R. v. Wang Shih Hung
Read the full judgment text of HCMA 989/1993 on BabelCite. This High Court CFI judgment was delivered on 25 October 1994.
1. These two appeals were called on together. We will refer to Magistracy Appeal No. 989 of 1993 as "the first appeal", and to Magistracy Appeal No. 604 of 1994 as "the second appeal".
Cited by 41 cases · Cites 1 case
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HCMA000989/1993 Magistracy Appeals H E A D N O T E In a prosecution under subsections (1), (6) or (8) of section 17 of the Dutiable Commodities Ordinance, Cap.109 ("the DCO"), the prosecution must prove beyond reasonable doubt that the accused knew that the goods concerned were of the kind to which the DCO applies. (2) Of course, if the goods happened to be alcoholic liquors, but the accused thought that they took the form of tobacco, that mistake would be no defence. Both alcoholic liquors and tobacco are goods of the kind to which the DCO applies. That is enough. The law takes no notice of mere quibbles. (3) None of those subsections requires the prosecution to prove that duty on the goods in question was outstanding. (4) But it is a defence for the accused to show on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of the DCO had been complied with, which compliance of course includes duty having been paid. (5) Magistrates will of course approach such defences with fairness and common sense: being neither cynical on the one hand nor gullible on the other hand. Generally, the less sophisticated an accused and the more humble his position, the less is to be expected from him for the purpose of making out his defence. And of course the relevant considerations include: the quantity and value of the goods involved; whether the accused gained or stood to gain by offending; the extent of any such gain; and how it compares with what he could earn by honest means. (6) All the subsections were consistent with the Bill of Rights. (7) As to strict liability and the Bill of Rights, the Court said (at p.11 L-Q) that:-
and
(8) As to (3) and (4) above, the Court held (at pp 24K-25E) that:-
IN THE COURT OF APPEAL (Magistracy APPEAL No. 989 of 1993) _________________
and (Magistracy Appeal No. 604 of 1994) _________________
_________________ Coram: Bokhary JA, Ryan and Stuart-Moore JJ Date of hearing: 18 and 19 October 1994 Date of judgment: 25 October 1994 _________________ J U D G M E N T _________________ Bokhary JA : TWO APPEALS 1. These two appeals were called on together. We will refer to Magistracy Appeal No. 989 of 1993 as "the first appeal", and to Magistracy Appeal No. 604 of 1994 as "the second appeal". THE FIRST APPEAL 2. The first appeal is brought by Mr Wang Shih-hung. He was tried before Miss L.K. Loh in the Kwun Tong Magistrate's Court on two charges. On November 4 last year, he was convicted on one charge but acquitted on the other one. The charge on which he was convicted was possession of dutiable goods otherwise than in accordance with the provisions of the Dutiable Commodities Ordinance, Cap. 109 (to which we will refer as "the DCO"). 3. Possession, therefore, was a basis of the charge against Mr Wang. And the particulars of the charge were that on May 31, 1993, in certain premises in an industrial building in Kowloon Bay, which premises he rented and used as a warehouse, he had in his possession dutiable goods, being 1,027,000 cigarettes, otherwise than in accordance with the DCO. 4. Upon his conviction on that charge, Mr Wang was, on the same day, sentenced to three months' imprisonment and fined $50,000.00. 5. He appealed to the High Court against that conviction. 6. The appeal involved, among other things, questioning the correctness of a previous decision of that Court, namely, the decision of Hooper J, on appeal from a magistrate, in Reg. v. Cheung Siu-yu [1991] 2 HKLR 142. Faced with a challenge to the correctness of one of its own decisions, that Court referred the appeal to this Court. 7. As it turned out, the prosecution conceded that, for a variety of reasons, Mr Wang's conviction could not be supported. The most fundamental of those reasons was that the evidence was such that the Magistrate should have found that Mr Wang was not in possession of the cigarettes. 8. We considered that concession to be well-founded. And we allowed Mr Wang's appeal straightaway: quashing his conviction and setting aside his sentence - saying then that we would give our reasons when we came to give our judgment in the second appeal. Those reasons we have now given. 9. And that brings us to the second appeal. THE SECOND APPEAL 10. The second appeal is brought by the Attorney General. It is an appeal by way of case stated to the High Court, which referred the appeal to this Court. 11. In the case out of which it arises, the six respondents appeared before James C.Y. Lee Esq. in the South Kowloon Magistrate's Court on various charges under the DCO. Four offences 12. Four offences were charged. All concerned dutiable goods, namely, brandy. The first offence 13. The first offence was dealing with goods to which the DCO applies otherwise than in accordance with the provisions of that Ordinance. 14. That offence was created by section 17(1) of the DCO as read with section 46 thereof. 15. Section 17(1) reads:-
16. And section 46 reads:-
17. In order to follow those and other provisions with which we are concerned, it is necessary to look also at the definition of "dutiable goods" given in section 2(1) of the DCO and at section 3 thereof which deals with the Ordinance's application. 18. The definition given in section 2(1) reads:-
19. And section 3 reads:-
20. In the present case, the reason why the goods the subject-matter of the section 17(1) charge are said by the prosecution to be goods to which the DCO applies is that they are dutiable goods. The second offence 21. The second offence was possession of dutiable goods otherwise than in accordance with the provisions of the DCO. 22. As it happens, that is the offence with which the appellant in the first appeal had been charged. It was created by section 17(6) of the DCO as read with section 46 thereof. 23. Section 17(6) reads:-
The third and fourth offences 24. The third offence is buying dutiable goods otherwise than in accordance with the provisions of the DCO. 25. And the fourth offence is selling such goods otherwise than in accordance with those provisions. 26. Both the third and fourth offences were created by section 17(8) of the DCO as read with section 46 thereof.
The six respondents 28. The 1st, 2nd and 3rd respondents, for whom Mr Wong and Mr Ma appear, were charged under subsections (6) and (8) of section 17. 29. As for the other three respondents, for whom Mr Wu appears: the 4th respondent was charged under subsections (1) and (8) of that section, while the 5th and 6th respondents were charged under subsection (1) thereof. All the charges dismissed 30. On January 5 this year, without hearing any evidence, the Magistrate dismissed all the charges. It is against such dismissal that the Attorney General, for whom Mr Bailey appears, appeals. Three things held 31. In dismissing all the charges, the Magistrate held three things. First 32. First, he held that all four offences charged were offences of strict liability in that "knowledge of the status of the relevant goods as dutiable goods" is not an ingredient of any of them. By that expression "knowledge of the status of the relevant goods as dutiable goods" is meant knowledge that duty on the goods in question was outstanding in that such duty was payable but had not been paid. The Magistrate held that the prosecution did not have to prove such knowledge in relation to any of the offences charged. 33. Whether that holding is correct is the first question posed in the stated case. 34. The Attorney General accepts and asserts that it is correct, and invites an answer in the affirmative to the first question. 35. The respondents contend to the contrary, and invite a negative answer to that question. Second and third 36. Secondly, on the view which he took of the consequences of strict liability in the sense mentioned, the Magistrate held that subsections (1), (6) and (8) of section 17 of the DCO did not admit of a construction consistent with article 11(1) of the Bill of Rights, which provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 37. Thirdly and finally, the Magistrate held that those subsections had, by reason of such inconsistency, been repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383. 38. Whether the second holding is correct is the second question posed in the stated case, while whether the third holding is correct is the third question posed therein. 39. Since the Bill repeal of pre-existing legislation would be the inevitable consequence of any Bill inconsistency to the extent of such inconsistency, the second and third questions merge. 40. The Attorney General contends that the second and third holdings are incorrect, and he invites answers in the negative to the second and third questions. 41. The respondents contend to the contrary, and invite affirmative answers to both those questions. Strict liability and the Bill of Rights 42. It will be remembered that in delivering the advice of the Privy Council in Attorney General v. Lee Kwong-kut [1993] AC 951, Lord Woolf made the point (at p. 975D) that:-
43. That would suggest that an offence is not automatically open to challenge under the Bill of Rights merely because it is an offence of strict liability. 44. Of course, that is not to say that the express wholesale abolition of each and every mental element in our criminal law would be consistent with the Bill of Rights. If effective, such a measure would leave no one with liberty or security of person. And of course the right to liberty and security of person is a right secured for everyone under article 5(1) of the Bill of Rights. 45. But where the conclusion that a statutory offence is an offence of strict liability is a conclusion arrived at by a process of construction, then there would be no room left for an argument that the statutory provision creating that offence is inconsistent with the Bill of Rights. The test 46. That is because of the high human rights content of the rules of construction which the courts apply to determine what a penal provision really means. Those rules were summarised by Lord Scarman in delivering the advice of the Privy Council in Gammon (Hong Kong) Ltd v. Attorney General [1983] AC 1 when he said (at p.14B-D) that:-
The corresponding position in the United States 47. In cases of the present nature, provided that it is made with a sensible measure of selectivity, our courts can often profit from a study of the corresponding position in the United States. The present instance is such a one. 48. We have looked at the decision of the United States Supreme Court in United States v. Balint 258 US 250. That case concerns strict liability and the due process clause. Under that clause of the Fourteenth Amendment of the United States Constitution, it is provided that no one may be deprived of life, liberty or property without due process of law. So the clause is as powerful a guarantee of individual freedom as one can hope to find. 49. The report of Balint's case (supra) does not indicate what maximum penalty was involved there. But we know from the report of another decision of the United States Supreme Court, United States v. Dotterweich 320 US 277 at p.285, that Balint's case (supra) was one "involving a maximum sentence of five years." 50. What we gather from the American cases is - admittedly putting it in our own words - therefore this. Where rules of construction sufficiently strongly disposed in favour of individual freedom are employed, and an offence is nevertheless construed, in the public interest, to be one of strict liability, then that result can sit comfortably with the most powerful guarantees of individual freedom, even where the offence is punishable by a substantial term of imprisonment. In the present case 51. In the present case, the issue is not as to knowledge that the goods involved were of the kind to which the DCO applies. Rightly, Mr Bailey accepts that such knowledge is an element of each of the offences charged here. Were it otherwise, liability under the relevant provisions would be absolute. Plainly, that is not so. Such knowledge is necessary. And Hooper J went too far in Reg. v. Cheung Siu-yu (supra) at p.142I when he took the contrary view. Rightly, Mr Bailey does not seek to support that contrary view. 52. So the goods must be of the kind to which the DCO applies. And the prosecution must therefore prove beyond reasonable doubt that the accused knew that the goods were of that kind. Of course, if the goods happened to be alcoholic liquors, but the accused thought that they took the form of tobacco, that mistake would be no defence. Both alcoholic liquors and tobacco are goods of the kind to which the DCO applies. That is enough. The law takes no notice of mere quibbles. 53. Reverting now to the issue in the present case, that issue, as we have earlier indicated, goes to knowledge that duty on the goods involved was outstanding. Four theoretical possibilities 54. Four theoretical possibilities were canvassed in the course of the argument. We will state them in the simplest possible terms, without using expressions such as "strict liability" or "ingredient". The first possibility 55. The first possibility is that the prosecution has to prove beyond reasonable doubt that the accused knew that duty on the goods was outstanding. The second possibility 56. The second possibility is this. The prosecution does not have to prove such knowledge. But it would be a defence if the accused believed for good and sufficient reason, although erroneously, that the provisions of the DCO in respect of the goods had been complied with. Compliance includes of course the payment of duty. And once the accused raises that defence, it is for the prosecution to negative it beyond reasonable doubt. The third possibility 57. The third possibility is that the prosecution does not have to prove such knowledge; but that it is a defence for the accused to prove such belief on a balance of probabilities. The fourth possibility 58. The fourth possibility is that the prosecution does not have to prove such knowledge; and that such belief is no defence at all. Counsel's stance 59. The stance taken by each counsel may be summarised thus. For the Attorney General 60. For the Attorney General, Mr Bailey submits that the fourth alternatively the third possibility represents the true position. And he submits that none of the four possibilities are inconsistent with the Bill of Rights. For the 1st. 2nd and 3rd respondents 61. For the 1st, 2nd and 3rd respondents, Mr Wong submits that the first alternatively the second possibility represents the true position. And he submits that, while those two possibilities are Bill consistent, the other two possibilities are Bill inconsistent in their entirety. For the 4th. 5th and 6th respondents 62. For the 4th, 5th and 6th respondents, Mr Wu submits that the first alternatively the third alternatively the second possibility represents the true position. That is the order in which he puts it: one, three and then two. He submits that only the fourth possibility is Bill inconsistent. And even then, his submission is that it is Bill inconsistent only to the extent that it carries liability to imprisonment. 63. Such liability for an absolute offence would, he submits, be inconsistent with the right to liberty and security of person guaranteed by article 5(1) of the Bill of Rights. In support, he relies on the decision of the Supreme Court of Canada in Reference re section 94(2) of the Motor Vehicle Act 23 CCC (3d) 289, which dealt with absolute as opposed to strict liability, and in which Lamer J, with whose judgment all but one member of the Court agreed, said this (at pp 315-316):-
64. This qualification to his stance was added by Mr Wu: were we to accept any of Mr Wong's submission, then he, Mr Wu, would like to be treated as having adopted them. Which? 65. In deciding which of those four possibilities represents the true position, we begin by going back to the five propositions stated by Lord Scarman in the Gammon case (supra) at p.14B-D. Lord Scarman's five propositions applied 66. We will apply Lord Scarman's five propositions one by one. The first proposition 67. The first proposition - which is that "there is a presumption that mens rea is required before a person can be held guilty of a criminal offence" - is of course what we put at the forefront of our approach. The second proposition 68. As to the second proposition - which is that "the presumption is particularly strong where the offence is 'truly criminal' in character" - take the view that the present offences are not truly criminal in character. They spring not from any inherent evil in the conduct prohibited. Rather, they spring from the fact that such conduct is prohibited. To use the Latin expressions used in some of the cases, they are mala prohibita rather than mala in se. 69. We would add, however, that our ultimate decision would be the same even if we considered the present offences truly criminal. The third proposition 70. As to the third proposition - which is that "the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute" - we take the view that, looking at the whole of the legislative scheme in context, it is a necessary implication of this statute's effect that the prosecution does not have to prove knowledge that duty was outstanding. The fourth proposition 71. Moving on to the fourth proposition - which is that "the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue" - we take the view that this statute is concerned with an issue of social concern. 72. The concern is to raise revenue and to raise it in a way that treats taxpayers with equality. If the law were impotent, or even if it were merely inefficient, in visiting serious consequences on the evasion of duty, it would fail to accord equal protection to honest taxpayers. And of course article 22 of the Bill of Rights guarantees everyone equal protection of law. It is a mistake - and an injustice to the Bill of Rights - to think that it only protects the man in the dock and never protects the man in the street. The fifth proposition 73. Finally, as to the fifth proposition - which is that "even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act" - we take the view that two main points arise. The first main point 74. Of those, the first is this. We are satisfied that vigilance of the kind spoken of in the fifth proposition would be promoted by strict liability in the sense of it being unnecessary for the prosecution to prove knowledge that duty was outstanding. Indeed, we are satisfied that such necessity would seriously hamper if not cripple the legitimate objectives of section 17, which is that duty should be paid and that people should be careful to avoid having anything to do with goods on which duty is outstanding. And we hold that there is no such necessity. The second main point 75. At the same time, the second main point is that we are equally satisfied that it would do that objective absolutely no harm at all for it to be a defence if the accused proves on a balance of probabilities that he believed for good and sufficient reason that the provisions of the DCO had been complied with. Mr Bailey accepts that. Indeed, we would go on to say that, quite plainly, the availability of such a defence would actually advance that objective. It would advance it by permitting it to be attained without convicting blameless persons. 76. We think that it would be reading too much into Lord Scarman's fifth proposition to think that it stands in the way of construing a penal provision to admit of such a defence. And once that is recognized, reservations over the Gammon case such as those expressed by the Court of Appeal in New Zealand in Millar v. Ministry of Transport (1986) 2 CRNZ 216 diminish if not disappear. Can it be done? 77. While he accepts that the availability of such a defence to all of the offences created by section 17 would not be a bad thing, Mr Bailey invites us to pause to consider whether such a defence is something which can be achieved by way of construction. The law in Australia. Canada and New Zealand 78. We have looked at the cases in: Australia (including the decisions of the High Court of Australia in Maher v. Musson (1934) 52 CLR 100 and Proudman v. Deyman (1941) 67 CLR 536); Canada (including the decision of the Supreme Court of Canada in Reg. v. City of Sault Ste Marie (1978) 85 DLR (3d) 161); and New Zealand (including the decision of the Court of Appeal in New Zealand in Millar v. Ministry of Transport (supra)). 79. They all support the proposition that a position under which the prosecution does not have to prove guilty knowledge, but it is a defence for the accused to prove on a balance of probabilities that he reasonably although incorrectly held an honest belief, is a position which can be arrived at by way of construction. The law in England 80. Turning to the law in England, we begin by looking at the decision of the House of Lords in Sweet v. Parsley [1970] AC 132. Lord Reid in Sweet v. Parsley 81. And we find ourselves enlightened and encouraged by what Lord Reid said. It is true that he begins (at p.149F) with what a legislator might do. And it is true that he is talking about a legislator when he says (at H on the same page): "So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape." 82. But by the time we reach p.150D, we find that Lord Reid has started to consider what the courts may be able to do by way of construction. For there he says this:-
And when he comes to consider the decision of the High Court of Australia in Proudman v. Deyman (supra), Lord Reid speaks of it (ibid.) as a "variant" of inferring that Parliament meant to make gross negligence the necessary mental element rather than to create an absolute offence. Lord Pearce 83. From Lord Reid's speech we turn to that of Lord Pearce. Referring to the sort of defence which we are discussing here as a "half-way house", Lord Pearce says this (at pp.157H- 158E):-
84. In the result, Miss Sweet's conviction was quashed on another basis. And if what Lord Pearce said is not definitely a green light, it certainly is not a red one either. And Lord Diplock 85. Finally, we come to how Lord Diplock put it, which is like this (at pp 162F-163D):-
Fundamental principles 86. That enables us - indeed it requires us - to test the position by reference to fundamental principles. 87. Among the statements of those principles is this classic statement by Stephen J in the famous case in the Court for Crown Cases Reserved of Reg. v. Tolson (1889.) 23 QBD 168 at p.187:-
88. Knowledge that duty payable under a statute was outstanding would be a state of mind. So would a reasonable (although erroneous) belief that the provisions of that statute had been complied with. If the necessary implication is that such knowledge is excluded as an element which the prosecution has to prove, there is no reason in principle why proof by an accused on a balance of probabilities of such belief cannot be inferred to be a defence. 89. And where that exclusion is dictated by the need to convict the guilty, that inference would be a compelling one if it would protect the innocent. For the exclusion and the inference would complement each other towards attaining the fundamental objective of any criminal justice system worthy of the name. That objective is of course to convict the guilty while protecting the innocent. 90. Both limbs of that objective are entrenched in article 22 of the Bill of Rights which guarantees everyone the equal protection of the law. Everyone is entitled to protection from criminals and to protection from being wrongly treated as if they were criminals: not just the first; not just the second; but both - so as to be safe and free at the same time. The presumption in item (a) of section 40 91. In the course of his submission, Mr Wong posed examples into which he factored the presumption in section 40 of the DCO. It is unnecessary to deal with those examples. But we think it appropriate to mention that Mr Bailey informed us that the Attorney General's position, which he always makes known whenever prosecutions under the DCO are brought, is that the presumption in item (a) of section 40, being that "it shall be presumed until the contrary is proved ... that any goods to which [the DCO] applies are dutiable goods", has been repealed for Bill inconsistency. Coming back to the third possibility 92. Coming back to the third possibility which we discussed, that possibility, it will be remembered, is that liability is strict, but proof on balance of a reasonably held honest belief is a defence. Section 17(2) 93. As it happens, such a defence is expressly made available where the charge is under section 17(2), which creates an offence somewhat different from the ones with which we are concerned. For that subsection and the proviso thereto read:-
94. One theoretically possible view might be that the Legislature intended such a defence should be available in respect of subsection (2) of section 17 but not in respect of the other subsections thereof. But, under the relevant rules of construction, that view is unwarranted. At the very least, there are reasonable rivals, including the view that the Legislature thought that the defence would be available in respect of the other subsections anyway unless expressly removed. Simpler reason 95. In the present case, it is unnecessary to come to any decision as to the limits of what can be done by way of legislation under our constitutional arrangements. 96. We say that for this simple reason. To interpret the relevant provisions as requiring proof by the prosecution of knowledge would leave a gap through which the guilty could escape in droves. At the same time, to interpret those provisions as precluding a defence of reasonable belief would leave a gap through which the innocent may fall to their harm. By no proper canon of construction can the intention to create either of those gaps be attributed to the Legislature. Consequently ... 97. Consequently, the third possibility represents the true position. So the prosecution does not have to prove that the accused knew that duty on the goods was outstanding. But it is a defence for the accused to prove on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of the DCO relating to the goods had been complied with, which compliance of course includes duty having been paid. The true and Bill consistent position 98. In our judgment, that represents the true and Bill consistent position: arrived at by a process of construction which has built into it conformity with the Bill of Rights and the meeting of the criteria laid down in Attorney General v. Lee Kwong-kut (supra) for justifying any onus being placed on the accused. The approach to the defence 99. Magistrates will of course approach such defences with fairness and common sense: being neither cynical on the one hand nor gullible on the other hand. Generally, the less sophisticated an accused and the more humble his position, the less is to be expected from him for the purpose of making out his defence. And of course the relevant considerations include: the quantity and value of the goods involved; whether the accused gained or stood to gain by offending; the extent of any such gain; and how it compares with what he could earn by honest means. The answers
RESULT : BOTH APPEALS 100. The first appeal is allowed. Mr Wang's conviction is quashed; and his sentence is set aside. 101. The second one, the Attorney General's appeal, is also allowed. The dismissal of the charges is set aside; and the matter is remitted to the same Magistrate for him to proceed thereon, trying the case in accordance with the opinion of this Court as expressed in this judgment. 102. Before parting with these appeals, we wish to express our indebtedness to all counsel involved for the assistance which we have derived from their industry.
Representation: Mr S.R. Bailey and Mr Wesley W.C. Wong (of the Attorney General's Chambers) for the respondent, the prosecution in the first appeal and for the appellant, the Attorney General in the second appeal Mr John Dunn (instructed by Messrs Massie & Pickavant) for the appellant in the first appeal Mr Ching Y. Wong and Mr David Ma (instructed by Messrs Lee, Ng & Lam) for the 1st, 2nd and 3rd respondents in the second appeal Mr Paul Wu (instructed by Messrs C.K. Mok & Co.) for the 4th, 5th and 6th respondents in the second appeal |
Cases cited in this judgment