Sin Hua Petroleum Co Ltd v. The Queen

Case No.CACC 676/1979

Court

Court of Appeal

Date01 Aug 1979

Judge—

Case Document

100%

CACC000676/1979

Sentence: Corporation: hydrocarbon oils unlicensed to supply: span of charge dates: scale of fines.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 676 OF 1979

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Between
	Sin Hua Petroleum Co. Ltd	Appellant
	AND
	The Queen	Respondent

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Coram: Silke, J. in Court

Date of Judgment: 1 August 1979

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JUDGMENT

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1. Sin Hua Petroleum Co. Ltd pleaded guilty at North Kowloon Magistracy on the 4th May 1979 to two summons both brought under the Dutiable Commodities Ordinance CAP 109 in that they did supply hydrocarbon oils without a permit or licence granted by the Director of Trade Industry and Customs. The offence section of the ordinance is section 17(3) and the penalty section is section 46.

2. On the 1st summon, the date of offence being 1st April 1978, the Learned Magistrate imposed a fine of $15,000: on the 2nd the date of offence being 3rd February 1979 he imposed a fine of $9,000.

3. The company now appeals against those sentences. I allowed the appeals in part and stated I would give my reasons in writing.

4. The admitted facts were that on 5th February 1979 Customs and Excise Officers inspected the premises of the company and it was found to be unlicensed to deal with hydrocarbon oils.

5. The appellants admitted that no licence had existed since 1975. This admission clearly misled the Learned Magistrate for it is incorrect - the company was incorporated on 22nd March 1977. Whatever entity existed prior to that time was not before the court and it was not open to the court to go behind the veil of the legal entity before it. (See Mei Ya Magnetic Tapes Co. Ltd v. The Queen: Criminal Appeal No. 1113 of 1976 (unreported)).

6. The company kept books starting on 1st April 1978 and it admitted that it had dealt with 1,427,524 gallons of hydrocarbon oils between the charge dates: that is 1st April 1978 and 3rd February 1979. On those actual dates 7,263 and 4,462 gallons of hydrocarbon oils were supplied.

7. It would seem that there was yet another information before the Learned Magistrate when this matter first came up on the 20th April 1979.

8. This was not dealt with on plea on the 4th May - and indeed the record makes no mention of it.

9. When, upon application for Review, that Review came on for hearing on 18th May 1979 the Crown stated they would drop the first summons.

10. Now that information (No. NKS 13266) was one which purported to charge the appellant company with dealing in goods to which the Ordinance applied namely 1,427,524 gallons of hydrocarbon oils - an offence under section 17(1) of the Dutiable Commodities Ordinance.

11. It would seem that the reference in the admitted facts to 1,427,524 gallons stems from this information which was not proceeded with.

12. I think again the admission by the company, which was not then represented, and the way in which the whole matter was presented to him misled the Learned Magistrate with whom I have sympathy.

13. There was no question here of any duty being avoided and the licence fee, which was amounted to $100 per year. After an application on 4th February 1979 a licence was granted on 16th February. On this last I entirely accept the submission of Mr White for the Crown, that it is not the loss to Revenue of the amount of the licence fee which is the harm but it is the avoidance of inspection, and of consideration of the suitability of the appellants to deal in these oils, which is the real gravamen of the matter.

14. With respect to the Learned Magistrate I think the matters to which I have referred induced him to apply the wrong approach to the penalty. Mr Kwok has so submitted on the basis of Lai Yiu Ching v. The Queen [1968] H.K.L.R. 666 - a sexual case - which, in the headnote it was stated:

"3.

(obiter) From the statement made by the trial judge it appeared clear that he had taken into account in regard to sentence the evidence regarding the incidents of carnal knowledge over the ten months preceding the offence charged. ....... However, if account is to be taken of a course of conduct which includes events that in themselves constitute offences, it would be desirable for the prosecution to consider whether to include additional charges for at least some of such offences."

15. While the Learned Magistrate was entitled to consider the volume of business of the appellant company in evaluating the penalty he was not entitled to punish them for offences which were not before him. This he appeared to do.

16. I am told that the general run of fines in these cases is between $1,000 and $5,000. The Crown accepts this. I would accept that the offences here - even with a clear record - are on the higher level of the scale. The maximum fine is $100,000 and two years imprisonment.

17. In the event I find the fines imposed to be excessive and I allow the appeal to the extent that the fine on the first summons of $15,000 is reduced to $5,000 as is the fine of $9,000 imposed on the 2nd summons.

18. I am told the fines have been paid: the excess therefore should be returned to the appellants.

	(William Silke)
	Judge

Representation:

Kenneth Kwok Esq. (Johnson, Stokes & Master) for Appellant

C. A. White Esq., Senior Crown Counsel, for Respondent