HKSAR v. Lam Tan Ching Paul
Read the full judgment text of FACC 1/2017 on BabelCite. This Court of Final Appeal judgment was delivered on 9 January 2018 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ, Lord Hoffmann NPJ.
Criminal law – import and export – powdered milk formula – parallel trading – Regulation 6(1D) of Import and Export (General) Regulations, Cap 60A – Import and Export Ordinance, Cap 60, s 6D(1) – Crimes Ordinance, Cap 200, s 159G – construction of 'accompanied personal baggage' – whether limited to baggage physically carried by the person or extends to baggage carried by another accompanying the person – appeal against conviction – appellant and wife travelling together to the Mainland via Lo Wu – briefly separated in crowded customs channel – four cans (3.6 kg) of powdered formula found in appellant's backpack, two for his wife – magistrate's and Court of First Instance's restrictive construction rejected – 'accompanied personal baggage' is an everyday expression to be approached with common sense as a question of fact – extends to belongings of a person travelling on the same journey even when physically with a companion at the time of inspection – administrative or enforcement concerns cannot justify a strained construction that would ensnare innocent families – conviction quashed – respondent to pay appellant's costs limited to any contribution payable to the Director of Legal Aid – balance of appellant's costs to be taxed under the Legal Aid Regulations, Cap 91.
Legal issues: Construction of 'accompanied personal baggage' in Regulation 6(1D) of Import and Export (General) Regulations
Outcome: Appeal allowed; conviction quashed.
Cited by 1 case · Cites 1 case
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FACC No 1 of 2017 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO 1 OF 2017 (CRIMINAL) (ON APPEAL FROM HCMA NO 729 OF 2015) ____________ BETWEEN
____________ Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Hoffmann NPJ Date of Hearing and Judgment: 9 January 2018 Date of Reasons for Judgment: 25 January 2018 _____________________________________ REASONS FOR JUDGMENT _____________________________________ Chief Justice Ma: 1.After hearing counsel, we allowed the appeal and made an order as to costs.[1] I agree with the reasons contained in the judgement of Mr Justice Tang PJ. Mr Justice Ribeiro PJ: 2.I agree with the Reasons given by Mr Justice Tang PJ. Mr Justice Tang PJ: 3.The Import and Export (General) (Amendment) Regulation 2013 which came into operation on 1 March 2013[2] was enacted to combat parallel trading in powdered milk formula between Hong Kong and the Mainland. For that purpose, amendments were made to the Import and Export (General) Regulations, Cap 60A (“the Regulations”) with the result that the export of powdered formula to all places outside Hong Kong except and in accordance with an export licence issued by the Director-General of Trade and Industry became prohibited under s 6D(1) of the Import and Export Ordinance, Cap 60. But Regulation 6(1D) was added to exempt, from s 6D(1), powdered formula:
4.On 25 January 2015, in the departure hall of Lo Wu Control Point, the appellant was found with four cans containing a total of 3.6 kg of powdered formula. He was charged with and convicted[4] of the attempted exportation of powdered formula in excess of the permitted limit of 1.8 kg without an export licence under s 6D(1) of the Import and Export Ordinance and s 159G of the Crimes Ordinance, Cap 200 and fined $500. 5.His case as summarised by the learned magistrate was that he and his wife were travelling from Hong Kong to the Mainland via Lo Wu.[5] He was carrying four cans of powdered formula in his backpack, two for himself and two for his wife. He was walking side by side with his wife but:
6.The learned magistrate said little about the prosecution case although he said:
7.The learned magistrate did not think it necessary to resolve any difference between the prosecution and the defence case. He took the view that under Regulation 6(1D):
8.The learned magistrate went on to say there was no defence to the charge because:
9.On appeal, his decision was affirmed by Fung J. His Lordship said “accompanied baggage” meant “the baggage accompanied by that person instead of the baggage entrusted to another person” and added, “In any case, the Appellant did not dispute that he was not with his wife when going through clearance.”[9] 10.On 9 February 2017, the Appeal Committee gave leave to the appellant to appeal on the following question of law, namely:
11.Before us, Ms Vinci Lam on behalf of the respondent submitted that accompanied personal baggage is not limited to baggage physically carried by, or immediately with, a person and can extend to baggage carried by, or immediately with, another person “so long as the baggage is physically proximate to the person as to be staying with or going along with [the relevant person]”.[10] 12.Ms Lam submitted that in the present case, it was not in dispute even on the appellant’s version of events that he was not with his wife when going through clearance. Accordingly, even if the appellant was carrying the personal property of his and his wife, the two additional cans of powdered formula was not physically proximate to the wife. 13.I disagree with the respondent’s submissions. We are concerned with the proper construction of the expression “accompanied personal baggage”. This is an everyday expression. It is a question of fact in every case and should be approached with common sense. Suppose the wife was asked by mainland customs officer at the other side of the border, whether she had any accompanied baggage and said, “Yes, they are with my husband”. I do not believe the man in the street would say she was untruthful. Without attempting an exhaustive definition, I am of the view that on the basis of the defence case, two of the four cans of powdered formula should be regarded as part of the wife’s accompanied personal baggage, just as if she shared a suitcase with her husband and her clothes were in his suitcase. They were travelling on the same journey with her and belonged to her and should be regarded as her accompanying personal baggage. Nothing in the context of these words nor with regard to their purpose[11] compels the construction advanced by the respondent. 14.Ms Lam submitted that this construction is liable to be exploited by parallel traders. She gave the example of a group of ten parallel traders each carrying ten cans of powdered formula. She said if nine of them got through customs undetected but one was stopped, that person could call for the return of four of his confederates each of whom would then claim that he was carrying two cans for him. This is a fanciful example. Anyway, it would not justify giving the expression “accompanied personal baggage” a construction which would ensnare innocent travellers. Families travelling together often carry stuff for one another. The crossing between Hong Kong and the Mainland is very busy. Travellers are often hurried along and told not to linger. Just as in the present case, it is easy for persons travelling together to be separated for whatever reason, particularly in a busy immigration or customs hall. In any event administrative convenience or operational concerns ought to be addressed administratively or through other measures rather than by a strained legal construction. Furthermore, persons claiming to be travelling together or to be carrying powdered formula for one another, have in truth to be doing so, not merely because they have said this to be the case. 15.Finally, in allowing the appeal, it of course follows that the conviction of the appellant must be quashed. In this respect, it should be noted that the respondent did not suggest otherwise. Moreover, although it was unclear in the SOF as to whether the magistrate accepted the appellant’s version of events, the transcript of the proceedings when he was being sentenced reveals that the magistrate did accept his version.[12] 16.For the above reasons, I allowed the appeal. Mr Justice Fok PJ: 17.I agree with the Reasons given by Mr Justice Tang PJ. Lord Hoffmann NPJ: 18.I agree with the Reasons given by Mr Justice Tang PJ.
Mr Andy Hung, instructed by Ho & Ip, assigned by the Director of Legal Aid, for the appellant Ms Vinci Lam, SADPP and Ms Florrie Chan, SPP of the Department of Justice, for the respondent [1] The appellant was legally aided. It was ordered that the respondent pay the costs of the appellant limited to any contribution that was payable by the appellant to the Director of Legal Aid. Other than that, the appellant’s costs are to be taxed in accordance with the Legal Aid Regulations, Cap 91. [2] L.N. 25 of 2013. [3] Powdered formula usually come in cans of 0.9 kg each, so effectively, the limit is two cans of powdered formula. [4] By Mr Raymond Wong, a magistrate. The statement of findings of the magistrate (“the SOF”) was dated [5] The evidence is not entirely clear but it appears that they went through Immigration 9 seconds apart. See judgment of Fung J, who dismissed the appellant's appeal, dated 10 March 2016 (“the judgement”) at para 4. [6] Para 7 of the SOF (as translated). [7] Para 10 of the SOF. [8] Para 12 of the SOF. [9] Paras 16 & 17 of the judgment. [10] Para 18 of the respondent’s case. [11] See para 3 above. [12] “But still, I accept what you have put forward, as from beginning to end, I never queried about what you have put forward. That is, when your wife and you were walking through the immigration together, just because of the large flow the people there, then you separated from each other, a few steps ahead. But the court finds that it was not in compliance with the restriction on powdered formula which states that each person can carry one can -- each person can carry two cans.” Page 11 of the translated transcript of the closing submission of the hearing on 24 November 2015. |
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