HKSAR v. LI XINNIAN & OTHERS

HCMA 50/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 50 OF 2004

____________

_______________

J U D G M E N T

_______________

1. The Appellants in this case, who were the 2nd, 3rd and 4th Defendants in the court below, were jointly charged with two counts of possession of dutiable goods, namely 4,700 litres and 6,800 litres of light diesel oil and each was also individually charged with the offence of breach of condition of stay, in that they took up employment by dealing with illicit fuel oil and each Defendant also faced 2 Fire Services summonses.

2. In the subject matter was a total of 11,500 litres of diesel oil. The learned Magistrate, after listening to the mitigation advanced by the duty lawyer, had sentenced each of Appellants to a total term of 17 months imprisonment for the customs case and a fine of $3,000 for each summons. The Appellant now appeals against their sentence.

3. At the hearing of the appeal, the 2nd, 3rd and 4th Defendants, that is the 3 Appellants before me, had indicated that they wish to abandon their appeal against convictions. So the appeal proceeded on their appeal against sentence.

4. Mr Tse who represents the Appellants in the appeal only represent them on their appeal against sentence in relation to the dutiable commodities charges and the Fire summonses. The Appellants appeal in person against the sentences in the breach of condition of stay charges.

5. Mr Tse in support of the appeal against sentence submitted that the learned Magistrate had erred in adopting a starting point of 12 months imprisonment in relation to the dutiable commodities charges as he had wrongly applied the case of 香港港特別行政區訴羅樹輝 ，HCMA No. 1065 of 2000.

6. In that case, Mr Pang J had said a starting of 9 months should be adopted and the Defendant in that case was not at first offender. Mr Tse submitted that for a first offender in this type of the offence, the normal starting point would be one of 6 months.

7. Upon a reading of the case of 羅樹輝 , it would appear that at page 3, Pang J said that when the court deals with offenders in this type of cases whether they be first defenders who had also pleaded guilty, they should be given immediate terms of imprisonment as a form of deterrence.

8. So what Mr Pang J said in that case was that he was not laying down a guideline for this type of offence and the 9 months starting point he adopted was basically to do with the factual situation pertaining to the case before him. Mr Pang J was merely pointing out that for this type of cases even if the offender is a first offender and had pleaded guilty, he is still to be sentenced to a term of imprisonment as a form of deterrence.

9. Mr Tse complains therefore that the learned Magistrate was wrong in his reliance on the case of 羅樹輝 as laying down the guideline that a starting point of 9 months was appropriate and the amount of oil involved in Pang J's case was 12,000 litres and in the present case before me, the total amount was 11,500 litres of illicit oil, the learned Magistrate was therefore wrong to take a starting point of 12 months on the first charge for 4,700 litres and 15 months for the second charge that is 6,800 litres.

10. I accept that in this type of cases, the general consensus in sentences would appear to be, for a first offender a starting point of 6 months. But as I have pointed out to Mr Tse, in the cases that he had referred me to, they deal with amounts which are way below those in the present offences. For example, in the case of 香港特別行政區政府訴李志强 , the amount involved were 20 litres and the learned Judge there, on appeal, confirmed the starting point of 6 months for a first offender.

11. There have been no guideline laid down for sentencing in offences of this nature and particularly for sentencing in such a large quantity of illicit oil.

12. The learned Magistrate, in assessing sentence, properly took into account the amount of illicit oil, the loss of revenue to the Government, the damage to the environment and the threat to the lives and properties of the residents who live near this illegal petrol station where fire prevention facilities are lacking.

13. Where the learned Magistrate would appear to have gone wrong was to have relied on 羅樹輝as laying down a sentencing guideline that the starting point should be one of 9 months.

14. Apart from that error in the reading of 羅樹輝 , the learned Magistrate, in my view, was entirely correct to adopt a higher starting point than has been given out in these type offences so far. There had been an increase in this type of offences as I have noted.

15. As the learned Magistrate had said he had notice a prevalence of this type offences in the areas of Yuen Long and Tuen Mun and that 9 times out of 10, these offences was committed by two way permit holders from China.

16. It is time that the court recognized that these offences are on the rise and that the sentences that have been handed out before on previous occasions had not been sufficient to in anyway stem the increase in this kind of dangerous and illicit trade.

17. A deterrent sentence is necessary in this case and in view of the fact that this was, as Mr Wong pointed out, a sophisticated operation, and the amount of illicit oil involve, I do not find that the starting point adopted by the learned Magistrate in the 1st charge of 12 months for a total of 4,700 litres to be manifestly excessive. Nor do I find that for 6,800 litres on the 2nd charge a starting point of 15 months to be manifestly excessive.

18. The learned Magistrate had properly given discounts to the Appellants for their plea and then ordered that part of the sentence in the 2nd charge run consecutively to that of the 1st charge making a total term of 13 months imprisonment.

19. I do not consider that 13 months imprisonment for 11,500 litres of illicit oil to be manifestly excessive even for first offender. Now, in relation to the Fire Services summons, Mr Tse submitted that the learned Magistrate had committed an error in principle when he fined each of the Defendants, a total of $6,000 for the two Fire summonses that each of them faced.

20. Mr Tse pointed out that during mitigation, counsel representing the Appellant had already indicated to the learned Magistrate that they would not be able to pay the fine. It is clear from the record that it was pointed out that the Appellants except for D4, could not pay, in fact, D3 only had $100 in his prisoner's property, D2 only had $500, D3 had $3,000.

21. The learned Magistrate in spite of that went on to fine each of them $6,000 and in default to terms of imprisonment of 14 days to 1 month.

22. Mr Tse had referred to the case of Ki Chor On v Sleg., HCMA No. 836 - 843 of 1996, where Yeung J, as he then was, said this:

"Further, it is well established that the fine imposed by the courts must be within the ability of the defendant to pay, and must not have a crippling effect on the financial situation of an offender."

and I adopt the words of Yeung J.

23. It is clear that in this case, the learned Magistrate having been made aware of the financial circumstances of the Appellant still proceeded to fine them was indeed an error in principle. I am aware as Mr Wong pointed out that the maximum sentence in case of this nature is one of 6 months' imprisonment and a fine of $25,000, but having taken into account the financial situation of each of the Appellant, it was wrong for the learned Magistrate imposed a fine. So in relation to the Fire Services summons, the appeal against sentence is therefore allowed. The fines are set aside and each of the Appellants are sentenced to 1 month's imprisonment and those will be served concurrently with the sentences they are serving in relation to the dutiable commodities.

24. Finally, the Appellant appeals in person against sentences in relation to the breach of condition of stay. The grounds of their appeal is basically that their pleas for lenience and that they were first time offenders and had pleaded guilty.

25. It has ready be laid down and said many times by the Court of Appeal that if visitors to Hong Kong abuse their position as visitors and take part in illegal employment should be given deterrent sentences.

26. I do not consider that the sentences that the learned Magistrate had imposed on each of the Appellant were in anyway manifestly excessive in the circumstances. So the appeal against sentence in relation to the breach of condition of stay charges and the dutiable commodities charges are dismissed. The appeal against sentence in relation to the Fire summonses are allowed and the appeals against conviction, because of the abandonment by all the Appellants, are dismissed.