HKSAR v. Goron Jomar Osal and Others

DCCC 914/2019

[2020] HKDC 1224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 914 OF 2019

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REASONS FOR VERDICT

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Charges

1.D1, D2, and D3 deny the following charges:-

“ 1st Charge (against D1 only)

Statement of Offence

Importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1) of Cap. 586, contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

Particulars of Offence

D1, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 0.56 kilogramme of dried seahorses (Hippocampus species) and 48.11 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

2nd Charge (against D1 and D2)

Statement of Offence

Importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1) of Cap. 586, contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

Particulars of Offence

D1 and D2, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 63.47 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

3rd Charge (against D1 and D3)

Statement of Offence

Importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1) of Cap. 586, contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

Particulars of Offence

D1 and D3, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 71.71 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.”

Introduction

2.Upon arrival at the Hong Kong International Airport from the Philippines, the three defendants were intercepted by customs and exercise officers for inspection of their luggage, consisting of 25 black zip bags each containing a box of goods.  The boxes were opened and found to contain dried shark fins and dried seahorses, being items prohibited from importing into Hong Kong unless otherwise exempted or licensed.

3.Section 11 of Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 provides as follows:-

“Restriction on import of specimens of Appendix II species and Appendix III species

(1) Subject to section 47, a person shall not import a specimen of an Appendix II species or Appendix III species—

(a) except as provided in section 17, 18, 19 or 22; or

(b) except under and in accordance with—

(i) a licence issued in respect of that specimen under section 23(1)(a) prior to the import; and

(ii) a Convention certifying document or certificate in lieu issued in respect of that specimen.”

4.Cap 586 Section 11 is a statutory offence which is silent or ambiguous as to mens rea.

5.D1 gives evidence.  D2 and D3 do not give evidence.  No defence witnesses are called.  D1’s evidence purports to also canvass the case of D2 and D3.  He claims that they had an honest and reasonable belief that their luggage could be lawfully imported.  He makes no suggestion of the shark fins and the seahorses being exempted or licenced for import.

6.The prosecution and the defence share the view that “the Second Alternative”, as formulated by the Court of Final Appeal in Kulemesin Yuriv (2013) 16 HKCFAR 195, [83] as follows, is applicable here:-

… [T]he prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.

Prosecution case

7.The prosecution case is not disputed by the defence.

8.According to the two sets of admitted facts^[1], the Philippine Airline computer system recorded the three defendants checked in for the flight in sequence, ie, without other passengers registered in the middle.  At about 1140 hours on 23 August 2019, the three defendants arrived at the Hong Kong International Airport on flight PR 300 from Manila, Philippines. They were intercepted by customs and exercise officers at the Customs Arrival Hall B for luggage inspection.  Their luggage, 25 pieces in total, all had baggage tags in the name of D1.

9.They were arrested on 24 August 2019.

10.The three pieces of luggage carried by D1 included 48.11 kg of dried shark fins (silky shark) and 0.56 kg of dried seahorses.  The estimated market values are about $40,000 and $8,400 respectively.

11.The four pieces of luggage carried by D2 included 63.47 kg of dried shark fins (silky shark).  The estimated value is about $70,000.

12.The three pieces of luggage carried by D3 included 71.71 kg of dried shark fins (silky shark).  The estimated value is about $76,000.

13.The total estimated value was $194,400.

14.The shark fins and the seahorses were each listed in Appendix II of Cap 586 as an endangered species, hence prohibited from import into Hong Kong unless exempted or licensed.

15.The air-tickets the three defendants used were purchased by the same credit card.

16.The prosecution calls three customs and exercise officers (PW1 – 3) and one Agriculture and Fishery Department officer (PW4).

17.Officer Chu (PW1) intercepted the three defendants for luggage inspection.  Officer Chan (PW2) asked D3 if the luggage was his (D3’s).  D3 replied in the affirmative.  He asked D3 to put 3 boxes of his luggage onto the X-ray machine for inspection.  Officer Lo (PW3) asked D1 if the luggage was his (D1’s).  D1 replied in the affirmative.  D2 and D3 were together with D1.  PW3 unzipped the black bags and took out the boxes.  The boxes were very well-wrapped by plastic.  He used a cutter to cut the plastic wrapping of the boxes.  After opening the boxes, he asked D1 what was in the boxes.  D1 replied that there were shark fins and seahorses^[2].  Madam Cheng (PW4) was summoned to look at the suspected shark fins and seahorses found by customs and excise.

Defence case

18.All three defendants have a clear record.  When I come to consider D1’s evidence and their propensity to commit the present offences, I direct myself to take a view more favourable to them accordingly.

19.D1 gives evidence.  At the time of the arrest, Mr Koh had been his boss for 7 years, D2’s for 2 years, and D3’s for 2 months.  Mr Koh had a new partner, Mr Yau, since a year or less ago.

20.Mr Koh had a house in Manila with 4 rooms.  D1 and D2 lived there on working days.  D1’s rest day was on every Sunday.  D2’s was every Monday.  D3’s was every Tuesday.  D1 and D2 would go home on rest days.  D3 did not live in Mr Koh’s house as D3’s residence was near the Manila airport.  Apart from Mr Koh, D1 and D2, the driver, two helpers, and one maid also lived there. 

21.Mr Koh had two “Goldman” shops, nos 106 and 146 respectively, 20 metres apart, on the first floor of Worldwide Plaza, Central, Hong Kong.  Each measured about 9 metres square.  The customers were mostly Filipinos.

22.The three defendants’ job was to take flight together from Manila to Hong Kong with luggage containing manufactured products, such as cosmetics and soap, as well as fresh produce, such as fruits and vegetables, and bread, for Goldman.  On each defendant’s rest day, the two others on duty would do the job together.

23.Mr Koh’s driver would driver D2 and him to the airport in the morning with all the pieces of luggage ready.  D2, D3, and he would not take part in the packing.  From experience, they could anticipate what might be in the luggage.  However, they did not know what was actually in the luggage until the customs inspected it or until they opened it to stock up Goldman.  He was not aware of any packing list of the goods contained in the luggage.

24.After 4 years flying regularly he had become a VIP member.  He enjoyed its privilege of early release of the luggage at the airport ahead of ordinary customers.  Whenever he travelled with D2 and D3, he would check in all pieces of luggage in his name.  Whenever he was off duty, Mr Koh would travel with D2 and D3.  Mr Koh was also a VIP member.  He would check in all pieces of luggage in his name. 

25.On average, he would carry about 70 kgs of luggage.  D2 and D3 would each carry about 60 kg.  For the three of them, they would use about 13 black zip bags.  There were some occasions that they had used up to 30 black zip bags for lightweight items. 

26.Sometimes the luggage was X-rayed or inspected by the customs at the Hong Kong airport.  For the 7 years that D1 had been carrying luggage for Mr Koh, there had never been any problems for the luggage to be imported into Hong Kong. 

27.On arrival in Hong Kong, the defendants would bring the luggage to Goldman.  In Shop No 106, D1 would open each box and have other defendants move half of the items inside to Shop No 146.  It was only then that they would see what was in the boxes as Mr Koh did not give him any packing list.  He could see that all were low-valued items.

28.If a box was marked “Mr. Yau”, he would not open it but put it outside Shop No 106.  He understood that such box would be picked up to Mr Yau’s order, though he had never seen it being picked up as they would then leave the shop with the empty black zip bags. 

29.Afterwards, they would go to the wet market at Gage Street, Central to pick up boxes of vegetables pre-ordered by Mr Koh. They would put the boxes into the black zip bags and take the Gogo Van to the airport for the return flight to Manila.

30.They would take the same daily flight to Hong Kong in the morning and the same daily flight back to Manila in the evening. 

31.On 23 August 2019 the 25 pieces of luggage were all tagged in his name as he was a VIP member.  The counter staff always saw him together with D2 and D3.  They put the luggage in his name.  D2, D3, and he checked in together with their passports.

32.On occasions, D3 had asked him what the luggage contained.  He told D3 that it was the same, items like banana and vegetables.

33.As there had been no problems with any luggage being imported into Hong Kong for the 7 years before the arrest, he completely trusted Mr Koh.  He is of the view that D2 and D3 also completely trusted Mr Koh for the same reason.

34.There is no suggestion of the dried shark fins and the dried seahorses being exempted items or licensed for import.

This court’s findings

35.The prosecution makes written submissions.  D2’s counsel and D3’s counsel both make written and oral submissions.  D3’s solicitor only makes oral submissions.

36.All defendants have a clear record.  When I come to consider their credibility and their propensity to commit the present offences, I should take a view more favourable to them.

37.The Second Alternative for the proof of mens rea is formulated in Kulemesin Yuriv as follows:-

“… [T]he prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.”

38.I have to determine first the ambit of the terms “acted” and “conduct”.  There is consensus from D1’s counsel, D2’s counsel, and D3’s solicitor that they mean the same thing in substance; ie, “acted” means “took part in certain action(s)” and “conduct” means “such certain action(s)”.

39.In the context of the present case, I have to determine how to interpret the Second Alternative.  It appears that there are 3 scenarios to choose from.

40.The scenario as interpreted by D1’s counsel is as follows:-

“… [T]he prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted (i.e., the previous and ongoing regular dealings between D1 and his boss, D1’s regular experience and encounter with the inspection system at the airport etc. over the past 7 years) or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct (i.e., the previous and ongoing regular dealings between D1 and his boss, D1’s regular experience and encounter with the inspection system at the airport etc. over the past 7 years) were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.”

41.The scenario as interpreted by D2’s counsel and adopted by D3’s solicitor is as follows:-

“… [T]he prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted (i.e., imported simpliciter) or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct (i.e., imported simpliciter) were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.”

42.D2’s counsel’s interpretation is that “acted” means “imported simpliciter”.  I think it beyond dispute that for “imported simpliciter”, the prosecution need to set out to prove its mens rea.  There is no question of having the defence to first discharge an evidential burden, so that the prosecution will have to disprove it beyond all reasonable doubt.  From the prosecution evidence and D1’s own admission in the witness-box, there can be no dispute that the prosecution has proved beyond all reasonable doubt that D1 “imported simpliciter”.  However, “importing” per se is not an offence.  The offence is “importing prohibited dried shark fins and dried seahorses”.  In terms of the Second Alternative, which all parties agree to be applicable here, D1 may adduce some evidence, irrespective of weight, capable of supporting a defence based on his honest and reasonable belief about his luggage of prohibited dried shark fins and dried seahorses. In response to such evidence, the prosecution has to negative beyond all reasonable doubt such a belief alleged by D1.  As a matter of course, if the belief is based on strong evidence, the prosecution will have a very difficult task in disproving such a belief beyond all reasonable doubt.  However, if the belief is based on flimsy evidence, the prosecution’s task will be rendered much easier although it still has to be disproved beyond all reasonable doubt.

43.My interpretation of the Second Alternative is as follows:-

“… [T]he prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted (i.e., imported prohibited dried shark fins and dried seahorses into Hong Kong) or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct (i.e., importing prohibited dried shark fins and dried seahorses into Hong Kong) were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief.”

44.The problem D1 faces is that he has testified that he had no knowledge of what he was importing.  I cannot see how he can at the same time claim to have certain belief about the prohibited dried shark fins and dried seahorses which surprisingly turned out to be in his luggage. D1 has clearly failed to adduce any evidence capable of supporting an honest and reasonable belief on his part.  Thus the prosecution does not need to disprove any belief on D1’s part. 

45.Hong Kong Archbold 2020 at para 18-2 (xii), p 1225, after referring to Kulemesin Yuriv at para 18-2(viii), p 1224, and so on, states as follows:-

“If the evidence before a court clearly establishes that the defendant acted with intention or knowledge, so that “no genuine mens rea issue” arises, it may be unnecessary to undertake the above analysis: see Securities & Futures Commission v CL Management Services Ltd (unrep., FAMC 34/2016, [2016] HKEC 2464, CFA, per Ribeiro PJ, [10-11].”

46.In any event, irrespective of the interpretation of the meaning of the Second Alternative, I do not believe his evidence that he and D2 and D3 had never had knowledge of the contents of their respective luggage until the luggage was opened either for inspection by the customs and exercise officers or for stocking up the Goldman shops.  I do not believe his evidence that such people in Manila ever existed or such dealings between him and such people ever took place in the 7 years leading up to the present offences.  The irresistible inference is that each knew what their respective luggage contained when they carried it past the customs on the day of the offences.

47.Counsel for D2 contends that since the luggage tags were all in D1’s name, D2 and D3 might not have knowledge of the contents.  Besides, there is no evidence that D2 and D3 were present when their luggage was inspected by the customs officers.

48.To answer these contentions, I refer to the relevant part of the Admitted Facts^[3] as follows:-

“5. At about 11:44 a.m. on [23/8/2019], D1, D2 and D3 had their luggage inspected by C & E officers.

6. The luggage carried by D1 had baggage tags showing D1’s name. The luggage carried by D2 had baggage tags showing D1’s name. Similarly, the luggage carried by D3 had baggage tags showing D1’s name.

…

9. The three pieces of luggage which were carried by D1 were later confirmed … to include [the dried shark fins as stated in the Particulars of Offence under Charge 1].

…

11. The four pieces of luggage which were carried by D2 were later confirmed … to include [the dried shark fins as stated in the Particulars of Offence under Charge 2].

12. The three pieces of luggage which were carried by D3 were later confirmed … to include [the dried shark fins as stated in the Particulars of Offence under Charge 3].”

(emphasis added)

49.D1 “carried” three specific pieces of luggage that turned out to contain prohibited shark fins and seahorses.  D2 “carried” four specific pieces of luggage that turned out to contain prohibited shark fins.  D3 “carried” three specific pieces of luggage that turned out to contain prohibited shark fins.  I do not believe D1’s evidence that each of them were carrying specific pieces of luggage, which might be inspected by the customs and exercise officers with penal consequences, without knowledge of the contents.  The irresistible inference is that they each knew the contents of the specific pieces of luggage they each carried.

50.As regards the search of the luggage not in the presence of D2 and D3, paras 11 and 12 of the Admitted Facts cited hereinabove have already confirmed the contents of the specific pieces of luggage carried by D2 and D3 respectively to be shark fins.  There is no room to assert any act of tampering with the contents.

51.It is plausible that D1 had checked in all 25 pieces of luggage in his own name for convenience’s sake.  It is also plausible that he did not know the contents of the specific pieces of luggage carried by D2 and D3.  He should not be found jointly liable for the 2^nd and the 3^rd Charges.

Conclusion

52.On the aforesaid basis, the prosecution has proved beyond reasonable doubt all elements of the charge against D1 on the 1^st Charge, against D2 on the 2^nd Charge, and against D3 on the 3^rd Charge.  D1 is acquitted of the 2^nd and the 3^rd Charges.