HKSAR v. Choy Ho Pun

HCMA 101/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 101 OF 2005

(ON APPEAL FROM FLCC 2902 OF 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 15 March 2005

Date of Judgment: 15 March 2005

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J U D G M E N T

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1.This Appellant was convicted after trial before Ms Susana D’Almada Remedios in the Magistrate’s Court at Fanling on three charges.  All three charges arose out of what happened at the Lok Ma Chau Control Point on the afternoon of 16 August 2004.  The Appellant was driving a car owned by a Mainland company which employed him to drive its officers and guests between Hong Kong and the Mainland.  When the Appellant arrived at the control point on his way to the Mainland, he was asked by a customs officer if he had anything to declare.  He replied that he did not.  When customs officers searched the car, they found an unconnected radio transceiver next to the gear stick.  Upon pulling out the car’s radio, they found 50 mobile telephones with batteries behind the panel.  After pulling down the arm-rest for the rear passenger seats, they found a metal plate.  Upon pressing down that plate, they found another 50 mobile telephones with batteries.

2.Charge 1 is of attempting to export unmanifested cargo, namely those 100 mobile telephones with batteries and that radio transceiver, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60, and section 159G of the Crimes Ordinance, Cap. 200.  Charge 2 is of making use of the altered fittings of a vehicle for the purpose of smuggling, contrary to section 14(1) of the Import and Export Ordinance.  Having described how and where the 100 mobile telephones with batteries were discovered, I need give no further description or explanation of the altered fittings involved.  Charge 3 is of attempting to export radio communications transmitting apparatus, namely the 100 mobile telephones with batteries and the radio transceiver, otherwise than under a permit granted by the Telecommunications Authority, contrary to sections 9 and 21 of the Telecommunications Ordinance, Cap. 106, and section 159G of the Crimes Ordinance.

3.The Appellant now appeals against his conviction on Charges 1 and 2.  Five perfected grounds of appeal have been filed.  Ground 1 is that the Magistrate erred in ruling that the Appellant had a case to answer on Charges 1 and 2.  Ground 2 is that the Magistrate drew inferences of guilt against the Appellant on Charges 1 and 2 when those inferences were not compelling and guilt was not the only reasonable inference.  Ground 3 is that the Magistrate made an improper comment when she spoke of the inevitable result of the Appellant failing to give evidence in respect of Charge 1 which was of an offence of strict liability subject to it being a defence for the Appellant to prove on the balance of probabilities that he did not know and could not with reasonable diligence have known that the cargo was unmanifested.  Ground 4 is that the Magistrate failed to consider whether the prosecution’s case could stand on its own feet and that disbelieving the Appellant’s evidence did not necessarily mean that a conviction would follow.  Since the Appellant did not give or call evidence, I treat the last part of this ground as saying that the absence of defence evidence is not a basis for convicting.  Ground 5 is that the Magistrate had shifted the burden of proof onto the Appellant.

4.In my view, Ground 1 fails because, contrary to the submission made by counsel for the Appellant, the circumstances were such that a reasonable tribunal of fact, properly directed or directing itself, could safely convict on Charges 1 and 2.

5.As for Ground 2, I reject it because, contrary to the submission made by counsel for the Appellant, the Magistrate was entitled to take the view that the only reasonable inference on Charges 1 and 2 were inferences of guilt.

6.There is nothing in Ground 3.  The Magistrate was merely pointing out, in the interests of the Appellant, the nature of the offence under Charge 1.  There is nothing improper in that.

7.Ground 4 fails because, contrary to the submission of counsel for the Appellant, the Magistrate did examine the prosecution’s case to see if it established guilt.  She did not convict the Appellant simply because he neither gave nor called evidence.

8.That answers Ground 5 as well.  The Magistrate correctly appreciated where the burden of proof lay.

9.In the result, all the grounds of appeal fail.  The appeal is dismissed.

Mr Shahmim K Khattak, instructed by Messrs Alfred Lam, Keung & Ko, for the Appellant

Mr Isaac Tam, SGC of the Department of Justice, for the Respondent