HKSAR v. Tang Kam Wai

HCMA000368/2004

HCMA 368/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 368 OF 2004

(ON APPEAL FROM TMCC 3453/2003)

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Coram: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 5 August 2004

Date of Judgment: 5 August 2004

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J U D G M E N T

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1.The Appellant, a man in his early 30s faced a charge of possession of goods to which the Dutiable Commodities Ordinance, Chapter 109 applies contrary to section 17(1) of that Ordinance as read with section 46(3) thereof.

2.The particulars of offence were that on 27 October 2003 the Appellant and his co-accused had in their possession, custody or control goods to which the Dutiable Commodities Ordinance applies, namely 2,095,760 cigarettes, not in accordance with the provisions of that Ordinance.

3.Appearing before Symon Y W Wong, Esq. in the Magistrate's Court at Tuen Mun, the Appellant pleaded guilty. The maximum penalty for this offence is two years' imprisonment and a fine of $1 million.

4.In passing sentence, the Magistrate adopted that maximum term, that is two years, as the starting point. Giving the Appellant a 1/3 discount for his guilty plea, the Magistrate sentenced him to 16 months' imprisonment. He now appeals against sentence.

5.Explaining why he took the maximum term as his starting point, the Magistrate said this:

"At the time of sentencing, I was mindful that I was imposing a maximum statutory imprisonment term, and that Stock JA in Mok Chung Wing has said 'where the maximum is so low, that leeway will be small, but I think there must be some ... and that the approach cannot be mathematical'. Had I found the defendants as 'prime movers' or considered this being the worse type of case, I would have also imposed a heavy financial penalty."

6.Three perfected grounds of appeal against sentence had been filed. They read:

"(1) The Learned Magistrate erred in law in not calling for a community service order report.

(2) The Learned Magistrate adopted an excessive starting point.

(3) In all the circumstances, this sentence imposed on the Appellant is manifestly excessive."

7.In my view, the Magistrate was justified in not regarding community services as appropriate in the circumstances of the present case. As far as the other two grounds are concerned, I accept that the Magistrate adopted too high a starting point and that the Appellant's sentence should be reduced.

8.Indeed, Miss Pang for the Respondent felt obliged to accept that the appeal should be allowed and that an appropriate starting point would be 21 months. Mr Lam for the Appellant also submits that in the event that the court does not regard community services as appropriate then the appropriate starting point should be 21 months.

9.Having heard both counsel, I have come to the conclusion that the appropriate starting point is 21 months. Discounting that by 1/3 gives 14 months. The appeal against sentence is allowed to reduce the sentence from 16 months to 14 months.

Representation:

Mr Nelson Lam (instructed by Messrs Clarence Wong, Cheung & Liu) for the Appellant

Ms Anthea Pang (of the Department of Justice) for the Respondent