The Queen v. Ng Ho Ming and Another

HCMA000645/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 645 OF 1991

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BETWEEN

Coram: Hon. Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing: 6 September 1991

Date of delivery of judgment: 10 October 1991

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JUDGMENT

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1. This is an appeal against convictions before Mr. Y. W Yung in the Western Magistracy on 1st May of this year on a charge of conspiring to export television sets from Hong Kong on a vessel of less than 250 tons without a  licence. The charge reads as follows:

The third defendant was acquitted after trial.

Jurisdiction

2. A preliminary point as to this courts jurisdiction to hear this appeal has been taken by the Crown and It is therefore necessary to go into the history of matters following that conviction.

3. An appeal was filed against the conviction on 2nd May by the appellants acting in person. On 13th May different solicitors to those who had been acting for the defendants at the trial applied for the magistrate to review his decision. However when the matter came before the magistrate on 12th May the solicitor then acting was unaware that notice or appeal had been filed. His attention was then drawn to s. 104(9) of the Magistrates Ordinance which provides that no such application fog review shall be lade if there is an appeal against conviction outstanding. Accordingly he said that be would abandon the appeal. The matter was then adjourned to 14th May when the appeal was formally abandoned and the application for review was granted. That be review was to heard on 31st May.

4. On that day a Mr. Alan Hoo, Q.C., then briefed for the appellants informed the trial magistrate that he considered the matter should be properly dealt with by way of an appeal and he did not intend to continue with the review. He asked for an extension of time to lodge an appeal. The magistrate queried whether he had such a power but was assured he did and an order was made giving leave to abandon the review and extending time for filing notice of appeal to 1st June.

5. It is now the case for the Crown that the magistrate did not have power to extend the time for filing notice of appeal in that a valid notice of appeal had already been lodged had been abandoned and that that was the end of the appellants rights of appeal. Reliance is placed on the decision in R. V. Medway (1976) 62 Cr. App. R. 85. At p. 98 Lawson J., giving the decision of the court said that where a notice of appeal had been abandoned that could only be resurrected if the abandonment could be treated as a nullity.   That meant that the abandonment was not the result of a deliberate and informed decision and that the mind of the applicant had not gone with his act of abandonment. It also held that the right of appeal being statutory there was no inherent power in the court to allow for the granting of leave to re institute an appeal.  It is argued for the Crown that here clearly the minds of the appellants was with the act of abandonment as it was done by their legal representative who must have been fully aware of what was being done.

6. For the appellants Mr. Hoo argues that here there was first of all a nullity. This was because on 13 May the magistrate had told the appellants solicitor Mr. Hui, that he must either abandon the appeal or the application for review. Then, having been told that the appeal would be abandoned, he granted the application for review and set it down for hearing. That was in itself wrong in that he should have heard argument as to why the application for review was to be granted. When the matter came before the magistrate on 31st  May he purported to grant leave to withdraw the application to review. He submitted that this was wrong as the magistrate had already granted the application to review. What he was doing was declining to amend his decision. If that was so the time for lodging an appeal (14 days) did not start to run until 31st May, pursuant to s. 104(10) of the Magistrates Ordinance, and the second notice of appeal was filed within that time.

7. I am satisfied that on 31st May, notwithstanding the words used by the magistrate, he had not refused the application to review, which he had already granted, but had refused the review itself. That being so s. 104 (10) of the Magistrates Ordinance would apply and the appeal had to be lodged within 14 days of that refusal. There is no dispute that was in fact done and I am  satisfied that therefore this appeal was lodged within time, notwithstanding the earlier notice of appeal, and I have jurisdiction to near and determine it. The decision in Medway was on the basis that once an appeal had been abandoned, Rule 10 of Rules made under the Criminal appeal Act 1907 applied and it "shall be treated as dismissed". The question did not arise as to whether another appeal could be filed if still within time but, on the basis of stare decisis, presumably it could not. There is no similar provision in Hong Kong and I see no reason why even if an appeal has been filed and abandoned another one cannot be filed, it within time. Section 117 of the Magistrates Ordinance, which deals with abandonment of appeals, does not say that on abandonment the appeal shall be treated as dismissed.

The appeal

8. The trial magistrate found that on 21st August 1990 surveillance was carried out on a barge known as the Chuen Lee. It was seen to be pulled out of the Yaumatei Typhoon Shelter by a tug boat and was taken to the cargo handling area of Gin Drinkers Bay. There a number of trucks arrived and cartons were seen to be loaded from the  truck into the barge. Then it was towed by the tug out to sea a and eventually anchored somewhere in the Ma Wan Channel. About an hour later a speedboat with four outboard engines approached the barge and berthed alongside. Cartons were then loaded into the speedboat, this operation lasting about 20 minutes. The speedboat then left the barge and south. It was however followed and tracked on a radar screen by a fixed-wing aircraft of the Royal Hong Kong Auxiliary Air Force. It finally disappeared from that screen when about two nautical miles from the boundary with the People's Republic of China. Following this the barge way raided by customs officers and some 12 persons were found on board, two of them being the appellants. The third defendant, who was found on the barge and against whom there was evidence that he had purchased some television sets, was acquitted the magistrate finding that there was no sufficient evidence that he was in fact the purchaser of any of the television sets loaded into the barge. That meant the only evidence against him was his presence on Chuen Lee when was raided.

9. Both appellants made statements officers which were admitted without objection. While most of statements were only a series of questions which the appellants declined to answer, some parts of each was relied on by the prosecution. The first appellant said he was waiting for a tug boat to tow the barge to Tuen Mun. He also produced various documents relating to some of the also produced various documents relating to some of the television sets found on the barge. The was the registered owner of the barge.

10. Neither appellant gave or called evidence.

11. The grounds of appeal were that the trial magistrate was not justified in coming to the conclusions of fact that the speedboat was taxing cargo from the Chuen Lee to a destination outside Hong Kong and that the television sets which were found on hoard the Chuen Lee when it was raided were also intended for export out of Hong Kong. It is also argued that the magistrate could riot also have found that the appellants had knowledge that there was no export licence . These grounds have been argued but I am satisfied that the evidence was such as to justify the findings of fact made by the magistrate.

12. It was however a further ground of appeal that the facts as found was not sufficient to show beyond doubt that each of the appellants was acting in pursuance of a common criminal purpose to export the televisions sets, as opposed to only moving them within Hong Kong, and that the trial magistrate failed to direct himself as to the essential difference between a single conspiracy and a series of sub conspiracies connected with out riot forming an overall agreement.

13. I am satisfied that on the evidence before him the magistrate was entitled to find, as he did, that a large number of television sets were loaded into the Chuen Lee in Gin Drinkers Bay. The barge was then towed to near Ma Wan where some of the television sets were loaded into a speedboat which then took them at high speed to within two miles of the nautical boundary with the Peoples Republic of China. Thereafter in a raid carried out by the customs officers the two appellants were found on the barge together with the remaining television sets. The first appellant admitted that he was the owner of those television sets. The second defendant admitted that he was the owner of the barge. There was no direct evidence that these remaining television sets were also destined for export but the evidence certainly would point strongly that that was what was to happen. However I did not think that affects the magistrates finding as to whether or not there was a conspiracy between these appellants and other persons unknown to export television sets from Hong Kong on a vessel of less than 250 tons net register otherwise than in accordance with a licence issued by the Director General of Trade.

14. The appellants rely on the decision of the privy Council in A.G V. Tse Hung Lit and Another [1988] 1 HKLR 25. There the facts were that pursuant to an agreement with a man called Ah Fai, who was the organiser, the respondents took video cassette recorders by speedboat to a places, within Hong Kong waters where they intended to meet a Chinese fishing boat and to transfer the recorders to it so they could be taken out of Hong Kong. No such fishing boat appeared and they left the spot. On the return Journey they were intercepted and charged with attempting to export unmanifested cargo and attempting to export articles without an export licence. They were convicted but on appeal the Court of Appeal, by a majority, held that the respondents could not be convicted of an attempt to export the recorders because if the fishing boat had arrived and taken the goods to China the respondents would not have been guilty as principles of the relevant offences. They themselves were not going to export the recorders nor could they be said to have attempted to cause the recorders to be exported. The Crown appealed to the Privy Council on a point of law as to the meaning of "to cause" but the Court of Appeals decision was upheld.

15. Mr. Hoo relies on the words of Lord Bridge where he adopted dicta, of the High Court of Australia in O' Sullivan v. Truth & Sportsman Ltd (1957) 96 CLR 220. At p.29 Lord Bridge said :

"If the general principle is here applicable, it appears to their Lordships to afford to the respondents a complete defence. Had the fishing boat kept the appointment with the respondents and taken the video cassette recorders out of Hong Kong, there would have been a plain inference that the crew of that coat were. acting on the authority of Ah Fai, the organiser of the forbidden exportation, and expecting no doubt, like the respondents, to be rewarded by Ah Fai. But there was nothing in the evidence led by the prosecution which could have justified the inference that the respondents were in any position, in fact or in law, to control or influence the crew of the fishing boat, or that, if the plan had been carried through, the crew of the fisning boat would have been acting on the express or implied authority the respondents."

Here Mr. Hoo argues that there was no evidence that the appellants any control over the movements of the speedboat. As in Tse they did not cause the television sets to be exported. He draws the distinction between a f.o.b.(free on board) contract and one which was c.i.f. (cost insurance freight). Only if it was the latter, that is the carriage of the television sets in the speedboat was part of the agreement into which the appellants had entered, could they be liable. Here there was no evidence which was no evidence which was not consistent with simply an agreement between the appellants and those responsible for the speedboat to bring the goods to a certain spot. After that it was entirely up to the persons in charge of the speedboat as to what happened to those goods. It may be that the appellants were aware of what was likely to happen to them but that was not enough to make them parties to an agreement to export the television sets out of Hong Kong - only to take them to the rendezvous in the Ma Wan channel.

16. While reliance is placed by the appellants on the decision in Tse the Crown also find support from it in what was said by Lord Bridge at p. 27:

"It is common ground that the respondents could properly have been convicted of  conspiracy to relevant offences".

Mr. Hoo submitted that the facts as round here were such as to support an inference that all the respondents were responsible for was to purchase the television sets, load them into the barge and bring them to Ma Wan. What happened to them after that was not their role in this transaction and was something over which they had no control. It was necessary for the Crown to prove that the appellants had control over the movements of the speedboat before they could be guilty of this offence. This Was hot necessarily one overall conspiracy between the appellants and the persons controlling the speedboat to purchase television sets, load them into the barge, take them to Ma Wan, transfer them to the speedboat and then take then into China. It could also have been an agreement between the appellants, and no doubt others, to simply purchase the television sets and take then to Ma d an on the barge. They were hot party to the further agreement between those in the speedboat to then transport them out of Hong Kong. These could well have been two entirely different agreements -  one of them a perfectly legal and legitimate agreement, the other one a criminal conspiracy but one to which these appellants were not apart. The finding in Tse, which was in any event obita dicta, that the defendants there were guilty of conspiracy was because all parties were apparently part of Ah Fai's enterprise to not only take the cassettes to the rendezvous spot but also to then export them on the fishing boat. That was hot necessarily so here. There was no evidence of a single controlling person an - " Ah Fai".

17. I am bound by the decision in Tse that if a defendant merely delivers articles such as television sets to a sot where they would be removed by some other persons over whose movements he has no direct control, he is not "causing" these television sets to be exported from Hong Kong. However here the question is whether there was sufficient evidence for the magistrate to come to the conclusion that there was one overall agreement between the appellants and the unknown persons in the speedboat that television sets would be taken to the anchorage in Ma wan and from there exported without a licence. The magistrate had to be satisfied beyond reasonable doubt that from the facts he found to be proved an inference must be drawn that the appellants were parties to an agreement not only to transport television sets within Hong Kong but to also export them, contrary to the regulations. It had to be an inference which was the only one which he could reasonably come to from those facts (Kwan Ping Bong v. R. [1979] HKLR 1 CPC). However if an accused person does hot call or give evidence the court may more readily draw such an inference against him (Lam Tse Wah v. R. [1984] HKLR 54 and Chan Kwai Kam v. R. Cr. App. 99/68). There was ample evidence of the television sets being loaded into a barge taken to Ma clan Channel, and some of them were there transferred to a speedboat with four outboard engines. It would be fanciful hot to conclude that this was not for the purpose of illegal export from Hong Kong. Clearly there must nave been an agreement between those responsible for the barge and those in the speedboat as to where they were to meet and what would happen when their did, that the television sets would be transferred from one vessel to the other and those sets would then be exported from Hong Kong.

18. I must admit that I do not find it easy to follow the reasoning of the Privy Council in Tse which means that on those facts the appellants did hot cause the television sets to be exported but I have ho doubt oh the evidence before him, which aid not include anything from the appellants, the trial magistrate was justified in concluding that the appellants were part of an overall agreements to export the sets from Hong Kong contrary to the regulations.

19. I am satisfied that the magistrates finding was justified on the evidence before him and that therefore this appeal must be dismissed.

Representation:

Mr. Alan Hoo, Q.C., & Alan K.K. Leong (Herman H.M. Hui) for appellant

Ms. M.A. Crabtree for Crown