Robert Stanley Anderson v. The Queen
Read the full judgment text of CACC 405/1972 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against a fine of $20,000 imposed upon a conviction under reg. 3(1) (a) of the Import and Export (General) Regulations 1971. The circumstances were that the Appellant arrived in Hong Kong in transit for Korea. The flight by which he came did not go to Korea and it was necessary for him to change aircraft. The inward flight arrived at about 12:30 p.m. and the Appellant proceeded to the Transit Lounge at Kai Tak Airport. There he presumably remained until his outward flight wa
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CACC000405/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 405 OF 1972 -----------------
----------------- Coram: Huggins J. Date of Judgment: 3rd August, 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal against a fine of $20,000 imposed upon a conviction under reg. 3(1) (a) of the Import and Export (General) Regulations 1971. The circumstances were that the Appellant arrived in Hong Kong in transit for Korea. The flight by which he came did not go to Korea and it was necessary for him to change aircraft. The inward flight arrived at about 12:30 p.m. and the Appellant proceeded to the Transit Lounge at Kai Tak Airport. There he presumably remained until his outward flight was called at about 1:25 p.m. The Appellant went to the departure channel and was there subjected to a security check. The electronic detecting device indicated the presence on his person of a metallic substance. At first he refused to say what it was but, when pressed, told the Security Officer that it was "his personal property". Finally he admitted that he was carrying gold. When searched by a member of the Preventive Service he was found to be carrying 26 gold bars to a total weight of 26 kilogrammes and a total value of approximately $250,000. 2. It is not contested that the Appellant committed an offence, but the submission on his behalf is that it was a purely "technical" offence and, as such, not deserving of the heavy penalty inflicted. It is necessary to begin by looking at the statutory provisions which created the offence, because we must ascertain what is the mischief which the Legislature sought to overcome. 3. Regulation 3(1) (a) was made by virtue of powers vested in the Governor in Council by s.31 of the Import and Export Ordinance. That Ordinance is entitled an Ordinance
It will be seen that nothing is said as to the reason why imports and exports are to be regulated and controlled. Regulation 3(1) (a) provides:
and the First Schedule lists six items, namely:
("Automatic machine" is defined in reg.2 in a manner which, briefly, includes only machines for the purpose of gambling.) Regulation 7 gives the Director of Commerce and Industry power to amend this Schedule and no limitation is placed on the type of article to which the amendment may relate. It is apparent that there is no single mischief which it is sought to overcome: for example, acetic anhydride is obviously controlled because of its possible misuse in the manufacture of dangerous drugs and automatic machines are controlled to enable the authorities to prevent the swindling of members of the public. Counsel for the Respondent therefore says that the object of the legislation cannot be stated more narrowly than that it is "to prevent smuggling". Since "smuggling" is merely the illegal importation or exportation of goods, I do not think it is possible to define the objects of the Ordinance more succinctly than is done in the long title. 4. Counsel for the Appellant has drawn attention to a passage in the judgment of Scholes J. in the Full Court in Reg. v. Klauser(1). That was an appeal against a conviction under reg. 3 of the Importation of Gold (Prohibition) Regulations made under s.3 of the Importation and Exportation Ordinance, now repealed. The learned judge said at p.211:
The facts of that case were not materially different from those in the present, but counsel submits that the new legislation is materially different. The suggested difference lies in the fact that it is now possible to bring controlled goods within the limits of the Colony without "importing" them, which was not possible under the old legislation. Indeed, the court in Reg. v. Bertschy(2) pointed out possible hardships and injustices which would arise under the legislation then in force. They asked at p.744:
On the interpretation put on the word "import" in that case the answer to those questions must surely have been "Yes", although the court may have thought that such a result was neither fair nor proper. However, today the same question would have to be answered "No", because the word "import" has been differently defined, Section 2 of the New Ordinance says that
and "article in transit" is defined as meaning
Mr. Fairbairn on behalf of the Appellant concedes that what the Appellant has done is still an offence but he submits that since it is no longer an offence to bring in controlled articles, provided that they remain on board the vessel or aircraft and are "in transit" within the terms of the definition, the object of the Ordinance cannot be the same as the object of the previous Ordinance. He says that if it is not lawful to bring in gold solely for the purpose of taking it out again, provided that it remains on board the vessel or aircraft, the Director of Commerce and Industry cannot "have knowledge of the movement of gold through the Colony" so that the Authorities may "control the movement of gold" (1968 H.K.L.R. 212) and that there is no longer "absolute liability, irrespective of innocent intent" (1967 H.K.L.R. 744). Accordingly, he says, the Appellant is really being punished for so arranging his passage that he had to leave the aircraft which brought him into Hong Kong, while a passenger who left Hong Kong by the same aircraft which brought him in might be punished, in effect, for leaving the aircraft to stretch his legs. 5. That is a very plausible argument and has been advanced most attractively, but I do not think it can succeed. It does not appear to me that the fundamental objects of the legislation have been changed by the re-enactment. There is nothing, either in the new long title or elsewhere, which manifests a change in the objects of the legislation and I think the new wording of the definition is designed merely to avoid the possible hardship and injustice to which the Full Court alluded in Reg. v. Bertschy. If the goods remain on board the vessel or aircraft, then the purpose of taking them out of Hong Kong is in some measure already on the way to being fulfilled, but once they leave the vessel or aircraft there is always a danger that they will find their way into circulation in Hong Kong despite an original intention to take them out again. The exclusion of "articles in transit" is intended as an exception to the general rule of absolute liability and this was no more a merely technical offence than was that in Reg. v. Klauser. The Appellant deliberately brought the gold by an aircraft which did not continue to his destination. It cannot be right to say, as does the Notice of Appeal, that the Appellant "had no desire to use the [facilities of Hong Kong] or even to be in Hong Kong at all": this was a scheduled arrival and was not a forced landing. I attach no weight to the suggestion that the Appellant was not shown to have been engaged in a venture which offended either the law of Singapore, the country from which he came, or the law of Korea, the country to which he was going. It seems to me fanciful to say, as was suggested, that the only practicable manner of carrying gold is in the manner employed by the Appellant, namely to hide it about one's person. The Appellant was obviously engaged in smuggling and made use of Hong Kong for that purpose. Adapting the words of the court in Reg. v. Klauser, I
6. The learned magistrate expressly took the punishment inflicted in Reg. v. Bertschy ''as a general guide as to the seriousness of the sort of offence" and it is submitted that he was wrong to do so because different considerations apply under the new legislation. It is further said that he was wrong when he commented that the court in Reg. v. Bertschy made no adverse comments on the sentence which the magistrate had imposed. Counsel for the Respondent conceded that there were different considerations, but in my view, for the reasons I have given, the changes in the law have not affected the material considerations. I entirely agree that it was wrong for the learned magistrate to assume that, because the court made no adverse comment on the sentence imposed, the court saw no reason for criticism: the appeal in that case was against conviction only and it was expressly stated that the court refrained from making any comment on the sentence. The question for me is whether the fine of $20,000 in this case was manifestly excessive or otherwise wrong in principle and I cannot say that it was. 7. The appeal is dismissed. 3rd August, 1972. Representation: (1) 1968 H.K.L.R. 201 (2) 1967 H.K.L.R. 739 |