HKSAR v. Kwon Ujae

HCMA 124/2020

[2021] HKCFI 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 124 OF 2020

(ON APPEAL FROM FLCC 4065 OF 2019)

__________________________

__________________________

Before:  The Honourable Madam Justice Toh in Court

Date of Hearing:  10 February 2021

Date of Judgment: 10 February 2021

_______________

J U D G M E N T

_______________

1.The Appellant and a co-accused, who was the 1^st Defendant in the indictment were jointly charged with 2 counts of “dealing with goods to which the Dutiable Commodities Ordinance applies”, in respect of the 1^st Charge it was relating to 705,200 cigarettes, and in relation to the 2^nd Charge it was 347,580 cigarettes and 61,800 heatsticks.

2.The 1^st Defendant in the case had pleaded guilty and the Appellant pleaded not guilty.  The Appellant’s trial was delayed because of the COVID-19 situation in Hong Kong.  Thus the 1^st Defendant was sentenced separately. 

3.On the 22 September 2020, after trial, the Appellant was convicted of both counts and the learned Magistrate sentenced the Appellant to 21 months’ imprisonment for Charge 1 and 18 months’ imprisonment for Charge 2. 2 months’ imprisonment of Charge 2 was to run consecutively to Charge 1, and thus resulting in a total sentence of 23 months. 

4.The Appellant appears in person today in his appeal against sentence.   

5.The facts, which were found by the learned Magistrate were that the 1^st Defendant and the Appellant were visitors from Korea who arrived in Hong Kong on 31 August 2019.  On 5 September 2019, Customs officers when conducting an anti-illicit cigarette operation at a Fanling warehouse, through the CCTV system, saw the 1^st Defendant and the Appellant dealing with a large number of carton boxes which are the subject matter of Charge 1.  The 1^st Defendant and the Appellant were arrested at the scene and a bunch of keys found in the Appellant’s trousers pocket was able to unlock the door to a storage unit, inside of which were found some cigarettes and heatsticks which are the subject matter of Charge 2. 

6.The investigation by Customs and Excise Officers also revealed that the Appellant was the signatory on the tenancy agreement to that storage unit and had already paid for the rent.  Some delivery notes were also found on top of the carton boxes.  Using a key seized from the Appellant, Customs Officers were able to gain entry to a residential premises where another lot of delivery notes was found inside a cabinet drawer of the premises. 

7.At trial, the Appellant gave evidence and claimed that he was only here to learn how to trade, and that he was not the mastermind and he thought that the cigarettes had already had the duty paid.  His cousin and the cousin’s business partner had assured him verbally about this. 

8.After the Appellant gave evidence, the learned Magistrate found that he was not an honest witness and rejected the Appellant’s evidence.  In the event thus convicted the Appellant of both Charges.   The Appellant had a clear criminal record in Hong Kong and his Defence Counsel also mitigated on his behalf. 

9.The learned Magistrate considered many different sentencing options and also considered prior case precedents relating to illicit cigarettes, and particularly in one case HKSAR v Mok Chun-wing in HCMA 727/2000, Stock JA (as he then was), held that a starting point of 18 months’ imprisonment was appropriate for offences involving 572,160 cigarettes.  Of course these are merely for the learned Magistrate’s consideration in finding an appropriate sentence. Background and circumstances of each cases differ and so the learned Magistrate still had to tailor the sentence to consider the different backgrounds and circumstances of different cases.

10.The learned Magistrate in the end considered that as far as Charge 1 was concerned,  the number of cigarettes merited a higher starting point to reflect the criminality of the case.  The learned Magistrate also considered that the Appellant’s role was not minor because the Appellant had the key to the storage unit containing the cigarettes in Charge 2. The Appellant signed the lease of the warehouse and the Appellant had the key to the residential premises where delivery notes were found, and so at the end of the day, the learned Magistrate decided on a starting point of 21 months for Charge 1 and 18 months for Charge 2.     

11.In the present case, the learned Magistrate also considered that Hong Kong was used as a transit centre to send illicit cigarettes and heatsticks from Korea worldwide, and that may tarnish the reputation of Hong Kong. 

12.I must say here also that as a visitor to Hong Kong, the Appellant had abused the hospitality of Hong Kong people by coming to Hong Kong and within the first week of being here as a visitor, he had already committed the offence. So given this background, the starting point sentence of the learned Magistrate was in fact appropriate.  The learned Magistrate also very properly considered the totality of the sentence and decided on making 2 months of the sentence in Charge 2 consecutive to Charge 1, thus giving an overall sentence of 23 months imprisonment and I cannot say, therefore, that sentence was in any way manifestly excessive or wrong in principle. 

13.On that basis, the appeal against sentence is dismissed. 

Ms Jackie Lai, PP of the Department of Justice, for the Respondent

The Appellant acting in person