The Attorney General v. So Ma-por and Others

CAAR000013/1981

Coram: Roberts, C.J., Li & Silke, JJ.A.

Date of Judgment: 20th November, 1981.

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DECISION

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Roberts, C.J.-

Preliminary

1. The Attorney General applies to the court for a review of the sentences passed on the three respondents on the 5th August, 1981 for the offence of attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import & Export Ordinance. Each was fined $9,000.

2. As we were not satisfied that one of the three respondents had been served with the notice of to-day's hearing, we have decided to deal only with the applications which relate to the second and third respondents.

Facts

3. On the early morning of the 3rd May of this year, a Royal Naval vessel intercepted an unlit motorized fishing junk which was within Hong Kong waters on a course heading towards Chinese waters.

4. On board the junk were the three respondents, plus a woman and two children, all of them in possession of Hong Kong Identity Cards.

5. A boarding party from the Royal Naval vessel searched the junk and found 250 rolls of cloth hidden under fishing-nets in the hold of the vessel. No manifest or export licence covering those goods was held by the respondents.

6. One of the respondents admitted, in a statement which he made to a customs officer and which was admitted in evidence, that he knew the cloth was on board the junk, that it was intended to tranship it to another vessel from mainland China, and that the goods were not covered by an export manifest.

7. The respondents, who pleaded not guilty, were convicted by the magistrate of the offence of attempting to export unmanifested cargo. They were acquitted of the second charge, which was attempting to export articles without a licence. That acquittal is said to be the subject of other proceedings and we shall not concern ourselves with it.

Submission by Crown

8. Mr. Lucas' main submission was that the only proper sentence for this offence was imprisonment. In support of this, he produced a schedule of recent convictions for this offence which showed that, during the course of this year, sentences of imprisonment have been imposed in the majority of such cases.

9. Some of the cases in that schedule dealt not with attempting to export unmanifested cargo but with attempting to import unmanifested cargo. It may be that different considerations would apply to that offence. We have not heard argument on the question. Therefore, what we say should be construed as referring only to the offence of exporting unmanifested cargo and not to the offence of importing unmanifested cargo.

Proper considerations

10. The schedule distinguished the place of origin of the defendants in the various cases. We would like to observe, in passing, that whether the offender has a Hong Kong background, or comes from the mainland, should make no difference of itself to the appropriate penalty to be imposed by a court.

11. One of the factors which the magistrate took into account in deciding to impose a fine was that the cloth was likely to be forfeited in accordance with the provisions of the Import and Export Ordinance.

12. In our view, when deciding on the penalty to be imposed for an offence of exporting unmanifested cargo, a magistrate should disregard the question of forfeiture. This is a penalty to which defendants are liable under entirely different provisions of the Ordinance. Forfeiture proceedings depend upon an administrative decision for their inception; it cannot be assumed that they will be instituted in all cases. Nor can it be assumed that, if sought, an order of forfeiture will necessarily be made. A magistrate should, therefore, disregard the question of forfeiture.

Proper sentence

13. Mr. Lucas pointed out, entirely properly, that the real gravamen of the offence is not the act of taking unmanifested cargo out of Hong Kong, but the damage which the subsequent disposal of the goods will have on the relationships of Hong Kong with overseas countries and, in particular, with our neighbours on the mainland.

14. In R. v. HAU Sang⁽¹⁾, the Full Court observed-

"It is appropriate, when deciding on the sentence, to have regard to the damaging effect the breach of the law may have on our external relations, which in their turn can have domestic repercussions."

15. In the recent case of CHAN Kam-bor and Others v. R.⁽²⁾ O'Connor, J., when dealing with an appeal against the sentences imposed (inter alia) for the offence of exporting unmanifested cargo, said-

"It is clear that a continuing smuggling of articles of any type in either direction between Hong Kong and China is an irritant, tending to disturb the smooth relationship existing between Hong Kong and China."

16. We agree that substantial weight can be given to the damage that is likely to be done to Hong Kong's relationship with other territories by activities of this nature.

17. It is not uncommon for this court to advise judges and magistrates that in certain classes of offence the normal punishment, which should be departed from only in unusual circumstances, should be an immediate custodial sentence. But those classes of offence usually carry a heavy maximum penalty.

18. Only last year, in August 1980, the Legislature amended the maximum fine which could be imposed for this offence from $10,000 to $50,000. It made no alteration to the maximum sentence of imprisonment.

19. We do not think that, where the maximum sentence of imprisonment is only six months, which is low by comparison with many other offences, we can properly say that the normal sentence should be one of immediate imprisonment.

20. We are not prepared to go further than to say that an immediate sentence of imprisonment is appropriate in any serious violation of this section. The case which is the subject of this review would, in our view, constitute a serious violation of that section.

21. Adopting the approach of O'Connor, J., with which we agree, we would have thought that an immediate sentence of three months' imprisonment would have been proper in this case.

22. However, in accordance with our usual practice, whereby the respondent in an application for review should be treated less severely than a normal defendant at the end of his trial, we have decided that the proper course is to confirm the fines of $9,000 imposed on the second and third respondents and order that, in addition, each will be sentenced to imprisonment for three months suspended for two years.

23. Let it be noted, however, that we have ordered a suspended sentence only because this is a review. If a magistrate takes the view that an offence of this nature is sufficiently serious to warrant imprisonment, a suspension of the sentence should not be the usual course.

Test to be adopted by Court

24. We were invited to rule that the test laid down in the Attorney General v. LAM Kam-tai⁽³⁾ for the exercise of the power of review by this court should be revised. In that case, the Full Court said that the court should only interfere on review if it thought that the sentence was so manifestly inadequate or grossly excessive that it left one with a sense of shock or outrage.

This was a view with which Mr. Justice Huggins disagreed in a later case in the same year. As this was a decision of the Full Court we are technically not bound by it. It may very well be that, if the matter is fully argued on another occasion, rather than arising incidentally as it did on this, we might be disposed to reconsider the phraseology used in LAM's Case⁽³⁾ in 1972, at a time when the power of review was a novel one.

Representation:

M. Lucas, Q.C., D. Lyons, Crown Counsel, for Applicant.

Patrick Woo (Arthur Au & Co.) for 2nd & 3rd Respondents.

(1) (1963) H.K.L.R. 881.

(2) Cr. App. 239 of 1981.

(3) (1972) H.K.L.R. 324.