HKSAR v. CHENG TIN SUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1042 OF 1998

(On Appeal from ESC 2727 of 1998)

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J U D G M E N T

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1. On 10th December 1998, I allowed the appeal of the Appellant and now I give the reasons.

2. On 29th September 1998, the Appellant (formerly "D2") was convicted after trial of one joint charge with the 1st Defendant of dealing with 17,000 litres of light diesel oil to which the Dutiable Commodities Ordinance applies contrary to Section 17(1) and Section 46(3) (Cap. 109) Laws of Hong Kong. He was sentenced to 12 months in prison. He now appeals against sentence only.

3. The following facts were found by the learned magistrate. At about 20:00 hours 17th July 1998, the tugboat "Ho Hong" was observed to steer towards an oil tanker moored of Kau Yi Chau. Activity on broad both the tug and the tanker was observed whilst the tug was alongside the tanker. All lights abroad both vessels were extinguished. The tug was kept under Customs and Excise observation throughout. The tug departed the tanker and was kept under surveillance continuously thereafter until at about 21:30 hours on 18th July. When it eventually berthed at the shore of an open space next to Quarry Bay salt water pumping station at Hoi Yue Road, North Point. All navigation lights were extinguished. At 00:30 hours, Customs and Excise officers boarded the tug, the other Defendant ("D1") was standing on the deck holding a hose which was connected to a container mounted on the trailer attached to a truck parked nearby. The container's back end was equipped with doors and a tank had been fitted therein with provisions for filling an emptying by way of valves. The Customs and Excise officers then identified themselves. D1 jumped off the boat onto the land, he was intercepted. He admitted being involved with an illegal diesel operation.

4. At the same time, the Appellant was seen standing at the back end of the container. The door opened and holding a hose and in the process of connecting it to the tank. When the Customs and Excise officer identified himself, the Appellant ran, but was stopped after some 50 metres. He admitted being on duty illegal oil activity. He admitted further that he had connected the hose to the container.

5. The only ground of complaint is that the sentence was too harsh. In seeking to arrive at a proper sentence, I had the benefit of tremendous assistance rendered by Mr. Brook, learned counsel for the Government. The following facts and figures were provided to me in the course of the hearing of this appeal.

(1) in the bracket of light diesel oil between 10,001 to 50,000 litres, there were altogether 29 cases up to October 1997. In 16 of those cases, a fine was imposed. In the other 13 cases that Defendants were sentenced between 2 to 7 months, making an average of 4.77 months per Defendant.

(2) the duty potential for the subject matter of this charge attracted $2 per litre, making it a sum total of $34,000.00.

I found the facts and figures extremely useful. However, they were not before the learned magistrate at the time when he sentenced the Appellant. Moreover, the Appellant was reticent about his mitigating factors. In this appeal, he was far more forthcoming.

6. He told me he is married with two children. He had been a fisherman since childhood. His parents were also fishermen and they passed away in the late 70's and the early 80's. In 1989, he borrowed a sum of money in the region of $1.3m. from the Agriculture and Fisheries Department for the purpose of building a fishing boat. He also borrowed another million dollars from his friends and relatives for this purpose. He said further that ever since he had the use of the new fishing boat, he had been working very hard. Unfortunately, his livelihood was affected by the serious polluted Hong Kong and neighbouring waters. When it came a time in 1996, he was forced to give up his occupation as a fisherman. Consequent upon that decision, he took a responsible attitude in that he sold the boat and with the money he repaid the Agriculture and Fisheries Department. Furthermore from 1996 onwards, he had experienced difficulty in finding alternative employment, and in May 1998, motivated by grave financial hardship, he applied for public assistance. However, he was not contend to survive on the generosity of the public as such. So in July of the same year, when he was offered a job working on broad the tugboat, he accepted that offer immediately. His connection with the tugboat led to the commission of this offence. All these personal circumstances had not been made known to the learned magistrate.

7. I allow the appeal for a combination of reasons. The Appellant's previous good character, the fact that 12 months' immediate custodial sentence is inconsistent with the statistics in cases involving similar quantity of light diesel oil and his personal circumstances. I pass a sentence that would enable his immediate release.