :

"But despite my feelings about the nature of the cargo, I had to accept that whatever I was told I could not expect to be aware of all matters concerning the cross border trade in pearls. To my mind the use of a secret compartment was highly significant."

3. Factors which the learned Magistrate, in my view, ought to have taken into account were that the transport of pearls to China is in no way restricted, and no duty is payable on them. The requirement therefore that a manifest be required was, in this case, a mere technicality.

4. I, therefore, felt that the sentence of four months' imprisonment imposed in relation to the first offence was manifestly excessive. I allowed the appeal against sentence so far as that charge was concerned and reduced the sentence of four months' imprisonment to a fine of $1,000.

5. So far as the second charge was concerned, I felt that the finding that the appellant had used the secret compartment for smuggling could not be sustained. By s.2 of the Import and Export Ordinance Cap.60, smuggling means :

"Importing, exporting, unshipping, shipping, landing, loading, carrying, conveying or otherwise dealing with any article contrary to the provisions of this ordinance or any other law controlling the import and export of any article."

The word "smuggling" is not being used in its ordinary sense of exporting something whose export is forbidden, or whose export is permitted only on payment of dues. The offence described in this charge was, in effect, making use of an altered tank to export cargo without a manifest. In light of my remarks earlier about the nature of the cargo in this case, I do not think this charge should have been brought. I allowed the appellant to appeal against conviction out of time, and allowed the appeal.