HKSAR v. LUM SHUI KWAI

HCMA 970/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 970 OF 1999

(ON APPEAL FROM SPCC 5473-4/1999)

-------------------------

----------------------

J U D G M E N T

----------------------

1. The Appellant pleaded guilty to three charges. The first charge was importing unmanifested cargo, contrary to section 18 of the Import and Export Ordinance, and he was sentenced by Mr T. Tsang to 12 months' imprisonment. The second charge he pleaded guilty to was one of importing reserved commodities without a licence, contrary to the Reserved Commodities (Control of Imports, Exports and Reserved Stocks) Regulations, Cap.296, and he was sentenced to six months' imprisonment on that second charge, to be served concurrently with the term on the first charge. The third charge that the Appellant pleaded guilty to was one of importing game meat without an official health certificate, contrary to the Public Health and Municipal Services Ordinance, Cap.132. On that third charge, he was sentenced to three months' imprisonment, to be served consecutively to the first two charges, making a total of 15 months' imprisonment. He now appeals against those sentences.

2. The facts of the case were that on 20 August 1999 at 4:45 a.m., police officers on patrol in Yau Tong found six Hong Kong males, including the Appellant, at the waterfront. A grey container was about to be lifted by a crane vehicle from a Chinese trading vessel to a container truck. The police then made enquiries and upon boarding the Chinese trading vessel, five crews, including the master, were found on board. The container was found to contain frozen pigs. There was no manifest and no import licence, all the people concerned were arrested. The pigs in question weighed a total of 15 tons and were worth approximately $300,000. The Appellant admitted that he was the owner of the frozen pigs, and he also admitted to have been the mastermind of the enterprise. The pig carcasses were kept inside the container and there was no refrigerating facility in the container.

3. The learned Magistrate relied on the case of R. v. Ng Choi Yau, MA No.262 of 1992 to assess the sentences in this case. That case involved the smuggling of 83 used motor cycles. In that case, Yang CJ said that in view of the increasing number of these offences, involving a substantial number of articles, the proper range of sentence should be between 12 to 15 months. The learned Magistrate also relied on the case of R. v. Ng Wai Hong [1993] 1 HKCLR 307 which involved the smuggling of electronic goods. In that case, the original sentence of 12 months was upheld by the Appeals Court.

4. Ms Shui, for the Appellant, contended that these two cases should have no relevance to the present case because they concerned high value products such as motor cycles and electronic goods.

5. However, the goods in the instant appeal were valued at $300,000 and there was no evidence whatsoever before the Magistrate of the profit margins which could have been made from selling these frozen pigs. In the instant case, in my judgment, there is the added factor which is the potential danger to the health of the community of Hong Kong if they were to consume these smuggled pigs or animals. The only case which apparently went on appeal and involved pigs or animals was R. v. Tam Hok Ling [1988] 1 HKLR 578. In that case, what was involved were 500 unmanifested frozen pigs, the original sentence of six months was reduced on appeal to one of three months. That case, of course, involved a much smaller quantity of pigs and was decided in December 1987. Since then, of course, a trend has appeared whereby frozen animals and poultry which have not undergone any medical checks have been smuggled into Hong Kong from China. Miss Ho, for the Respondent, provided statistics which showed that of the smuggling cases involving frozen meat or poultry, 16 were brought to court in 1998. In 1999, up to the present, and including cases yet to be heard, there have been 16 cases. That, of course, has not taken into account cases which went undetected. Nobody has any idea how many cases those might come to.

6. 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 consuming them, thereby possibly suffering damage to their health.

7. The Appellant was of course also the owner of these pigs and was the organizer of the smuggling enterprise. In so far as the sentence of 12 months is concerned on the first charge, I am of the view that that sentence is in no way manifestly excessive. However, on the third charge where he received a consecutive term of three months' imprisonment, my view is that that third charge arose from the same incident as the first two charges. Even though the offence was technically a distinct and separate offence, all three charges arose from the same incident. In my judgment, despite the fact that the third charge was prosecuted by the Health Department and the first two charges by the Customs and Excise Department, the sentence on the third sentence should be concurrent to that on the first two charges.

8. The appeal is allowed. The sentence on the third charge is made concurrent to that on the first and second charges, making the total sentence to be one of 12 months' imprisonment.