HKSAR v. CHEUNG KIN CHUNG

HCMA 1110/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1110 OF 2001

(ON APPEAL FROM FLCC 1760/2001)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 6 months' imprisonment imposed after he pleaded guilty, in the Magistracy, to one charge of Attempting to Export Unmanifested Cargo, contrary to Section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and Section 159G of the Crimes Ordinance, Cap. 200.

2. The Appellant was caught at the Sha Tau Kok Control Point when he attempted to drive across the border a private motor vehicle in which, concealed in the hollow parts of the 4 door-sills, were 19 digital video camera recorders which he intended to sell to shops in the Mainland. The retail value of these items was $190,000. The Appellant made a full admission and pleaded guilty. The Appellant had only one previous conviction for Unlawful Possession of Dutiable Goods, which were cigarettes, and another for Possession of Cigarettes which did not bear Health Warnings and Tar Group Designations. Those convictions were in December 1991.

3. On appeal it was submitted that the Magistrate erred in taking 9 months as the starting point for sentence, as that starting point was too high. Various cases were referred to me to show that earlier similar cases were in kind and nature more serious. Those relevant were The Queen v. Ma Man Ho & others MA 89/92; The Queen v. So Lo Ma 1178/92; The Queen v. Ng Wai Hong MA 797/92; The Queen v. Ng Choi Yau (1993) 1 HKCLR 90. The Respondent referred me to The Queen v. Lam Ting MA 11/97.

4. Mr Poll's basic ground was that the Magistrate erred in following what he referred to as 1992 sentencing patterns, pointing out that sentences at that period were more draconian because of the very serious problems with smuggling from China that existed at that time. He submitted that current cases, while requiring deterrent sentences, did not require such severity.

5. In Ma Man Ho, a case considered by the Magistrate in this case, a sentence of 6 months' imprisonment was considered a proper sentence for a conspiracy which ran for over a month and which involved 12 defendants and a substantial quantity of VCRs. That sentence was imposed in 1992.

6. The case of So Lo Ma, unusually, involved fruit smuggling and the 3 months sentence imposed appears severe given the nature of the offence. However, it is significant that it was a second offence and further it had been committed 5 months after an earlier offence. For those reasons, the sentence was upheld. The judge commented that the Magistrate in that case would not have been in error if he had imposed a substantial fine with imprisonment in default, or a suspended sentence.

7. The case of Ng Wai Hong, where the Defendant was sentenced to 12 months' imprisonment, involved a very much more substantial type of smuggling where the Defendant had fashioned a secret compartment in his vehicle and the quantity of goods was 40 video cassette recorders and 130 laser disc players, together with other items. That Defendant stood to make $50,000 from his transporting of the items. The sentence appears to be the uppermost end of the sentencing scale at that time. It is significant that the maximum penalty in the instant case is a sentence of 2 years' imprisonment.

8. The case of Lam Ting usefully sets out other sentencing cases - the decision in that case was given in June 1997. That sentence of 6 months was upheld showing that deterrence was still a factor that the court should take into account in these cases. However, I note that Lam Ting involved a conviction after trial and the value of the goods was $1.32 million.

9. I consider that the instant case although serious and requiring a deterrent sentence, is not at the higher end of the scale in terms of smuggling culpability. The maximum penalty is 2 years' imprisonment. The amount of goods was substantial, but not in the highest bracket. There was no deliberate fashioning of a secret compartment. There was no evidence that the Appellant was working for a syndicate and, although I agree with the Magistrate that deterrence is an important part of such a sentence, I consider that in this case, the same deterrent effect could have been achieved by a sentence where the starting point was at a lower level than 9 months.

10. I have noted, as did the Magistrate, the contents of the Background Report which shows that the Defendant is a hardworking family man. His previous conviction was ten years ago, and he has not been in trouble since.

11. For these reasons, I consider that a starting point of 6 months would have been adequate in this case. I take that starting point and, giving the Appellant full credit for his plea of guilty, I sentence him 4 months' imprisonment.