HKSAR v. ABEYSINGHE APPUHAMYLAGE ANTON JAGATH PRASANNA

HCMA 743/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 743 OF 2002

(ON APPEAL FROM TMCC 1483/2002)

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J U D G M E N T

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1. The form of conviction, required by sec. 28 of the Magistrates Ordinance, Cap. 227, contained in the Appeal Bundle is wrong. It sets out the terms of Charge 1, not Charge 2. The parties accept that to be an error which need not delay the disposal of this appeal.

2. The Appellant was convicted, on his own pleas, at Tuen Mun Magistracy of two charges under sec 17(1) of the Dutiable Commodities Ordinance, Cap. 109.

3. The second alleged that "he had in [his] possession" 200 litres of motor spirit, 1500 litres of marked oil and 400 litres of light diesel oil: he was sentenced to 8 months imprisonment after receiving the usual one-third discount. He appeals this sentence.

4. The sentences were ordered to be served concurrently with one another as well as with sentences imposed in respect of other matters.

5. The facts upon which the convictions were based establish that Customs officers entered a car park in Tuen Mun: they found the Appellant in the process of delivering what turned out to be some 30 litres of motor spirit into the fuel tank of a private motor car: this was done using an electric pump with a rubber hose connected to a plastic tank: that tank contained the further 200 litres of motor spirit: three other plastic tanks were found to contain the other fluids in the charge.

6. The Magistrate described this scene, rightly in my view, as "an illicit filling station ...in full operation" and records, as he is entitled to do, that the offence is a prevalent one within the area of jurisdiction of that magistracy.

7. The Appellant is a visitor to Hong Kong from Sri Lanka. He had no previous criminal convictions here. He says that he had been employed on the day of the offence, at a wage of $200.00 for the day, to "help out" in the premises. Nothing exceptional in his background or personal circumstances was made known to the Magistrate or to me.

8. The offence is one which carries a maximum sentence of 2 years imprisonment and a fine of $1 000 000.00. The Magistrate took a starting point of 12 months imprisonment. In doing so he had regard to a number of decisions in similar appeals to which he referred in his Statement of Findings.

9. In the earliest of those appeals, HKSAR v IP Chi Keung HCMA943/1999, the court held that

"...the learned Magistrate was correct in coming to the conclusion that where an offence of this type is prevalent, an immediate custodial sentence may be imposed."

10. The view prevailed the following year in HKSAR v MUI Shun King HCMA1006/1999 where the court held that the Magistrate's approach was "perfectly proper" when upholding immediate custodial sentences of 4 months imprisonment for possession of some 18 000 litres, in total, of light diesel oil.

11. There can be no doubt, in my view, that an immediate custodial sentence is appropriate in a matter such as this. Although much has been made of the loss of revenue to the fiscus, it must be self-evident that operations of this nature are highly dangerous - to the operators, their patrons and the surroundings in which they operate.

12. I am concerned, however, by one feature of the Magistrate's comprehensive Statement of Findings. He makes a number of references to the fact that the Appellant is a foreign national, a visitor to Hong Kong and not permitted to engage in employment here. He states, in terms,

"In my judgment the offence can only be marked by an appropriately heavy sentence in order to make it clear that the involvement of foreign nationals in such unlawful activities will not be tolerated." (my emphasis)

13. The Reasons for Sentence make it plain that the fact that the Appellant is a foreign national is a factor which was taken into account in fixing the starting point.

14. With respect, there is no suggestion that the Appellant came to Hong Kong for the purpose of or with a view to committing this particular offence. In some circumstances, that may properly be regarded as an aggravating feature. If, as appears to be the case, the Appellant was in breach of some or other immigration requirement, he should have been charged with that. He was not.

15. The appropriate starting point in this matter, ignoring the Appellant's foreign status, is one of 6 months imprisonment. That seems to be the current level of sentences for these offences although if the level of prevalence continues it may require to be increased.

16. After credit for his plea, the sentence is one of four months imprisonment. The appeal succeeds to that extent.