HKSAR v. SHALIM

HCMA 355/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 355 OF 2016

(ON APPEAL FROM TWCC 1296 OF 2016)

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J U D G M E N T

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1. On 15 June 2016, the appellant pleaded guilty to one count of “Possession of Dutiable Goods”, contrary to section 17(6) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap 109 (“the 1^st Charge”) and one count of “Failing to declare to a member of the Customs and Excise Service in uniform”, contrary to section 34A(3) as read with section 34A(2) and section 46(3) of the Dutiable Commodities Ordinance, Cap 109. (“the 2^nd Charge”).

2. The appellant was fined $82,000 on the 1^st Charge.  By virtue of section 68 of the Magistrates Ordinance, Cap 227, the Acting Principal Magistrate[1] imposed a term of 7 months’ imprisonment, in the event of default of payment of the fine.  He was fined $1,000 on the 2^nd charge.

3. He appeals against the sentence in respect of the 1^st charge.

Facts

4. The defendant arrived in Hong Kong on 14 June 2016 from Kolkata, India via Bangkok, Thailand.  At about 12:50 pm that day, an officer of the Customs & Excise Department intercepted the defendant at the Green Channel, Customs Arrival Hall B, Passenger Terminal One, Hong Kong International Airport. Upon examination on the 7 pieces of baggage the defendant was carrying, a total of 40,981 “sticks of cigarette” (cigarettes) in excess of the defendant’s duty free concession were found.  

5. The total value of the subject cigarettes was HK$112,697.75 and the duty potential was HK$78,109.79.

6. Under caution, the defendant admitted that:

(i) he owned the 40,981 “sticks of cigarettes”;

(ii) he obtained the cigarettes in Bangkok;

(iii) his friend asked him to bring the cigarettes to Hong Kong;

(iv) he did not have local contact of his friend;

(v) he did not know whether the cigarettes were duty-paid or not; and

(vi) he would not be rewarded afterwards.

Mitigation

7. The appellant’s counsel advanced the following in mitigation.  The appellant was 41 years old, married and lived with his wife in India.  He ran an electrical appliances shop in India, and came to Hong Kong on a business trip. He was due to return to India that evening at 8 pm.  He was of clear record, he committed the offences out of his ignorance of the law. 

The magistrate’s approach to sentence

8. Whilst mitigating the appellant’s counsel informed the magistrate that the appellant was returning to India that evening.  The following exchange took place :-

“Miss YAP:……..

It’s my instruction that he has a return flight to India tonight at 8-something. He wish to go back to his hometown.

COURT: That is possible if he’s able to pay the fine, ...

MISS YAP: I understand.

COURT: ... which is going to be heavy.

MISS YAP: Yes, we have explained the same to them.

COURT: I am considering imposing a fine but it’s going to be heavy.

MISS YAP: It’s my instruction that he is able to put up HK$10,000 today ...

COURT: It’s going to be eight-fold.

MISS YAP:  We have explained the same to him already.”

9. The magistrate then imposed a fine of $82,000 and in default 7 months’ imprisonment.

10. In the magistrate’s reasons for sentence[2] he referred to HKSAR v Tran Van Ha HCMA1000 of 2002 and 香港特別行政區訴葉亮森 HCMA481 of 2010 and noted that the court had imposed immediate sentences of imprisonment for the same offence but of differing quantities of cigarettes. 

11. The magistrate took into account the quantity of 40,981 cigarettes involved in the present case.  He also considered there to be an international element as the appellant had imported the cigarettes from overseas.  He did not consider the appellant to be a mere street vendor but also did not categorize him as playing a sophisticated role.  In light of these factors he said a starting point of 10 ½ months’ imprisonment would have been appropriate had he imposed a custodial sentence. 

12. In sentencing the appellant to a fine instead of an immediate custodial sentence, he took into account the appellant’s clear record, his plea of guilty and his scheduled to return to India later that evening.  The amount of the fine was based on the duty potential which was avoided of $78,109.79.  He therefore applied the rate of approximately $2 per cigarette and arriving at the fine of $82,000.

13. By virtue of section 68 of the Magistrates Ordinance, Cap.227, Laws of Hong Kong, he also ordered that 7 months’ imprisonment in lieu be imposed in the event of default of payment of the fine.  In his reasons for sentence he stated : -

“that was also in line with the imprisonment term I would have imposed as stated in paragraph 11 above (the 10 ½ months’ imprisonment.”

Grounds of appeal

14. The appellant did not pay the fine imposed.  He commenced serving the 7 months imprisonment from the date of sentence.  In the “Notice of appeal to a judge against sentence,” the appellant complained that the sentence of the 1^st Charge was too severe.  In his home made grounds of appeal he asserts that his business has been badly affected since his incarceration and requests that he be released so he can go home to take care of his business. 

15. In his oral submissions to the court the appellant stated he did and does not have the capacity to pay the fine.  At the time of his appearance before the magistrate his friends had promised to pay up to HK$10,000 but reneged on their agreement.

Discussion

16. The issue on this appeal is whether the sentence imposed of a fine $82,000 and 7 months imprisonment is manifestly excessive or wrong in principle.  There is no sentencing tariff for the present offence.  The maximum penalty for this offence is a term of 2 years’ imprisonment and a fine of $1,000,000.

17. Mr Vincent Lee Public Prosecutor very helpfully referred to the following cases and the sentences passed.  I have adopted the table as set out by Mr Lee below.  He accepts that the usual sentence on the facts of this case is an immediate custodial sentence.

	Cases	No. of cigarettes	Sentence (Starting-point)
1.	HKSAR v MOK Chun-wing (HCMA 727/2000)	124,400 572,160	14 Months 18 months
2.	HKSAR v. TRAN Van Ha (HCMA 1000/2002)	21,420	No more than 10 months (after taking into the account “the relatively sophisticated role of the appellant”, but before considering aggravating factors – prevalence of the offence and persistent offender, Para 18 & 20)
3.	HKSAR v MA Wai-fui (HCMA 1123/2003)	10,000 418,200	3 months 18 months
4.	HKSAR v TANG Kam-wai (HCMA 368/2004)	2,095,760	21 months
5.	HKSAR v CHEN Zhi-quan (HCMA 1003/2004)	580,420	18 months
6.	HKSAR v LI Chih-hui (CACC 189/2008)	33,000	9 months
7.	HKSAR v WAN Chi-kau (HCMA 234/2009)	164,200	15 months (*the appellant was a persistent offender )
8.	HKSAR v KWOK Sau-chun (HCMA 543/2010)	1,400 59,800	6 weeks 9 months (*the appellant had 4 previous similar CRO)

18. Generally, the factors to be considered are the number of cigarettes, the defendant’s role in the operation and whether there are previous similar criminal records. 

19. The magistrate made reference to HKSAR v Tran Van Ha (supra) where the appellant had possession of 21,420 cigarettes but was “at a higher level in the distribution of the cigarettes than a mere street vendor.”  Deputy High Court Judge McMahon (as he then was) concluded that a starting point of “no more than 10 months’ imprisonment” would have been appropriate after trial. 

20. The magistrate also referred to香港特別行政區訴葉亮森 HCMA481 of 2010 where the appellant was convicted upon his own plea of dealing with 13,260 cigarettes.  The appellant’s role was a courier tasked to deliver the cigarettes to an apartment in a building.  He had 4 previous convictions but none similar.  The court considered a starting point of 6 months’ imprisonment not manifestly excessive or wrong in principle.

21. The magistrate observed that in this case 40,981 cigarettes were involved.  An international element was present as the appellant had imported the cigarettes from abroad.  He said a starting point of 10 ½ months’ imprisonment would have been appropriate had he imposed a custodial sentence.  The magistrate despite considering a sentence of imprisonment was appropriate went on however to impose a fine instead. 

The magistrate said[3]:-

“10. ……Whilst I gave him the benefit of the doubt and would not categorize the defendant as playing a sophisticated role in the distribution of cigarettes, he was definitely not a mere street vendor. But for the defendant’s participation, the subject cigarettes would not have appeared in Hong Kong.

11. In light of the above, a starting point of 10½ months imprisonment would have been appropriate if I had imposed a custodial sentence…

12…….I was prepared to impose a heavy fine instead of a custodial sentence. Taking into account the defendant’s guilty plea, I applied the rate of approximately HK$2 for one stick of cigarette and imposed a fine of HK$82,000 for Charge 1.”

22. Having regard to the total number of 40,981 cigarettes coupled with the international element there was a proper basis for the magistrate to consider an immediate custodial sentence, record see HKKSAR v Li Chih-hui CACC189/2008. In Li the appellant pleaded guilty to two charges.  The first was assisting the passage to Hong Kong of unauthorized entrants and the other to possession of dutiable commodities.  The appellant was the coxswain of a vessel which entered Hong Kong with three unauthorized Vietnamese entrants.  On the approach of police launches he was seen to throw something into the sea from his vessel. The items were then recovered from the sea.  They were bags which contained 33,000 cigarettes with a dutiable value of $26,532.  The Court of Appeal was satisfied that the judge in adopting a starting point of 9 months could not be criticised for the offence of possession of dutiable commodities. 

23. In this case the magistrate’s initial approach of an immediate custodial sentence cannot be criticized and in my view was correct.  It is difficult to comprehend other than the fact that the appellant was returning to India and acceding to the acknowledgement of the defence counsel, why the magistrate imposed a fine instead of a custodial sentence.  It is wrong in principle to sentence an offender to a fine instead of a term of imprisonment if a term of imprisonment is appropriate.  The impression given is that there is one law for the rich who can afford to pay and one law for the poor who cannot.  However as can be seen in the instant case the appellant did not even fall into the category of the rich as he did and does not have the capacity to pay. 

24. As is stated in I.G. Cross and Patrick Cheung, Sentencing in Hong Kong 6^th ed. P 270 :-

“If a fine is under consideration, the court should consider equality before the law. An offender with means is not to be fined rather than imprisoned simply because of his capacity. The principle is that those with financial resources must not be given the “opportunity of buying themselves out of prison’ R v Markwich (1953) 37 Cr App R 125,126. Sentences of imprisonment are not to be suspended on the basis that the accused can pay a substantial fine. R v Sisodia (1979) 1 Cr App R (S) 291,292…In Attorney General v Ki Hon and Another [1988] 2 HKLR 220,225 Cons VP said:

If for some reason a judge thinks it appropriate to impose a fine in addition for example to compensate for the cost and damage which the corruption has inflicted on society generally- that should not go to reduce what is otherwise an appropriate term of imprisonment.  And to reduce the term merely because the offender has ample means at his disposal would only encourage the view that there is a different law for the rich”

25. The magistrate was correct that a custodial sentence was appropriate therefore consideration of a fine instead of that was erroneous.  The appellant was aware he was importing 40,981 cigarettes from Bangkok to Hong Kong of which the total value was about $112,697.75.  Having regard to the above cases I consider a sentence of 6 months’ imprisonment to be an appropriate starting point.  The appellant pleaded guilty therefore a discount of 1/3 results in a term of 4 months’ imprisonment. 

26. Given that an immediate custodial sentence was appropriate, I am satisfied that the fine imposed by the magistrate was wrong in principle.  The appeal against sentence is allowed to the extent that the fine of $82,000 in default 7 months’ imprisonment is set aside and be replaced with a term of 4 months’ imprisonment.