HKSAR v. MA WAI FUI

HCMA 1123/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1123 OF 2003

(ON APPEAL FROM ESCC 3378/2003)

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J U D G M E N T

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1. This is an appeal against sentence. The Appellant had pleaded guilty to two charges of dealing with and possession of goods to which the Dutiable Commodities Ordinance applies. He was sentenced to concurrent sentences of 2 months and 12 months imprisonment respectively.

2. The facts show that police officers saw the Appellant carrying a carton box coming out of Wing Shan House. The police approached him and upon seeing the police, the Appellant dropped the box and fled and he was only apprehended after a long chase. The carton box that he dropped was found to contain 10,000 cigarettes. The Appellant admitted that he had taken the carton box from Flat A, 3/F of Wing Shan House. When he was taken to the flat, a key found on the Appellant was used to open the door to the flat and the police found 418,200 cigarettes, which is the subject matter of the second charge.

3. Under caution, the Appellant admitted that he had ordered these cigarettes from the Mainland, shipped them to Hong Kong, kept them in this flat which he rented for $5,000 per month. He was delivering 50 cartons to a customer when he was intercepted by the police and the Appellant admitted that no duty had been paid for the cigarettes.

4. The learned Magistrate in considering sentence took into account the plea of guilty by the Appellant, his clear record and his family circumstances. He also considered the case of Mok Chun Wing HCMA 727/2000 and as a result, he considered that the appropriate starting point for both charges would be 3 months for the first charge and 18 months for the second charge. In taking these as starting points, the learned Magistrate also took into account the fact that the Appellant was a first offender and also considered the quantity of the cigarettes. But there, of course, is offset by the fact that the learned Magistrate considered him to be the prime mover.

5. Mr Wong, who represents the Appellant in this appeal, appeals on the ground that the sentences were manifestly excessive and wrong in principle. He also complains that the trial Magistrate did not consider "every aggravating factor of the case". If that is so then it is to the advantage of the Appellant as the learned Magistrate only found as an aggravating factor, the fact that the Defendant was the prime mover. There is no merit in that ground of appeal.

6. In considering whether it was manifestly excessive or wrong in principle, a reading of the case of Mok Chun Wing is helpful. In that case, Stock JA recognised the fact of prevalence for this type of offence and he had this to say at p. 4 of the Mok Chun Wing case:

"Where the maximum is so low, that leeway will be small but I think there must be some. I agree with counsel for the Respondent that the approach cannot be mathematical. A proprietor or prime mover in such a case as this might expect the maximum as a starting point even for a first offence."

Although the number of cigarettes in this case is less than the quantity in Mok's case, Mok was not a prime mover.

7. It is clear that the learned Magistrate had considered all the mitigating circumstances in this case when arriving at the proper sentence. I do not consider that the sentence was manifestly excessive or wrong in principle, so the appeal is dismissed.