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Appeal allowed against sentence for possession of dutiable goods. The court admitted medical evidence of dementia, and suspended the 2-month imprisonment for 18 months.
The High Court held the sentencing exercise below was within legal bounds: the trial judge reasonably used a 12-month custodial benchmark for the large quantity and value of unstamped cigarettes, properly applied a one-third reduction for the guilty plea, and reached an eight-month sentence which is not manifestly excessive. Mitigation offered was not sufficiently credible or exceptional to warrant a lower sentence and comparative assertions lacked particulars; appeal dismissed.
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The original sentence of 2 months was manifestly excessive. Having reassessed the facts and comparable authorities the court concluded an appropriate starting point was 6 weeks' custody pre-plea, reduced to 4 weeks after credit for plea. The appeal is allowed and the sentence is reduced to 4 weeks' immediate imprisonment.
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Given the substantial quantities and value of untaxed cigarettes, the cross-border/organized elements, appellant's extensive prior related convictions and offending while on bail, the trial judge's sentencing starting points (9 months and 12 months) and resulting sentences after plea reductions (6 months and 8 months with 1 month concurrent) were not excessive or wrong in principle; the aggregate sentence of 13 months is appropriate and the appeals are dismissed.
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The Court of First Instance dismissed a magistracy appeal against convictions arising from an illegal fuel depot, holding the circumstantial evidence proved employment and the offences beyond reasonable doubt.
The appellant's provision of his full name, telephone and residential address to enable the consignor/carrier to import, his direct collection and signature on nine consignment notes, and the trial judge's adverse credibility findings were open on the evidence; those acts constituted causing the goods to be brought into Hong Kong under s.18(1)(a) Cap.60 and the statutory defence failed because the manifests clearly described 'copper crafts' and the appellant had opportunity to observe that; on full rehearing the prosecution proved guilt beyond reasonable doubt and the conviction is upheld.
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On the whole of the evidence the only reasonable inference is that the appellant knew the rear tanks contained light fuel (petrol): his extensive cross‑border driving experience, his act of opening and smelling the tank on return, the implausibility of his explanation, and his failure to make simple inquiries or take reasonable steps establish knowledge beyond reasonable doubt, so the conviction is safe.
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上訴法院在重審所有證據後接納原審裁判官對控方證人可靠性的評價，認為警方初步查問屬例行性質不需警誡，相關調查回答可呈堂；傳單為實物證據並非決定性傳聞所致不可採納；整體證據包括車內大量未完稅香煙、上訴人與車的關聯及其被捕後的行為，足以在毫無合理疑點下證明控罪，故駁回上訴並維持定罪及刑罰。
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The appellate court, on a re‑hearing, accepted the prosecution's contemporaneous photographic and witness evidence and the trial judge's credibility findings; given the vehicle layout, the location of the opened bag and that only the appellant was handling the rear of the vehicle, the only reasonable inference was the appellant moved/touched the bag and must have seen its cigarette contents and therefore knew the goods were dutiable; the evidence proved the offence beyond reasonable doubt and the conviction is safe.
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Photos and officer evidence showed contraband was packed in medium-sized boxes and polythene bags, placed together, readily openable and visually distinct from declared goods; a reasonable person supervising or sampling the cargo would, by opening representative bags/boxes, have discovered the undeclared cigarettes and crabs. The prosecution therefore proved beyond reasonable doubt that the appellant would have discovered the goods with reasonable effort and the statutory s18(2) defence failed; the custodial sentence of nine months was not excessive given value and public interest.
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