The Queen v. Chan Chin-chung and Another

HCMA000824/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 10th October 1985

Date of Judgment: 10th October 1985

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JUDGMENT

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1. On 14th August of this year at South Kowloon Magistrate's Court CHAN Chin-chung and CHAN Un-tsai were convicted on two charges by Mr. Banks. The first was a charge of conspiring "to export unmanifested cargo contrary to Common Law and to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 in that they, between the 1st and 20th days of December 1984, conspired together with persons unknown to export from Hong Kong unmanifested cargo, namely 100 sets of video cassette recorders." The second charge was the same, mutatis mutandis, save that the agreement alleged was to export prohibited articles, namely 100 sets of video cassette recorders, without a licence. It was and is common ground that video cassette recorders are prohibited articles.

2. The appellants obtained leave this morning to rely on substituted or revised grounds of appeal. The first of these is that the Magistrate erred in law by failing to direct himself that each cautioned statement attributed to one or other of the appellants was evidence only against the maker of that statement and by looking at the evidence to be derived from such statements as a whole rather than considering what evidence was properly available as against each appellant looked at in isolation. That criticism would appear to be valid. In delivering his verdict at the end of the trial the Magistrate said:

"Having listened to the evidence I am quite convinced that the proper version of events on the night of the 20/12/1984 was that given by the first appellant in his first statement and corroborated by the second defendant in his statements."

In his Statement of Findings, completed after Notice of Appeal had been given and dated the 13th of September, the Magistrate said:

"Once the cautioned statements made by Al and A2 were ruled admissible there was a clear and logical explanation for the presence of the $300,000."

That was a sum of money found in the refrigerator of a small vessel when stopped on 20th December 1984 in the proximity of Causeway Bay typhoon shelter without navigation lights with the second appellant and another person aboard. He went on:

"I was left in no doubt whatsoever that the explanations given by the two appellants by way of their cautioned statements were the correct explanation for the night's activities."

3. The second matter raised in the revised grounds of appeal is that the Magistrate erred in law by concluding that an onus rested upon the appellants to establish the existence of a cargo manifest and of a licence. What the Magistrate said about this in his Statement of Findings was:

"The onus of proof rests upon the appellants to establish the existence of a cargo manifest in respect of the first charge and a licence in respect of the second. Neither sought to prove the existence of a cargo manifest or an export licence."

This complaint was also one of substance because the Magistrate was not concerned with the production or existence either of a manifest or of a licence. He was concerned with the terms of an agreement between the appellants or between them and another or others or between one of the appellants and another or others and whether or not that agreement was given effect was neither here nor there in the context of the charges. Further, the Magistrate's finding that the appellants conspired to smuggle video cassette recorders out of Hong Kong, thereby meaning export without manifest or licence, was barely consistent with his further finding that neither was in the slightest degree concerned with the completing of cargo manifests or the obtaining of licences for the export of prohibited goods.

4. The third ground of appeal is that there was no evidence that either appellant agreed to do anything more than deliver the cassettes to a junk within the territorial waters of Hong Kong to persons not under their control. If it were the case that there was no evidence of an agreement to do more than deliver or tranship the goods from one vessel to another in Hong Kong waters that would not involve exporting them within the meaning of section 2 of the Import and Export Ordinance which defines export as:

"- to take or cause to be taken out of Hong Kong any article other than an article in transit."

And "Hong Kong" is defined in the Interpretation and General Clauses Ordinance as including its territorial waters. Accordingly my first task is to consider what evidence was available to the Magistrate at the hearing as against each appellant separately.

5. Against the first appellant, CHAN Chin-chung, there was admitted his cautioned statement, made on 21st December 1984, the material parts of which read as follows:

"Leung Chat-kwan arranged to have my boat put on to the sea at King Kee Boat Factory. In advance I told my cousin, Au Chi-kwan (who was charged below and acquitted) and my friend Chan Un-tsai (the second appellant) to wait for me on board the boat. The purpose was to smuggle a hundred sets of video recorders, bought from Hong Kong Sai Kee Electric Appliances Company, by my boat to the high seas and deliver the batch of video recorders to a Chinese fishing boat. -

At around 8 p.m. I delivered a hundred sets of National video recorders to King Kee Boat Ferry by a hired truck. And I loaded the hundred sets of video recorders onto boat."

Then there is a passage which I will not read because it is hearsay and on the authority of Surujpaul v. R. ⁽¹⁾ cannot be regarded as an admission.

"I also asked Au Chi-kwan to collect three hundred thousand Hong Kong dollars and bring them back to me. I would give them rewards (afterwards)."

The circumstances in which the sum of HK$300,000 was found have already been described. In a subsequent statement the first appellant admitted that a transceiver or "walkie-talkie" radio that had also been found on the vessel was his property.

6. The word "smuggle" means in common parlance the transfer of goods from the territory of one state to that of another in contravention of excise and other provisions restricting the import and export of goods. The expression "the high seas" is, in my view, to be regarded as meaning something quite different from Hong Kong or its territorial waters. Accordingly as against the first appellant there was evidence available upon which a Magistrate could have found that he had agreed with others to export the 100 sets of video recorders unmanifested and without licence. If they were to be delivered to a Chinese fishing boat a quite detailed agreement with him as a party must have been concluded with its owner or master for the boat to be in a specific position and for mutual recognition with the vessel which the first appellant was himself sending out from Hong Kong with the tape recorders.

7. In relation to the second appellant a cautioned statement which he had made on 21st December 1984 was admitted in evidence. The material part reads:

"On or about the 3rd or 4th November 1984 my friend Ah Wai introduced me to Chinese male CHAN Chin-chung (the first appellant) and (wished me) to help CHAN Chin-chung to deliver video cassette recorders to Lau Fau Shan, near the waters at the junction of She Kou by speed. boat (and) handed (the videocassette recorders) to Chinese Territory fishing vessel. This was because I know the sea route to Lau Fau Shan near the waters at the junction of She Kou. On every successful delivery, that is, having delivered the goods onto Chinese Territory fishing vessel, CHAN Chin-chung (the first appellant) would give me $2,000. On every delivery of goods to the junction of She Kou, I only worked in partner with Kwan Chai (and) nobody else - We waited for the appearance of the Chinese Territory fishing vessel. Our method of identifying the fishing vessel which was going to receive the goods was: the Chinese Territory fishing vessel would light up two red lamps in the darkness, then we would berth the speed boad alongside. Then I was responsible for delivering the video cassette recorders onto the Chinese Territory fishing vessel whereas Kwan Chai was responsible for collecting the money."

Subsequently questioned the second appellant said:

"The place for handing over the smuggled goods this time was at the junction of China - Hong Kong waters and was near to She Kou."

There again, in my opinion, was evidence available as against the second appellant, and the second appellant only, that he had agreed with the first appellant to take goods for transhipment on to a Chinese junk and, by use of the word "smuggle", to have those goods taken out of Hong Kong waters unmanifested and without licence. The third ground of appeal therefore fails.

8. I have gone into some degree of detail in relation to evidence, though not exhaustively, not only by reason of the third ground of appeal but because an important question arises as to the course to be adopted on the footing that the appeal is allowed, as it must be, because the Magistrate misdirected himself in law in the two respects outlined. I am satisfied that no injustice will be done to the appellants if, and that the public interest requires that, I order, as I do, the matter be tried do novo by a different Magistrate.

(1) [1958] 1 W.L.R. 1050

Representation:

Mr. D. Keane & Mr. John Lee for appellants

Mr. P.J. Cahill for D.P.P.