The Queen v. Choi Ming-fai and Another

CACC000067/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL N0. 67 OF 1984

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BETWEEN

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Coram: Hon. Garcia J. in Court

Date: 9th March 1984

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JUDGMENT

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1. The two Appellants were jointly charged in the first instance with two offences, firstly, attempting to export unmanifested cargo, contrary to Section 18(1)(b) of the Import and Export Ordinance, Cap.60, and Section 81 of the Interpretation and General Clauses Ordinance, Cap.1, and secondly attempting to export prohibited articles without a licence contrary to Regulation 4(1) of the Import and Export (General) Regulations, Cap.60 and Section 81(1) of the Interpretation and General Clauses Ordinance, Cap.l.

2. They were found not guilty of the offence in the first charge but were both convicted of the offence in the 2nd charge, against which conviction they now appeal.

3. The facts giving rise to these charges are that on the 6th day of December 1983 at about 10.15 p.m. a police launch No.51 patrolling in the vicinity of the Ninepin Group Islands encountered two vessels, one a Taiwan fishing boat captained by the 1st Appellant and the other, a Hong Kong cargo vessel captained by the 2nd Appellant lying next to each other, the latter vessel being seen in the act of transferring packages of goods on to the Taiwan boat. Both vessels showed no navigation lights and when they were first spotted, the Hong Kong vessel weighed anchor and attempted to leave the scene but was stopped by the police launch. Instructions were given to another police launch nearby to board the Taiwan vessel and both vessels were searched. In the Hong Kong vessel was found a total of 128 video tape recorders (V.T.R.s) whilst a total of 492 V.T.R.s were found on the Taiwan boat. The articles were seized and both Appellants were detained. In the course of separate interviews, both Appellants made statements under caution and these statements were admitted in evidence by the learned Magistrate.

4. The 1st Appellant stated that he had received instructions to sail from Kaoshing in Taiwan to the Ninepin Group Islands and rendezvous with the Hong Kong vessel, and there take on board the said V.T.R.s together with a cargo list (which was subsequently handed to the police by the 2nd Appellant), and sail with the goods back to Kaoshing. The 2nd Appellant said that he had loaded the said goods from the Wanchai Cargo Unloading Station and was instructed to take them to Tap Man Chau, but should he meet the Taiwan boat near the Ninepin Group Islands, he should "hand over the goods to the vessel" otherwise he should proceed with them to Tap Man warehouse.

5. Following their seizure the 620 V.T.R.s were offloaded at the Government Pier in Central and taken into custody by Senior Customs Officer LEUNG Yee-chuen of the Island Enforcement Unit, Customs & Excise Unit, and placed in the Queen's Warehouse in Ramsey Street.

6. So far as I am able to discern from the evidence adduced on behalf of the Respondent, the 2 Appellants not having given any evidence, none of the goods so taken were checked against the cargo list nor is there any list showing the classification of the goods into their various models or the quantity of the V.T.R.s in each category. The evidence given by Mr. LEUNG Yee-chuen is that he received a total of 620 V.T.R.s and out of the 128 removed from the Hong Kong vessel (he erroneously stating that they came from the Taiwan.vessel), 126 were of the model S.C.F.3 and 2 were N.V.330. No attempt was made to classify the balance of the 492 V.T.R.s said to have been seized from the Taiwan vessel, (Mr. Leung again making the mistake that these latter came from the Hong Kong vessel). The cargo list shows there were 30 sets of Sony J37 recorders, 34 sets of N.V.330 recorders, 20 sets of J25 Sony. recorders, 16 sets of J20 Sony recorders and 520 sets of F3 Sony recorders.

7. Not only was no attempt made to list all the articles seized but no attempt was made to co-relate what was seized against the cargo list. In the event, Counsel for the Crown conceded at the hearing of this appeal that the cargo list was wrong but as to where the. error was is not evident from a record of the trial, except that in the evidence of the expert called on behalf of the Crown he said that the V.T.R.s he examined could only be operated on AC mains connection and therefore came within the provisions of Regulation 4 and the Schedule to the Import and export (General) Regulations which require the obtaining of licences for the export from Hong Kong of electrical products (powered by mains supply).

8. It was admitted on behalf of the Appellants that as the goods had not been completely handed over to the 1st Appellant nor had the cargo list, it was speculative to conclude what may or may not have been done once a complete transfer had been made of goods and documents. I cannot agree. The 1st Appellant came to Hong Kong with his vessel from Taiwan for a specific purpose and it was no mere speculation that he was to take the goods back to Taiwan. An attempt had already been made for the goods to be exported, but for the timely intervention by the police. In my view, the Magistrate was quite justified and entitled to find that an attempt had been made to export the 620 V.T.R.s, and that in all the circumstances under which the transaction was carried out, the Magistrate was likewise justified in drawing the inference that the 2nd Appellant well knew that the export of such goods required to be licensed.

9. Mr. Mackenzie-Ross for the Appellants argues however that there was insufficient evidence for the learned Magistrate to find that the V.T.R.s were not capable of being powered by batteries. The provisions of the Regulation apply to electrical products powered by mains supply - I apprehend that if an electrical product could be powered both from mains supply and/or batteries such a product would fall within the ambit of that Regulation, otherwise the schedule to the said Regulations would be expressed as "powered by mains supply only". The reference to "battery power", that is, that the V.T.R.s could also be operated by battery power does not, in my view, relieve the consignor of an electrical product, capable of being powered by both types of electric current, from applying for the requisite licence to export such a product from Hong Kong.

10. The expert called on behalf of the Crown, Mr. Tsang Yuen-ming, examined 7 samples taken from the cargo seized, i.e. P5 : the VTR Sony SC-F3, P6 : VTR No-370, P7 : National VTR - NV330, Sony VTR SL-J25, Sony VTR SL-J20 and Sony VTR NV-330, and having tested them came to the conclusion that they could only be operated from a mains supply but how do these samples match with the items set out in the cargo list? There is no NV370 on the list, nor does it appear that any sample of J-37, which is on the list had been tested.

11. The learned Magistrate in the circumstances could not have been satisfied that all the 620 V.T.R.s could be operated from only mains supply or that the whole consignment did not include those which might or could be powered  only by batteries.

12. The evidence of the expert in my view leaves much to be desired. His reference to the use of different plugs for Alternating Current and Direct Current respectively seems to defy common sense. As an expert he should have known that direct current coming from certain mains is possible after alternating current is rectified. It would have been far simpler and far less uncertain if he had just looked at the back of each of the sets to find out whether they, were capable of being powered by alternating current mains only, or if he had obtained the manufacturer's specifications for the particular model of the set he is examining to determine more precisely whether such a V.T.R. could be powered by alternating current mains only.

13. No presumptions are provided in the Regulations and in the circumstances the conviction of both Appellants on the 2nd charge is unsafe and unsatisfactory and accordingly this appeal is allowed. The convictions of both Appellants are quashed and the fines if paid by the Appellants will be returned to them. The 2nd Appellant is accordingly released, the 1st Appellant. having served his term of imprisonment and is no longer in Hong Kong.

Representation:

Mr. Conyngham, Senior Crown Counsel, for Crown.

Mr. Mackenzie-Ross (Chung, Kwan, Chan & Evans) for both Appellants.