HKSAR v. TSANG HEUNG CHUNG

HCMA291/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 291 OF 1998

-------------

--------------

------------------------

J U D G M E N T

------------------------

1. The Appellant who was the 1st Defendant in the original case pleaded guilty on 9th March 1998 before Mr Paul Kelly to three offences : the first of importing unmanifested cargo; secondly, importing goods to which the Dutiable Goods Ordinance applied without a licence; and thirdly, dealing with goods to which the Dutiable Commodities Ordinance applied. On the first charge, he was sentenced to 9 months' imprisonment and on the other two charges, one month's imprisonment each, all sentences to be served concurrently.

2. The Appellant was arrested, together with 11 other Chinese males, on 6th March 1998 as a result of a Police operation at the Yaumatei cargo working area. The Appellant was the Master of what is described as a Chinese Territorial Vessel which entered the Yaumatei Typhoon Shelter and berthed next to a lighter. A container was seen to have been unloaded from the Appellant's vessel onto a trailer which was on the shore. In the Appellant's vessel was another container inside which was found to have been a built-in metal tank and in the metal tank was found the 18,000 litres of unmanifested light diesel oil.

3. The Appellant had pleaded guilty and was sentenced on the date he pleaded guilty, which was three days after the commission of the offence. The original ground perfected by Counsel then in charge of this appeal, who was not Mr Buchanan, was that the learned Magistrate had erred by wrongly failing to conduct an inquiry into the mitigation that the oil was in fact for the use of the Appellant's vessel. Mr Buchanan who appeared for the Appellant this morning quite properly abandoned that ground.

4. In the light of the Appellant's plea of guilty, it would have been unarguable to try and say that the oil in question was meant for the use of the Appellant's own vessel. What Mr Buchanan does advance is that in the Statement of Findings by the learned Magistrate, the Magistrate had mentioned that the investigating authorities were concerned about triad control over what is a lucrative trade. Mr Buchanan also complains about the learned Magistrate saying that the Appellant is not a Hong Kong resident and therefore his clear record is of little value. Finally, Mr Buchanan says that 12 months' imprisonment as the starting point is too high, and also that this Appellant did not have the benefit of the usual one-third discount on the plea of guilty.

5. Offences of importing or exporting unmanifested cargo have to carry with them immediate custodial sentences because of the fear that otherwise these offences will proliferate. And indeed, to my knowledge, that is the practice which is adopted by magistrates in Hong Kong for the past few years. In this particular case, in addition to the cargo being unmanifested, the fact is that the amount of unmanifested cargo is quite large, namely l8,000 litres of light diesel oil.

6. Mr Chan for the Respondent makes the point that this Appellant was the Master of the vessel and therefore should be more culpable. He also makes the point that this was a planned operation because there were 11 other crew men involved.

7. It is true that the Appellant was the Master of the vessel, but there is no evidence that he was the owner of this cargo and therefore stood to make a lucrative profit. What he said in the cautioned statement was that he received the reward of RMB300 to sail the vessel into Hong Kong and there is no evidence to refute that. I am just slightly concerned that the learned Magistrate, when assessing sentence in this case, might have, at the back of his mind, the possibility of the fact that there was triad control in this particular case. What the learned Magistrate said about the Appellant not being a Hong Kong resident and therefore his clear record is of little value is clearly wrong. Whether or not any defendant is a Hong Kong resident, his clear record should be a matter for which he should be given credit. Not only that, but I am told that this particular Appellant had entered Hong Kong on a Two-way Permit, and I am told that prior to this occasion he had entered Hong Kong on three to four other occasions. I do not say that the 12 months starting point used by the learned Magistrate was wrong, there are no guidelines for these offences; the range of sentences which are normally passed would appear to be from four months to nine months' immediate imprisonment.

8. Without going into strict mathematical calculations and without saying that the 12 months starting point in this particular case is too high, for the reasons which I have mentioned, namely, the mention of triad control and the learned Magistrate not according credit to the Appellant's clear record because he is not a Hong Kong resident, I think that the sentence which should be imposed in this particular case should be one of seven months. That also reflects what I think is right, namely, that any defendant who pleads guilty should be given a one-third discount or a discount which approaches one-third. So the appeal is allowed to the extent that the sentence is reduced to one of seven months on the first charge.