HKSAR v. SHUM WAI HUNG

HCMA616/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.616 OF 2006

(ON APPEAL FROM FLCC 1155-6 OF 2006)

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J U D G M E N T

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1. The appellant pleaded guilty to two charges of delivered for sale of meat containing prohibited substance, namely Clenbuterol, contrary to Regulations 3A and 5 of the Harmful Substances in Food Regulations, Cap.132 (“the Regulations”).  On the 1^st charge he was sentenced to 4 weeks’imprisonment, on the second, 2 months’ imprisonment to run consecutively.  He now appeals his sentences.

2. On the first occasion, the appellant was the driver of a goods vehicle.  At the border checkpoint at Sha Tau Kok he was asked if the vehicle had any cargo, he remained silent.  Eighty-six bags of meat containing about 2,617 kg of raw skinned pork chunk and big offal were found in the vehicle compartment.  No document showing the source of the meat was produced by the appellant.  Upon analysis, it was found the meat contained Clenbuterol, a prohibited substance under the Regulations.

3. About two months later, whilst on bail, the appellant committed the 2^nd offence under similar circumstances.  On this occasion, about 4,018 kg of raw pork and offal were found in the vehicle compartment.  The meat was again found to contain Clenbuterol.

Grounds of appeal

4. The following grounds are advanced on the appellant’s behalf :

(1)     given the background of the appellant, especially in view of the fact that he had a clear record, the magistrate erred in failing to call for a background report before sentencing; thus the court was deprived of a chance to fully appraise any circumstances of the appellant which might justify a suspension of an immediate term of imprisonment should an imprisonment term be inevitable;

(2)     the magistrate erred in imposing a deterrent sentence when there was no basis or statistic suggesting prevalence of such offences; and

(3)     the sentence was manifestly excessive and/or wrong in principle.

Respondent’s reply

5. Counsel for the respondent referred this court to the case of HKSAR v. Lum Shui Kwai [2000] 2 HKC 608, where on appeal, it was said that 12 months’ imprisonment on a plea was an appropriate sentence for importing 15 tons of unmanifested pork.  In that case, there was no suggestion that the pork contain any harmful substance whilst in the present case the appellant had chosen by choice to import meat with harmful substance into Hong Kong.  Counsel for the respondent further submitted that commission of the 2^nd offence whilst on bail was clearly an aggravating feature.

6. Counsel also submitted that the magistrate had already taken into account the appellant’s clear record and that whilst the magistrate had a discretion whether to call for a background report or not in the case of a first offender, given the circumstances of the present case, especially in view of the fact that the appellant even failed to disclose fully to his own legal representative how much he would earn by these two deliveries, it would be quite futile to adjourn for any background report.  Therefore, counsel submitted, in the circumstances the total sentence were neither manifestly excessive nor wrong in principle.

My judgment

Ground 1

7. There is no obligation on the part of the magistrate to call for any background report.  At no time did the appellant’s legal representative urged the court to call for any such reports.  In fact, his legal representative told the court that the appellant refused to tell them how much he would earn out of these deliveries (Appeal Bundle p.37R).  A background report would serve no meaningful purpose for a defendant who was not even forthcoming to his own legal representative.  In HKSAR v. Pak Wan Kam [2002] 2 HKC 465, HCMA444/2001, it was held that :

“ … As the magistrate had come to the conclusion, after dealing with the matters going to the appellant’s mitigation, that he had no option but to pass immediate sentences of imprisonment on her, it would have been otiose, as well as unfair to the appellant, to call for pre-sentence reports …”

and the sending for reports would “impose an unnecessary burden on the probation service” : AG v. Kwok Yun Hung [1995] 3 HKC 555.  Ground 1 fails.

Ground 2

8. The magistrate said in his Statement of findings :

“This is the type of offence which has the potential of causing tremendous public hazards.  Harmful or poisonous substances can easily enter the diet of the innocent public through the purchase of meat from the usual retail outlets.  Surprisingly, it only carries a maximum term of 6 months imprisonment.

Worst still, each of the two incidents involved large quantity of unlicensed raw meat containing prohibited substances.  If the cases were undetected, public health and safety would be in great peril. …”

9. I have referred myself to the cases of HKSAR v. Lum Shui Kwai, HCMA970/1999 and the case of HKSAR v. Pang Kei Put, HCMA566/2003.  The first case concerned offences under the Import and Export Ordinance as well as a charge under the Public Health and Municipal Services Ordinance, Cap.132; whilst the latter case only concerned an offence under the Import and Export Ordinance.  It is worth noting that the maximum sentence under the Import and Export Ordinance is a fine of $500,000 and 2 years’ imprisonment.  An offence under the Regulations made under the Public Health and Municipal Services Ordinance attracts a maximum fine of Level 5 and 6 months’ imprisonment.

10. In Lum’s case, the appellant imported frozen pigs weighing 15 tons into Hong Kong.  The pig carcasses were simply kept in the container without any refrigerating facilities.  Nonetheless, the case was not brought on the basis that there were harmful substances.  Nguyen J said this :

“… there is the added factor which is the potential danger to the health of the community of Hong Kong if they were to consume these smuggled pigs or animals.  The only case which apparently went on appeal and involved pigs or animals was R. v. Tam Hok Ling [1988] 1 HKLR 578.  In that case, what was involved were 500 unmanifested frozen pigs, the original sentence of six months was reduced on appeal to one of three months.  That case, of course, involved a much smaller quantity of pigs and was decided in December 1987.  Since then, of course, a trend has appeared whereby frozen animals and poultry which have not undergone any medical checks have been smuggled into Hong Kong from China. …”

11. Such a view was echoed by Deputy Judge Barnes in the case of Pang, which involved 9,540 kg of unmanifested fresh pork.  In that case, the appellant was sentenced on the basis of prevalence of the offence and the magistrate accepted that the offence was committed by the appellant through lack of due diligence rather than “overt smuggling”.  Deputy Judge Barnes said :

“…The Temporary Magistrate was clearly emphasising the fact that the meat was found to be bad and unfit for human consumption. The commission of the present offence resulted in a potential risk to the health of the public.

…

… In sentencing an offender for this offence the need to protect public health and to deter such kind of offence are to be reflected in the sentence. …”

12. In that case, the appeal against sentence was allowed to the extent that the sentence was ordered to be suspended, as it was accepted that the appellant had worked as a cross-border driver for over 10 years and that was his first offence, and that he did not turn a blind eye but was inadvertent due to his illness.

13. No such mitigation as lack of due diligence existed in the present case.  If any such existed, it was never advanced.  Quite to the contrary, according to his legal representative, the appellant succumbed to the persuasions of friends to make extra money to deliver the meat through the unofficial channel.  Moreover, the 2^nd offence was a repetition of the first, and was committed whilst on bail.  A suspension of an immediate term of imprisonment is appropriate for cases where the commission of the offence could be considered as a “single fall from grace”.  The present case entails a repeated commission of the same offence, by the same modus operendi on the part of the appellant whilst on bail can in no way be viewed as an isolated incident.  The commission of a further offence on bail negatives and indeed counteracts any argument in favour of a suspended sentence and, in the present circumstances, a probation is not appropriate.

14. Given the authorities as they are, it is indeed an uphill task for counsel for the appellant to argue that the sentences in the present case were wrong in principle and/or manifestly excessive.

15. The appeal is dismissed and I affirm the sentences passed.