R. v. HO WAI SING and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1441 OF 1994

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J U D G M E N T

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1. This is an appeal from Ms. Au-Yeung at Fan Ling. These two Appellants were charged with making use of altered fittings of a vehicle for the purpose of smuggling and sentenced each to four months imprisonment. They were also charged with being in possession of dutiable goods, namely light diesel oil. The 1st Defendant was fined, the 2nd Defendant was sent to prison.

2. The circumstances were that the Customs and Excise had been keeping watch on these two and saw them transfer light diesel oil. They were clearly smuggling.

3. These are serious offences and the magistrate was in my judgment, quite right to impose a sentence of imprisonment. The only matter that really falls for consideration is whether or not this should be suspended. The 1st Defendant is a man of good character and in my judgment not sufficient weight was given by the magistrate to that, and his plea of guilty. Courts are empowered to pass suspended sentences for those who require it. It is not a soft option. It is still a punishment.

4. I therefore, consider that the 1st Defendant's sentence should have been suspended. It would cause, in my judgment, unfairness on the part of the 2nd Defendant were I also not to suspend that sentence. I think he is very lucky, he has got pervious convictions, but he pleaded guilty and in those circumstances, I am prepared to suspend the sentence for him as well.