HKSAR v. Babu Md Parvej Shikdar

HCMA 134/2021

[2021] HKCFI 2561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 134 OF 2021

(ON APPEAL FROM FLCC 1673 OF 2020)

__________________________

__________________________

Before: Hon Toh J in Court

Date of Hearing: 11 August 2021

Date of Judgment: 11 August 2021

_______________

J U D G M E N T

_______________

1.This is an appeal against conviction on a charge of dealing with goods to which Dutiable Commodities Ordinance applies. The Appellant was sentenced to 18 months’ imprisonment.

2.The Appellant originally appealed against both conviction and sentence, but by today’s hearing, he had abandoned his appeal against sentence.   

3.The facts are briefly, very simply, that Customs Officers had entered a fenced area somewhere in Tuen Mun, where the Appellant was found behind a container, and there were found carton boxes which contained illicit cigarettes.  These carton boxes were sealed and there was the letter “Cigarettes” printed on the outside.  When the Appellant was arrested, he was asked what these were, and the Appellant said he did not know.

4.At the trial, the Appellant did not give evidence nor called any defence witnesses. He gave two video-recorded interviews and admitted that he was at the location of the offence and had been working there for about two hours.  He had been informed that his job was to unload the carton boxes from the container, and that he would be paid $400 after he had finished his work.  He said in his video-recorded interviews, he can read English but he had difficulties speaking English. 

5.After the learned Magistrate heard all the evidence, he came to the conclusion that the Appellant had been carrying the boxes for about two hours, and that he had ample opportunities to see the English word “Cigarettes” on the carton boxes. 

6.The learned Magistrate found that the boxes were relatively light, and therefore, having considered the evidence of the prosecution, he considered that the prosecution had proved, beyond a reasonable doubt, that the Appellant could read and understand the word “Cigarettes” since he had the opportunity to see the English word “Cigarettes” during the two hours, and that he had said he can read English when he was interviewed in the video-recorded interview.       

7.Although the Appellant may have said he could read English, there is no objective evidence as to the standard of his reading. Therefore, I am not satisfied that the basis upon which the learned Magistrate found that the Appellant could read what was on the boxes was based on evidence upon which he could draw, the only reasonable inference that he could read the word “Cigarettes”.       

8.I therefore find that the learned Magistrate’s finding that the burden had shifted to the Appellant, and that he had failed to prove that he believed for good and sufficient reason that the provisions of the Dutiable Commodities Ordinance had been complied with, on a balance of probabilities, was therefore, in error. 

9.So the appeal against conviction is allowed as I find the conviction unsafe and unsatisfactory, and the sentence is set aside.       

Mr Douglas Lau, SPP(Ag.) of the Department of Justice, for the Respondent

The Appellant acting in person