HKSAR v. Tang King Chau

HCMA440/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 440 OF 2011

(ON APPEAL FROM TMCC NO. 1054 OF 2011)

--------------------------------

BETWEEN

--------------------------------

Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 28 September 2011

Date of Judgment : 28 September 2011

Date of Handing Down Reasons for Judgment : 15 November 2011

------------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------------

1.The appellant was charged with one count of possession of dutiable goods and another count of dealing with dutiable goods[1]. He pleaded guilty to the “possession” charge and was acquitted of the “dealing with” charge after trial.

2.He was sentenced to 2 months’ imprisonment.  He appealed against the sentence.  I allowed the appeal after the hearing.  The following is the reasons.

3.The appellant agreed that he was stopped by a customs officer while leaving a fenced yard near electric pole 354654-0A-07 at Long Tin Road, Tin Sui Wai.  The officer found two cartons (400 pieces) of dutiable cigarettes in the plastic bag he carried.

4.The magistrate noted that the appellant had 7 previous convictions from 2003 to 2010, six of which were offences of “dealing with dutiable goods”.  The remaining one was “possession of dutiable goods”.  The appellant was last sentenced to 4 months’ imprisonment on 6 December 2010.  The magistrate accepted that the cigarettes were for the appellant’s own consumption.

5.In sentencing, the magistrate stressed that the appellant should not be punished because of his previous record.  He pointed out that the appellant was a “serial offender” of dutiable goods offences.  This showed the appellant’s contempt for the law.  A deterrent sentence is indicated.  Despite the small quantity, he took a starting point of 3 months’ imprisonment, giving 1 month reduction for the plea, he sentenced the appellant to 2 months’ imprisonment.

6.Counsel for the appellant argued that the sentence was manifestly excessive given the small quantity of cigarettes.  They were all for the appellant’s own consumption.  Counsel pointed out that the magistrate failed to appreciate that the appellant had already been in custody for about a week before the plea.

7.The magistrate was right in emphasizing that “the appellant should not of course be punished again for offences for which he had already been punished”. I am sure he was well aware of the relevant sentencing principles.

8.I agree with the magistrate that a deterrent sentence is indicated.  In an appropriate case, a short imprisonment term may be indicated.  Having said so, a sentencing court must bear in mind that the penalty must commensurate with the gravity of the offence.  In my view, a starting point of 3 months’ imprisonment is manifestly excessive given the circumstances of this case.

9.The appellant had already been in custody for one week.  I am of the view that a suspended sentence and an additional fine would be appropriate in the circumstances.

10.I allow the appeal against sentence.  The original sentence is set aside.  It is substituted by a term of two months’ imprisonment suspended for two years.  The appellant is also fined $5,000.  The fine will be deducted from the appellant’s bail money.

Miss Irene Poon, SPP of the Department of Justice, for HKSAR.

Mr Steven Liu, instructed by Messrs Cheung & Liu, for the Appellant.