The Queen v. Cheung Siu Yu

HCMA001081/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1081 OF 1990

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BETWEEN

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Coram: Hon Hooper, J. in Court

Dates of hearing: 9, 13 November 1990 and 8 February 1991

Date of delivery of judgment: 21 February 1991

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JUDGMENT

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1. On the 2nd July 1990, the appellant was convicted at San Po Kong Magistrates Court of an offence of possession of dutiable goods without a permit. He now appeals against that conviction.

2. At the trial the following facts were admitted under section 65C of the Criminal Procedure Ordinance:

3. In Exh P5 a statement made to a Customs Officer under caution the appellant admitted that he was entirely responsible for the operation of the company and in Answer 23 he said:-

"On February 29, 1990, Lee Kwong Fook gave me a long distance call from Taiwan and asked me to send an employee to the General Post Office in the Central on the morning of February 20, 1990 while he would ask someone to bring 50 parcels to the General Post Office in the Central and hand them over to my employer to complete the postal service formalities. Therefore, on the morning of February 20, I sent my employee CHEUNG Chong-kui to the General Post Office in Central. I also completed the declaration formalities for Lee Kwong-fook's postal parcels in the name of man Fung Company."

He also said in Answer 24 that the said Lee Kwong-fook told him, through this long distance call, that the 50 parcels were food and added "so when I underwent the declaration formalities, I also declared that the goods were food". The magistrate has summarised the salient points in this statement and I will come back to this.

4. The appellant did not give evidence but called his employee, Mr CHEUNG Chong-kui, as, his witness. The Magistrate set out the salient points of his evidence as follows: -

5. In finding (viii) which is omitted above the Magistrate referred to an answer contained in  this witness' caution statement Exh P6 which he had admitted making to the police and pointed out that there was a contradiction between that and his evidence in cross-examination. His 20th answer in the statement had ssserted that this was the first time such a large batch of goods was posted, normally (it was) 2 to 3 boxes.

6. The Magistrate went on in his Statement of Findings as follows:-

"Having considered all of PW1's evidence very carefully and his demeanour whilst giving evidence and found him to be a'poor witness and his evidence unreliable. He carried out work contrary to normal procedures, for someone he did not know or ascertain who they were, he paid out a large sum of postage and never ascertained what the goods were. I had no hesitation in rejecting his evidence."

The reference to "PW1" in the above passage should be "DW1".

7. No exception is taken to the Magistrate's assessment of this witness. The Magistrate went on: -

"I then turned to consider the Defendant's caution statement exhibit P5 and P5(a). I regarded this as a mixed statement, Defendant admitting he knew of the existence of the goods but denying he knew they were cigarettes. As it was a mixed statement I considered the whole of the statement both exculpatory and inculpatory parts in deciding where the truth lay, this being the principle in R. v. Sharp (1988) 86 Cr. App. R page 274.

8. The salient points of that statement are:

9. The Magistrate then went on in his Statement of Findings to say:-

"As said at the time of passing judgment what the Defendant says of itself is not suspicious but the fact is it conflicts materially with DW1. Compare salient points (iii), (iv) and (vi) of the Defendant to salient points (ii), (vii), (ix) of DWI which show substantial and material differences as to who told DW1 to go to the post office, who completed the declaration formalities and who completed the name and address of the consignees.

The fact DW1 did not say this leads to the compelling and only inference Defendant and DW1 are not telling the truth because there is no reason for DW1 not to say that if it were true. A24 does however give rise to some suspicion. Defendant stated he declared that the goods were food, such declaration is not permitted see instructions on customs declaration, item (14), which is part of exhibit P4. Therefore I had no hesitation in rejecting Defendant's explanations in his caution statement P6 as to how the cigarettes came into existence and his-lack of knowledge of the fact they were cigarettes."

10. I am afraid I do not understand what the learned Magistrate means when he refers to the instructions on the customs declaration item (14). Counsel suggest he meant to refer to item (13). It does appear, in any event, that the Magistrate has based his decision to reject the appellant's explanation on the fact that there is a contradiction between the evidence of DW1 and the statement of the appellant. However, in view of the fact that he had already rejected the evidence of DW1, it does not necessarily follow that it is a compelling and only inference that the appellant himself was not telling the truth.

11. The Magistrate then went on to consider whether the offence created by section of the Dutiable Commodities Ordiance is an offence of strict liability. He said:-

"I also considered whether once possession custody or control of the cigarettes was proved the offence became one of strict liability and it was therefore no defence to say although in possession custody or control I did not know the goods were cigarettes. The only case I could find on this was Koon Pok-man v. The Queen (1975) HKLR page 271 which was a charge contrary to S17(1)(a) of the Dutiable Commodities Ordinance where it was held that in order to constitute possession under the Dutiable Commodities Ordinance there must be knowledge of possession and knowledge of the nature of the thing possessed. That case turned on whether the Defendant had the knowledge duty had been paid or not. At page 275 Li J said'Having regard that the object of the Dutiable Commodities Ordinance. was merely to amend the law relating to the -taxation and control of liquors and for purposes connected therewith : I am not able to agree to the proposition that the said ordinance provide an absolute. prohibition.'

This decision was doubted in Halim Sulman and another v. The Queen [1977] HKLR page 214 where Pickering J.A. at page 215 said '..... and we propose to say no more about Koon Pok Man except that it may be significant that the Ordinance under scrutiny in that case contained a presumption which operated against the accused..... None the less the somewhat odd result was arrived at that in Kook Pok Man, the offence was held not to be of strict liability.....'

From this it cannot be said Koon Pok Man has been over-ruled. S17(1) and S17(6) of the Dutiable Commodities Ordinance are both offences of. possession. Therefore I was bound to follow the decision in Kook Pok Man that knowledge of the nature of the thing possessed was not one of strict liability."

12. The magistrate set out his conclusions as follows :-

13. The solitary ground of appeal is that the conviction is unsafe and unsatisfactory.Two reasons are given for this:-

14. I sympathise with the magistrate's approach when confronted with the decision from this Court indicating that the offence created by s.17(1)(a) of the Dutiable Commodities ordinance is not one of absolute liability.

15. In Koon Pok Man, the learned Judge relied by way of analogy on the construction of sections of the Dangerous Drugs ordinance. With the greatest respect to him, that was a dangerous approach, bearing in mind the different terms of the legislation concerned and the greatly differing nature and criminality of the offences concerned. It was an approach which has been criticised by the Court of Appeal in a recent magistrates appeal, R. v. The King Capital Club (M.A. 1548/89) where reliance had been placed on the Dangerous Drugs Ordinance to construe the Gambling Ordinance.Their Lordships said : -

"With respect, offences under the Dangerous Drugs Ordinance are of a very different kind than those under the Gambling Ordinance and we are unable to find any assistance in the analogies suggested".

16. It appears to me that the offences created by s.17 of the Dutiable Commodities Ordinance are very different from those under the Dangerous Drugs Ordinance and are of a type which fall within the propositions set out in the speech of Lord Scarman in Gammon (Hong Kong) Ltd. & Ors. v. A.G. of Hong Kong [1983) HKLR 93, a speech which had not been made at the time Li J. made his decision in Koon Pok Man.

17. They are offences which are not "truly criminal" in character. They also relate to a matter of social concern, namely the collection of revenue. Indeed the earliest authority which I have found in which a statute was held to create an offence of strict liability is Regina v. Woodrow (1846)15 M&W 403 where such an offence was created in protection of the revenue and related to duties on tobacco. Similarly the Customs Ordinance (Cap. 168) in FIJI was held in Patel and the Comptroller of Customs [1966) A.C. 356 P.C. to create offences of strict lability.

18. In my judgment the terms of the Dutiable Commodities Ordinance indicate an intention by the legislature to create an offence of strict liability by subsection (6) of Section 17 read with section 46(1). The former prescribes the conduct which is prohibited by law whilst the latter makes a contravention of that prohibition an offence.

19. The word "Knowingly" which appears elsewhere in section 17 (ie subsection 2) and also in section 58(1)(a) is omitted from subsection (6) and section 46(1). Subsection (3) of section 46 does, however, provide :

20. Furthermore Section 46A provides :-

21. These sections indicate a clear intention on the part of the legislature that the offence created by subsection (6) of section 17 shall be one of strict liability.

22. This construction is in line with my decision in The Queen v. Wong Poon Wai (Magistracy Appeal 1566/90). That subsection (3B) of section 17 also creates an offence of strict liability.

23. Although therefore I have some reservations concerning the Magistrate's reasoning in reaching the conclusion that the defendant had knowledge that the goods were in fact cigarettes,I do not consider it matters because I am of the opinion that the offence is one of strict liability and proof of knowledge that the goods were cigarettes was not necessary. Reason (a) is not a good ground, therefore, for saying the conviction is unsafe and unsatisfactory.

24. So far as reason (b) is concerned there was ample evidence upon which the Magistrate was entitled to find that the defendant was in possession of the dutiable goods referred to in the charge. It was never suggested by the Crown that he was in physical possession, but the facts indicate quite clearly that he was in constructive and joint possession of them. Subsection (10) provides :-

"It shall be no defence to any charge under this section that possession or control of the accused was a joint possession or control". 

25. DW1 was the servant of the appellant acting under the appellants instructions. His acts were the acts of the appellant. The employer may be liable for an offence of strict liability even if he has not connived at aided and abetted or been an accessory to the transaction in question. See Anderton v. Rodgers and others [1981) Crim. L.R. 405. This reason is likewise not a good ground for saying the conviction is unsafe and unsatisfactory.

26. The appeal is dismissed and the conviction affirmed.

Representation:

Mr Jimmy Kwong (William Sin & Co.) for Appellant.

Mr A. Sham, Sr. Crown Counsel, for Crown.