HKSAR v. WONG AH CHEUNG AND ANOTHER

HCMA 1175/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1175 OF 1998

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against sentence. On 6th November 1998 the 1st and the 2nd appellants were convicted upon their own pleas in the Magistrates Court in Tuen Mun of an offence of "assisting with the carrying of cargo with intent to assist another person to export the cargo without a manifest" contrary to section 18A(1)(b) of the Import and Export Ordinance (Cap. 60).

2. The 1st appellant was sentenced to a term of 12 months' imprisonment and the 2nd appellant to a term of 8 months' imprisonment. The offence was committed on 9th March 1998 and upon their pleas of guilty on 23rd October the learned Magistrate remanded both appellants in custody until 6th November and called for background reports. He had those reports and some prosecution statistics (which he had requested) before him when he sentenced the appellants.

3. Inter alia in his Reasons for Sentence the learned Magistrate recited the admitted facts that the appellants had been intercepted by the marine police whilst on board a fishing vessel and a search of that vessel revealed 140,000 video compact discs worth $4.2 million. [I should just say here that it would appear that a value of $30.00 had been placed on each disc and multiplied by the number of those discs. It is not at all clear whether that value is a retail or wholesale value - or indeed precisely what it represents].

4. The learned Magistrate went on to say this:-

"D1 was the master of the vessel and he revealed under caution that for a reward $3,500.00 he was to deliver the discs to a 3rd party off Tai O. D2 was employed by D1 and would be given $200.00 as a reward for each shipment. D1 admitted two previous related convictions when he had been fined whilst D2 had a clear record.

Both defendants had a fishing background and a large family consisting of a wife and 4 children. In mitigation I was asked to consider a suspended sentence or to be as lenient as possible."

5. The learned Magistrate then turned his attention to the statistics which had been provided to him and which showed that between September 1997 and August 1998 there has been 7 successful prosecutions in Hong Kong for the analogous offence of importing/exporting unmanifested cargo in the form of compact discs. In all but 2 of those cases immediate custodial sentences of between 4 months to 2 years had been imposed. [I was told upon enquiry at the hearing of this appeal that in all but two of those cases (in one of which a fine was imposed and in the other the maximum 2 year term of imprisonment) the defendants had pleaded guilty.] Also in his Reasons for Sentence the learned Magistrate referred to the fact that the maximum sentence for this offence was one of 2 years' imprisonment and a fine of $500,000.00. He added that that increase in penalty reflected "the legislature's concern with the prevalence of the offence".

6. Before coming to the grounds of appeal Mr. McGowan on behalf of the appellants told me - and this fact was clearly not before the learned Magistrate - that subsequent to the conviction the vessel (which belonged to the 1st appellant) had been forfeited so that his means of livelihood as a fisherman had now been taken away. That factor also had some bearing on the 2nd appellant who was employed by the 1st appellant. It goes of course without saying that the video compact discs were also forfeited but it is well settled that that fact avails the appellants nothing in mitigation.

7. The grounds of appeal advanced on behalf of the appellants are as follows:-

1. The sentences imposed were manifestly in excess of the current tariff;

2. The Magistrate erred in passing what amounted to a deterrent sentence when there was no evidence that such offences were prevalent and;

3. The sentences were thus wrong in principle and/or manifestly excessive.

8. In his argument in support of those grounds before me Mr. McGowan submitted, inter alia, that offences of this nature involving a cargo of video compact discs are plainly (on the statistics) not prevalent and therefore demanding of a deterrent sentence; that based upon the statistics provided to the learned Magistrate, at his request, the sentence which the appellants might have expected would have been about 6 months' imprisonment; and that the learned Magistrate failed in effect to have due regard to the circumstances of the offenders in imposing the sentences that he did impose.

9. In my judgment those arguments have considerable force. The sentences which were imposed in this case were, if I may put it this way, clearly well above the norm-albeit that, that 'norm' cannot properly be described as a 'tarrif' sentence. The starting point in sentence adopted of 18 months' imprisonment was a high one given the maximum sentence of 2 years. Neither appellant has previously served a prison sentence; indeed the 2nd appellant has not previously offended. The background reports before the learned Magistrate were positive and stressed the hardship that would inevitably be suffered by the families of the appellants in the event that they should be sent to prison. The rewards to be given to the appellants for this illegal enterprise were exceedingly modest and (certainly following their initial remand in custody) both appellants were full of remorse. Finally the vessel in the which the offence was committed was confiscated and, albeit that that fact was not before the learned Magistrate, it seems to me that it is a fact relevant to my consideration of the sentences imposed and the appeal against them.

10. For all of these reasons it is my view that the sentences imposed upon these two appellants were, in all the circumstances, manifestly excessive, and in so far as they were intended as deterrent sentences, wrong in principle.

11. The appropriate sentences for this offence and for these appellants giving them full credit for their pleas of guilty were 6 months' imprisonment for the 1st appellant and 4 months' imprisonment for the 2nd appellant, and their appeals against sentence are allowed to that extent.