HKSAR v. LUU THI HOA

HCMA911/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.911 OF 2002

(On appeal from TMCC 1560 of 2002)

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J U D G M E N T

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1. The appellant appeals her conviction for dealing with dutiable goods.

2. The prosecution's case at trial was that she was selling duty-unpaid cigarettes in Kam Tin Market. They called a customs officer who saw and heard her hawking the cigarettes. He saw a transaction take place. He arrested her and seized her stock of some 1,240 cigarettes.

3. The appellant did not give evidence. She called someone who was described as an "ordinary friend" from the market. He described an incident, with no adequate connection to the date in question, when he saw the appellant's godmother give her some money. He changed that to saying that it was the appellant's brother-in-law who handed over the money. He said that the appellant was then summonsed to "come out" by a person and that she was then surrounded by three people who took her away. He said he had not heard anyone crying "cigarettes for sale" nor seen the white bag, which the customs said contained the cigarettes. He did not realize at the time that the appellant was being arrested, he only realized that when he was told so later. He said that the appellant went without complaint and that her relatives there just looked puzzled.

4. The magistrate saw and heard the customs officer and he believed him. He had the advantage of seeing and hearing the witness. He gave sound reasons why he found him to be credible. Nothing before me suggested that his judgment was wrong.

5. Looking at the papers, one can see that the suggestion run at trial to the effect that the customs officer was mistaken and that he had muddled up the appellant with some mainland woman he arrested the same day was wholly unrealistic. I judge that mistake could not begin to explain away the situation here. So did the magistrate. I suspect that mistake was run in a desperate effort to avoid having to suggest invention. Yet, if this lady was not rightly convicted, invention it must have been. There was nothing in the evidence to suggest any reason for a customs officer choosing to frame up and falsely convict a mid-aged lady going about her lawful business at the market.

6. Today, in argument, the appellant suggests that it was deliberately and maliciously done because the customs officer knew her previous history of selling duty-unpaid cigarettes and knew her previous convictions for such conduct. If there was a word of truth in that, and if the appellant genuinely thought that to be the case, that would have been her defence at her trial. She had the benefit of legal advice and what she is clearly seeking to do now is run mistake of one level in the magistrates' court, find it does not work, and now run invention here. She cannot do that.

7. The magistrate, giving sound reasons based on the evidence, concluded that the defence witness' account came across as :

".... something from a vague memory of a totally unrelated incident that had been modified whether deliberately or by the suggestion of others in an attempt to discredit the account of the Prosecution witnesses and to distance the Appellant from what she had been involved in ....."

8. There is nothing in the papers before me to suggest that this assessment may be wrong. Looking at the papers before me, it is an assessment with which I agree. Accordingly, I confirm the order of the magistrate.

9. There is no appeal against the sentence. Today, the appellant appears in person and asks me to reduce her sentence - the magistrate sentenced her to three months' imprisonment.

10. The appellant has four previous court appearances, all related to the sale of duty-not-paid cigarettes. What she seeks to put before me today is that on 23 January 2003 she has an appointment for an operation on her eye and, accordingly, she asks me to adjust her sentence so that she can have her liberty to attend it. The fact is that the prison authorities, the Correctional Services, have ample scope to take her to that operation if it cannot be re-scheduled. Whilst there might be a risk that the operation is adjourned for a short time I have no doubt she will have the operation in due course if that is what she wishes.

11. People who sell duty-not-paid cigarettes do not normally go to prison the first time they do it, and that was the case with this appellant. What happens though is that people like her persist in the conduct and the courts with great patience normally fine the second time, that was what happened to her. The third time they lose patience and issue the final warning, saying : "It is imprisonment, and I will suspend it." Then on the fourth occasion if the conduct is persisted in, the offender goes to prison, that was what happened to this appellant. Her last sentence was for two months in November 2001. In those circumstances, a sentence of three months for doing it yet again is an entirely reasonable response by the magistrate and it is one with which I agree.

12. I will not entertain any appeal against this sentence.