THE QUEEN v. MA MAN HO AND OTHERS

MA No. 89 of 1992

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H E A D N O T E

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CONSPIRACY TO DEAL WITH CARGO WITH INTENT TO ASSIST ANOTHER PERSON TO EXPORT THE CARGO WITHOUT A MANIFEST - IMMEDIATE SENTENCE OF IMPRISONMENT NECESSARY AS DETERRENT TO SMUGGLERS.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.89 OF 1992

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J U D G M E N T

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1. There were originally twelve defendants in this case. They were charged with conspiracy to deal with cargo with intent to assist another person to export the cargo without a manifest contrary to s.18A(1)(c) of the Import and Export Ordinance, Cap. 60. They appeared before Mr de Souza at South Kowloon Magistrates court and eventually all pleaded guilty to amended charges. Dl - D8 were convicted on Charge AT and D9 - D12 on Charge AX. D11's case was remitted to the Juvenile Court. The other defendants have all appealed against sentence. For the sake of convenience I shall continue to refer to each appellant by the number he was given in the Magistrates Court.

2. In May 1991 the police became aware of smuggling activity taking place at Lung Kwu Tan beach, Tuen Mun. A surveillance operation was carried out with the help of video equipment. A container was parked in the nearby village of Sha Po Kong village from which villagers were seen to unload boxes of video cassette recorders. These were placed in two vans and driven to the beach where they were loaded onto motorized sampans which transferred the boxes to fishing junks.

3. On 23rd May a police vessel arrived at the beach while the sampans were being loaded. They sped off leaving behind 36 VCRs which were seized. The villagers fled. One of the sampans was later found abandoned with 16 VCRs on board.

4. On 20th June the police pounced. Four sampans were loading VCRs as the police converged on the beach. One of the sampans was followed by a helicopter and was eventually intercepted by Marine Police. D9-D12 were found on board and were arrested.

5. When police arrived at the village D1, D3 and D4 were transferring boxes of VCRs from the container to a van. 52 VCRs were seized. D2 was found hiding in the bushes nearby with keys to the container padlock in his possession. D5, D6 and D7 were arrested as they ran up the hillside from the container. D8 had been seen driving one of the vans earlier in the day and he was arrested near the beach. This van was located in the village and was found to contain 60 VCRs. Inside the container were a further 462 VCRs.

6. The differences between the two charges were that :

(1)     Charge AT charged a  conspiracy between 22nd May and 20th June 1991, whereas the conspiracy alleged in Charge AX took place only on 20th June.

(2)     In Charge AX the cargo was alleged to be video cassette recorders but in Charge AT it was unspecified.

(3)     Other persons unknown were alleged to have been co-conspirators in Charge AT but not in Charge AX.

7. D1 was ordered to be detained in a Detention Centre; D4, D9, D10 and D12 were sentenced to four months imprisonment; and the other defendants received six months. All have been on bail pending appeal.

8. Mr Egan appears for Dl - D8 and Mr Oderberg, who also represented them below, appears for D9, D10 and D12.

9. It is not suggested by either Mr Egan or Mr Oderberg that a prison sentence on a first offender is wrong in principle in this kind of case, but they submit that if mitigating factors exist - as here - the court should consider a suspended sentence. They point also to the fact that counsel for the crown indicated to the magistrate that he would not seek a review of sentence were it to be suspended. They acknowledge that such an indication does not fetter this court, but urge it as a factor to be taken into account.

10. There are two possible approaches. The first is to acknowledge the overriding necessity for a deterrent sentence, irrespective of the personal circumstances of the defendants. There can be no doubt that the smuggling of VCRs and the like is being carried out on a very large scale. The profits must be substantial. Much harm is being done to Hong Kong's relationship with China. If people like these defendants know that on conviction they will inevitably go to prison, there is some prospect that the trade will be kept within bounds. If, on the other hand, they believe they will escape a custodial sentence on account of mitigating factors, which will usually exist, they may be prepared to chance their arms.

11. The other approach is to look at the situation from the point of view of the defendants. They are gainfully employed as fishermen or in the transportation and other businesses and they have no similar previous convictions. They were aware that they were doing something unlawful, but the nuances of shipping manifests and customs procedures would be lost on them. A prison sentence will cause substantial hardship to their families, coming on top of heavy legal expenses. The case has been hanging over their heads for nearly a year. They have pleaded guilty, shown remorse and are extremely unlikely to offend again. Finally they were not expecting to go to prison after the undertaking given by the crown.

12. Many of the above factors are likely to exist in future similar cases.

13. Counsel have informed me that there is a wide range of sentences for this and similar offences currently being passed by magistrates. This is confirmed by the statistics. They invite me to suggest an appropriate scale of sentence for such offences but urge strongly that these appellants should not be made victims of new sentencing guidelines.

14. In March this year in R. v. Tsui Shek Law & others M.A. No.1110 of 1991 Wong, J. dismissed the appeal of four men found guilty of very similar activities. The charge in that case was assisting with the carrying of restricted articles with intent to assist another person to evade restriction, contrary to s.35A (1)(c) of the ordinance. The maximum sentence for that offence is the same as in s.18A, namely two years imprisonment and $500,000 fine.

When dealing with sentence Wong, J. Said:-

"Section 35A(1)(c) was enacted recently by the legislature specifically to combat the rapid and astonishing increase of smuggling activities between Hong Kong and Mainland China. It follows that it is necessary to impose deterrent sentences in order to achieve this object. Any other approach or interpretation is contrary to, and a complete defeat of the legislative intent. Activities of this kind seriously affect our relationship with China and bring about serious social and security problems. The blatant way in which these people commit the illegal acts, if unchecked, will continue to threaten and undermine the authority of the law."

15. This is also my view of the matter. I do not propose to suggest the appropriate quantum of sentence in such cases. This must be left to the discretion of magistrates and will depend on the quantity and value of the smuggled goods and the mitigating circumstances. But I have no doubt that a suspended sentence is inappropriate while smuggling continues on the present scale.

16. As to these appellants, I see no reason to treat them differently. It is urged that the ordinance was amended two months before the offence, increasing the maximum fine from $50,000 to $500,000. That was not directed at persons like the appellants and I see no merit in this submission.

17. They are not the victims of new sentencing guidelines. The statistics of convictions since February 1991 indicate many sentences of immediate imprisonment for such offences.

18. The magistrate dealt with this matter with great care and I agree entirely with his reasons for sentence. The appeal is dismissed.