THE QUEEN v. NG CHOI YAU

HEADNOTE

Smuggling Offence

Import & Export Ordinance Cap. 60

New Sentence Guideline.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 262/92

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J U D G M E N T

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1. On the 3rd March 1992 the appellant was convicted on his own plea of two charges by Mr. McKee sitting at Tuen Mun Magistracy. The first charge was one of possession on board a vessel prescribed articles, namely 83 used motorcycles, on the 28th February 1992 inside the Castle Peak Typhoon Shelter without lawful excuse. The charge was brought under Regulation 3(1) and (5) of the Import and Export (Carriage of Articles) Regulations, 1991, Cap. 60. The maximum penalty is a fine of $500,000 and imprisonment for two years. For this offence he was sentenced to imprisonment for nine months. The second charge was one of possession of restricted articles, namely 12 used motorcycles, at the same place and on the same day, with intent to evade the restriction. This second charge was brought under s. 35A(1)(a) of the Import and Export Ordinance, Cap. 60. The maximum penalty is the same as that prescribed for the offence in the first charge. For the second offence he was sentenced to two months imprisonment. The two sentences were ordered to run concurrently.

2. In passing the sentences he did the learned magistrate noted that the present case was a blatant attempt to avoid the legal provisions and requirements relating to the exportation of vehicles. He further observed that it was clearly a commercial venture, and it was a transaction carried out in the hours of darkness and without proper documents.

3. When the appellant appeared before this Court he was informed that I had the power to increase the sentence on appeal. He nevertheless pursued his appeal and asked this Court to reduce the sentence because his mother had just passed away. He also stated he had to support his grandparents, his "old" father, and his ten year old sister.

4. This type of offences is much too prevalent and seems to show signs of being on the increase. The usual sentence hitherto is one of imprisonment ranging from nine to 12 months. Sometimes only a fine is imposed. It would appear that the present level of sentence is not sufficiently heavy to deter such offences. I am of the view that in the light of the increasing number of these offences, where a substantial number of articles (as in the present case) is involved, the proper range of sentence should be between 12 to 15 months. It follows that the sentences imposed here are inadequate.

5. I accordingly allow the appeal and substitute for the sentences imposed a sentence of 12 months on the first charge and one of three months on the second charge, the sentences to run concurrently.