Millie's Hand-bag and Shoes Factory Ltd. v. The Queen

CACC000173/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 173 OF 1981

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Coram: Penlington, J. in Court

Date of Judgment: 19th March 1981

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JUDGMENT

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1. This is an appeal against a conviction for furnishing false information in a declaration made in support of an application for a Certificate of Origin. The allegation was that the work done in producing some 20,000 ladies shoes was done in Hong Kong whereas it was in fact carried out in China.

2. The main ground of the appeal was that the Magistrate admitted in evidence a large number of documents which were hearsay. There was some dispute as to whether or not Counsel for the Appellant at the trial (who was not Counsel on the appeal) objected to the admission of these documents but in the event Counsel for the Appellant argued that it did not matter whether objection was made or not. If they were inadmissible that was an end of the matter and the Magistrate should not, and indeed could not, use them as evidence of their turth even if no objection was made.

3. These documents consisted of invoices and other commercial documents forming part of the Appellant's records which were given to an Assistant Trade, Industry and Customs Officer by one of the Appellants employees, plus a statement made by the Appellant's Export Manager, Mr. Tse. There may have been some ground for holding that these documents, being produced by the Defendant and forming part of its own records, were admissible in any event but the Crown relies on the statutory provision in Section 33(4) of the Import and Export Ordinance Cap. 60. This sub-section provides that any copy of a licence or other document produced to the Director of Commerce and Industry, or an authorised officer or member of the Preventive Service under any provision of the Ordinance shall be admissible as evidence of its contents.

4. I am satisfied that the various documents which were produced are covered by that sub-section and were therefore admissible as to their contents. I am also satisfied that the statement made by Mr. Tse, the Export Manager of the Defendant Company was admissible as being a statement of the Company. However in that statement Mr. Tse gave an explanation as to why the information supplied to the Customs and Industry Department was incorrect. The Magistrate refers to this statement when he said that Defence Counsel submitted that it was a reasonable explanation. Section 36(1) of the Import and Export Ordinance provides a defence to the offence of making a false statement if the maker satisfies the court that he did not know and had no reason to believe the statement or information to be false or misleading or the omission to be material.

5. The Magistrate nowhere says that he had considered this explanation. I think he should have done so and given the reasons why he had rejected it. The case will therefore be remitted to the Magistrate so he may specifically consider Mr. Tse's explanation and either accept it as satisfying the proviso in the section or rejecting it and in any event stating the reasons for so doing.

Representation:

Mr. Mumford instructed by Kwan & Kwan for Appellant

Mr. J.W. Dick (S.C.C.) for Respondent