HKSAR v. Chan Mei Kuen

HCMA214/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.214 OF 2005

(ON APPEAL FROM TWCC2524 OF 2004)

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BETWEEN

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Before : Hon Pang J in Court

Date of Hearing : 24 June and 8 July 2005

Date of Judgment : 2 August 2005

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J U D G M E N T

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1.After her trial in the Tsuen Wan Magistracy, the appellant was convicted of one charge of Possession of Goods to which Dutiable Commodities Ordinance applies, contrary to section 17(1) of the Dutiable Commodities Ordinance, Cap.109.  The subject matter of the charge was 211,260 sticks of cigarettes valued at $338,646 with duty potential of $169,853.04.  The appellant now appeals against her conviction. 

2.The prosecution case was that two Customs officers executed a search warrant at the residence of the appellant at Room 3511, Heung Tung House, Yu Tung Court, Tung Chung, Lantau Island shortly after mid-day on 12 August 2004.  The appellant admitted the officers into the premises on the strength of a search warrant.  The quantity of cigarettes particularized in the charge were seized inside two bedrooms in her flat.  Subsequently the appellant admitted under caution that no one else resided in the premises apart from herself.  The cautioned statement was admitted at trial without challenge by the defence.

3.At the conclusion of the prosecution case, Mr Ross, who appeared at the trial and in this appeal, submitted that there was no case for the appellant to answer.  He contended that the search warrant executed by the police on the premises was invalid on two grounds : the first being that the address appearing on the search warrant did not match that of the appellant’s premises and secondly, the warrant did not indicate, on the face of it, that the issuing magistrate received the relevant information on oath.  It was argued that the search was therefore unlawful and the items seized as the result of an unlawful search should not have been admitted by the magistrate as evidence at the trial. 

4.The magistrate rejected the submissions and ruled that there was a case to answer.  The magistrate held that the warrant was not invalid and the cigarettes seized pursuant to the search was admissible as evidence at the trial.  The appellant elected not to give evidence but called three defence witnesses.  The gist of the defence evidence was that the appellant seldom stayed at the premises so that someone else might have placed the cigarettes in the premises without her knowledge.  The magistrate rejected the evidence of the defence witnesses and found that the appellant had the requisite criminal knowledge.  She went on to find the charge proved and convited the appellant thereon.

The grounds of appeal

5.The appellant advanced five grounds in this appeal.  The first two grounds were directed at the validity of the search warrant and was in fact a repetition of the no case submission.  It was contended that the magistrate erred in ruling the search warrant valid and if it was invalid then the seizure of the cigarettes would have been unlawful and they should not have been admitted as evidence.  The third ground was that the magistrate failed to give reasons in her rulings on the above issues.

The search warrant

6.The validity of the search warrant was attacked on two grounds.  It was submitted that the address of the appellant was wrongly described on the warrant as “Heung Tung Court” of “Fu Tung Estate”, Tung Chung.  The room number, “Room 3511” is however a correct description.  The magistrate addressed this issue in some detail in paragraph 26 of her Statement of Findings.  She said :

“The second point is about the address on the search warrant.  It is clear that in Tung Chung, there is only one building called向東閣in Chinese, and Heung Tung House in English.  The third character‘閣’in Chinese is commonly translated to Court in English.  No doubt Heung Tung Court and Heung Tung House means the same building.  It is also clear in the evidence that Heung Tung House was a building of Yu Tung Court which was next to Fu Tung Estate.”

There is no building by the name of Heung Tung Court or Heung Tung House in Fu Tung Estate.  The magistrate found that although the word ‘Court’ was used in the warrant, the words ‘Court’ and ‘House’ nevertheless carried the same meaning in Chinese and there was no room for ambiguity.  Read in together with the room number, the address on the warrant correctly identified the flat to be that of the appellant. 

7.The second ground was that there was no indication on the face of the search warrant that the information in the warrant was laid before the magistrate under oath as required by section 14 of the Dutiable Commodities Ordinance.  This issue was addressed by the magistrate in paragraphs 25 and 26 of her Statement of Findings.  With respect, this argument must be looked at in the light of the provisions of section 45 of the Ordinance which both Mr Ross and the magistrate appeared to have overlooked.  The sentence reads :

“On any trial before any magistrate and in any proceedings on appeal in the Court of First Instance relating to the seizure of anything under this Ordinance, the magistrate or the court shall proceed to such trial and to the hearing of such appeal on the merits of that case only, without reference to matters of form and without inquiring into the manner or form of making any seizure except in so far as the manner or form of seizure may be evidence on such merits.” 

8.The issue before the magistrate was whether the appellant had the requisite knowledge of the existence of the cigarettes.  The fact that the cigarettes was seized in the appellant’s premises was never in dispute.  The contention by the defence that the seizure was unlawful was a criticism directed at how the cigarettes were seized and as such, it is no more than an attack on the manner or form of the seizure and is subject to section 45.  This count, as well as the magistrate is therefore precluded from inquiring into the manner or form of the seizure of the cigarettes.

9.Even if my interpretation of the section is wrong, the cigarettes seized are nevertheless admissible as evidence following the Court of Appeal decision in R. v. Cheung Ka Fai & another [1995] 2 HKCLR 184.  In the judgment at p.195 of Litton VP, he said :

“It is common ground that the test of the admissibility of evidence is relevance.  As Lord Diplock in R.v. Sang [1980] AC 402 at 432-3 explained, to exclude evidence obtained ‘unfairly or by trickery’ involves a claim to a judicial discretion to acquit an accused of any offences in connection with which the conduct of the police incurs the disapproval of the judge.  A court has no such power.” 

The cigarettes seized by the Customs officers is the subject matter of the charge.  Not only are they relevant, they are crucial.  On the strength of the above authority, the magistrate was not wrong in ruling that the cigarettes are admissible.  I can see no merits in the grounds of appeal relating to the validity of the search warrant and the admissibility of the cigarettes seized.

The 3^rd defence witness

10.This remaining two grounds criticized the manner in which the magistrate handled the evidence of the 3^rd defence witness, Madam Lau.

11.This witness was a neighbour of the appellant and a friend of hers for some time.  In her evidence, the witness said that the appellant was pre-occupied in the past year in taking care of her father who was suffering from ill-health.  On or about 6 August 2004, the witness telephoned the appellant’s premises.  Her call was answered by a male whose voice the witness could not recognize.  Over the phone the man claimed that he was a friend of the appellant.  The evidence of Madam Lau, if accepted, suggested that the appellant did not have exclusive access to the premises and the cigarettes could have been deposited there by persons other than the appellant.  The magistrate considered the evidence of this witness and found the evidence of Madam Lau to be ‘extraordinary and peculiar’.  She concluded by saying :

“… She could only give a positive answer when the question was repeated to her.  I do not find DW3 a honest and reliable witness.  I found DW3’s evidence illogical and improbable.  I do not accept her evidence.”

The basis upon which the magistrate rejected the evidence of this witness was stated in no uncertain manner.  She was able to observe this witness closely when she gave evidence.  Nothing suggested by Mr Ross in his submissions had persuaded me that the magistrate’s conclusion on this witness was illogical or ill-founded.  There is no merit in the appellant’s criticism on the way the magistrate handled the evidence of the third defence witness.

12.For the reasons given, the appeal against conviction is dismissed.

Miss Anna Y K Lai, SGC, of the Department of Justice, for the Respondent

Mr Philip Ross, instructed by Messrs Lo, Wong & Tsui, for the Appellant (on Bail)