THE QUEEN v. CHAN SAI-YIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEFAL No.1084 of 1988

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of importing unmanifested cargo, contrary to Section 18 (1) (a) of the Import and Export Ordinance.

2. The admitted facts were that he was the master of a vessel which berthed in Hong Kong on the 15th September 1988. Officers from the marine Police Division boarded the vessel and searched it and discovered cargo consisting of 24 bags of raw silk weighing some 3,400k.g.The facts do not make it clear whether the Appellant was in possession of any documents at all in relation to the cargo on his vessel but certainly there was no manifest in respect of the raw silk. The facts state that the vessel was actually scheduled to ply from Luk Fung to Guangzhou conveying pig bone, and that the Appellant agreed to take the raw silk to Hong Kong during the course of the journey as a means of making an extra profit. Was said that the owner of the goods, having given instructions for the purchase in China, had also given instructions that the master of the vessel was to prepare a cargo manifest. But there was nothing in the statement of facts to indicate whether those instructions were passed on to the Appellant.

3. The Appellant is a native of China, 38 years of age and married with three young children. He has, of course, no previous convictions within this jurisdiction.

4. The learned magistrate on convicting him sentenced him to imprisonment for three months. The Appellant after sentence applied for a review. On the application for review the learned magistrate was referred to R. v. Chung Chi Wing (Cr. App. 1165 of 1985). In that case the then learned Chief Justice said that the importation of unmanifested cargo is a serious offence but he was of the view that where the circumstances suggested no financial gain, i.e. the sort of financial gain which could be expected where the cargo was unmanifested for the purposes of avoiding duty or for the purpose of bringing otherwise prohibited goods into Hong Kong, an immediate custodial sentence was not warranted.

5. In this case, the silk did not attract duty nor was it in the category of preheated goods. And there was nothing to suggest here that the Appellant received any more for bringing the goods in without a manifest than he would have received bringing there in with a manifest. The brief facts would tend to confirm that he gained nothing from the lack of a manifest because if he were to receive more for bringing them in unmanifested then the owner would not have given instructions that they were to appear on a manifest.

6. Chung Chi Wing is on all fours with this case except for one factor, which will mention in a moment. The learned Chief Justice considered that the learned magistrate in that case should have considered imposing a fine and that, in any event a suspended sentence would have been appropriate. The learned magistrate distinguished Chung Chi Wing by pointing out that in Chung Chi Wing the offender was the owner of the goods, whereas here, as I have said, the offender was the master of the vessel carrying the goods. The learned magistrate said that the offence is more serious when committed by a master because an owner makes no gain whether the goods are manifested or not whereas a master, aware of his obligations is in a position to make a gain if the goods are unmanifested. Here, of course the position is that the evidence indicates that this Appellant stood to make no gain at all from the fact that the goods were not on a manifest.

7. In mitigation Mr. Cheng Huan has made the point that when the vessel was searched the goods were immediately found, that there was no attempt to conceal them and that the Appellant, when questioned, immediately admitted that he had no manifest in respect of them. He says that the Appellant has been a fisherman for most of his life, that it was only three years ago that he was appointed master of the vessel by his commune and that this was the first occasion that he had brought the vessel to Hong Kong. He thought he would be able to manifest on arrival in Hong Kong.

8. It seems to me that the Appellant may well have had that belief and it does appear that this was not the case of a man who, well knowing the requirements of our law, blatantly breached that law. I think that his offence was not so serious as to warrant imprisonment at all and that it could have been adequately dealt with by way of a fine. As he has already undergone 53 days of imprisonment, it seems to me that he has been adequately punished for the offence. Whilst I do not support the imposition of a custodial sentence in his case, since it has been imposed and he has served a substantial part of it seems to me that the only practical order to make is one quashing the original sentence and substituting therefor a sentence of such length as to enable his immediate discharge. That is the order I make and his appeal is allowed to that extent.