HKSAR v. TRAN VAN HA

HCMA1000/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1000 OF 2002

(ON APPEAL FROM ESCC 2619 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of two offences of dealing with cigarettes (being the subject of charges 2 and 4) and one offence of possession of cigarettes (being the subject of charge 3) contrary to the provisions of section 17(1) of the Dutiable Commodities Ordinance ("the Ordinance"), Cap.109.

3. In respect of the offences the subject of the 2nd and 4th charges, involving quantities of some 400 and 4,800 cigarettes respectively, the magistrate imposed in respect of each offence sentences of four months' imprisonment.

4. So far as the offence the subject of the 3rd charge was concerned involving some 21,420 cigarettes, the magistrate imposed a sentence of 18 months' imprisonment. He ordered all sentences to run concurrently. That was a totality of sentence of 18 months' imprisonment.

5. The facts of the offences involved the appellant operating out of a room in a building in Chai Wan. He would provide the cigarettes to other persons who came to that room including the 1st charged quantity of 420 cigarettes and they in turn would sub-distribute those cigarettes to others, presumably the street vendors. In that room from which the appellant operated was found the larger quantity of 21,420 cigarettes, the subject of the 3rd charged offence. When the appellant was arrested he was found to have keys to other premises where the quantity of 4,800 cigarettes was found, which are the subject of the 4th charged offence.

6. As the magistrate said in his reasons for sentence, the sentence of 18 months' imprisonment imposed by him in respect of the 3rd charged offence, after mitigation, reflected a notional starting point of sentence of two years' imprisonment, which is the maximum penalty allowed under the Ordinance. In that regard, he said :

"The Defendant had demonstrated, by his persistent offending, a complete disregard for the law. I took the view that only a sentence close to the maximum would be likely to come close to having a deterrent effect on the Defendant."

7. Miss Lee for the appellant appeals only that sentence of 18 months' imprisonment imposed in respect of the 3rd charged offence. She does not contend the sentences imposed in respect of the other offences are excessive.

8. The reason given by the learned magistrate for imposing a sentence of this level in respect of the 3rd charged offence was that of the prevalence of the offence and of the appellant's persistent offending.

9. That the appellant is a persistent offender there can be no doubt. Between 1993 and the present, he has been convicted of offences contrary to section 17 of the Ordinance on no fewer than 15 occasions. He has over those occasions been subjected to penalties ranging through fines and DATC orders to a maximum of six months' imprisonment.

10. As the magistrate remarked, the appellant has not been deterred by the level of penalties imposed in respect of his past offending. Accordingly, as a matter of principle, the magistrate was entitled to impose an enhanced sentence, on the basis of the appellant's persistent offending being an aggravating factor : HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830.

11. He was also entitled to take into account as a further aggravating factor, as he did, the prevalence of this category of offence : Attorney General v. Jim Cheong Shing (1990) 1 HKLR 131.

12. All this is accepted by Miss Lee for the appellant. What she complains about is simply the degree of enhancement of the sentence imposed by the magistrate. She says he was wrong to take as his starting point of sentence, so far as the 3rd charged offence is concerned, the maximum term of imprisonment allowed under the Ordinance for an offence contrary to section 17(1).

13. The quantity of dutiable cigarettes involved in that 3rd charged offence was certainly high, some 21,420, but it by no means approaches the maximum quantities of such items which have come on occasion before the court or which can be realistically envisaged as being involved in this category of offence. In other words, the facts the subject of the 3rd charged offence fall a long way short of the worst case to which the provisions of section 17(1) could apply and has applied.

14. The principle that the statutory maximum sentence should be reserved for the worst realistically envisagable case of its kind is one of the oldest established principles of sentencing : R. v. Harrison [1909] 2 Cr. App. R. 94. Though it is true that sentencing courts should not conjure up unlikely worst possible case scenarios in applying this principle, but should consider the principle from the perspective of the worst type of case which could realistically come before the courts: R. v. Ambler [1976] Crim. LR 266 at p.267.

15. It is also true that when the maximum statutory sentence is low, that it will more readily be that the facts of a particularly bad case are regarded as warranting the maximum statutory sentence. But in my view the facts of the present case still do not warrant the application of the maximum penalty.

16. Some differentiation must exist in culpability, and be able to be reflected in sentencing levels, between the facts of the present charged offence and the facts of e.g. HKSAR v. Tang Wai Chung, HCMA 337 of 1998, where 2.65 million cigarettes were involved.

17. Further in HKSAR v. Mok Chun Wing, HCMA 727 of 2000, where some 570,000 cigarettes were the subject of one charge pursuant to the provisions of section 17(1) of the Ordinance and where the maximum starting point of 24 months' imprisonment was taken by the sentencing magistrate on appeal, Stock JA sitting as an additional judge of the Court of the First Instance, reduced the appellant's sentence to 12 months' imprisonment and said that a more appropriate starting point of sentence would have been 18 months' imprisonment so as to allow some leeway for even worse offences.

18. In the present case, in respect of the 3rd charged offence, without any aggravating factors and in the event of a term of imprisonment being appropriate, given the quantity of cigarettes and relatively sophisticated role of the appellant he being certainly someone at a higher level in the distribution of the cigarettes than a mere street vendor a starting point of sentence of no more than ten months' imprisonment would, in my view, have been appropriate.

19. By taking as a starting point, the maximum sentence of 24 months' imprisonment in respect of that 3rd charged offence, the magistrate had enhanced the otherwise appropriate starting point of sentence by something well over 100%.

20. I agree with Miss Lee that even given the two aggravating factors of a continuing prevalence of the offence and the appellant's extreme persistence in offending, such an enhancement is too great. In my view an appropriate level of enhancement, given these two factors, would have been to increase the starting point of sentence to no more than 15 months' imprisonment. Allowing an appropriate discount for the appellant's plea of guilty that would reduce his sentence to one of ten months' imprisonment and I accordingly order that the appellant's sentence in respect of the 3rd charged offence be set aside and be substituted by a sentence of ten months' imprisonment.

21. In considering the totality of sentence, as the magistrate found in this case, given the nexus of the offences and the totality of cigarettes involved, concurrent sentences were required. Accordingly that is a totality of sentence of ten months' imprisonment.

22. Finally, one must have considerable sympathy for magistrates who are confronted with the situation of offences such as the present becoming increasingly prevalent in their areas and the levels of sentence able to be imposed by them being insufficient to deter persistent offenders. It may be time for those responsible for the penalties contained within this legislation to review the maximum level of sentence and fine allowable under Schedule 2 and section 46 of the Ordinance so far as section 17(1) offences are concerned. I note that a similar suggestion was made by Stock JA in HKSAR v. Mok Chun Wing.