Leung Nin v. The Queen

CACC000759/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 759 OF 1968

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Coram: Mills-Owens, J.

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JUDGMENT

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1. The appellant appeals against his conviction in the magistrate's court of the following offence:-

2. The Regulations read as follows:-

3. The Regulations have effect under section 5 of the Ordinance, which provides:-

"5. (1) It shall be lawful for the Governor in Council to make regulations for the following purposes -

(2) In this section, 'unmanifested cargo' means cargo not entered on the manifest of the ship or aircraft."

4. The statement of findings furnished by the magistrate pursuant to section 114(b) of the Magistrates Ordinance contains little of the facts of the case, and this has led to no little difficulty on the hearing of the appeal, but it is sufficiently clear that the offence was alleged to arise in the following circumstances: the appellant was a member of the crew of a merchant ship which was on a voyage termed "Voyage No.9", being a round trip Hong Kong - Saigon - Pnom Penh - Hong Kong; on arrival at Hong Kong the ship was searched by Revenue officers and the silver and banknotes were found concealed in a part of the mast of the ship which runs down through a paint room; it is not disputed that it was the appellant who so concealed these goods; it was part of the case for the prosecution that the appellant told one of the Revenue officers that he had been paid to carry the goods - this remained uncontradicted in the appellant's unsworn statement; the ship's manifest for that part of Voyage No.9 from Pnom Penh to Hong Kong was produced in evidence by the prosecution; the appellant was represented by counsel and no question was put on his behalf to suggest that there might be some other manifest in respect of goods in transit at Hong Kong, in particular goods loaded at Pnom Penh for carriage via Hong Kong (on Voyage No.9) and then (on the next contemplated round trip) to Saigon, for delivery there; when the appellant came to make his unsworn statement, immediately after a finding by the magistrate of a case to answer, he confined himself practically entirely to the statements that he was "carrying the goods from Pnom Penh to Saigon, via Hong Kong", and that "the goods were not destined for Hong Kong"; the magistrate said that he accepted this latter statement of the appellant as being likely to be the truth. The silver was contained in a number of small sacks. The banknotes consisted of 6 small wads, each approximately 6 inches by 4 inches by 5 inches. It is conceded by the Crown that the silver and the banknotes are not articles prohibited from importation under the Ordinance. As will have been seen, the Regulations make express provision with regard to passengers' luggage but no provision with regard to the personal or other effects of the master or members of the crew. There was no evidence of the purpose of the taking of the goods from Pnom Penh to Saigon.

5. The appeal is argued on two main points - (1) that the goods are not "cargo" within the meaning of the Regulations and of section 5 of the Ordinance; (2) that the prosecution failed for lack of production of a manifest covering goods loaded at Pnom Penh for carriage to Saigon and thus being in transit at Hong Kong at the end of Voyage No.9.

6. Dealing with the second point first, the inference appears to me to be overwhelming that no manifest was in existence upon which the goods were entered; obviously wherever and whenever they were brought on board they were brought clandestinely and never intended to undergo the usual documentation as cargo. The Crown further relies on section 11(d) of the Ordinance but there is no need for me to consider its application in the circumstances of the case.

7. The first point is one which has been directly considered in two Hong Kong cases namely Ho Shing v. R.⁽¹⁾ and R. v. Shun Tak Kan & Others, a case in the March 1966 Criminal Sessions of which there is no report apart from the extract reproduced in the Ho Shing⁽¹⁾ case. The point has been left open in two Hong Kong cases; thus in Cathay Pacific Airways Ltd. v. R.⁽²⁾ Gould J. said, at p.40:-

"To this construction, one or two objections of a general nature were taken in argument. The first is that, particularly in the case of a ship, it would be impossible to prevent articles being concealed on board. I am not sure that all such articles must necessarily be within the term 'cargo'. That point was not taken before me (no doubt quite rightly in the present case) and in the absence of argument, I express no concluded opinion on it.";

and in R. v. Pan-American World Airways Inc.⁽³⁾, the Court (Sir Michael Hogan C.J. and Gregg J.) said:-

"'cargo' has been described in an old case, Sargent v. Reed which is mentioned in Stroud's Dictionary as the 'whole load'. Prima facie that would appear to be the normal meaning to attach to the word cargo, and if one is to take anything out of what would be comprised in that meaning of the word, the onus would appear to be on the person seeking the exclusion to show that the context justifies it. Now, I do not propose to express any opinion as to what the position would be if it had been shown that there was something on the aircraft so skilfully concealed that no ordinary inspection of the hold would have revealed its presence."

8. Coming to the two cases where the point was directly considered: in the Shun Tak Kan case, Briggs J. said:-

whereas, in the Ho Shing⁽¹⁾ case, Blair-Kerr J. (after citing this passage from the judgment of Briggs J.) said:-

'The list of a ship's cargo, signed by the master, for the information and use of officers of Customs.'

'The Unmanifested Cargo Order is obviously designed to assist in the regulation of trade and the prevention of smuggling ..... It throws upon the operators of aircraft and shipping the necessity of adopting such precautions as to ensure, at their peril, that they bring no unmanifested cargo into the Colony ...... It cannot be said that because the company did not know it brought the unmanifested cargo that it did not in fact bring it, and that act as I see it, is prohibited absolutely.'

With respect, I agree with this view. Obviously, unless the courts continue to adopt this interpretation, the Order will fail to achieve the objects for which it was designed, namely to assist in the regulation of trade and the prevention of smuggling. Smugglers do not ordinarily place their goods in the hold or on the deck of a ship."

9. First, I feel bound to say that it appears to me to be extremely doubtful that a breach of the Regulations (formerly the Unmanifested Cargo Order) gives rise to an absolute offence. Section 18 of the Ordinance specifically enacts that regulations "may provide (a) that an offence against the regulations shall be deemed to have been committed, notwithstanding that there has been no guilty intent or knowledge or negligence on the part of the person charged." The Regulations make no such provision. Section 18 would appear to be an express legislative injunction to frame the regulations in specific terms if it is desired to create absolute offences.

10. However that may be, on the major aspect, that is to say the question whether the Regulations apply to a case such as the present where a member of the crew smuggles goods on board, I feel bound, with respect, to agree with the view expressed by Briggs J. in the Shun Tak Kan case, and would, indeed, have come independently to the same conclusion. I use the expression 'smuggles' as a convenient term although the goods are not prohibited goods.

11. It appears to me to be quite wrong to speak of a smuggler as importing unmanifested cargo. Goods brought on board clandestinely and then concealed, cannot in my view, properly be termed "cargo". And when the word "cargo" is used in the context of part of the ship's papers, the manifest, it becomes even more evident, in my view, that the purpose of the Regulations is quite unrelated to smuggled goods. The Regulations, as I see it, relate to goods brought on board qua cargo, and which ought to be but are not entered in the manifest by those whose duty it is to see that they are so entered. Support for this view is to be found, to some extent, in the construction of section 5 of the Ordinance, being the section under which the Regulations are made. The section enables regulations to be made - (a) to prohibit the importation of unmanifested cargo; ................. (c) "to prohibit the placing on board any ship .... or (sic) any cargo without the consent of the owners, charterers or agents thereof or of the master of the ship ....". Thus the section itself draws a distinction between cargo regularly brought on board, which ought to be and can properly be entered on the ship's manifest, and cargo which is smuggled on board.

12. It is suggested that as Regulation 5 excludes the application of the Regulations to the ordinary luggage of a passenger accompanying the passenger it follows that all other articles on board must be "cargo". But the provision under which the regulation is made, namely section 5(1)(a), is in rather different terms in that it specifically refers to "cargo carried in passengers' luggage". Regulation 5 would seem to be a flimsy foundation upon which to rest the proposition that anything a member of the crew brings on board, not necessarily in his gear, must be "cargo", even if it is smuggled on board.

13. As it seems to me the Regulations are being used for a purpose never intended, in order to obtain the (automatic) forfeiture of concealed goods which are not goods prohibited from importation. Such goods are not within the mischief aimed at by the Regulations which are concerned with the proper documentation of cargo. In relation to concealed goods it is useful to compare the provisions of section 47 of the Customs Consolidated Act, 1876 and section 44(d), (e) and (f) of the Customs and Excise Act, 1952 whose clear purpose is to deal with a case such as the present arising in the United Kingdom.

14. On a fair construction of the local legislation and on the plain principle that it is for the legislature, not the judiciary, to lay down the limits of punishable offences, I would allow the appeal.

Representation:

Mr. Ming Huang & Mr. George Willis(instructed by Messrs. Kho & Lo) for Appellant.

Mr. Sandor, c.c.,for Respondent.

Judgment handed down.

(1) (1967) H.K.L.R. 63.

(2) (1952) H.K.L.R. 30.

(3) (1959) H.K.L.R. 366 at 378.