HKSAR v. CHAN SZE YUK

HCMA 248/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 248 OF 2000

(ON APPEAL FROM TMCC 1874 OF 1999)

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J U D G M E N T

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1. This matter goes as far back as 23 February 2000. The Appellant was convicted after trial of one charge of "Possession of Dutiable Goods" (Charge 1) and one charge of "Possession for the Purpose of Sale Cigarettes the Packets thereof did not bear the Health Warning" (Charge 2). She was sentenced to 1 month's imprisonment for the former and a HK$1,000-fine for the latter. A 3-month suspended sentence from a previous case was also activated. The Appellant lodged her appeals and, after a two-year delay, abandoned her appeal against conviction on 25 November 2002. Today, before me, she pursues her appeal against sentence.

2. The facts of the case were most straightforward. Quite simply, Customs Officers on street patrol caught the Appellant selling cheap cigarettes. 3,580, the figure in Charge 1, were the number of cigarettes she had in her possession. Amongst them, 2580 did not have the prescribed health warning, the matter in Charge 2. Charge 1, I should add, was laid against section 17(6) as read with section 46(3) of the Dutiable Commodities Ordinance (Cap. 109). The maximum penalty for that is a million-dollar fine plus 2 years' imprisonment. Charge 2 was laid against sections 8(1) and 10(1) of Smoking (Public Health) Ordinance (Cap. 371). The maximum penalty for that is a level-4 fine.

3. Turning to the Appellant, she has just turned 54. At the time of the trial, she had 13 previous convictions barred one for the same or similar offences. Even the one that was not was for a breach of a suspended sentence passed for possessing dutiable commodities. As regards the delay in the present appeal, I note from the court record that the matter was first listed for hearing on 25 August 2000. The Appellant, who was on bail, did not however show up and was not re-arrested until 15 June this year. Between then and now, she was, apart from bail, granted at least one adjournment on the grounds of ill health and the need for transcripts. According to the court record, she was still changing solicitors two weeks ago.

4. Clearly, it was time that this matter came to a conclusion. Whether what took place between the Appellant's re-arrest and now was out of her control, the bulk of the delay, that is, between her absconding and re-arrest, must predominantly be her own fault. Whether back in the year 2000, the prosecution serviced or was able to service the appeal papers or not, the Appellant knew that she had been convicted and sentenced to imprisonment. She knew that the only reason why she was not yet in custody was because there was an appeal. Her passivity or non-action in pursuing the appeal is therefore of questionable motive.

5. In any event, I cannot accept counsel's contention that since she had not re-offended during that period, the need for immediate imprisonment is now vitiated. On the contrary, I think it trite that fugitives must not be encouraged to abscond in the hope of a reduction, not to mention vitiation in sentence on account of having behaved while at large.

6. Regarding the Appellant's alleged ill health, it is again trite that except in the rarest cases, a prisoner's medical condition is not a matter to which the courts would have regard in deciding whether to interfere with a proper sentence. If it is really something deserving consideration, it can be brought to the attention of the Executive. The same approach applies equally, if not more forcefully to the medical and other conditions of family members. Furthermore, as counsel for the prosecution has pointed out, the condition of the Appellant's son has its full manifestation even before the trial and that the best course for him now is in fact to receive in-patient treatment.

7. To conclude, I can find nothing wrong with the sentences imposed by the Magistrate. Nor do I see any reason for him not to activate the suspended sentence. I am not persuaded that subsequent developments have made these sentences unjust or unsuitable, which is really what counsel tries to do today. I dismiss the appeal. The Appellant should be taken down directly.