HKSAR v. LAM HAW MOON

HCMA1132/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1132 OF 2001

(ON APPEAL FROM TMCC 2688 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence by the appellant who was, on his own plea of guilty, convicted on 17 October 2001 on one charge of dealing with goods to which the Dutiable Commodities Ordinance applies. The particulars that offence alleged that the appellant, on 7 August 2001, dealt with 20 litres of motor spirit, otherwise than in accordance with the provisions of paragraphs (a) or (b) of section 17(1) of the Dutiable Commodities Ordinance, Cap. 109.

2. The facts as stated in the Summary of Facts and admitted by the appellant disclosed that the appellant, on 7 August 2001, at a roadside location in Yuen Long, New Territories, was observed by a Customs Officer siphoning fuel from a jerry can into the fuel tank of a light goods vehicle by means of a rubber hose. The jerry can contained a total quantity of 20 litres of motor spirit classified as "light oil" within the meaning of the Dutiable Commodities Ordinance and subsequent enquiries revealed that the "light oil" was suitable for use as motor fuel and for the propelling of motor vehicles. The value of the "light oil" was $214 and the duty potential was $121.20. Under caution, the appellant admitted the offence and it is not challenged that the 20 litres of "light oil" would have yielded him a profit of $30.

3. The magistrate after hearing mitigation took a starting point of nine weeks' imprisonment and in view of the plea of guilty he reduced that by the full one-third discount. He further reduced that sentence by a further two weeks to a total of four weeks' imprisonment and that to take account of the mitigation put forward on behalf of the appellant. The magistrate passed this sentence on the basis that a deterrent sentence was called for. In doing so, the magistrate does not, in his Reasons for Sentence, appear to have made any distinction between whether it was to be a deterrent sentence in personam or a deterrent sentence in rem. However, the learned magistrate cited a passage from the judgment of Gall J in the case of HKSAR v. Mui Shun King, Ricky, HCMA1006/1999 in which Gall J said this :

"... that the circumstances relating to the selling of illegal diesel oil and diesel oil from which the marker has been removed should be dealt with on the same basis as has been the approach by the courts in respect of breach of copyright. There has been a substantial increase in these offences. The offences affected not only the trade but the public at large, both by the deterioration of the air quality it causes and the danger it poses, together with the considerable loss of revenues."

4. In citing these words from Gall J, the learned magistrate indicated that he read those words as intending for a deterrence to deter the foot soldiers in their illegal trade. However, it has been pointed out by Mr Kelly for the appellant in his submission that in that case of Mui Shun King, there the magistrate was dealing with a repeat offender, one who has previously appeared before that same magistrate and who had been given a substantial fine in respect of similar offence previously. It is pertinent to note the following words from Gall J in that judgment where he said :

"... the Magistrate's approach, being one in which he has warned those persons previously appearing in his court, was perfectly proper..."

5. It is therefore clear from these words that in the case of Mui Shun King that deterrent sentence imposed by the magistrate in that case, was a deterrent sentence in personam, in view of the repeated offence by that offender. That is not the case here. In the present case, the appellant is a first offender with a hitherto record before his plea of guilty.

6. The magistrate in the present case, after citing those words of Gall J, read those words as intending for a deterrent sentence to deter the foot soliders in this illegal trade. It therefore appears the magistrate was intending for a deterrent sentence in rem. However, as a general rule, although it is not wrong in principle to pass a deterrent sentence in personam on a first offender, a deterrent sentence in rem on a first offender is generally wrong in principle, (see the case of HKSAR v. Hiroyuki Takeda [1998] 1 HKLRD 931). That case of course was dealing with quite a different offence, an offence of publishing obscene article but the principle remains the same.

7. Given all the circumstances of the present case, namely the value of the 20 litres of motor spirit being $214, the duty potential of it being $121.20, the profit which the appellant would have made from this transaction $30, the appellant's cooperation with the police during interview, his plea of guilty and his family circumstances being the sole bread winner with a 14-year old son and a wife, the appellant having worked almost his entire life as a vehicle servicing worker and being aged 41 with a clear record and the lack of any other aggravating factors apart from the prevalence of such offences, I am of the view that justice in this case would be served by suspending the sentence of four weeks' imprisonment and I would, accordingly, suspend that sentence for a period of 12 months. That suspension to take effect as from the date of the appeal.

8. I would just like to add one more matter that in so deciding, let it be known that I arrived at this decision on the facts and the circumstances which pertained to this case. Offences of this nature are on the rise and are generally accepted to be more prevalent, especially in the remote parts of Hong Kong, namely the New Territories. Future offenders in respect of such offences cannot expect to receive the same kind of leniency as before. The maximum fine of $1 million provided for by statute is itself an indication that offences of this nature is viewed upon by these courts as a very serious offence. If serious enough, such offenders may well be looking at immediate custodial sentence.

9. Accordingly, I would set aside the sentence of the learned magistrate of four weeks' imprisonment and substitute that with a sentence of four weeks' imprisonment suspended for a period of 12 months as from today.