HKSAR v. CHAN CHUN LAN

HCMA512/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.512 OF 2004

(ON APPEAL FROM TMCC 281 OF 2004 and TMCC 1319 OF 2004)

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

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

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

J U D G M E N T

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

1. The appellant Chan Chun Lan pleaded guilty before a magistrate to four charges relating to dutiable goods (cigarettes) in two separate cases. She was sentenced to a total of six months' imprisonment, and the learned magistrate also activated a two months' suspended sentence to run consecutively, making a total term of eight months' imprisonment. The appellant now appeals against the sentences imposed.

TMCC281/2004

2. The appellant faced one charge of possession of 7,480 dutiable cigarettes on 26 December 2003. The cigarettes were found inside three handbags when the appellant was stopped on a bridge in Tuen Mun. The potential duty was assessed to be just over $6,000.

TMCC1319/2004

3. The appellant faced three charges of dealing with dutiable goods on 29 April 2004. The appellant was observed selling a packet of dutiable cigarettes to another person, which she took from a nylon bag (charge 1). Search of the nylon bag and the shoulder bag of the appellant yielded 2,940 dutiable cigarettes (charge 2). Search of a third person's rucksack yielded another 2,000 dutiable cigarettes, which the appellant acknowledged under caution to have belonged to her (charge 3). The total duty potential of all the cigarettes was just under $4,000.

Reasons of the magistrate

4. The Magistrate noted that the appellant had four criminal convictions, the last of which in 2003 also related to dutiable goods, whereby she was sentenced to two months' imprisonment suspended for three years. Hence, the first case TMCC281/2004 was committed during the period of suspended sentence, and the second case TMCC1319/2004 was committed while the appellant was on bail under the first case.

5. The learned Magistrate was satisfied of prevalence and the need for deterrent sentence. In the first case he adopted a starting point of four and a half months' imprisonment, reduced to three months upon plea. In the second case, for charges 2 and 3 globally, he adopted four and a half months' imprisonment, reduced to three months upon plea, and for charge 1, seven days' imprisonment, all to run concurrently. He ordered the two terms of three months' imprisonment to run consecutively, making six months. He also added two months of the activated suspended sentence to it, making a total of eight months.

Grounds of appeal

6. Ms Chan for the appellant made the point that looking at the quantity in the individual charges, they do not fall within the category of substantial quantity, and looking at the role played by the appellant, she was only a street retailer as opposed to either a prime mover or someone who could be called an important link in the chain of supply of cigarettes to others.

7. Ms Chan referred to the case of HKSAR v. Ma Wai Fui, HCMA1123/2003, where the two charges related to 10,000 and 418,200 dutiable cigarettes respectively. Upon appeal, Deputy Judge Toh confirmed that the Magistrate was appropriately setting the starting point at three months and 18 months' imprisonment respectively.

Consideration upon appeal

8. Ms Shine for the Prosecution did not dispute the quantum in Ma Wai Fui for the individual cases. She supported the Magistrate by saying that in the first case, the offence was convicted while the appellant was under the period of suspension of a sentence for a similar offence, and for the second case, she was on bail while having been arrested for similar offences. But looking at the totality of the sentence in this case, the appellant received two terms of three months consecutively with an activated sentence of two months consecutively, making a total of eight months. Ms Shine was prepared to concede that, in all the circumstances, a six months' sentence would be appropriate.

Conclusion

9. In the circumstances, I uphold the individual sentences of the Magistrate but I order the terms to run partly consecutive so as to make a total of six months' imprisonment. So for the case of TMCC281/2004, the sentence shall remain at three months' imprisonment, and for the case of TMCC1319/2004, the sentence for charges 2 and 3 shall remain at three months' imprisonment each, two months to run consecutively and one month concurrently making a total of five months' imprisonment. For the suspended sentence of two months, one month to run consecutively and one month concurrently making a total of six months' imprisonment in all three cases.