THE QUEEN v. CHUNG CHI-WING

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REASONS FOR DECISION

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1. The appellant ("D.2") appeals against a sentence of four months' imprisonment imposed upon him by a magistrate after he had pleaded guilty to one charge of importing unmanifested cargo.

2. According to the admitted facts, a vessel registered in the People's Republic of China was intercepted in Hong Kong waters on 25th October, 1986.

3. 24 bags of raw silk, with a total weight of 1,440 kilogrammes, were found during a Customs and Excise search of the vessel. There was no manifest for these goods.

4. D.2 had bought the silk in China and arranged for it to be brought to Hong Kong for resale. D.1, the Master of the vessel, was carrying it for reward. D.2 admitted that he knew the silk was unmanifested.

5. The magistrate gave great weight, when assessing sentence, to the Attorney General v. SO Ma-por and Others⁽¹⁾.

6. In that case, the Court of Appeal commented as follows, in relation to an offence under the same section, but dealing with the export rather than the import of unmanifested cargo -

"We are not prepared to go further than to say that an immediate sentence of imprisonment is appropriate in any serious violation of this section."

 

7. The Court, however, expressly limited its comments to offences involving export and excluded those involving import.

8. The Court based its observations on an acceptance that substantial weight could be given when assessing sentence to the damage that is likely to be done to Hong Kong's relationship with other territories by activities of this nature.

9. The magistrate commented that there seemed to him to be little difference in principle between the export of unmanifested cargo to China and the import of unmanifested cargo from China. With this I respectfully agree, insofar as either kind of offence is likely to serve as an irritant to the smooth relationships which are so desirable between Hong Kong and China

10. However, the magistrate appears also to have given undue weight to other factors.

11. Firstly he gave as his reason for not imposing a fine, the fact that D.2 appeared to be without means. The supposed inability of a defendant to pay the fine should not be regarded as a fatal objection to imposing it. If a fine is imposed and cannot be paid, imprisonment as an alternative may follow.

12. If the magistrate considers that a fine is the correct form of punishment, this ought to be imposed, even if he believes, and it can probably be no more than a guess, that the fine will not be paid.

13. Secondly, the magistrate was influenced by his opinion that the defendant was likely to derive substantial profits from smuggling the goods into Hong Kong without them being manifested.

14. There was, however, no evidence to indicate that the bringing of these unmanifested goods affected in any degree the profits that the defendant would make from the transaction.

15. As I understand it, imported raw silk is not subject to duties, so that no financial gain to the defendant is discernible as a result of the goods being unmanifested.

16. Taking these matters into consideration, it is my view that an immediate custodial sentence was excessive, in the case of a defendant with no previous convictions other than one for gambling which is of no relevance. Nor was there any evidence that he had been involved in transactions of this kind on previous occasions.

17. I consider that a suspended sentence is adequate. This will show that the import of unmanifested cargo is to be regarded as a serious offence, as was indeed suggested in the Attorney General v. So Ma-por and Others⁽¹⁾ in relation to the export of unmanifested cargo.

18. I think that the magistrate, had he considered the matter in the way that I have suggested above, would have come to the conclusion that it was right to suspend the sentence.

19. The appeal against sentence is allowed to the extent that the sentence of four months' imprisonment is suspended for two years.

(1) A. R. 13/81