HKSAR v. Mathew Fermina Rebualos

HCMA 335/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 335 OF 2016

(ON APPEAL FROM FLCC NO 686 OF 2016)

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J U D G M E N T

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1.The appellant Mathew Fermina Rebualos was the 2nd defendant in FLCC 686/2016.

2.On 25 May 2016, the appellant appeared before Mr Li Chi-ho, a permanent magistrate (“the Magistrate”), facing two charges of dealing with goods to which Dutiable Commodities Ordinance applies (Charges 1 and 2).  She pleaded guilty to both charges, and admitted the facts pertaining to those charges.

3.The Magistrate, upon hearing mitigation, sentenced the appellant to 10 weeks’ imprisonment on Charge 1, and 8 weeks’ imprisonment on Charge 2, with 4 weeks of which to run consecutively to the sentence of Charge 1, making a total of 14 weeks’ imprisonment. 

4.The appellant now appeals against her sentence. 

5.Both charges took place on 19 February 2016, Charge 1 took place inside a shop at Luen Wo Hui Market, Fanling (hereinafter referred to as “Location A”), whereas Charge 2 took place inside the residence of the appellant in Yuen Long (hereinafter referred to as “Location B”).

6.Charge 1 concerned 15,260 sticks of cigarettes, Charge 2 concerned 12,320 sticks of cigarettes. 

7.On 19 February 2016, by search warrant, a team of custom officers entered a shop named MicMich at Location A, which was manned by the appellant.  Upon search, a total of 15,260 sticks of cigarettes of assorted brands were found stored at various places in the shop (“Charge 1”).

8.The appellant was later brought back to a reported residence at Location B.  A total of 12,320 sticks of cigarettes of assorted brands were found at various places inside her residence (“Charge 2”).

9.In the video-recorded interview, the appellant admitted that all the seized cigarettes belonged to her, and no duty had been paid.  She would sell the cigarettes for a profit. 

10.The duty potential of 27,580 sticks of cigarettes is $52,567.48. 

11.The appellant had a hitherto clear record.  In mitigation, the duty lawyer who represented the appellant urged the Magistrate to impose a fine or call for a community service report.

12.The Magistrate was not persuaded that a financial penalty or a community service order was appropriate, given the fact that a large quantity of cigarettes were found both in the shop owned by the appellant and at her residence. 

13.The Magistrate reckoned that an immediate sentence was the only appropriate sentence he should pass in the present case. 

14.In HKSAR v Chen Zhi Quan HCMA 1003/2004, the appellant, who had a clear record, pleaded guilty to two charges of dealing with goods to which Dutiable Commodities Ordinance applies.  For the charge that involved 14,000 cigarettes, he was sentenced to 3 months’ imprisonment. For the charge that involved 58,420 cigarettes, he was sentenced to 12 months’ imprisonment.  All sentences were to run concurrently.  He appealed against his 12 months’ imprisonment, and his appeal was dismissed.

15.In HKSAR v Kwok Sau Chun HCMA 543/2010, the appellant pleaded guilty and was sentenced to 4 weeks’ imprisonment for dealing with 1,400 cigarettes and 4 months for dealing with 59,800 cigarettes.  The 82-years-old appellant had four previous similar records.  Her appeal was dismissed.

16.In HKSAR v Tran Van Ha HCMA 1000/2002, the appellant, who had no fewer than 15 similar records, was sentenced to 4 months’ imprisonment for dealing with 400 cigarettes (2^ndcharge) and 4,800 cigarettes (4^thcharge) respectively; for the 3rd charge, which involved 21,420 cigarettes, he was sentenced to 18 months’ imprisonment.  All sentences were to run concurrently. The appellant appealed against his sentence on the 3rd charge only.  His appeal was allowed.  On appeal, the court adopted 15 months as the starting point to reflect the prevalent nature of the offence, and the fact that the appellant was a persistent offender.  The sentence was reduced to 10 months for his plea of guilty.  The court considered that a starting point of no more than 10 months’ imprisonment would have been appropriate for someone who is at the higher level in the distribution of cigarettes than a mere street vendor, in dealing with 21,420 cigarettes. 

17.The Magistrate considered the aforementioned authorities, and came to the conclusion that the quantity of the cigarettes that the appellant had dealt with, ie 15,260 and 12,320 cigarettes respectively, to be of substantial quantity.  The Magistrate did not consider it a mitigating factor that the appellant would resell the cigarette to make a small profit of $5 per packet. 

18.The learned Magistrate accepted that the appellant was not in the higher end of the distribution of the cigarettes, but given the quantity of cigarettes involved in each charge, the facts of the case, and the mitigation put forward, he came to the conclusion that the only appropriate sentence he could pass was one of immediate custodial sentence. 

19.The Magistrate did consider, but concluded that he could find no exceptional circumstances to suspend the sentence. 

20.On Charge 1, the Magistrate took 18 weeks’ imprisonment as the starting point, and reduced it by one-third for the guilty plea of the appellant, and he allowed a further reduction of 2 weeks to reflect the clear record of the appellant.  He sentenced the appellant to 10 weeks’ imprisonment.

21.On Charge 2, the Magistrate took 15 weeks’ imprisonment as the starting point, and reduced it by one-third for the guilty plea of the appellant, and he allowed a further reduction of 2 weeks because of the clear record of the appellant.  He sentenced the appellant to 8 weeks’ imprisonment.

22.The Magistrate took into consideration the totality principle.  He ordered half of the 8 weeks for Charge 2 to run consecutively to the sentence for Charge 1, making it a total of 14 weeks’ imprisonment.

23.The appellant appeared in person before me today.  In a letter dated 12 July 2016, the appellant asked me to sentence her instead to probation order or community service order. 

24.The appellant told me she is the sole breadwinner for her family, which consists of the appellant, her husband and two children aged 10 and 4.  The appellant says she wants to provide for her family members. 

25.Mr Li, senior public prosecutor, who appears on behalf of the respondent, submits that the sentence passed on the appellant are in line with the authorities referred to in the reasons for sentence prepared by the Magistrate.  Mr Li submits that the Magistrate also addressed the question of totality and the ultimate sentence is commensurate with the appellant’s overall culpability (para 12 of the respondent’s submissions).  I agree. 

26.I agree with the respondent’s submission that the number of cigarettes involved in the present case is substantial, and the appellant was also selling them at her shop.  In other words, unlike street vendors, there was a constant supply of cigarettes in a fixed location, and potential customers who know how to buy those cigarettes (para 11 of the respondent’s submissions).

27.I agree with Mr Li’s submissions that the appellant should have thought about the effect of her incarceration on her family members before she committed the offences in question.  Sympathetic as I am with  the defendant, these difficulties are not matters that can be considered as mitigating factors.  These are matters that the defendant should have borne in mind before she committed the offences in question. 

28.In my judgment, if any mistake is to be detected from the reasoning in the Magistrate’s reasons for sentence, it is his decision to allow a reduction of 2 weeks for the appellant’s clear record.  The one‑third reduction for guilty plea has normally subsumed into it the clear record of the defendant.  Unless a defendant has a positive good character, no additional discount over and on top of the usual one for reduction should be given to a defendant who pleads guilty. 

29.On the materials before me, I do not regard the appellant, who had a hitherto clear record, as a person of “positive good character”. This mistake worked, however, only to the appellant’s favour.  The individual sentences, ie 10 and 8 weeks’ imprisonment and the overall sentence of 14 weeks are not a day too long.  Indeed, the appellant should consider herself lucky that she was given 2 weeks’ reduction for her clear record, which should not have been given to her.  The individual sentences and the ultimate sentence are neither wrong in principle nor manifestly excessive. 

30.The appeal against sentence is dismissed.

Mr Li Hay Chit Andrew, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person