The Queen v. Ng Wai Hong

IN THE HIGH COURT

1992, No.797
Magistracy Appeal

Headnote

Sentencing - Smuggling Offences - Distinction between types of goods - Electronic goods of high value concealed in secret compartment of lorry - 12 months’ imprisonment by magistrate upheld.

IN THE HIGH COURT

1992, No.797
Magistracy Appeal

BETWEEN

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Coram :Hon. Litton, J.A. in court (sitting as an additional judge of the High Court)

Date of hearing : 29 January & 12 February 1993

Dates of delivery : 18 February 1993

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J U D G M E N T

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Litton, J.A.:

1. On 26 August 1992 the appellant Ng Wai Hong appeared before Mr. D.I. Thomas at Fanling Magistracy. He pleaded guilty to two offences. First, attempting to export unmanifested cargo contrary to section 18(1)(b) of the Import and Export Ordinance Cap. 60. Second, making use of a specially altered compartment of a vehicle for the purpose of smuggling articles out of Hong Kong contrary to section 14(1) of the same Ordinance. He was sentenced to 12 months’ imprisonment on each charge, to be served concurrently.

2. In respect of the first charge, the appellant was charged together with another person (D1) who pleaded not guilty. Upon the appellant’s guilty plea on both charges, and admission of the facts as stated by the prosecution, no evidence was offered against D1 and he was acquitted.

3. The facts of the case, briefly, are these. On 25 June 1992 a lorry driven by D1, loaded with goods, was submitted for routine customs examination at the Lok Ma Chau Control Point. It was then discovered that the lorry had a concealed compartment which contained a large quantity of electronic goods. These included : 40 SHARP video cassette recorders with corresponding remote controls, 30 PANASONIC laser disc players (with karaoke function) and corresponding remote controls, 100 PIONEER laser disc players with corresponding remote controls and a number of assorted video cassette players and recorders, microphones, cables batteries and instruction manuals. Dl was arrested, but denied all knowledge of the existence of the hidden compartment and of the electronic equipment concealed in the lorry. About a week later the appellant turned up at Lok Ma Chau Control Point and admitted ownership of the goods. He told the authorities that the false compartment in the lorry was made by him and he was to earn $50,000 if he succeeded in smuggling the goods into China.

4. The magistrate, Mr. D.I. Thomas, in stating his Reasons for Sentence, has given a very helpful history of the successive increases in maximum sentences for smuggling offences. He referred to three recent decisions of the High Court : Bewley J. in R. v. Ma Man Ho (MA 89/92, 25 May 1992, unreported), Barnett J. in R. v. Cheng Wai Man (MA 302/92, 27 May 1992, unreported) and Yang C.J. in R. v. Ng Choi Yau  (MA 262/92, 1 July 1992, unreported) from which it is clear that whilst the magistrates are alert to the growing menace of smuggling over the past year or so, and the threat this poses to the orderly conduct of trade between Hong Kong and China, and to Hong Kong’s external relations generally, the variety of sentences imposed in the magistracies has been wide. It is worth noting that, whilst as early as 1981, the Court of Appeal had, in A.G. v. So Ma Por [1981] HKLR 696, in relation to an attempt to smuggle out of Hong Kong 250 rolls of silk in a fishing vessel, thought it right to impose an immediate custodial sentence of three months for a section 18(1) Cap.60 offence, the magistracies in Hong Kong have continued to order a variety of punishments for such offences. These include modest fines through suspended sentences to immediate imprisonment for periods up to 12 months or longer. I am not suggesting in any way that the magistrates have been wrong in not following slavishly the example of So Ma Por; it only demonstrates the range of circumstances in these cases and the difficulties facing the magistrates. As Bewley J. said in Ma Man Ho, at p.4 of his judgment, seen from the point of view of the defendants, an immediate custodial sentence may seem excessively harsh. Often, the defendants are gainfully employed in legitimate business. Breaches of regulatory rules concerning shipping manifests may not appear to them highly reprehensible. There is, perhaps, this factor as well: if the Correctional Services in Hong Kong are to perform their work satisfactorily in relation to offenders convicted of “hard” crimes, and not be put under too much strain by additional numbers of convicted smugglers, then it would be better for defendants guilty of regulatory breaches under Cap. 60 to be dealt with in some way other than imprisonment.

5. On the other hand, the substantial increases in penalties for smuggling offences under Cap. 60, effected by the legislature in 1991, underline the community’s concern at the growing gravity of the problem. The courts will not be playing their part in dealing with this problem if sentences for offences were not correspondingly increased.

6. The statistics of sentences for smuggling cases in the magistracies for the month of September 1992, which Mr. Coghlan, Senior Crown Counsel, has helpfully provided shows that for the smuggling of electronic goods, whether by land or by sea, the defendants have generally been sentenced to imprisonment, with the upper limit at 12 months. In approaching their task, the magistrates have clearly been guided by the decision of the Chief Justice in Ng Choi Yau, a judgment of 1 July 1992, where the appellant was convicted in March 1992 by Mr. McKee at Tuen Mun on smuggling charges relating to a total of 95 used motor cycles. Mr. McKee had sentenced the appellant in that case to a total of nine months’ imprisonment. On appeal, the Chief Justice stressed the importance of deterrence in sentencing for such offences and considered the sentence of nine months’ imprisonment inadequate. He therefore over-turned the sentence and imposed one of 12 months.

7. On this appeal, Mr. Grounds, Counsel for the appellant, has argued that the Chief Justice’s decision in Ng Choi Yau should be regarded as confined to motor vehicles, and that electronic goods fall into a different category where lighter penalties should be imposed. He pointed out the fact that in Ma Man Ho the defendants were convicted of conspiracies involving complex operations over a period of time, and yet no sentence exceeding six months was ordered.

8. For my part, I cannot see any valid distinction between the smuggling of motor cycles and of electronic equipment such as video cassette recorders. They are all high value products, the smuggling of which is prevalent in Hong Kong, and bring substantial rewards. Indeed, in So Ma Par, at p.698-H Roberts CJ seems to suggest that the smuggling of articles of any type tends to “disturb the smooth relationship existing between Hong Kong and China” and therefore deterrence in sentencing is necessary. In So Man Par, the goods involved were rolls of silk. I do not take Roberts CJ as saving, in the passage just referred to, that magistrates should draw no distinction between various types of products in imposing sentences. That would plainly go against common-sense. Obviously, in low value products, where the gain from smuggling would be low, and the incidence is rare, the magistrate can afford to take a more relaxed view. The statistics which Mr. Coghlan has shown me supports this approach.

9. The other ground of appeal put forward by the appellant’s counsel is this: insufficient allowance has been made by the magistrate for the fact that the appellant had surrendered himself to the authorities; had he not done so, conceivably he might not have been charged. It is true that the magistrate, in his careful Reasons for Sentence, did not advert to this fact. On the other hand, the act on which the appellant stood convicted was planned in advance. The secret compartment in the lorry was plainly capable of hiding successive consignments of goods. Whilst the sentence of 12 months imposed by the magistrate was at the uppermost end of sentences for this type of smuggling, I do not think that the magistrate had erred in any way. Accordingly, the appeal must be dismissed.

Mr. Christopher Grounds (DLA) for Appellant

Mr. C. Coghlan (Crown Prosecutor) for Crown/Respondent