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HCMA000445/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
1998, No. 445
(HCMA)
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HKSAR |
Respondent |
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AND |
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LI CHI WAI
KWAN KAI SUN DICK
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1st Appellant
2nd Appellant
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Coram: Hon. Mayo, J.A. in Court
Date of hearing: 21 July 1998
Date of delivery of judgment: 21 July 1998
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J U D G M E N T
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Mayo, J.A. (giving the judgment of the Court)::
1. The Appellants both pleaded guilty to an offence under s.17 of the Dutiable Commodities Ordinance, Cap. 109. The 1st Appellant was fined $100,000 and the 2nd Appellant $80,000. They both appeal against the fines which were imposed.
2. According to the agreed facts customs officers caught the Appellants virtually red handed transferring light diesel oil which had emanated from China to smaller containers. They admitted that they knew that the duties had not been paid in respect of this oil. It was intended that the fuel would be on sold to drivers at the Kwai Chung Terminal.
3. The 1st appellant would receive a proportion of the proceeds of sale and the 2nd appellant would receive remuneration. It was agreed that the amount of the duty which would have been payable on the oil which was seized would have been approximately $50,000.
4. Mr. McLanachan for the appellants refers to a passage in the magistrate's Reasons for Sentence where he states that the amount of the fine should be approximately the same as the duty evaded. He approves of this statement and then complains that the fines imposed were greatly in excess of this.
5. It is not easy to follow the logic of the magistrate. The penal sanctions would be almost entirely ineffectual if this was the correct approach to adopt. It is by no means certain that if an offence is committed it will be known to the Authorities. If the only penalty which is incurred is that you have to pay the duty which is properly payable there would be every incentive for persons contemplating the commission of an offence to commit it. Even if you were caught you would be no worse off than if you just paid the duty. This is obviously nonsense.
6. The maximum fine payable under the section is $1 million. This was a serious offence involving the wholesale evasion of a sizeable amount of duty. The sentences were lenient sentences in the circumstances.
7. The appeals are dismissed.
Representation:
Mr. David Leung, S.G.C. (D.P.P.) for Respondent
Mr. John McLanachan instructed by M/S C.K. Mok & Co. for Appellants
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(Simon Mayo) |
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Justice of Appeal |
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