The Queen v. Lei Sou Wa

HCMA000257/1996

- Headnote -

Criminal law and procedure - "Point of law" reserved by High Court judge to Court of Appeal - The question whether the statutory offence of attempt to commit offences created by the old section 101B Criminal Procedure Ordinance, Cap 221, required proof of mens rea where the attempt related to exporting unmanifested cargo was settled by the Court of Appeal's decision in The Queen v. Lau Sai-wai [1985] HKLR 423 - It was not open to the High Court judge to question its correctness by a reference under s118(1)(d) Magistrates Ordinance, Cap 227 - The decision in The Queen v. Lau Sai-wai, as a matter of statutory interpretation, is plainly correct.

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Coram: Hon Litton V-P, Bokhary and Liu JJ.A. in Court

Date of hearing: 30 August 1996

Date of Judgment: 30 August 1996

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JUDGMENT

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Litton V-P giving the judgment of the Court:

Introduction

1. The appellant was convicted on 8 January at the Fanling Magistracy on one charge of attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap 60 and section 101B of the Criminal Procedure Ordinance, Cap 221 and sentenced to six months' imprisonment suspended for 18 months; he was also fined $3,000.

2. On 22 January 1996 the appellant appealed to the High Court against his conviction. A so-called "point of law" on appeal was reserved by Leong J to this court under s118(1)(d) of the Magistrates Ordinance, Cap 227. The difficulty, requiring this court's intervention, is said to be this court's decision in The Queen v. Lau Sai-wai [1985] HKLR 423.

The facts

3. Many of the facts in the magistrate's court were agreed. For the purposes of this matter before us, the magistrate's findings can be summarised as follows. On 28 April 1995, the appellant was driving a lorry through the customs check point at Man Kam To, on the way to China. The cargo manifest submitted by him showed that the lorry was loaded with used car spare-parts. Upon inspection it was discovered that behind the spare parts, at the rear of the cargo compartment, there were large quantities of accessories for copying machines (over 1,000 pieces, packed in cartons), 11 ventilation fans and an air-conditioner, with a total value of over $248,000.

The issue before the magistrate

4. These goods clearly were unmanifested cargo. They were about to be taken across the border to China when the appellant was stopped. It was an admitted fact at the trial that the appellant did not know that the cargo had been placed on board his lorry. The only issue at the trial was whether the appellant could with reasonable diligence have known that the cargo was unmanifested. The burden of so satisfying the magistrate rested upon the appellant: see section 18(2) of the Import and Export Ordinance which states:

" (2) It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested."

5. The offence of exporting unmanifested cargo in s18(1)(b) is one of strict liability. This statutory defence to a charge under s18(1)(b) was considered by this court in The Queen v. Lui Tak-Hoi [1993] 2 HKCLR 298 and even more recently in The Queen v. Cheng Kai & Yau Yin Pan (Magistracy Appeal No. 753 of 1994, 1/3/95, unreported).

6. The magistrate approached the case on the basis that the offence of attempting to export unmanifested cargo was likewise one of strict liability. Having heard the appellant's evidence as to the circumstances under which the consignor of the goods had made contact with him in Shenzhen, how the goods came to be loaded onto his lorry in Yuen Long, and how he was proposing to unload the goods in Shenzhen, the magistrate was not satisfied with his explanation and accordingly convicted him as charged.

The point of law

7. The point of law taken on behalf of the appellant comes to this: Does the offence of attempting to export unmanifested cargo require the prosecution to prove knowledge, or is the offence one of strict liability?

8. At the time of the offence, and at the appellant's trial in January 1996, the relevant statutory provision is s101B of the Criminal Procedure Ordinance, Cap 221 which reads:

101B Attempts to commit offences

9. This section has since been repealed by the Crimes (Amendment) Ordinance No. 49 of 1996, but this is irrelevant to the point we have to consider. For if s101B imposed on the prosecution the burden of showing that the appellant knew that the cargo was unmanifested before he could be convicted of the attempt then it is common ground that the magistrate had erred.

10. It is beyond dispute that the substantive offence of exporting unmanifested cargo is one of strict liability, requiring no proof of knowledge on the defendant's part. Is the offence of attempt any different? Upon a plain reading of s101B of the Criminal Procedure Ordinance the answer must be NO.

11. It would be bizarre if the legislature had imposed strict liability for the substantive offence, but nevertheless required proof of knowledge for the preparatory acts constituting the attempt. This Court in effect so concluded in The Queen v. Lau Sai-wai. Nothing we have heard in argument suggests that this court had erred in 1985 in so deciding.

The reference to this court

12. Before leaving this matter, it is worth mentioning one point: The manner in which the so-called point of law was referred to this court under s118(1)(d) of the Magistrate Ordinance.

13. The question as put to us was formulated thus:

"Was R. v. Lau Sai-wai [1985] HKLR 423 correctly decided?"

14. That is plainly not a properly formulated question of law arising from the appeal before the High Court judge. The judge was bound to take the law as he found it. We are in turn bound by our own decisions (subject to well-known exceptions). So that this matter before us be not wholly brought in vain, we have treated the question as put to us to mean something along these lines: Has the magistrate erred in concluding, upon a proper construction of s101B Criminal Procedure Ordinance that, on a charge of attempting to export unmanifested cargo, the prosecution is not required to prove knowledge on the appellant's part that the cargo was unmanifested?

15. The short answer to that question is NO. It is wholly unnecessary for us to go into the process of reasoning in Barker JA's judgment in Lau Sai-wai; the decision itself turned upon the proper construction of s81(1) of the Interpretation and General Clauses Ordinance Cap 1 which is in terms identical to s101B of the Criminal Procedure Ordinance. The result of that decision is undoubtedly correct. The question of stare decisis apart (on which Mr Bruce QC has addressed valuable arguments in his written submission) we would in any case have followed the result in Lau Sai-wai.

Conclusion

16. A question in terms similar to the one before us was considered by this court in Cheng Kai last year. We hope that this is the last time a High Court judge, on a magistracy appeal, is asked to formulate a question of this kind.

17. This matter must now go back to the High Court for the appeal to be disposed of in accordance with our ruling.

Representation:

Mr A.A. Bruce, QC, SACP leading Mr David Leung (Crown Prosecutor) for Crown/Respondent

Mr John Haynes (DLA) for Defendant/Appellant