Attorney General v. Yeung Sun Shun and Another

IN THE COURT OF APPEAL

1987 No. 75
(Criminal)

BETWEEN:

Coram: Roberts, C.J., Hunter, J.A. & Power, J.

Dates of Hearing: 14th & 15th May, 1987.

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S E N T E N C E

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Roberts, C.J. -

1. As a result of our earlier ruling that we should, in accordance with section 84 of the District Court Ordinance, reverse the verdict of acquittal of the District Judge, and record a conviction against both respondents, it is now our task to impose such sentence as might have been passed on them by the Judge and as we think proper in the circumstances.

2. It is unnecessary to do more than refer very briefly to the principal facts which were contained in the case stated to us by the trial judge. According to his findings he was satisfied that the two respondents and another man, who gave evidence for the Crown, conspired together to import into Hong Kong 619 ivory tusks.

3. In relation to those activities the respondents faced two charges of conspiracy; the first being a conspiracy to import unmanifested cargo, contrary to common law and section 18(1) (a) of the Import and Export Ordinance, Cap.60; the second, a conspiracy to import scheduled species without a licence, contrary to common law and  section 4 (1) of the Animals and Plants Protection of Endangered Species Ordinance (Cap. 187).

4. Charged at the same time as the two respondents, were the Master of the vessel which brought the tusks within the Hong Kong jurisdiction, the Assistant Purser and the Purser.

5. After a preliminary, ruling of law by the Judge, those three other accused pleaded guilty to importing unmanifested cargo and to importing scheduled species without a licence, the Judge having ruled that these were absolute offences and did not require guilty knowledge. The Judge imposed upon the first accused, the Master, fines of $750 and $1,000 on the two charges and the same fines on the second accused, the Purser. However, on the basis that the Assistant Purser knew that unmanifested cargo and scheduled species were being imported, he imposed a fine of $5,000 and three months' imprisonment, suspended for 18 months' for importing unmanifested cargo and a fine of $2,500 for importing scheduled species.

6. We have been referred to two other cases dealing with unmanifested cargo. The first was Attorney General v. SO Ma-por⁽¹⁾, which dealt with the export of unmanifested cargo. This Court expressed the view that, in cases of a serious violation of the Import and Export Ordinance, in relation to unmanifested cargo, an immediate sentence of imprisonment was appropriate.

7. In that case, although the maximum sentence of imprisonment then provided by the law was only six months', the Court would have thought that an immediate custodial sentence of three months ' imprisonment would have been proper. Because, however, it was a case of review, the Court thought it right to allow, as it usually does in such circumstances, a discount and suspended the sentence.

8. In R. v. Chung Chi Wing⁽²⁾, the Chief Justice, sitting on appeal from a magistrate, expressed the view that there was little difference in principle between the export of urunanifested cargo to China and the import of unmanifested cargo from China, both kinds of offences being likely to serve as irritants to the relationships between Hong Kong and China. The same consideration must necessarily apply with regard to the relationships between Hong Kong and other countries.

9. Certainly, in the case of scheduled species with which we are concerned here, Hong Kong and at present Macau, though not Macau at the time of these offences, are parties to international agreements given effect to by local legislation, with the object of protecting endangered species throughout the world.

10. In Chung Chi Wing, a sentence of four months' imprisonment imposed by the magistrate was altered to one of four months' suspended for two years. The main reason for the interference by the Chief Justice with the magistrate's sentence was that the magistrate was over influenced by his mistaken relief that the defendant in that case was likely to derive substantial profits from smuggling the goods into Hong Kong unmanifested.

11. In this instance, however, the first respondent, Mr. Yeung, who was an ivory carver, resident in Hong Kong, was expecting to receive ivory of a value of about $500,000, from which necessarily substantial profits would have accrued to him, it being accepted, as I understand it, that this was ivory that could not have come into his possession by legitimate methods.

12. The second respondent, although a supplier and not a user of the ivory, was involved in the illegal importation into Hong Kong of the full consignment, worth approximately $lM., though we do not know the destination of the remainder of the consignment. This was, by any test, a serious conspiracy to import scheduled species into Hong Kong.

13. Both respondents have been active in the ivory business for many years and, clearly, the restriction on the amount of ivory available must have placed some restriction on the extent of their business and the degree to which they could profit from it.

14. It would have been possible to feel a greater sympathy for them if this had been a new restriction at the time when these offences were committed. Chapter 187, however, was enacted in 1976 so that the two respondents, who had been heavily involved in the ivory trade in differing respects for many years, must have known of the restrictions for the best part of a decade before these offences occurred.

15. We take into account, in their favour, that both of the Respondents are men with no previous convictions of any kind. Both of them are married men of mature age, with families. Nevertheless, we do not find it possible to regard these offences as other than serious of their kind, taking into account the background which I have described.

16. Having regard to the cases on the proper sentence for the importation of unmanifested cargo, and bearing in mind that this was not an ordinary offence of that nature but a conspiracy, we think that a proper sentence on the first charge would be an immediate one of nine months’ imprisonment on each of the respondents. In reaching this figure, we take account of the fact that the maximum sentence which can be imposed for offences against section 18(1)(a) of Cap. 60 has been amended twice in recent years. The maximum punishment was increased from $10,000 and six months' to $50,000 and six months' in 1980, and to $50,000 and two years' in 1984, an indication that the Legislature has taken an increasingly serious view of offences against this section.

17. With regard to the offence against Section 4( 1) of Cap .187, the maximum sentence which can be imposed for a first offender is $5,000, which in view of the importance of the protection of species, seems to be a derisory maximum. We respectfully suggest to the Legislature that they should re-examine the penalty which can be imposed under that section.

18. This is a very bad case of the import of a scheduled species, so bad indeed that we think that it calls for the maximum fine of $5,000 to be imposed on each of the respondents.

19. There is one other factor to which we give weight, in that we regard the stating of a case in these circumstances as equivalent, in relation to sentence, to a review at the instance of the Crown. It is our custom, on an application for review, to allow a discount to respondents from the sentence that we think should have been imposed by the trial judge. We shall follow that practice in this case, and accordingly reduce the sentence of nine months' imprisonment on the first charge to one of six months' imprisonment. We do not propose to allow any discount of the fine of $5,000 imposed on each respondent on the second charge.

Mr. G.J.X. McCoy, Senior Crown Counsel, for the Appellant /Attorney General

Mr. F. Eddis, Q.C., with Mr. J. Pow (Y.K. Poon & Co.) for the Respondents.

1 [1981] H.K.L.R. 696 C.A.

2  Mag. App. 1165/86