HKSAR v. PANG KEI PUT

HCMA 566/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 566 OF 2003

(ON APPEAL FROM STCC 654/2003)

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J U D G M E N T

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Introduction

1. On 26 May 2003, the Appellant pleaded guilty before a Temporary Magistrate at Shatin Magistracy on one count of Importing an unmanifested cargo, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap. 60. The Appellant was sentenced to 4 months imprisonment. The Appellant now appeals against his sentence.

Facts admitted

2. On 6 May 2003, the Appellant drove his container truck (installed with refrigeration device) to the Import Cargo Control Point at Man Kam To. He presented a set of manifest, declaring 400 cartons of sliced frozen pork to a customs officer (PW1). PW1 examined the cargo contained in the container truck in the presence of the Appellant. As a result, a number of cartons of fresh pork were found. The Appellant was arrested and cautioned. A number count of the cargo confirmed 605 cartons (12,740 kg) of pork on board the Appellant's container truck. Among those, 128 cartons (3,200 kg) were frozen pork covered by a manifest and an official certificate, 205 cartons (4,100 kg) were unmanifested fresh pork and another 272 cartons (5,440 kg) of fresh pork. The fresh pork was not covered by a valid official certificate.

3. The Appellant admitted under caution that he witnessed the loading of goods but he did not count the number of cartons loaded on his container truck. He further admitted he did not have a manifest to cover the fresh pork.

4. Two officers (PW5 and PW6) from the Food and Environmental Hygiene Department (FEHD) inspected the fresh pork. They confirmed the meat had turned bad and emanating unpleasant smell. They were unfit for human consumption. The Appellant further admitted under caution that he could not produce an official certificate to cover the fresh pork. The Appellant later, with the consent of the goods owner, surrendered the fresh pork (total 9,540 kg) to the FEHD for disposal.

Grounds of Appeal

5. Mr Christopher Grounds, counsel for the Appellant relies on three major grounds of appeal against sentence. They are, in brief:

(a) In view of the Appellant's antecedents and the circumstances of the case, the Temporary Magistrate wrongly imposed a sentence of 4 months imprisonment and/or not to suspend it.

(b) The Temporary Magistrate failed to give sufficient weight to the Appellant's antecedents and the circumstances of this case in passing a sentence of general deterrence; and

(c) The Temporary Magistrate failed to consider the possibility of imposing a Community Service Order.

6. Mr Grounds submitted that in the circumstances of this case it was wrong to impose a sentence of 4 months imprisonment and/or not to suspend it. In particular when the Temporary Magistrate failed to give sufficient weight to the following factors:

(a) the Appellant was a man aged 46 who had worked hard all his life, nearly every day of the month to support his family;

(b) the Appellant is the sole bread-winner of a family of 7;

(c) the Temporary Magistrate treated the Appellant as of clear record;

(d) the Temporary Magistrate accepted that at the time of the offence the Appellant was unwell and that the Appellant did not "count the cargo" or "check the cargo thoroughly" (note the Import Manifest (Ex. P1) related to 400 cartons with a net weight of 10,000 kgs and also there was an official certificate or veterinary (Health) certificate in respect thereof relating to 400 cartons and 10,000 kgs);

(e) the Appellant was driving a refrigerated vehicle;

(f) photographs taken (Ex. 5) show that the meat was in sealed cartons and not in open display or carcass form which explains why it was the officer of FEHD who found that the meat not fit for consumption;

(g) the Temporary Magistrate accepted that the Appellant did not obtain any pecuniary advantage other than his normal wages in respect of this matter;

(h) as a result of the incident the Appellant's relationship with his employer deteriorated and the employer assigned less work to the Appellant though this matter was not considered for sentencing purposes

(i) the offence was committed from inadvertence, namely lack of due diligence caused and aggravated by illness rather than intentional or deliberate disobedience of the law coupled with knowledge that the meat on board was unfit for consumption.

7. Mr Grounds also complained that the Temporary Magistrate has wrongly stated in his reasons given on the day the Appellant was sentenced (26 May 2003) that it was the Customs who had viewed the pork and "found that (it) had turned bad, gave unpleasant smell, not fit for human consumption" whereas it was the FEHD Inspector (PW5) who discovered this matter. The Temporary Magistrate may have wrongly apprehended that the Appellant's culpability was more serious than it truly was on the day he was sentenced. The Temporary Magistrate may have as a result of such misapprehension imposed a sentence of general deterrence or failed to suspend the sentence.

8. Mr Grounds also complained that the Temporary Magistrate wrongly speculated or concluded that the bad meat "would have gone to the market and caused serious damages to public health and hygiene" rather than considered and evaluated that that was a prospect rather than a certainty; and thereby wrongly enhanced the Appellant's culpability.

9. Mr Grounds referred to the authorities of Tam Hok Ling [1988] 1 HKLR 578 and Lum Shui Kwai HCMA 970 of 1999 to show that the circumstances in these 2 cases were much more serious. The defendants therein were committing acts of 'overt smuggling', whereas the Appellant here has committed the offence through inadvertence. Further, the 'meat' concerned in these 2 cases were not concealed and placed in refrigeration as in the present case. Mr Grounds submitted that in the circumstances the Appellant should not receive a sentence longer than that received by the defendant in Tam Hok Ling, an authority not placed before the Temporary Magistrate at the time. Mr Grounds submitted that the Court should consider either a suspended sentence or a Community Service Order, relying on the case of Lee Hong Yung, HCMA 69 of 2000.

Respondent's response

10. Ms Agnes Chan, Government Counsel for the Respondent, referred to the Reasons for Sentence (which was prepared in Chinese as the hearing was conducted in Cantonese at the Magistracy) and submitted that the Temporary Magistrate treated the Appellant as a person of clear record despite he had one previous conviction 20 years ago.

11. Ms Chan submitted that the Temporary Magistrate bore in mind the Appellant's mitigation, in particular that he was not feeling well at the material time and he did not count/check the goods carefully. Furthermore, the Appellant did not get any pecuniary advantage, save for his nominal wage. However, the Temporary Magistrate considered the Appellant being a cross-border driver for over 10 years should know the importance and the requirement to make the necessary declaration to Customs Officers. The Appellant must also know that the goods he conveyed was meat that would be used for human consumption, one way or the other, at the end of the day.

12. The Temporary Magistrate also referred to some statistics provided by FEHD which was admitted by the Appellant. The Temporary Magistrate observed that 'meat smuggling' flourished tremendously in recent years. Despite the Appellant did not know the pork has turned bad, the Temporary Magistrate considered a deterrent sentence was called for.

13. In considering an appropriate term of imprisonment, the Temporary Magistrate declined to follow the sentence in Lum Shui Kwai. Instead, bearing in mind the features of this case, the Temporary Magistrate adopted a much lesser starting point of 6 months imprisonment. The usual one-third discount was given for the Appellant's guilty plea. Furthermore, in view of public health and social interest, the Temporary Magistrate considered an immediate term of imprisonment is necessary.

14. Ms Chan submitted that in the two cases cited by the Appellant, i.e. Tam Hok Ling and Lum Shui Kwai, the court in both instance recognized the potential danger to public health in increasing numbers of smuggled animals into Hong Kong from the Mainland.

15. She submitted that where the prevalence of the offence is such that the main sentence element is to be deterrence, individual's interests subsume in those of the community. The Temporary Magistrate had carefully considered the circumstances of the case, as well as mitigation put forward on behalf of the Appellant before he decided to pass an immediate term of 4 months imprisonment.

16. As to the issue regarding Community Service Order, Ms Chan submitted that in Lee Hong Yung, the court refers to HKSAR v. Chow Chak Man & another [1999] 2 HKC 659 where a Community Service Order was imposed on a burglar. In subsequent cases, the Court of Appeal considered Chow Chak Man an exceptional case. It would only be in a most exceptional case that it would be appropriate to impose a Community Service Order for the offence of burglary: HKSAR v. Wong Yiu Kuen [2001] 1 HKC 486 at 491 and 492 and HKSAR v. Po Yan Chuen [2002] 2 HKC 172, at 174.

17. Furthermore, Ms Chan submitted in Lee Hong Yung, the court finally agreed to consider a community service order when accepting the case has a domestic nature, where the element if public deterrence is less wanting.

18. Ms Chan submitted that the offence here is serious and prevalence. No exceptional circumstances arise from the facts or the Appellant's background. The Temporary Magistrate is correct in passing the sentence where general deterrence is called for.

Decision

19. It is true that the Temporary Magistrate, when giving his oral decision, wrongly stated that it was the Customs Officers who had found the meat bad, smelly and unfit for human consumption when it was the officers of FEHD who did so. However, I do not see how it could be argued that the Temporary Magistrate had wrongly apprehended the Appellant's culpability. The Magistrate clearly accepted that the Appellant committed the offence as a result of feeling unwell and did not exercise due diligence in checking the goods. Whether the meat was found to be bad by the time the Customs officer did the inspection or at a later time by the EFHD is immaterial. 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.

20. In the case of Lum Shui Kwai, Nguyen J referred to such potential risk. He said in the judgment:

"The potential danger to public health, in my judgment, is immense. There is no way of knowing how these smuggled animals might reach the markets. Or might be sold to restaurants, which would result in unknowing customers to consuming them, thereby possibly suffering damage to their health."

21. I agree entirely with the learned Judge's views.

22. The Magistrate has expressly not followed Lum Shui Kwai as the circumstances of the offence in that case was quite different from the present one.

23. Mr Grounds submitted that the case of Tam Hok Ling was not cited to the Temporary Magistrate and complained that the Appellant was sentenced to a longer sentence than that received by a defendant in Tam Hok Ling, who was an 'overt smuggler'.

24. I wish to point out in Lum Shui Kwai, Nguyen J has expressly referred to the case of Tam Hok Ling. Tam Hok Ling was the first case of this kind to be before the court and Bewley J dealt with the case in 1987. Although in those days the learned Judge was of the view that 6 months imprisonment for the offence of Importing unmanifested goods (the same offence faced by the Appellant) was too harsh and reduced it to one of 3 months, in my view, that is not an authority to say that the sentence imposed in this case is manifestly excessive.

25. In Lum Shui Kwai, having referred to Tam Hok Ling, Nguyen J held that a term of 12 months was not excessive for this offence as far as an 'overt smuggler' is concerned. The Appellant is not an 'overt smuggler' and the Temporary Magistrate has clearly made the distinction.

26. There was evidence before the Temporary Magistrate, conceded by the Appellant's legal representative at the time, that such offences were prevalent. 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. I do not see how the Magistrate can be criticized for adopting a starting point of 6 months in this case, particularly when the meat involved was of a large quantity.

27. As far as the Community Service Order is concerned, I agree with the submission of Ms Chan. The Temporary Magistrate could not be faulted for not considering a Community Service Order.

28. This is clearly a case of meat-smuggling. The difference in this case is that the Appellant was not the owner of the meat and was not overtly smuggling. In my view, whether the offence was committed by an overt smuggler or not, the potential risk to public health remains the same.

29. Was the Magistrate wrong in not suspending the sentence? A suspended sentence would have a deterrent effect on the individual but would not be effective as a general deterrence to others. I would have thought generally speaking a suspended sentence would not be adequate.

30. In the present case, however the Temporary Magistrate accepted that the Appellant had worked as a cross-border driver for over 10 years and this is the first time he committed the offence. The Appellant did not turn a blind eye but was feeling unwell and relied too heavily on the documentation supplied by others. This, in my view, is a very strong mitigating factor. Under the circumstances the Magistrate should have ordered the sentence to be suspended.

31. For these reasons, I allow the appeal to the extent that the sentence of 4 months is to be suspended for a period of 2 years.