Read the full judgment text of CAAR 000003/1985 on BabelCite. This Court of Appeal judgment was delivered on 7 June 1985 before McMullin, V.-P., Silke, J.A. & Mayo, J..
Criminal law – sentencing – strategic commodities – export without licence – Import and Export (Strategic Commodities) Regulations, Cap. 60, Regulation 2 – Import and Export Ordinance Cap. 60, section 12(6) read with section 12(4) – 50 sets of IBM personal computer XT system units – three parts classified as strategic commodities – restrictive notice served – HK$2 million order to a Chinese university yielding HK$100,000 profit – Attorney General's application for Review of sentence on grounds of manifest inadequacy and wrong in principle – application out of time with leave – whether fine of $30,000 on first charge was manifestly inadequate and wrong in principle – whether suggested tariff of 2.5 times profit (Popular Machinery Co Ltd v. The Queen; Shiu Chen Chuan v. The Queen) or 40% of value of goods (Attorney General v. Marvels Clothing Ltd.; Attorney General v. Eagle's Eye (Hong Kong) Ltd.) should be applied – Court endorses principle that fine should remove profit and impose an added penalty, and that damage to external relations is reflected in the size of the transaction – the legislature's recent increase of maximum fine from $50,000 to $500,000 and of imprisonment from one to two years evinces the seriousness with which such offences are viewed – absence of deliberate deception, Respondent's attempts to obtain licence, his over-anxiety, recent incorporation of company, possible inexperience and clear record are mitigating – proper fine would have been $175,000, with usual discount on Review yielding $150,000 – Application for Review granted – sentence on first charge quashed and $150,000 fine substituted – $5,000 fine on second charge (half of $10,000 maximum) left unaltered – compliance with section 81A(2A) Criminal Procedure Code criticised as unhelpful.
Legal issues: Adequacy and principle of fine for exporting strategic commodities without licence
Outcome: Application for Review granted. Sentence on the first charge (exporting strategic commodities without licence) quashed and a fine of $150,000 substituted. Fine of $5,000 on the second charge (removing prohibited article) left unaltered.