HKSAR v. Wong Chun Wan

HCMA 598/2018

[2019] HKCFI 1882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 598 OF 2018

(ON APPEAL FROM FANLING MAGISTRACY
CASE NO FLCC 1320 OF 2018)

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REASONS FOR JUDGMENT

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1.This case concerns the dealing with dutiable commodities-cigarettes.

2.On the night of 14 March 2018 near midnight, a team of customs officers were conducting illicit cigarettes operation in Man Kam To area. They saw the appellant together with a man arriving in a private car carrying many cartons of cigarettes (41,600 cigarettes) on board (Forming the subject matters of charge 2 against the man).

3.They stopped in the open area outside a bungalow, got off and entered the bungalow. They emerged about 10 minutes later and walked back to the car. The appellant was carrying a carton.

4.The officers took action and stopped them for questioning. The carton box the appellant was carrying was found to have 1,400 cigarettes in it (Forming the subject matters of charge 1 against the appellant). She told the officers that someone paid her to deliver the cigarettes from the bungalow to the car.

5.Using the keys found on the appellant, officers opened the door to the bungalow and discovered many more cartons of cigarettes inside, altogether 227,520 cigarettes (Forming the subject matters of charge 3 against both). The appellant told the officers that she would receive orders from a man, whose nickname was “beard man”, over the phone and then get the cigarettes from bungalow to put onto the car which would come to collect them. She would get $200 a day for so doing. 

6.The officers took the appellant back to her nearby residence, a tin house, for a search and a total of 327,400 cigarettes in the form of carton were found (Forming the subject matters of charge 4 against the appellant). Again, she told the officers that the cigarettes belonged to the beard man who would give orders to her by phone to deliver the cigarettes to the car.

7.The appellant was charged with 3 counts of dealing with dutiable commodities[1] (Charges 1, 3 and 4). The case was heard before the Deputy Magistrate, Gary Chu, sitting in Fanling Magistracy and the appellant was convicted after trial of all counts and sentenced to a total term of 17 months’ imprisonment. Having abandoned the appeal against conviction earlier on, she continues to prosecute her appeal against sentence.

8.The learned magistrate passed a two-week term on the first charge, 10 - month on the third and 15-month on the fourth. Taking into account the totality principle, he ordered concurrent sentences for charges 1 and 3, and 3 months of charge 3 should run consecutively to charge 4, making a total of 18 months. A month was taken off the total for her clean record resulting in the ultimate sentence of 17 months’ imprisonment.

9.Miss Petra Lui, counsel for the appellant, made it clear from the outset that the appellant took no issue with the starting point of each individual charge, but submitted the overall sentence of 17 months was manifestly excessive because the learned magistrate failed to attach sufficient weight to the appellant’s limited role and her personal background.

10.The limited role Miss Lui referred to was what the appellant had told the customs officers after her arrest that the cigarettes belonged to the beard man who hired her for $200 a day, she only had to package the cigarettes, load them onto a car to send them away for distribution.

11.The source of complaint came from what the learned magistrate had said in his Statement of findings when passing sentence – 

“I have also considered the mitigation put forward by the defence counsel in open court. There is not much mitigation advanced by counsel except a brief background of the defendants”

12.Based on the above, Miss Lui submitted that the learned magistrate had failed to consider the appellant’s role at all when sentencing. Her role was limited in the sense that the appellant was not the owner or prime mover of the goods nor was she a repeat offender, the sentence failed to reflect the absence of the above-mentioned aggravating features.

13.The appellant had gone through a trial before she was convicted, the learned magistrate must have a clear idea of the evidence of the case including the appellant’s statements to the customs officers, and thus her self - proclaimed role.

14.I am sure the learned magistrate had had her role in mind when sentencing, though he did not spell it out in so many words.

15.In any event, I do not think her self-proclaimed role would qualify as a strong mitigating factor so as to make a difference to her sentence. She was not passively in possession of large quantity of cigarettes, she indeed played a proactive role by packaging the cigarettes and delivering them to the point of distribution, i.e., the car. Undoubtedly, she was a cog in the wheel, but an important one.

16.There is no merit in this complaint.

17.Regarding her background, the appellant was a single mother with a coming of age son, they depended on each other as no other family members or relatives in Hong Kong. Both her parents were suffering from chronic diseases and hospitalized in the Mainland, she had to provide for her son and to take care of her parents. She used to rely on social assistance but the payment of which was stopped in October 2018 when her son turned adult. The son is currently living alone with no one looking after him.

18.In reply, Miss Claudia Ng, Senior Public Prosecutor for the Respondent, drew my attention to what the court had said in the case of SHUM Chung-wai [2002]2 HKLRD 81:

“This court has said many a times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned.”

19.Family circumstances are rarely of substantial mitigation unless they amount to humanitarian grounds. The accused’s family is likely to fall on hard times whenever the accused is sent to prison - this is nothing out of the ordinary - the accused should have foreseen such an eventuality when she set out to commit the crimes. 

20.There is also no merit in this complaint.

21.Given the facts of the present case, an overall sentence of 17 months’ imprisonment is neither manifestly excessive nor wrong in principle.

22.The appeal against sentence is therefore dismissed.

Ms Claudia Ng, SPP of the Department of Justice, for the respondent

Ms Petra Lui, instructed by Paul Kwong & Co. for the Appellant.