THE QUEEN v. CHENG WAI MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 302 OF 1992

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BETWEEN

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J U D G M E N T

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1. On 1st April 1992, the appellant appeared before Mr. Duggan at Fanling Magistracy. He pleaded guilty to two offences. First, attempting to export unmanifested cargo contrary to s.18(1) (b) of the Import and Export Ordinance Cap. 60 and second, making use of the altered fittings of a vehicle for the purpose of smuggling articles out of Hong Kong contrary to s.14(l) of the same Ordinance. He was sentenced to ,4 months' and 1 month's imprisonment respectively, the sentences to run consecutively. Against those sentences, the appellant now appeals.

2. On the afternoon of 3rd March, the appellant was driving a lorry carrying goods to China. He was stopped by Customs officers at the border where his lorry was searched. 140 video cassette recorders and accessories were found hidden in a false compartment of the lorry. The appellant was arrested and immediately admitted the offence, saying that he owned the goods which had been seized and would have earned HK$40,000 had he been successful in smuggling them into China. Photographs of the lorry show that the goods compartment is entirely enclosed and separate from the driver's cab. At the rear of the compartment a false wall had been constructed leaving a narrow space between this wall and the real wall of the cargo compartment, in which the video recorders were found. The wall was well-constructed and not obviously false.

3. After hearing that the appellant had no previous convictions, was of good character and was a minibus driver earning $13,000 per month out of which he supported his family, the learned magistrate said

" I noted that the maximum penalty for each offence was a fine of $500,000 and 2 years' imprisonment and that the Government had substantially increased such penalties in 1991.

I took into account that the incidence of smuggling cases have reached very substantial levels. This Court alone deals with numerous such cases each week. The Court should reflect the concern about such cases when sentencing.

    This case was a particularly serious one. The quantity of goods was substantial. The goods themselves,video cassette recorders and accessories, are of high value. The Defendant stood to gain a considerable sum of money by completing the shipment - $40,000 on his own admission. An aggravating feature of the case was the use of a secret compartment on the vehicle.

    Taking all such matters into account I considered the proper penalty was one of 5 months imprisonment. That total sentence was imposed on the two charges. I did not consider that such sentence should be suspended."

4. For the appellant Mr. Macrae made two submission;. First, the sentences were a departure from the non-immediate custodial sentence which had been normal for this type of smuggling for many years. Second, even if the time for the imposition of an immediate custodial sentence had arrived, the sentences should be suspended in the circumstances of this case.

5. Mr. Macrae accepted that the offences were not trivial. He said, however, that they are not the type of offence which has prompted wide-spread public concern for the safety of Marine Police Officers who have been grappling with well-organised and ruthless smugglers on the sea. He said that the appellant had simply made a greedy attempt to make extra money while on legitimate business in China. He said no one else was involved, that there was no risk to anyone and in essence the crime was victimless. While accepting that comity of nations is a factor in considering sentence in relation to a smuggling offence, he said that that did not justify sentences totalling 5 months immediate imprisonment, particularly when such imprisonment was not the norm, at least at Fanling.

6. In effect Mr. Macrae's submission was that Mr. Duggan was sitting as temporary Principal Magistrate at Fanling and had misinterpreted or misunderstood the situation because there was no evidence to suggest that there had been an increase in the offences or a movement towards custodial sentences. With the aid of the Crown he produced statistics of all smuggling cases dealt with in the Hong Kong Magistracies during the month of March. Whilst these statistics showed sentences of immediate imprisonment for smuggling offences, these sentences were generally in relation to smuggling by sea although such offences had sometimes merited suspended sentences. Other offences were generally met with a fine or perhaps suspended sentence. In relation to Fanling it appeared that during the month in question there had been only 9 cases of smuggling. In four of those cases, the permanent principal Magistrate, Mr. Christie, sitting in the plea court, had imposed fines save that on 20th March in a case involving two charges similar to the charges in this case, involving also a lorry and 100 video recorders, he had imposed a fine of $20,000 in relation to the first charge and 3 months imprisonment suspended for two years in relation to the second. In one case, Mr. Venning had imposed fines after a trial. In the other four cases Mr. Duggan had imposed two sentences of 1 month's imprisonment, one sentence of 3 months' imprisonment and one sentence of 3 months' imprisonment suspended for 3 years coupled with a fine of $5,000.

7. Mr. Macrae said that it was not for Mr. Duggan to take it upon himself to say that the incidence of smuggling offences had increased to such a level that sentences of immediate custody were warranted. He said that it was for magistrates to aim at consistency of sentence and to leave tariffs or guidelines to the appellate courts.

8. Having regard to the pattern of sentencing, particularly at Fanling Court, Mr. Macrae said that the appellant may have had a justified expectation that he would receive a sentence similar to the type of sentence passed in earlier cases.

9. A magistrate may increase the level of sentence which has hitherto been passed in respect of a particular offence if he is aware that the type of offence is on the increase and is the cause of concern not only to him but to the public generally. Before doing so, however, he should make it clear that this is the course of action which he proposes to adopt. It is axiomatic of course that he should be aware of what the level of sentence has been.

10. To that extent, therefore, it may be said that Mr. Duggan was in error in taking it upon himself to make the imposition of immediate custodial sentences the norm for smuggling offences by land. Immediate custodial offences are not, however, unknown for offences of this nature. It cannot therefore be said that Mr. Duggan was out of step with sentencing in the wider context. Further, as Mr. Macrae accepted, the offence in this case was not trivial. It involved a substantial quantity of goods which were concealed with great skill and care. It was part of Mr. Macrae's submission that the appellant alone was involved in this enterprise. The enterprise was far from being an amateurish attempt to smuggle one or two items hidden under a seat or some other cargo. The offence demonstrated a considerable degree of care and skill. I am unable to say that an immediate custodial sentence was wrong in the circumstances or that it felt outside of the general pattern of sentencing.

11. In relation to his second point, Mr. Macrae said that there was considerable mitigation which would justify the sentence being suspended. Apart from the matters which I have already mentioned, including an apparent change in policy, Mr. Macrae said that the time has come for a sentencing court to be able to take into account the probable forfeiture of the goods which, in the case of the appellant, would effectively impose a substantial fine or penalty in addition to a sentence of imprisonment.

12. Mr. Macrae said that a person convicted of smuggling and his legal advisers are in a hopeless position. He said there are dicta of the Court of Appeal to the effect that the question of forfeiture is not to be taken into account by a magistrate or court when passing sentence. Equally there is authority that in forfeiture proceedings a sentence which has been passed on a claimant in prior criminal proceedings is irrelevant. I view the position with some sympathy. In a case such as this, the appellant will be doubly penalized if he loses both his liberty and his goods. Where, however, an accused is simply the driver of a vehicle used for transportation, it makes little difference to that driver whether or not the goods seized are ultimately confiscated.

13. The dicta, however, to which I think Mr. Macrae refers are to be found in Attorney General v. So Ma-por and others [1981] HKLR 696. It was a decision of the Court of Appeal which had been asked to review the decision of a magistrate who had imposed fines on certain smugglers. Under a sub-heading "Proper considerations" in the Court's judgment, Roberts, C.J., said at p.698:

" One of the factors which the magistrate took into account in deciding to impose a fine was that the cloth was likely to be forfeited in accordance with the provisions of the Import and Export Ordinance.

In our view, when deciding on the penalty to be imposed for an offence of exporting unmanifested cargo, a magistrate should disregard the question of forfeiture. This is a penalty to which defendants are liable under entirely different provisions of the ordinance. Forfeiture proceedings depend upon an administrative decision for their inception; it cannot be assumed_.that they will be instituted in all cases. Nor can it be assumed that, if sought, an order of forfeiture will necessarily be made. A magistrate should, therefore, disregard the question of forfeiture."

14. The Court then went on to consider the proper sentence.

15. I am not at all sure that the passage I have cited can properly be characterised as "dicta". It seems to me to be an essential part of the reasoning of the Court. In any event, in the absence of compelling authority to the contrary, I would be reluctant to depart from such a firm statement by the Court of Appeal

16. Mr. Macrae, however, argued that there is such compelling authority. He drew my attention to two decisions of the Court of Appeal in England. First, Stephen John Buddo (1982)4 Cr. App. R.(S) 268. In addition to sentencing the appellant to 15 months' imprisonment for burglary, the judge made an order under s.43 of the Powers of Criminal Courts Act 1973 whereby he deprived the appellant of his rights in a caravan which he had used in the course of the burglary. The Court of Appeal held that :

"The sentence of imprisonment was appropriate for a very serious offence, but the order for the forfeiture of the caravan added greatly to the severity of the sentence. It is not necessary to make such an order in every case where a motor vehicle was used for the purposes of crime; the court had a discretion and in the present case it was "overdoing the punishment" to make the order for forfeiture, which would be quashed."

17. In Christopher John Joyce and Others (1989) 11 Cr. App. R.(S) 253, the appellants had been concerned in a scheme whereby the Department of Health and Social Security was defrauded of about £60,000 over a period of two years, claims for benefit having been made at a number of different offices. The judge exercised his powers under s.43 and confiscated five motor cars which had been used for the purpose of carrying out the fraud. The Court of Appeal said

" The substantial complaint, therefore, which is made on behalf of the appellants is that it was wrong in all the circumstances for the sentencing court, when fixing the totality of the sentence to be passed upon these appellants, not to reflect and take account of the financial penalties which were being imposed. She has referred us to authority, in particular the case of Stratton reported in The Times of January 15, 1988 and the case of Buddo (1982) 4 Cr. App. R.(S) 268, and has urged that a confiscation order does impose a financial penalty on a defendant, and therefore should be reflected in the term of imprisonment at the same time.

    That submission appears to us to be correct in principle. A confiscation order may have a severe financial effect on a defendant subject to it. Accordingly in deciding the overall penalty to which a defendant should be subject, it must be taken into account.

    The learned judge in this case had a very difficult problem before him with a large number of defendants, and there were real difficulties in fixing sentences which were fair in themselves and fair when compared with the sentences of other defendants of different ages and with differing responsibilities. But in the judgment of this Court he did fall into error in treating the confiscation orders as something entirely separate and in failing to treat them as an overall part of a sentence in each case.

    Turning therefore to Christopher John, the confiscation order was not made in his presence.... In the list of sentences, it does not appear that Christopher John was undersentenced; it might even be said that in comparison with certain other defendants his sentence was somewhat severe. Even if the sentence of imprisonment was correct, it remains the case, in our judgment, that the confiscation order should have been reflected......

    We therefore think that although it will have no practical effect, the proper course for us to adopt is to reduce the sentence of imprisonment which was imposed by six months, so that the total sentence in place of that imposed will be 18 months' imprisonment, of which half will be suspended. The confiscation order will stand."

18. Although in Hong Kong for technical reasons the question of forfeiture or confiscation of seized goods is dealt with separately from the sentencing of an offender, Mr. Macrae maintained that the Court dealing with forfeiture has little option but to make an order for confiscation on the authority of Attorney General v. LEE Kung-leung [1991] 1 HKLR 76. Therefore, he said, the Court sentencing an offender may properly take into account the almost inevitable confiscation of the goods which will subsequently be ordered.

19. I reject Mr. Macrae's submission. First, I do not think goods which are intended to be smuggled are property used for facilitating the commission of an offence in the sense in which that phrase is used in the English legislation. Goods intended to be smuggled into another territory are integral to the offence, without which it could not be committed. The would-be smuggler must be fully alive to the fact that, if caught, those goods will in all probability be confiscated. The confiscation of the would-be smuggler's lorry or other means of conveyance, however, would be a different matter.

20. Second, as Mr. Halley for the Crown pointed out, in spite of the authority relied on by Mr. Macrae, magistrates, when dealing with applications for forfeiture, do not necessarily make orders for confiscation of all the goods. Partial orders are not infrequently made. A magistrate sentencing an offender would be hampered in his approach to sentence if he had to try and guess whether or not a confiscation order for the goods would be made, and if so, as to what amount of the goods.

21. In the circumstances the appeal is dismissed.