R. v. Tsui Tat Kuen

HCMA000780/1993

IN THE HIGH COURT

Mag. App. No

780/93

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Coram: Hon. Penlington, J.A.(sitting as an additional judge of the High Court)

Date of hearing: 29 December 1993

Date of delivery of judgment: 29 December 1993

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal against conviction on three charges before Mr. P. Kelly in the Western Magistracy. These charges were:

A. attempting to export strategic commodities without a licence, contrary to Regulations 2 and 3 of the Import and Export (Strategic Commodities) Regulation,

B. attempting to export unmanifested cargo, contrary to the Section 18 of the Import and Export Ordinance,

C. causing to be furnished incorrect information on an export manifest, contrary to Reg.36(1)(c) of the Import and Export Ordinance.

2. The goods which the subject of charge A were included in those covered by charge B and are : 167 sets of 486SX personal computer, 89 sets of 486DX2 personal computer, 47 sets of 486SX-25 notebook computer.

3. The trial was unusual in that there was no oral evidence called. All the evidence was in the form of statements of fact which were agreed pursuant to Section 65(c) of the Criminal Procedure Ordinance. However as so often has been the case where that is the course which has been followed the resulting convictions have been attacked in this court.

4. The trial magistrate had before him three defendants in respect of each charge. One was a company, Crossing Electronic (Chemical) Limited, (D1), which, it was agreed, was the exporter of the goods. The second defendant was a madam Li Lana (D2) who was a director of D1. The third defendant (D3 at the trial), was the appellant who was an employee of D1.

5. There were two agreed statement of facts. The first one carefully prepared and typed. It sets out that on the 24th of October 1992 officers of the Customs and Excise Dept. at the Man Kam To Control Point intercepted a lorry which was going to China and found in it the goods subject to charges A and B. The driver of the lorry had produced to the Customs Officers a declaration that the goods were 619 sets of microwave signals processors, which are not strategic items. It was also agreed in this statement that the goods were packed into the container on the lorry under the instruction and in the presence of the appellant. After loading he handed a contract and an invoice to the driver of the lorry which contains information which was false, and that false information was relayed by the driver of the lorry to the Customs Officer at the control point. There was however another agreed statement of fact which was handwritten, contains corrections and was not in the form in which it should have been. It sets out that: "Mr. Lam Wing Lung, a partner in the Sheng Xing Trading Co., had made a statement containing the following passages:

"Then Tong Hei-ho and I hired two vans to deliver 297 sets satellite receivers and 2 boxes of tools to the premises at G/F Wai Shing Commercial Building, 28 Connaught Road West and handed them over to Tsui Tat-kuen. Tsui Tat-kuen also issued to Tong Hei-ho an invoice of number CE/3031-S dated 24-10-92. Tsui Tak-kuen also signed and stamped the chop of Crossing Trading Electronic Chemical Ltd. (the former name of Crossing Electronic Chemical Ltd.) as an acknowledge of the 77 carton goods on the invoice. Tsui Tat-kuen also demanded payment of declaration charge of HK$159.50, handling charge HK$150, labour charge HK$800 and transportation charge HK$2,500 totalling HK$3,609.50 as listed on the said invoice. So I issued a cheque to Tsui Tak-kuen and left."

Mr Lam Wing Lung also states

"At that moment I had an invoice and packing list of Sheng Xing Trading Co...... on the invoice and packing list it had been marked that 297 sets of ST-168 Receivers were packed in 75 packages and 2 packages of door solder at a total value of HK$318,600.

The place of hand over of the goods to D3 by Mr. Lam was arranged by D3 (Exhibit P10).

D3 also issued an invoice to MG Electronics Ltd. which he had signed and chopped with Crossing Trading Ltd's chop for the collection of declaration charge, handling charge etc. (Exhibit P6)."

P.10 is on the letter-head of D1 and says

"at 7 pm today please deliver the goods to Wayson Commercial Bldg., 28 Connaught Road, West, Hong Kong, ground floor. Charges $3,609.50. Please write on the cheque payee Crossing Electronic (Chemical) Limited."

6. Invoice CE/3031-S dated 24/10/92 refers to customs, handling and other fees in connection with "77 pieces". There is no description of the goods.

7. P.6 was also on D1's letter-head and is an invoice CE/900-M dated 24/10/92 addressed to MG Electronics Ltd and sets out amounts due as follows:

"container fee, packing fee, watchman fee	$10,500.00
workers, transportation fee	1,771.50
customs declaration fee	150.00
Total	12,421.50"

8. Mr. McCoy who appears for the appellant here but not below quite probably submits that where defendants are represented it would not be possible for counsel who had agreed to such a statement on appeal to say that even if that is what Lam Wing Lung had said in his statement and I agreed he did say that but I did not agree that what had said was true. The decision in Hunt v R. (1974) HKLR 31 makes that clear. Here however the appellant was unrepresented and Mr. McCoy submits that statement was read to the appellant he may well have simply admitted that Mr. Lam Wing Lung made a statement but he did not admit its truth. Miss Mohammed, who appears for the Crown here but not below, pointed out that D3 was told in very clear terms he should not agree the facts unless "they truly reflected the facts as they occurred".

9. The form in which agreed facts are set out can be a trap for the unwary and that used here was quite wrong. The statement should have said

"Mr. Lam Wing Lung is a partner in the Sheng Xing Trading Co. He and Tong Hei-kit hired two vans...etc."

10. However even though D3 as unrepresented I am satisfied that he was asked to agree to the statement in such a way that he must have taken it to mean that he was agreeing with what Mr. Lam was saying. However I do not see what evidential value the document has. It refers to 297 sets of satellite receivers and 2 boxes of tools. Only the tools are referred to in either the charge or the false manifest. There is no reference in any other document to satellite receivers. The boxes of tools may be the ones referred to in charge B but it is such a vague term that it could not be presumed beyond reasonable doubt that they are the same ones. There is certainly no reference to the other items found in the lorry.

11. In relation to the A charge the magistrate found that the appellant

"took delivery of the strategic items from MG Electronics Ltd on the 23rd of October. He chopped the packing list and invoice to acknowledge receipt of the correctly identified. His purpose in receiving them was to arrange onward transport to Shenzhen. He handed MG Electronics a bill (Ex6A) for this work and totalling $12,241.00."

12. He does not give an exhibit number to the packing list or invoice and exhibit 6A does not describe the goods at all. The exhibits list was "agreed by D2" according to the record. It was not agreed to by the appellant - whatever was meant by being agreed to. The record simply says that D3 was shown the exhibits list. There is a packing list dated Oct 22 (Ex. P3) but it does not appear to be chopped by anybody. there is an invoice (ExP4) reflecting the same goods, which include 283 PB486 computers, which has been chopped by D1 and an initial is beside it. I can find no evidence as to whose initial it was.

13. It was the essential matter to be decided by the magistrate here was whether the appellant knew that the goods he had supervised being loaded into lorry were not as set out in the documents which he gave to the lorry driver and which he must have known would be used when the lorry reached the Customs Check Point.

14. The appellant was shown exhibits P12 and P13 which is an invoice for 2000 sets of microwave signal processors and a contract for the purchase of the same. He agreed that those were the documents he gave to the lorry driver. Clearly they were false but I can see no evidence here which points to the irresistible interference that we must have known they were false.

15. In convicting the appellant of the B charge the magistrate found that he was the exporter of the goods in the sense that he caused the goods to be exported. He was under a duty to prepare a proper manifest which he failed to do. The agreed facts were that D1 was the exporter of the goods but it was acquitted. It is difficult to see how D1, the exporter could escape liability for falsely declaring the contents of the packages whereas the appellant, its employee, is convicted. Be that as it may I am satisfied that there was insufficient evidence here that the appellant must have known that those contents were not what was in the documents he gave to the lorry driver.

16. Miss Mahomed for the Crown submits that an offence under Section 18 of the Import and Export Ordinance is an absolute offence and referred me to R v Lui Tak Hoi Mag.App.No.1 of 1993 which related to a person who was in charge of a lorry which unmanifested cargo was found.

17. Section 18 of the Import and Export Ordinance reads as follows:

"18. Offence of import and exporting unmanifested cargo

(1) Any person who -

(a) imports any unmanifested cargo; or

(b) exports any unmanifested cargo,

shall be guilty of an offence and shall be liable on conviction to a fine $500,000 and to imprisonment for 2 years.

(2) It shall be a defence to a charge under this section against the owner of a vessel, aircraft or vehicle, if the owner proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested."

18. In R v Lui Tak Hoi it was pointed out that subsection (2) of Section 18 provided a defence to the charge in relation to the driver of a vehicle. That is not available to this appellant as he was not the driver of the lorry.

19. "Export" is defined in Section 2 of the Ordinance as "to take or cause to be taken, any article out of Hong Kong. There can be no doubt that in the agreed facts the appellant did attempt to cause the goods to be taken out of Hong Kong but does Section 18 mean that all persons who pay any part in exporting unmanifested cargo are liable irrespective of knowledge. Useful guidance is found in A.G. v Tse Hung Lit and anr. [1988] 1HKLR 25 at p.30 Lord Bridge who delivered the judgement of the Board says this :

"It is unnecessary for the purposes of this judgment to express any conclusion as to whether a defence of lack of knowledge would be available to a defendant who was not the "owner of a vessel, aircraft or vehicle" charged with causing unmanifested cargo to be taken out of Hong Kong. It is common ground that the offence created by regulation 4 is one of strict liability. Their Lordships express no view as to whether an offence under regulation 4 of causing to be taken, as opposed to taking, out of Hong Kong could theoretically be committed, as Fuad, JA (as he then was) thought, without any intervening human agency. Let is be assumed that it could. Nevertheless the plain purpose of including among those absolutely liable for the export of goods without the appropriate licence persons who cause such goods to be taken out of Hong Kong as well as those who take them out is to apply the same criminal sanction to the consignor and his forwarding agent, who arrange and organise the illict exportation, as to the owner of the ship, aircraft or vehicle which effects the exportation by actually taking the goods out of Hong Kong. Persons in these or similar categories would properly he held, on the narrow construction of the words "cause to be taken out of Hong Kong" to be exporting. The goods are taken out of Hong Kong by others acting on their express or implied authority. It seems entirely appropriate that those responsible for arranging the exportation of goods, as well as those who directly perform the act of exportation, should be responsible for ensuring that any appropriate licence has been obtained and should be held criminally liable in the absence of such a licence. But what of others who merely play a physical part in the sequence of events which leads to exportation? The road haulage contractor who brings goods from the warehouse to the dockside and the stevedoring firm which loads the goods on board the ship know full well that the goods are to be exported, but are in no position to give and do not purport to give any authority to the shipowner to effect the exportation. Yet, if the appellant's construction of the language of the legislation is adopted, they too must be held to have caused the goods to be taken out of Hong Kong and will act at their peril unless they ensure in every case that the appropriate export licence has been obtained. Their Lordships fully appreciate the necessity in such a community as Hong Kong for the authorities to exercise strict control over imports and exports, but can discern no good reason why it should be necessary, in order to make such control effective, that the criminal net should be cast as widely as it would be if the construction urged by the appellant were accepted."

20. Here D1, the agreed exporter of the goods was acquitted,

as was its director D2. I would consider it to be a total negation of justice if, on the evidence here, the appellant caused to be exported the unmanifested goods so as to attract absolute liability and a prison sentence whereas the actual exporter escapes liability. I do not consider such was the intention of the legislation and even if it was the appellant should have been given an absolute discharge.

21. I am satisfied that these convictions were unsatisfactory and allow the appeal against each of them quash the convictions and set aside the sentences.

22. I have then to consider the question of a retrial. Mr. McCoy submits that there should not be a retrial on charge C which relates to the supply of false information. He again points out again that the appellant, being unrepresented should have been informed of the provisions of Section 36 of the Import and Export Ordinance which he imposes a presumption of knowledge and on which reliance was placed to support the conviction on charge C. However I consider that there should be a retrial in respect of all three charges. Having said that, this court is not in charge of the prosecution of criminal offences - that is very much for the Attorney General - but I would only say that in light of the acquittal of D1 and D2 no doubt very full and careful consideration will be given as to whether a retrial should proceed.

23. The appellant's bail is renewed on existing terms.

Representation:

Mr. G.J.X. McCoy & Victor Loh (Edward C.T. Wong & Co.) for appellant

Miss Yasmin Mahomed, Counsel for Respondent/Crown Prosecutor