HKSAR v. Chan Pui Sum

HCMA001081/2000

HCMA 1081/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1081 OF 2000

(ON APPEAL FROM TSUEN WAN MAGISTRACY
NO. TWCC 1913 OF 2000)

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Coram: Hon Jackson J in Court

Date of Hearing: 21 December 2000

Date of Judgment: 21 December 2000

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J U D G M E N T

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1. On 15 September of this year, the appellant was convicted at Tsuen Wan Magistracy of causing articles to be placed on board a vessel without lawful excuse contrary to sections 6E(1) and (7) of the Import and Export Ordinance Chapter 60.

2. He was sentenced to a term of 9 months imprisonment and he appeals against both conviction and sentence.

3. It is not necessary in this case to recite the facts which led to the conviction of the appellant because his grounds of appeal do not touch upon them.

4. The grounds of appeal relied upon are as follows:-

5. Firstly, that after counsel's closing speeches were completed at trial, the case was adjourned for the learned Magistrate to consider her verdict. In his closing speech Mr Lim (who also appears before me on this appeal) made reference to authorities on the law of strict liability.

6. When the Court reconvened some 10 days later for verdict counsel for the prosecution submitted a further authority on the question of strict liability for consideration by the Magistrate.

7. Before she retired to consider that authority Mr Lim, who had been provided with a copy of it earlier that morning, was afforded the opportunity to address the Court upon it - which he proceeded to do.

8. Mr Lim now complains that, in effect, that was a material irregularity and, he submits, an abuse of process.

9. I can deal with this ground of appeal shortly. It was nothing of the sort.

10. Secondly, that the 1st defendant at the trial pleaded guilty to a charge similar to that faced by the appellant. That 1st defendant, having pleaded guilty before the trial magistrate, admitted a summary of facts prior to the commencement of the trial of the appellant.

11. Mr Lim complains that the learned Magistrate should have somehow withdrawn that summary of facts or postponed its acceptance by the 1st defendant until after the trial of the appellant. Although he did not say as much before me, it seems that Mr Lim is now complaining that that summary of facts was somehow prejudicial to the case of the appellant. Again I can say in relation to this ground of appeal that it was nothing of the sort, and that the learned Magistrate's careful statement of findings makes that plain.

12. Thirdly, Mr Lim complains that the appellant was in some way prejudiced because he was obliged to call the 1st Defendant to give evidence, and that, in effect, he would much rather that the prosecution had called him as part of its case so that he could have cross-examined him.

13. As to this ground of appeal, I simply don't understand it. There was no desire by, let alone any obligation upon, the prosecution to call the 1st Defendant as part of its case.

14. Finally the appellant appeals against the sentence of 9 months imprisonment which was imposed upon him. As to this matter the learned Magistrate gave reasons in full for that sentence, and relied in part upon the authority of the case of The Queen v. Ng Choi Yam which is MA 262/92. In the course of his judgment in that case Yang CJ said:

"Where a substantial number of articles is involved the proper range of sentence should be between 12-15 months imprisonment."

15. In the present case it was an admitted fact that there were 285 packages of vehicle parts with an estimated value of $500,000.00 on board the vessel in question.

16. Mr Lim submits that the proper sentence in the present case should have been a fine or a suspended sentence of imprisonment.

17. Suffice it to say that I have heard nothing this morning to persuade me that the sentence imposed by the learned Magistrate was in any way excessive.

18. Accordingly for all of these reasons the appeals against conviction and sentence are dismissed. The appellant will be returned into custody to continue to serve his sentence.

19. In all of the circumstances I make no order for costs in favour of the Respondent as sought by Ms Ko.

Representation:

Ms Catherine Ko, SGC, for HKSAR

Mr Ernest Lim, instructed by Messrs C K Mok &Co., for the appellant