HKSAR v. Chen Zhi-quan

HCMA 1003/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1003 OF 2004

(ON APPEAL FROM NKCC 7550 OF 2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 16 November 2004

Date of Judgment: 16 November 2004

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J U D G M E N T

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1.This is an appeal against sentence.  The Appellant had pleaded guilty in the Magistrate Court to three charges: the first charge was dealing with 14,000 cigarettes otherwise than in accordance with the Dutiable Commodities Ordinance; the second was for possession of 580,420 cigarettes under the same Ordinance and the third charge was breach of condition of stay, contrary to the Immigration Ordinance.

2.The Appellant was sentenced to imprisonment of 3 months on the first charge, 12 months for the second charge and 3 months for the third charge.  All sentences to be served concurrently, making a total of 12 months’ imprisonment.  The Appellant now appeal against the 12 months’ imprisonment on the second charge.

3.The Appellant had admitted the fact which showed that he was stopped and searched by Customs Officers when he came out of a flat and inside a nylon bag he was carrying was found a total of 14,000 cigarettes.  He subsequently led the Customs Officers back to the flat and a further 580,240 cigarettes were found.  Under caution, the Appellant admitted that these cigarettes belonged to him and that he was to carry them to another for a reward of $130 per day.  The total amount of tax evaded for this lot of cigarettes was in the region of $466,657.68.

4.The Appellant was in Hong Kong on a visitor’s permit and he was therefore also charged with breach of condition of stay.

5.The learned Magistrate when assessing sentence took into accounts the fact that the Appellant had a clear record in Hong Kong and that he had pleaded guilty but the learned Magistrate also observed that in the North Kowloon area, this type of offence is on the rise.  The fact is that the Appellant had in his possession a huge amount of cigarettes.

6.The learned Magistrate considered the case of HKSAR v MOK Chun-wing, HCMA 727/2000, where the Appellant in that case dealt with a total of 572,160 cigarettes and in that case, a starting point of 18 months’ imprisonment was considered appropriate and the learned Magistrate followed that case and gave the Appellant one-third discount for his plea of guilty and therefore sentenced the Appellant to 12 months’ imprisonment.

7.The Appellant who appeared in person has urged this Court to give him a chance because he was ignorant of the law and that his mother and grandmother was of poor health and that his family are poor.  These are not proper grounds of appeal.

8.When the appellate court considers an appeal against sentence, the Court had to consider whether the sentence which the learned Magistrate had imposed was manifestly excessive in the circumstances of the case or was wrong in law or whether the learned Magistrate had committed an error in procedure.  None of those matters exist here.  The learned Magistrate had very properly considered the prevalence of this type of offence in recent times which aggravated the circumstances of this case.  He also properly considered the case of MOK Chun-wing.  I therefore find that there are no grounds of appeal against sentence with merit.

9.In this case, the learned Magistrate was entirely correct in sentencing the Appellant to 12 months’ imprisonment for this large amount of cigarettes.  I must also say here that if the Appellant was as poor as he said, I wonder where he got the money to buy this large amount of cigarettes.  But in any event, it is not of concern to me here, I have only to consider the propriety of the learned Magistrate’s sentence and I find that there are no grounds for me to interfere, so the appeal is dismissed.

Miss Mary Sin, SADPP, of Department of Justice, for the Respondent

Appellant in person