HKSAR v. Liaqat Ali Khan
Read the full judgment text of DCCC 848/2021 on BabelCite. This District Court judgment was delivered on 17 March 2023.
1. The defendant denies the following charge:
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DCCC 848/2021 [2023] HKDC 383 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 848 OF 2021 ________________________
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________________________ REASONS FOR VERDICT ________________________ Plea 1.The defendant denies the following charge:
Prosecution case 2.By way of three sets of admitted facts[2] and calling 9 witnesses, the prosecution seeks to prove that the defendant knew the said wood was being imported from India into Hong Kong without a licence. Defence case 3.The gist of the defence case is that the defendant thought the goods were machinery equipment, and not wood. The defendant asserted that he was simply a labourer going to the airport to collect the consignment. Main issue 4.The main issue for adjudication is one of knowledge i.e. whether the defendant, before or at the time of customs clearance, acted in honest and reasonable belief that the consignment was machinery equipment, and not wood. Factual matrix 5.On 3 November 2018, at around 2:17pm, the defendant, Liaqat Ali Khan (李威）, presented to Customs and Excise (C&E) Officer Poon Chi Yung (CO 14102/PW1) a set of 4 documents for customs clearance, including the Air Waybill 618-59530542 (the Airway bill), the Shipment Release Form, the Packing List and the letter of authorization[3] at the Customs Cargo Examination Compound, Asia Airfreight Terminal 1, Hong Kong. 6.The consignor of the Airway bill was named as Emerald Industries, with an address stated as No. 401A, 1st Floor, Moore Market, Lilly Pond Commercial Complex, Central, Chennai-0600003, Tamilnadu, India. The consignee was named as Shamas Trading Co Ltd, with address at Shop No 46B, G/F Chungking mansion, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong, mobile phone numbers stated as +852 96099524, +852 55758881. The departure destination was from Chennai, to Hong Kong. The nature of the goods were stated as “MACHINERY EQUIPMENTS” (original spelling). 7.PW1 opened the shipment in front of the defendant, and suspected that the carton of wood was endangered species. He contacted staff from the Agriculture, Fisheries and Conservation Department (AFCD), who confirmed that the goods belonged to the endangered species of sandalwood. At about 5pm, PW1 arrested and cautioned the defendant for suspected breach of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586. 8.PW1 then post-recorded the following conversation in his notebook, which was later signed by the defendant: the shipment was Rosewood; the shipment belonged to his friend, Kutty. His friend Kutty asked him to collect the consignment. He did not know Kutty's full name, but knew him as Kutty, Kutty’s phone number was +91 99522 93680. His friend, Kutty, on 1 November asked him to collect the consignment with the use of WeChat. Kutty would pay $600 in addition to transportation fee and the fee of the car rental. After he collected the consignment he would call Kutty and then he would be told where to send it. He did not have an import licence. 9.On 4 November 2018, between 1618 hours to 1715 hours, Customs Officer Koon Chi Yuet (PW4) attached to Syndicate Crimes Investigation Bureau Special Investigation Group Unit 1, conducted a video recorded interview with the defendant. Under caution the defendant stated, in summary: He worked part-time for Shamas Trading, to carry goods sometimes in Tsim Sha Tsui and sometimes to China. He would earn around HK$4,000. He was educated to F5 level. He knew the consignment came from India, but did not know who ordered the consignment. He could earn $600, but at the time he did not receive anything. He did not know the method of payment. He received instructions from (via) WeChat. The instructions were that some goods were coming, but he did not know what kind of goods they were. Once the consignment was collected, he would call Kutty and Kutty would tell him who to hand it over to. He denied knowledge of the contents. He claimed that he did not know Kutty well, only for 3 to 4 days, but Kutty added him to WeChat, and was based in India. The defendant received a WeChat invitation from Kutty which the defendant accepted. He claimed that he did this for many foreigners when their shipment arrived from China. He claimed he had no knowledge of the shipper’s details. He did know the consignee’s name as he sometimes did loading jobs for them. He stated his phone number as 55758881. The company knew that he was going to collect the consignment on its behalf. Kutty had informed him that the shipment was arriving and this is the company name and that he could help collect the goods. 10.On even date, at around 1720 hours CO 1022 further seized from the defendant (1) one “iPhone” (IMEI: 355418077726276) and (2) one SIM card (no 89852121709125755940). The phone was forensically examined and revealed the following conversations, between Kutty and the defendant (for the period of 1 November 2018 to 3 November 2018): The AirWay Bill was found on the defendant’s phone (sent from Kutty to the defendant); that he mentioned that there was wood “wood is for furniture, and make furniture like the chair” (sent from defendant to Kutty); Kutty told the defendant that the packing list would state “machinery equipment”; there was a document sent from the defendant to Kutty with the words “Invoice Certificate of Origin Scienific name”; and there was then a text message from Kutty to the defendant stating “Furniture wooden (scientific name: sissies dalbergia)”. 11.Mr Lau Tak Chuen, an Endangered Species Protection Officer of AFCD, was shown the batch of wood seized, which weighed 547 kilograms, at Headquarters, Room 603, 6/F, Cheung Sha Wan Government Offices. Upon examination of the seized exhibits of wood, he concluded that the structure and the identification features of the wood specimens belonged to Pterocarpus santalinus (Sandalwood rosewood/lobular rosewood). Pterocarpus santalinus is listed as “Vulnerable” in “The International Union for Conservation of Nature Red List of Threatened Species”. It is a native to India and is endemic to the region, being distributed in three states in southeastern India. The population is severely fragmented and the number is also declining, together with the area, extent and quality of its habitat is also declining. Pterocarpus santalinus (red sandalwood) was a specimen of Appendix II species under the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586. 12.An independent valuation estimated the fair market value of the seized woods as $443,000. 13.The defendant did not have a licence for the consignment seized. Issues 14.Most of the prosecution case is not disputed by the defence including the defendant imported the subject matter without the required licence. The two issues for adjudication are firstly, the special issue regarding the voluntariness of the defendant alleged’s confessions, and secondly, the issue of knowledge on the part of the defendant regarding the prohibited nature of the goods as elaborated hereunder. 15.The prosecution seeks to admit the defendant’s post recorded statement and the video record of interview which contain the confessions as per the above. The Defence challenges its admissibility on grounds of threats, inducements, promises and unfairness (tiredness and language barrier)[4]. The first main issue is therefore the voluntariness of the confessions. Both parties propose to the Court to deal with this issue of “voir dire”/voluntariness by way of “alternative procedure”. I agree. 16.By another set of evidence, the prosecution says guilty knowledge can also be inferred. Simply put, the call log and the voice/text messages between Kutty and the defendant before and after customs clearance transpire that the defendant knew the subject matter was wood but declared or caused it to be declared as “machinery equipment”. He knew the wood is a kind of prohibited goods and hence concealed its existence by lying to the C&E. Voir dire 17.Guided by the decision in HKSAR v Okafor[5]as applied in HKSAR v Ip Chun Yin[6], I have first given my decision for ruling and detailed reasons will be given at the time of this verdict. 18.The defence objected to the admissibility of the post recorded statement and the record of interview on the amended grounds that the interviews were obtained as a result of inducement, promises and/or unfairness (tiredness and language barrier) as particularised in the written grounds of objection submitted by Mr Arthur[7]. 19.Having heard evidence and submissions on this special issue, I found that they were made voluntary nor I found any special circumstances that I ought to exclude them by exercising residual discretion. My reasons for ruling can be seen in Appendix 1. General issue 20.The defence has no half way submissions and I found that there is case to answer on the charge. The defendant elected to give evidence but he did not call any defence witness. I find that all the prosecution witnesses are credible and reliable. They tried their best endeavours to tell the court what they saw and heard. For material and important events, they did prepare record. For less important details, they tried to give an account, despite 3 years elapsed. There is an episode that the defence once raised query, that was after 2:17pm on 3 November 2018, the discovery of wood, and 5pm, the time of arrest. The time span of about 2 hours that the defendant was able to go to AFCD of the same compound nearby to clarify the nature of wood and made call to Kutty to find out the scientific name of the subject matter. I do not find this episode material to the analysis. It seems to me from the C&E’s perspective, they needed time to find out the species of the wood. They also faciliated the defendant’s opportunity to find out what happended, or to provide additional information before the C&E decided to arrest a suspect. What if the defendant was able to produce licence from the consignor or an expert document showing the wood is not a protected species. That was a fair treatment to a suspect. There was also another aspect of query as to why C&E Syndicate Crime Unit got inolved in the investigation. Likewise, I do not find it relevant or material. 21.The gist of the defendant’s evidence is that on or about 28 or 29 October 2018, one Kutty added him to WeChat contact and informed him of a coming shipment. On about 1 November 2018, Kutty informed him the shipment was coming soon. From the discussion with Kutty, he believed the consignment was machine. The defendant then discussed with Kutty on how to prepare for documents, including the said Airway Bill, the Shipment Release Form and the letter of authorisation. He also provided templates for Kutty to prepare documents for customs clearance. He then presented the said documents to PW1. In essence, he asserted that (i) he believed the consignment was machine; (ii) he did not know the goods were in fact wood; (iii) even if he knew the goods were wood, he did not know the wood were kind of prohibited in nature or require an import licence. Parties’ submissions 22.The crux of the general issue is whether there is sufficient evidence, direct or circumstantial, that lead to the only irresistible inference that at the time of customs clearance, the defendant knew the goods were prohibited in nature, and went on, with knowledge, to declare or caused the goods to be declared as “machinery equipments” (original spelling). 23.The prosecution says that there is sufficient evidence to draw the irresistible inference of guilty knowledge. Ms Mohamed’s evidentiary basis is divided into 3 stages: the text/voice messages between Kutty and the defendant between 1 and 3 November 2018, especially the time before the defendant presented the documents for customs clearance. In particular, the defendant knew the subject matter was wood but he had caused them be declared as “machinery equipments”. Secondly, at the time of customs clearance at about 2:17pm on 3 November 2018, with the knowledge of the subject matter was in fact wood, the defendant went on to declare or caused them to be declared as “machinery equipments”, by concealing the fact that those were wood. Thirdly, the incriminating part of the confessions further fortified the guilty knowledge while the exculpatory part is merely an excuse to assert lack of knowledge, which contradicted the contents of the said text messages. 24.In contrast, the defence seems to suggest the defendant is not a sophisticated person, he is a mere innocent courier, with Kutty as the prime mover, it is apparent that there is another reasonable inference that points to his minor role on the logistics, hence his lack of knowledge of the prohibited nature of the goods. Mr Arthur mentioned the following salient points: (i) the evidence with which the court is concerned is based on events which occurred on 3 and 4 November 2018, over three years ago; (ii) the defendant had been dealt with in three languages, Urdu, English and Cantonese; (iii) the defendant was a mere labourer; (iv) 2nd Alternative of Kulemesin is applicable in this case and the evidence here raised a reasonable doubt that the defendant may have acted or in the honest and reasonable belief that his conduct was such that, if true, liability would not attach and he must be acquitted. Alternatively, from the evidence, Kutty might have deceived the defendant and made him believe the goods were machinery. Legal requirements 25.The prosecution must prove the case against a defendant beyond a reasonable doubt. The burden of proof remains upon the prosecution at all times. 26.Even if the defendant’s version is not accepted, it may be the case that the defence failed to undermine the prosecution case, the duty to prove still rests on the prosecution. 27.Where an inference needs to be drawn to establish a fact. That fact must be proved beyond a reasonable doubt. 28.Any inference drawn must be the only reasonable inference that can be drawn. Discussion 29.Section 11 of Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586 provides as follows:
30.Section 11 does not stipulate any statutory defence. Parties are invited to state their position as to whether there is implied statutory defence as a matter of common law, if so, its ambit. Unfortunately, despite a few legal authorities, parties are unable to agree or reach consensus of the proper approach. In issue is which of the two approaches should be selected: Kulemesin 2nd Alternative (the defence’s preferred approach) [8]or Kulemesin 3rd Alternative (the prosecution’s preferred approach)? 31.The Second Alternative as formulated by the Court of Final Appeal in Kulemesin Yuriv (2013) 16 HKCFAR 195, [83] is as follows:
32.The Third Alternative is stated as follows:
33.I have considered the legal authorities cited by both parties. After the amendment to the relevant legislation in 2018, in particular, the enhancement of the maximum sentence from 1 year to 7 years’ imprisonment for this kind of offence, there are three District Court cases discussing on what is the test of common law defence: DCCC914/2019 dated 22 December 2020; DCCC506/2020 dated 18 March 2021 and DCCC407/2020 dated 31 March 2021. Having further considered their analysis, I respectfully adopt the approach and the test as propounded in DCCC506/2020 and DCCC407/2020, i.e. the Third Alternative is applicable in the present case. 34.Even if the Second Alternative is applicable, the reasons why I rejected the defendant’s evidence enable me to find that the prosecution has satisfied both tests. In particular, the exchanges between the defendant and Kutty before the time of customs clearance show that there were deliberate discussions as to the wood or machine when preparing for import documents. That was said to be the only transaction between Kutty and him. I shall elaborate further on this topic hereunder. 35.The problem the Defendant is facing is that his assertion of lack of knowledge was contrary to the text/voice messages between Kutty and him. Hence, no matter the Second Alternative or Third Alternative applies, the defence version is simply incredible or unbelievable and the prosecution is able to discharge its liability from the evidence adduced or displace any innocent assertion on any material aspects. 36.In my views, the prosecution is able to prove knowledge/infer knowledge as follows: Text/Voice Messages
37.In brief, there were discussions about “machinery equipment” and “wood” on 1 November 2018 at 1904 to 2006 hours. These were sent two days before the defendant was arrested. 38.In addition, there were also discussions whereby the defendant sent a handwritten note with “Invoice Certificate of Origin Scientific name” (3 November 2018 at 1442 hours) to Kutty and there was reply from Kutty attaching a Certificate of Origin with “Machinery equipments” (3 November 2018 at 1611 hours). Kutty then sent a text stating it is “Furniture wooden (scientific name: sissies dalbergia)” to the defendant. This indicated the defendant knew the nature of the items concealed in the consignment, despite the “machinery equipment” being stated on the Airway bill which was intended to mislead. Verbal and Post record 39.The verbal answers given to customs officer Poon Chi Yung no. 14102/PW1, were recorded in a post-record notebook. The post-record shows when asked what the items were, he claimed it was “Rosewood”, and he stated that he was collecting the consignment for Kutty. This reply is consistent with the WeChat texts which showed he was aware of “wood” inside and mentions reference to scientific names (although spelt “scientific name” on the attachment) for such items. I put full weight on his admissions. The defendant then went on to give a version in his video recorded interview where he claimed he did not know what kind of wood was inside. When he was asked about the telephone numbers on the consignment, he claimed he had no idea about them, which is contrary to his video recorded interview. Further he also admitted that he did not have an import licence. Furthermore, the defendant never said to PW1 that he believed the subject matter was machinery. The Video Recorded Interview 40.He claimed that he did not know what kind of wood they were when asked and down played his involvement. This again is contrary to what is evidenced in the WeChat texts, which showed that he was in early communication with Kutty prior to his arrest and involved in the importation. He admitted during the video recorded interview (VRI) that the consignee’s phone number 96099524 and 55758881 belonged to him, which was on the Airway bill. That was also the second opportunity to explain, yet the defendant did not say he believed the subject matter was machinery. In essence, the VRI is a mixed statement, which contains incriminating part and exculpatory part. I put full weight on the incriminating part and ignore the exculpatory part as they were mere excuses. The value of the consignment 41.Further, the value of the items show that the defendant must have been trusted to collect such valuable items and one of the factors to add to the inference of knowledge. Conclusion 42.Although the incident took place over three years ago, there were contemporaneous records, whether they be text/voice messages or consignment documents in support of the prosecution case. Secondly, although the defendant had been dealt with in three languages, Urdu, English and Cantonese, the procedural justice during investigation exhibits fair play and on equal arm strength, if the defendant did not attempt to maneuver the VRI. Thirdly, from the factual matrix, the defendant was not a mere labourer, he provided templates and advice to the consignor for customs clearance. It could not be the case that Kutty might have deceived the defendant. 43.Lastly, this Court is of the view that since the defendant’s version was not credible in any material aspects, the Court does not need to consider whether the 2nd or 3rd Alternative of Kulemesin is applicable. 44.However, had the 2nd Alternative been applicable, this Court finds that the defendant failed to establish on a balance of probabilities that he imported the goods in the honest and reasonable belief that Exhibits P1-P17 contained machinery equipment and not wood, which was an endangered species. The prosecution has rebutted the defence beyond reasonable doubt. 45.Most important of all, this Court is satisfied that guilty knowledge can be inferred accordingly. In particular, the text/voice messages show that the defendant knew the subject matter was wood but declared it to be “machinery equipment”. He knew the wood is a kind of prohibited goods and hence concealed its existence by lying to the C&E. The defendant was not a mere courier, he was an active “logistic advisor”. 46.On the aforesaid basis, the prosecution has proved beyond reasonable doubt all elements of the charge against the defendant.
Rulings on special issue 1. The prosecution seeks to adduce the admissions as per the post recorded statement and video record of interview (VRI)[9]. The Defendant objected to its admissibility on the grounds of inducement, promises and unfairness (language barrier). With parties’ consensus, I deal with the special issue by way of alternative procedure. The witnesses relevant to the special issue are PW1/CO 14102, PW2/CO 18123, PW3/CO 17465, PW4/Inspector Koon, PW5/Inspector Chui, PW6/CO 0840, PW7/CO 18227, PW8/Urdu interpreter C188, PW9/Urdu interpreter C162. 2. PW1 is the arresting officer of the defendant. On 3 November 2018, shortly before 2:17pm, he checked the relevant shipment document with the defendant, among which is declared and stated as “machinery equipments” (original spelling). Once PW1 opened one of the carton boxes of the shipment, he found suspected wood. He then informed his superior and AFCD who confirmed the goods were protected items under Cap. 586 and required licence to import. At about 5 pm, PW1 declared arrest on the defendant and administered caution for breach of the Protection of Endangered Species Ordinance. The defendant replied “understood”. PW1 then proceeded with the following up questions as per record in the relevant notebook. At the stage of initial clearance, questions and answers before and after caution, PW1 and the defendant were able to communicate in fluent Cantonese. The defendant was so fluent in Cantonese that it did not occur to PW1 that he should find an interpreter during the stage of post recording exercise. One of the good examples is that the defendant knew his right and sought to correct his answers to question 9 and the officer did amend it accordingly as per recorded in the notebook. 3. CO 18123/PW2 was responsible to guard the defendant from 5 pm to 11:30pm on 3 November 2018. He confirmed that at about 10:34pm, he acceded to the defendant’s request to make a phone call to his son. He also considered the defendant’s Cantonese speaking was very fluent. The defendant did not make any complaints to him. 4. CO 17465/PW3 was responsible to guard the defendant from 2330 hours on 3 November 2018 to 0805 hours on 4 November 2018. From his contact with the defendant, PW3 came to know the defendant could speak Cantonese but could not read or write Chinese. The defendant said he had diabetics but was not feeling unwell. He did not request to see a doctor. At about 0140 hours on 4 November 2018, PW3 showed and served “suspect notice” with the Urdu interpreter PW8’s assistance[10]. PW8 assisted to confirm that the defendant understood his rights as per the notice and the defendant put his signature on it. On 4 November 2018, from 0155 to 0200 hours, the defendant requested to go to washroom and he did. At 0400 hours, PW3 asked if the defendant needed a rest and the defendant said “no need”. 5. At 0440 hours, PW8 translated the post recorded notebook into Urdu version (from English to Urdu). Upon instruction from PW3, PW8 also explained the post recorded statement in Urdu and finally the defendant confirmed the Urdu version and put his signature at the end. 6. PW4 was responsible for conducting video recorded interview (VRI). That was only one VRI (as opposed to the defendant’s assertion of start/stop for 3 times). Except once mentioned in the VRI about lawyer (finally chose not to have one), the defendant had never requested for a lawyer. 7. It is also common ground that at about 0400 hours on 4 November 2018, Inspector Chui PW5 translated the Chinese version of the post recorded statement into English. 8. As said before, between 0440 and 0554 hours, PW3 upon receiving the said notebook containing the Chinese and English version, asked PW8 to translate the English version into Urdu version. PW8 did and asked the defendant to confirm as instructed by PW3. The defendant put his signature in the end. 9. PW4 was responsible for taking video record of interview (VRI) from the defendant between 1618 and 1715 hours on 4 November 2018. CO0840/PW6 was responsible for guarding the defendant on 4 November 2018 from 1335 to 1800 hours. He was also present in the VRI. Except asking for water and going to washroom, the defendants did not make other requests. 10. CO18227/PW7 was responsible for guarding the defendant on 4 November 2018 from 0805 to 1335 hours. He had served lunch for the defendant. The defendant made no complaints, he did not display abnormalities, nor he requested for a lawyer. 11. PW8’s evidence was consistent with PW3. 12. PW9’s evidence is neither here or there. He had no recollection on the details except those recorded in writing. 13. The defendant has no half way submission on special issue and I rule that there is case to answer on special issue. 14. The defendant elected to give evidence. In essence, he tried his best endeavours to undermine his ability and proficiency on speaking Cantonese and speaking English/written English, which is contrary to his ability as shown in the text/voice messages between him and Kutty and his testimony in court. For example, when he made allegations against C&E officers, he was able to repeat what he said or officers allegedly said in fluent Cantonese such as “I find a lawyer” (我搵律師) or “Senior officer would return and handle your request” (大佬返咗嚟會處理). It also often happened in court that the defendant did not wait for Urdu interpreter to finish and answered questions in English directly, quite often answers were also given in English. 15. More importantly, the VRI displayed these objective phenomena. The defendant was cheeky, he tried to usurp the role of the investigating officers, he did not let the officers finish explanation, he tested the officers as to when the relevant laws were enacted, he often failed to let the interpreter finish the interpretation and answer the officers’ questions in English. Despite all these challenges and attempts to manoeuvre the interview, he expressed willingness to take part in the interview without a lawyer. During the interview, the defendant’s voice was loud and clear, the speech was coherent, his thinking process was quick, he was smart. His recollection was good. He recognised and pointed which officer (PW6) to whom he informed of Kutty’s WeChat account and telephone number. He stood up to massage his right thigh once. He corrected the spelling of a named person called SOHAL. He was able to speak freely and out of his own freewill. The interview was not only a level play, the defendant even attempted to manoeuvre it. 16. Any allegations against the C&E officers and resulted in sapping his freewill are refuted by the objective phenomena. Any such allegations are obviously after thought tactics with an attempt to explain away his willingness and confidence during the interviews. 17. Although I do not accept the defendant’s testimony on special issue, it remains the duty on the prosecution to prove they were made voluntarily. 18. I found all PWs, in particular, PW1 a credible and honest witness. Despite serious attack on his integrity and reliability, he was remained unshaken. The undisputed fact that the defendant was in Hong Kong since 1987 and has obtained permanent resident status since 1997 confirmed PW1’s version, that the defendant said he had lived in Hong Kong for over 30 years. From the time of customs clearance until post recording stage, the defendant was fluent in Cantonese. PW1 also consulted his superior before proceeding to post record the statement. It tallies with the Rules and Directions regarding suspect that the post recorded statement should be done as soon as practicable. In my views, what happened subsequently suggested the officers’ respect of the defendant’s rights, including at 0400 hours, translation of the post recorded statement from Chinese to English, at 0438 hours, the translation of the post recorded statement from English to Urdu and had it explained to the defendant of his mother tongue. By way of analogy, an English may speak French well, a French may speak very fluent English. Regarding written statement, any possible language barrier was removed with the assistance of interpreter of the accused’s mother tongue or mother language. 19. Nor do I find any evidential or legal basis to exercise residual discretion to rule out the above cautioned statements. [1] Ms Cheung Sau Kwan, Emily is the former counsel for the defendant and the defendant gave written notice to terminate her retainer, leave was granted to her to cease to act on day 3 of the trial on 27 February 2023. Mr Arthur replaced Ms Cheung as the defence counsel. [2] P46 - P48 [3] P18, P19, P21 and P24 [4] The defendant changed/amended the particulars of objections after PW1 has finished his testimony and after he changed counsel. [5] [2012] 1 HKLRD 1041 [6] CACC 241/2014 [7] Marked “MFI-D-1A” [8] As advanced by Ms Cheung and Mr Arthur seemed to adopt it. [9] P32, P35 [10] P39 |
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