Ham Gioe v. The Queen

CACC000553/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.553 OF 1971

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Coram: Rigby, C.J.

Date of Judgment: 13th April, 1972.

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JUDGMENT

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1. The appellant pleaded guilty to 13 summonses preferred against him at the instance of the Department of Commerce and Industry in respect of false export declarations signed by a clerk of his firm, on his authority, in relation to goods consigned to firms in Indonesia. He was fined a total of $12,500 and it is against the totality of those fines that he has appealed to this court on the grounds that they were too severe. The appellant was not represented at the trial but is represented for the purposes of this appeal by Mr. Martin Lee.

2. A written statement of the relevant facts was placed before the trial court and admitted by the appellant as correct. For the purpose of understanding the nature of the appeal it is, I think, both relevant and necessary to set out in full that statement of facts:

3. Having recited those admitted facts, it only remains to say that the actual financial loss suffered by the Hong Kong Government as a result of the false declaration as to the value of the goods exported was the ad valorem stamp duty calculated at the rate of $2 for the first $4,000 value of goods exported and thereafter at the rate of 50 cents per thousand dollars - a total amount, so I am informed by Crown Counsel, of $24.50.

4. In his statement of Findings, the learned magistrate said - as, indeed, must be clear beyond argument - that "......the Colony's prosperity depends on her trade. That trade must depend to a large extent on friendly trading relations with other countries. If those countries find that they cannot rely on the documentation issued by the Colony's trading authority, the Colony's goodwill can only suffer." The fine imposed was undoubtedly a severe one but it was rightly and properly intended to be severe.

5. Mr. Martin Lee, who argued the appeal with characteristic care and thoroughness, has urged that the appellant was a first offender; that the actual financial loss suffered by the Hong Kong Government was infinitesimal; that there is no evidence as to the actual loss of duty suffered by the Indonesian Government; and that, in any event, it is no part of the function or duty of one country to act as a watchdog to safeguard and protect the customs, tariffs and barriers of another country.

6. I must confess that my first reaction was that he fines imposed, although very properly severe, were in fact unduly severe. It was, therefore, with some relief that I considered it appropriate to refer to the Full Court a precisely similar appeal⁽¹⁾ against sentence imposed by the same magistrate on identical charges involving under-valuations made in export declarations in respect of goods also exported to Indonesia. The fines imposed in that case were also $1,000 in respect of each of five summonses in relation to export declarations to a total valuation of $25,535, whereas the true valuation was $39,335 - a total under-valuation of $13,800. The nett profit said to have been made on the transactions was declared to be $4,000.

7. In the instant case, the total value of the 13 export declarations made was declared as $97,963.30 whereas the true value was $147,139.35 - a total under-valuation of some $50,000 odd.

8. Again, in the instant case, the nett profit stated to have been made on all transactions was said to be just under $4,000.

9. In dismissing the appeal against the fines imposed, Pickering, J., delivering the judgment of the Full Court, accepted the principle that - and I quote from the judgment -

"..... in the absence of special circumstances, it is no part of the function of the courts of one country to enforce the revenue laws of another or to punish, on behalf of that other country, for infringements of those laws."

He went on to say, however,:

"The true damage occasioned by offences of this kind is not to the Revenue. It lies in the distortion of export figures, in the intangible but real effect upon international relations of the inhabitants of one country assisting those of another to defraud the Revenue of that other and in the loss to commercial confidence occasioned by the knowledge that declarations intended to be 'accurate and complete' cannot be relied upon."

Therein lies the seriousness of this type of offence, namely, the damage done, or which may be done, to the commercial reputation of this Colony. In the concluding paragraph of his judgment, Pickering, J. went on to say:

"In the present case the ratio of penalty to disclosed net profit was 2 1/2:1 and we are of the opinion that such a ratio is by no means excessive."

10. In the case now under consideration before me, the learned magistrate imposed a fine of $5,000 in respect of the first summons and, in so doing, purported to take into consideration six other summonses then before him. That was an incorrect procedure. Where there are separate summonses or charges before the court and a plea of guilty is returned in respect of each summons or charge, a separate sentence should be imposed in respect of each summons or charge (see LO Ying v. The Queen⁽²⁾).

11. Applying the dicta of the Full Court to the ratio of penalty to disclosed nett profit as 2 1/2:1 as being "by no means excessive", the fines imposed in the present case will be varied to a fine of $750 in respect of each of the 13 summonses, making a total of $9,750. The balance of $2,750, if already paid by the appellant, must be reimbursed to him.

Representation:

Martin Lee (Deacons) for Appellant.

Niamatullah, C.C. for Crown/Respondent.

(1) Crim. App. No.950/71 (Popular Machinery Co. Ltd. v. The Queen)

(2) (1967) H.K.L.R. 471.