HKSAR v. Tsui Kwok Tang

HCMA000622/2000

HCMA622/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.622 OF 2000

(ON APPEAL FROM STCC 436 OF 2000)

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Coram: Deputy High Court Judge Tong in Court

Date of Hearing: 29 August 2000

Date of Judgment: 29 August 2000

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J U D G M E N T

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1. The appellant was charged with one count of possession of prohibited foods for sale, namely fresh meat of an animal which had not been slaughtered in a Government slaughterhouse or an approved slaughterhouse or lawfully imported into Hong Kong. This offence is contrary to sections 29, 35(1)(a) and 35(3)(a) of the Food Business Regulation made under section 56 of the Public Health and Municipal Services Ordinance, Cap.132. The appellant pleaded not guilty before the magistrate and was convicted after trial. He now appeals against that conviction.

2. The trial involved a simple question of where the pieces of pork were found, and that depended on the credibility of witnesses.

3. The prosecution had called three witnesses. They were officers of the Food and Environmental Hygiene Department. PW1 and PW2 went to the market in question at about 6:50 am on 27 March 2000. They saw the appellant at shop No.1. He was standing at the table which had four chunks of pork on it. He was holding one piece of pork in his left hand and a knife in his right hand. There were a pig's head and two chunks of pork hung up against the wall. The appellant told the investigating officers that the pork came legally from the approved Sheung Shui Slaughterhouse, but he could not provide the relevant delivery note for his meat. As he later refused to co-operate with the officers, a police officer was called for the arrest of the appellant.

4. The appellant gave evidence and testified that the chunks of pork were lying on the ground outside his stall in the corridor of the market. He saw them when he came to work and paid no attention to them. He said he was employed as a casual worker and that was the first day of his work at the stall. He said all their pigs came from the approved slaughterhouse. He complained that he was framed by the prosecution witnesses.

5. A defence witness was called. He testified that he had delivered two and a half pig carcasses to the appellant's shop on that morning. When he made his delivery, he said he actually saw the health inspectors. He also saw chunks of pork on the shop table.

6. Worth mentioning was PW3's evidence. She was a Senior Health Inspector who went to the police station after the arrest of the appellant. She had examined the pork chunks seized and concluded that they came from the same pig. She explained that a legally slaughtered pig would have incision marks on it's face. Those marks would indicate that the pig had been checked for parasites or worms under the skin. The lymph nodes would also be cut open and inspected for any sign of inflammation. There were no such marks or government chops found on this carcass.

7. The learned magistrate had considered the evidence and came to the conclusion that the prosecution witnesses were reliable. She accepted their testimonies and rejected the account given by the appellant. In her Statement of Findings, the learned magistrate had explained the basis of her decision :

"15. I considered the evidence of PW1 to 3 carefully and the submissions of the defence. I considered whether there was any substance to the submissions and concluded that there was not. I reread PW1's evidence and did not find he had contradicted himself at all as to where he found the 7 chunks of pork, he was very clear that 4 pieces were on the table in front of the shop and 3 were actually hung up inside. As to the search in the fridge it was a minor discrepancy that did not warrant me seriously doubting the credibility of PW1 and 2. The offal was not seized as an exhibit nor did it pay any role in establishing this offence. Also the sequence of events as to search first and questions after or vice versa did not trouble me nor did I consider any of the submissions serious enough for me to doubt the witnesses credibility. In addition, DW2's relevance was minimal. A discrepancy of 15 to 30 minutes as to DW2's arrival is immaterial. There is no dispute that some 'legal' pork was delivered on a daily basis, the question was did the appellant also possess some that was not legally slaughtered?

16. I was convinced that PW1 to 3 were telling the truth and were credible witnesses. I accept their evidence as the truth. I rejected the appellant's allegation that the already cut up carcass was outside his shop in the corridor. I did not accept his denial that the meat was on his table and in his shop and he held a cleaver about to start work on the meat. I believed the prosecution could prove beyond reasonable doubt that the appellant was in possession of prohibited food, illegally slaughtered meat and had proved all the elements of the offence to the required standard of beyond reasonable doubt. Accordingly I convicted the appellant as charged. After hearing mitigation, I fined him $2500.00 and ordered him to pay costs of $500.00."

8. The learned magistrate had seen the witnesses and heard their evidence. She had decided to accept the testimonies of the prosecution witnesses and on that basis, the conviction would be inevitable. At the appeal hearing, the appellant simply repeated his version given before the magistrate. I could not find any valid reason to disturb the magistrate's findings.

9. The appeal must be dismissed. I shall grant the respondent's application for costs. Therefore, the appellant shall pay costs of this appeal, to be taxed if the amount cannot be agreed.

Representation:

Ms C. Chan, SGC of the Department of Justice, for the Respondent

Appellant in person, present