HKSAR v. Law Shu Fai

[English Translation – 英譯本]

HCMA1065/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1065 OF 2000

(ON APPEAL FROM NKCC 5517 OF 2000)

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BETWEEN

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Coram: Hon Pang J

Date of Hearing: 18 November 2000

Date of Judgement: 18 November 2000

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JUDGMENT

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1. The Appellant Law Shu Fai admitted in the North Kowloon Magistracy to one charge of dealing with goods to which the Dutiable Commodities Ordinance applied and one charge of possession of goods to which the Dutiable Commodities Ordinance applied. The goods involved in the first charge were 23 litres of light diesel oil whereas the goods in the second charge were 1,250 litres of light diesel oil and 20 litres of petrol.

2. In respect of the above two charges, the Appellant was sentenced to imprisonment for one month and 6 months respectively, with the two terms to run concurrently.

3. The offences took place at about 1:45 am on 5 September of this year. A team of custom officers were conducting an operation at Cheung Sha Wan, Kowloon, to combat the illicit sale of petrol. At that time the Appellant was holding an ejector and refuelling a taxi. Custom officers intercepted the Appellant and the taxi driver for inquiry. The Appellant admitted to the officers that he was fuelling the taxi with light diesel oil on which duty had not been paid, and the taxi driver admitted that he was buying such oil from the Appellant. Later Custom officers found a total of 1,250 litres of light diesel oil and 20 litres of petrol at the scene. Under caution, the Appellant admitted that he was employed to operate an illegal fuel filling station and he knew that duty had not been paid on the light diesel oil. The dutiable amount of the light diesel oil was HK$2,500. The Appellant told the officers that he was employed to operate the illegal fuel filling station at a daily wage of $400.

4. The brief facts as agreed by the Appellant showed that an illegal fuel filling station was being run at the above location. The station was not equipped with any fire prevention facilities and was approximately 20 metres from the residential area.

5. The magistrate adopted 9 months’ imprisonment as a starting point in respect of the second charge. As the Appellant pleaded guilty, he was given a one-third discount and therefore sentenced to six months’ imprisonment.

6. Counsel for the Appellant contended that the starting point adopted by the magistrate was manifestly excessive and that the magistrate should not have increased the term of imprisonment on the ground that the illegal fuel filling station was only 20 metres from the residential area. For these two reasons, the Appellant sought a reduction of the sentence.

7. The magistrate pointed out in his Reasons for Sentence that the illicit sale of petrol on which duty had not been paid would deprive the government of tax revenue, and that the illicit use of light diesel oil would cause considerable air pollution in Hong Kong. Furthermore, the illegal fuel filling station was only 20 metres from the residential area and no fire preventing facilities had been installed at the station. If a fire broke out, the consequences would be disastrous, and the lives and property of the residents nearby would be gravely threatened.

8. I am of the view that the activity of illegally selling light diesel oil is becoming prevalent. As the magistrate pointed out, such activity not only deprives our government of revenue, but also exacerbates environmental pollution. A deterrent sentence, namely an immediate custodial sentence, must be imposed on those convicted of possessing and illicitly selling light diesel oil on which duty has not been paid, even where they are first offenders and have pleaded guilty. If the refuelling stations or storage points are close to the residential area and hence present a threat to the lives and property of the residents, the magistrate can consider an increase in the term of imprisonment. The appropriate term of imprisonment will, of course, also depend on the quantity of the oil in question and the amount of duty payable thereon.

9. The Appellant had previously been sentenced at the North Kowloon Magistracy to 4 months’ imprisonment in respect of illegal sale and possession of goods on which duty had not been paid. The two offences in the present case were committed at the heels of the two previous offences, and this clearly shows that the Appellant is blatantly flouting the law. The starting point of 9 months adopted by the magistrate is in no way manifestly excessive. In the circumstances of the case, the magistrate had given the Appellant a one-third discount for his guilty plea . The term of 6 months is not improper. As the offence for which he was sentenced to 4 months’ imprisonment was committed at a different time, the magistrate should have ordered that the terms were to run consecutively.

10. In my judgment, the Appellant has failed to put forward any valid ground for a reduction of sentence. Accordingly, I dismiss this appeal and affirm the original sentence.

Ms Vinci Lam, Government Counsel, for the Respondent

Ms Anita Ma, instructed by Legal Aid Department, for the Appellant   

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor