Chan Kam-bor and Others v. The Queen

CACC000239/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 239 OF 1981

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Coram: the Honourable Mr Justice O'Connor in Court

Date of Judgment: 8th April 1981

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JUDGMENT

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1. The appellants who are residents of China pleaded guilty to a charge of attempting to export unmanifested cargo contrary to section 18(1)(b) of the Import and Export Ordinance Chapter 60 and attempting to export prohibited articles without a licence contrary to Regulation 4(1) of the Import and Export (General) Regulations made under Chapter 60. The facts were put before the Court by way of a statement of brief facts of the case prepared by the prosecution. These disclose that at about 8.30 p.m. on the 3rd of March, the Police Small Boat Unit intercepted a Chinese fishing vessel off Lau Fou Shan within the colony waters. It was heading for the Po On commune in China. The Police officers boarded the vessel and searched it. There were five crew members on board. They are the appellants. Upon search the Police officers discovered a large quantity of goods on board which are the exhibits in this case. They consisted of 155 rolls of cloth, 600 pairs of trousers, 5 cassette recorders and 6 TV aerials. Enquiries revealed that the defendants had obtained written permission from the commune to carry dried oyster to Hong Kong for sale at Lau Fou Shan and that they entered the colony lawfully and disposed of that cargo. They then purchased the goods the subject matter of this charge. This action of theirs, it appears, is contrary to the law and policy of China and would be disapproved by the Chinese Authorities. It seems that the appellants may have been, and probably were doing this at the request of the commune in China. After having been taken into custody the defendants were quite frank with the authorities in Hong Kong and gave them all the information that was sought. They claimed that the proceeds of the sale of these articles in China would be divided amongst clansmen on their return. They all admitted that they were responsible for the shipment.

2. The Magistrate sentenced each of them to six months imprisonment on the first charge and nine months imprisonment on the second charge, the sentences to run concurrently. They now appeal against sentence. Not many cases of this nature have come before the courts and I am informed by Mr Dick that only one other appears to have gone on appeal. That is the Queen v. Soen Ing Fia in Cr. App. 224/81, decided last week. In that case the master of a Taiwanese junk had a number of articles on board and he had been sentenced by the Magistrate to four months imprisonment on each charge concurrent, which sentences were upheld on appeal. In that case the goods were of a rather similar type to those in the present case but in that case the value of the goods was a little more than double the value of the goods in this case. The value of the goods in the present case are $87,000. There have been a number of cases before the Magistrates for persons who have been charged with importing into Hong Kong goods from China, silver coins and such articles and I am told by Mr Dick that the sentences that the Magistrates impose on those cases are generally in or around three to four months imprisonment. I myself cannot see that there is any real distinction between importing to and exporting from Hong Kong goods of this general nature. Of course it would be different if the articles involved were such articles as drugs or explosives or arms or ammunition such matters, and I am not dealing with a case of that type. The maximum sentence laid down by law for the first charge is a fine of $50,000 plus six months imprisonment and the maximum punishment laid down for the second kind is a fine of half a million dollars plus two years imprisonment. I agree with what the Magistrate said in his Statement of Findings and I quote in part from his statement:

3. In passing sentence for an offence of facts of this nature, regard may be had to our relationships with other jurisdictions in the area and some regard should be paid to the comity of nations. In the case of the Queen v. Hau Sang 1963 H.K.L.R. page 881 the Court said "It is appropriate when deciding on the sentence to have regard to the demaging effect the breach of the law may have on our external relations, which in their turn can have domestic repercussions". It is clear that a continuing smuggling of articles of any type in either direction between Hong Kong and China is an irritant, tending to disturb the smooth relationship existing between Hong Kong and China. This matter was brought to the attention of the Learned Magistrate in the brief facts of the case. Right at the very beginning of the brief facts the following appears:

"Government (in the person of the Governor at a speech to prison officers at Stanley on 23 January 1981) has recently stated:

I do not think that passage ought to have appeared in the brief cases of facts. Courts ought to be informed of any matter that affects the seriousness of the offence. However information should not be conveyed in a manner that suggests, or could be thought to suggest, an excutive direction. In the case I have already referred to the Queen v. Hau Sang, Crown Counsel in addressing the Court had said that he was instructed to draw to the Court's attention that His Excellency The Governor had directed that all steps should be taken to prevent the activities referred to in that case being carried on in the colony since he considered that the use of Hong Kong for such purposes was inimical to its interests and could be an embarrassment to the government. The Court in regard to that passage made the following observation:

"Whilst it is, of course, quite appropriate that counsel for the crown should bring to the attention of the Court the serious repercussions which might follow from the activities of the accused and his friends, it would, we think, have been preferable if the matter had been expressed somewhat differently e.g. it could have been put equally well merely by drawing the Court's attention to the dangerous consequences that might flow from these activities and the desirability of checking them. The introduction of the Governor's name might be thought by some to indicate that a form of directive have been issued, not only to those who, as members of the Executive can be so directed but also bearing on the Court's discretion. We feel quite sure that it was not so intended and that it was not so interpreted by the Judge in the Court below. Had he thought that this was the meaning he would, we believe, have been the first to indicate that he was not susceptible to direction. Although we think such a construction to be unjustified the danger of the form adopted is that possibly it might be still understood in some quarters and as we have seen counsel for the crown has so construed it. Any such misunderstanding would be avoided by the more impersonal form that we have suggested."

I am sure that in the present case the Magistrate was not susceptible to direction.

4. In the present case the maximum sentence provided for includes not only imprisonment but fines. No fines were imposed. In the light of the facts fines did not come in for consideration. In respect of the first charge the sentence imposed is the maximum imprisonment available. I consider it is not a case for the maximum imprisonment and I reduce in respect of each appellant the six months on the first charge to four months. In respect of the second count I reduce sentences of nine months to six months. The sentences are to run concurrently.

Representation:

All five appellants in person

J. W. Dick, Senior Crown Counsel, for Crown/respondent