R. v. CHAN LEUNG

IN THE COURT OF APPEAL

1994, No. 347
(Criminal)

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J U D G M E N T

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Liu JA (giving the judgment of the Court):

1. The applicant seeks leave to appeal against this sentence. He was charged under section 6E(3) and (7) of the Import and Export Ordinance.

2. Together with others, on 14 April 1994, he was apparently attempting to take some vehicles outside Hong Kong waters. The charge against him was that: without lawful excuse he used an unnumbered Chinese Territories vessel to carry on board four used cars within the waters of Hong Kong. He was convicted on his own plea of guilty before the judge. He was sentenced to two years and three months' imprisonment.

3. The section was amended shortly before the offence was committed to allow for a charge to be laid on indictment, thereby carrying a maximum penalty of seven years' imprisonment. Counsel then representing the applicant submitted to the trial judge that the starting point for sentence should be between three to four years. The trial judge took a lenient approach and adopted a starting point of three years. Before us, it is submitted on the applicant's behalf that the starting point should have been two to two and a half years and that a discount of one-third should have been granted to reflect his plea.

4. The facts of the case were that police officers observed the crew of a lighter slinging vessels from it onto a wooden motorised sampan of which it was subsequently ascertained the applicant was the owner and master. On becoming aware of the arrival of the police, the applicant attempted to escape but, after a brief chase, his vessel was intercepted while still in Hong Kong waters. The four vehicles were still on board his vessel. Another 11 vehicles were found on board the lighter. The reward that the applicant was to receive was RMB800 per vehicle. Taking all 15 vehicles into consideration, the reward came close to a third of the price he had paid for his boat.

5. We do not regard the starting point of three years as too high. Contrary to the submission made by Mrs Robertson for the applicant, there is no inflexible rule that a discount of one-third should be granted where there is a plea of guilty. The judge allowed a nine months' discount, reducing the sentence from a three years' starting point to one of two years and three months. In our view this was adequate in the circumstances of this case. Since the applicant was a resident of China the fact that he had a clear record in Hong Kong was of negligible weight. In passing sentence the judge properly declined to take into account the possibility that a confiscation order might be made in respect of the applicant's vessel. Counsel seeks to draw to our attention the recent hardship of the applicant's family. This is not a matter which is relevant to this application.

6. The judge took into consideration all the material circumstances. We regard the sentence of two years and three months he imposed on the applicant as appropriate. The application for leave to appeal against sentence is therefore dismissed.