HKSAR v. So Sung Loi and Others

CACC 115/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 115 OF 2007

(ON APPEAL FROM DCCC NOS. 595 and 1175 of 2006)

____________________

____________________

Before:   Hon Stuart-Moore VP, Cheung and Yeung JJA

Date of Hearing: 12 March 2008

Date of Judgment: 12 March 2008

____________________

J U D G M E N T

____________________

Stuart-Moore, (giving the judgment of the Court):

Background

1.On 15 March 2007, So Sung-loi (D1), Lee Kok-dun (D2), So Chun-man (D4), Shek Po-kit (D5) and So Chi-hung (D7) were convicted, following a trial in the District Court before Judge Mackintosh, on the 1^st charge of an amended consolidated charge sheet containing a total of five charges alleged against ten defendants.  This charge was for dealing with an unmanifested cargo, contrary to section 18A(1)(c)(ii) of the Import and Export Ordinance, Cap. 60.  The particulars alleged that, on 14 August 2005, the applicants, together with So Lung-wai (D3) and So Lung-kwan (D6) knowingly dealt with cargo, namely electronic IC boards, computer hard discs, LCD monitors, silver bullion and mobile phones, with intent to assist another person to export the said cargo without a manifest.

2.On this charge, D1 and D2 were each sentenced to 2 years’ imprisonment, D4 and D7 each received terms of 21 months and D5 was ordered to undergo training at a Training Centre.

3.On the 2^nd charge, Kong Kin-tung (D10) was convicted after trial of conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  The particulars of the offence were that he conspired in the way set out in the statement of offence with persons unknown, between August and October 2005, by agreeing that he (D10) “made a statement to the Hong Kong Police Force and falsely asserted therein that he ha[d] an entitlement to claim a quantity of goods which were under investigation by the said Police Force”.  The 3^rd charge, with which we are not concerned, was an alternative to the 2^nd charge on which D10 was sentenced to 21 months’ imprisonment.

4.The 4^th and 5^th charges were the same as the 2^nd charge save that these concerned D9 and D1 respectively.  Both of these conspiracies identified one So Law as a co-conspirator.  So Law was also identified by the prosecution as the so-called mastermind behind all the offences although he has so far eluded arrest.

5.The particulars of the offence in charge 4 were that D9 agreed to make a statement to the police in which he falsely asserted that he had an entitlement to claim the goods under police investigation.  D9 was convicted after trial and his sentence for this offence was 21 months’ imprisonment.

6.The particulars of charge 5 were slightly different from the other conspiracies and alleged that D1 between August and October 2005, conspired with So Law and So Wing-lo:

“… to pervert the course of public justice by agreeing the said So Wing-lo made a statement to the Hong Kong Police Force with regard to a quantity of goods which were under investigation by the said Police Force and falsely assert therein that he owned/had a warehouse in Tap Mun and that the said warehouse was rented to and by the said So Law for storage of the goods concerned.”

7.Again, D1 was convicted after trial and the judge imposed a sentence of 2 years’ imprisonment on this charge but ordered that only 12 months should be served consecutively to D1’s 2-year sentence on the 1^st charge.

8.All of the applicants now seek leave to appeal against sentence.  The applications of D7 and D9 are out of time.  D1, using homemade grounds of appeal, also sought leave out of time to appeal against conviction.  He has not, however, pursued this and, accordingly, that application is dismissed.

The facts

9.The facts could hardly have been more straightforward and the judge summarised these in the opening paragraphs of his Reasons for Verdict as follows:

“1.     In the small hours of the morning of the 14th August 2005, a team of police officers was on patrol in the border town of Sha Tau Kok. As they approached the waterfront, near to a new pier which had recently been constructed, they came upon seven men - D1 to D7 - a lorry and a sampan. Cartons of goods were being unloaded by the men from the lorry to the sampan. Having watched the scene for a while, the police revealed their presence and the defendants were intercepted.

2.      The goods on the lorry and the sampan comprised 83 cartons of assorted electrical goods and computer parts and 40 ingots of silver. Their total value exceeded $6 million. There was no manifest for the goods. The prosecution case is that they were to be exported and that a manifest was required. The defendants were arrested and the goods were seized. This event is represented in Charge 1, dealing with unmanifested cargo, contrary to section 18A of the Import and Export Ordinance, Cap. 60. It forms the first of two distinct halves to this case.

3.      The second half concerns attempts made to obtain the release of the goods from police custody by, it is alleged, the production of false documents and stories: that D10 was recruited to claim the goods as his (Charge 2, conspiracy to pervert the course of justice, and charge 3, using a false instrument); that D9 was also recruited to claim the goods (charge 4, conspiracy to pervert the course of justice); and that D1 and others engaged in a conspiracy to claim that the goods were to be delivered to a warehouse in Tap Mun, also known as Grass Island, for storage, which, as it is within Hong Kong, would mean that no manifest was required. (Charge 5).

4.      This exposes the main issue so far as the first charge of dealing with unmanifested cargo is concerned, because what is said by the accused is that these goods were never intended for export: they were not being smuggled into the Mainland, they were being taken for storage at Tap Mun; and in any event, most of the defendants were just labourers who had no knowledge or appreciation that the goods required a manifest or that there was not one in existence. As to the other part of the case, the alleged cospiracies, are separate and distinct and different issues arise to which I will refer later.”

10.With equal precision, the judge set out the reasons he was satisfied that the goods, the subject of the 1^st charge, were not destined for Tap Mun as D1 had attempted to suggest after the cargo had been seized.  The reasons given by the judge for saying the goods were bound for the Mainland, each of them soundly based, were as follows:

“(a)    The high quality and value of the goods, even if not known to the defendants, such that regular transportation would involve ordinary, safe and secure methods rather than a small sampan in the circumstances prevailing here.

(b)     The quantity of goods which would require more than one journey in this vessel.

(c)     The fact that, save for some items owned by So Law himself, the goods had recently been ordered by Mainland companies.

(d)     The fact that the Mainland sea-border, was a very short journey away, round the pier and along the coast to any convenient spot, a journey which could be quickly repeated for the second or subsequent loads.

(e)     The fact that there was no warehouse in Tap Mun arranged to receive these goods - vide the evidence of PW12 (D8) to which I will refer later.

(f)     The fact that the sampan, a pleasure craft, was not equipped with proper navigation lights for an open sea journey of any length, such as the one to Tap Mun: I accept that some safety equipment existed but I reject D1’s claim that the absence of appropriate lights was inconsequential.

(g)     The time at which the transportation of the goods was being effected, i.e., in the middle of the night when, according to the evidence, it was quiet and the loading could be carried out unobtrusively; and that all the workers had been called out at night and at the last minute to load the goods into the sampan.

(h)     The fact that no documentation was in use at the time to show that the goods being loaded were correct, i.e., checking off the goods from the lorry to the sampan, particularly having regard to their value; on the contrary, this was a hurried, surreptitious transfer of the goods and it must have been obvious to all involved that there was no manifest.” (Appeal bundle p. 69)

11.The judge concluded from his findings that:

“58.   This is what I judge to be the inevitable inference to be drawn from the proven facts. It is one which the prosecution has properly established. It was a smuggling operation because the goods were to be exported and they therefore required a manifest.

59.    Charge 1 requires the prosecution to prove that each of the defendants knowingly dealt with cargo with intent to assist the export of that cargo without a manifest. It amounts to a double intention: that they dealt with the cargo knowing that it was for export; and that they intended to assist another to export without a manifest.

60.    So far as D1 is concerned, I have rejected his account. I am sure he knew that he was to take the goods to the Mainland. He was dealing with the goods which he knew were to be exported. He also knew that there was no manifest. He must therefore have intended to assist another, his brother So Law, to export the cargo without a manifest.

61.    I have rejected D2’s exculpatory account. He drove the goods to the location. He took part in unloading from the lorry to the sampan. He was dealing with the cargo. He knew that he was dealing with cargo which was to be exported. I judge that he inevitably intended to assist another to export it. He knew from the circumstances that there was no manifest.

62.    So far, in reaching these conclusions, I have not relied on the presumption in section 18A(2)(c); but it does apply where the prosecution has proved the fact that the accused in question knowingly dealt with the cargo. The burden of proving the necessary intent, beyond reasonable doubt, remains entirely on the prosecution. All an accused has to do is to point to evidence from any source in the trial that is capable of raising a reasonable doubt as to his intent to assist another to export without a manifest. If he fails to do so, then the court is entitled to presume that the intent exists. Here, the circumstances to which I have already referred undoubtedly give rise to a reasonable suspicion that there was intent on the part of each of these men to assist another to export without a manifest; and there is no evidence, given the rejection of the defendants’ evidence, that is capable of raising a reasonable doubt.

63.    As to D3, D4, D5, D6 and D7, the workers, the same suspicious circumstances apply. It is to be noted that these are all local men who know the area and its proximity to the Mainland; and they must also know the incidence of smuggling, i.e., that smuggling goods to the Mainland does take place on occasions, a fact in respect of which I am entitled to take judicial notice.

64.    Given that they were dealing with the cargo in those circumstances, the only proper inference is that they knew the goods were to be exported to Mainland China and that they knew this was to be done without a manifest: i.e., that this was a smuggling operation. I refer to them collectively, but having assessed all their cases individually, I am sure that each of them intended to assist another to export without a manifest.”

12.Turning now to the 4^th charge, on 29 August 2005 the police received a letter from a firm of solicitors who purported to act for D9.  The letter made a claim on D9’s behalf for the seized goods indicating that D9 was the consignee.  So Law brought D9 to the police station on 21 October 2005 and told the officer (PW1) who had received the letter that D9 owned the goods.  D9 went on to make a witness statement and produced a bundle of invoices. Later, on 5 December 2005, D9 was arrested and he admitted making the false claim in an effort to get the police to release the goods.

13.A similar ploy (covered by the 2^nd charge) was undertaken by D10 who went to Marine Police Headquarters on 24 October 2005 where he gave PW1 a letter of authorisation and a bundle of invoices relating to some of the goods seized.  However, the story he told fell apart after investigation and, when he was interviewed on 6 December 2005, he admitted he had been asked to act in this way by a man he did not know.

14.The evidence against D1 on the 5^th charge came mainly from So Wing-lo (PW12) who was originally D8 on the charge sheet. PW12 rented out boats and would provide a false warehouse address at Tap Mun for smugglers who hired his boats to go to the Mainland but were intercepted by the police.  D1 and So Law, who was D1’s half-brother (and father of D3 and D6) met PW12 at a restaurant to tell him about the seizure of the goods in this case.  D1 joined So Law in trying to persuade PW12 to help them.  On 27 October 2005, PW12 went to the police and made a false statement in the terms he had been asked to by So Law and D1.

Sentence applications

(1) 1^st charge

15.There are no set guidelines for offences of the kind in the 1^st charge but it is worth recalling that the legislation provides a maximum sentence of 7 years’ imprisonment for such offences when they are tried on indictment.  It is plain, from statistics placed before us, that the majority of such cases are heard in the Magistracy where, on summary conviction, the maximum sentence is 2 years’ imprisonment.  It is not surprising, therefore, to find that the average sentence imposed is a matter of a few months but the statistics make no distinction between cases which were contested and those in which there were pleas of guilty.  This, however, was a case of some significance. Not only was the offence well-organised but the goods were worth about $6 million, three times the value of the eleven cars in HKSAR v Yip Shuk-tat [2001] 4 HKC 43 where this court reduced a 4-year sentence to 2 years’ imprisonment following conviction after trial.

16.Yip Shuk-tat’s case was heard in the District Court.  Woo JA (as he then was), giving judgment, pointed to some of the salient factors to be taken into account.  These were as follows:

“21.   Reviewing the authorities cited above, it appears that the Court of First Instance, on appeal from magistrates, have all along adopted no higher than a starting point of 12 months for the same or similar offence after plea.  Even in the case of Zheng Wan Tai, in which a well-planned criminal enterprise relating to the importation and handling of 136 stolen motorcycles, where this Court was of the view that 2½ years’ imprisonment was remarkably lenient, it did not, however, state the proper sentence that should have been imposed, in particular, if there had been no handling charge.  In Wong Kwong Hei and Choi Gin Ngon, both of which related to motor vehicles, the sentences after trial, as approved by this Court, were respectively 18 and 20 months.

22.     The appellant’s alleged little knowledge of English so that he did not understand how the cargo was described in the shipping documents shows only that he operated his business in a way that generated a high risk to himself of being implicated, but that does not increase his criminality.  While his attitude of not caring what in fact was contained in the containers ought to be deprecated and reflected in sentence, in our judgment, in adopting a starting point of four years’ imprisonment, the judge was plainly out of line with the authorities and the sentence is manifestly excessive.

23.     We also consider it inadvisable, in the light of the acquittal of the appellant on the first charge [handling], for the sentence to possibly give rise to any wrong impression that he was punished for handling the stolen vehicles, which obviously is a much more serious offence.

24.     However, the fact that smuggling of motor vehicles was involved in this case makes it serious.  They were all luxury cars, being two Lexus, eight Mercedes Benz and one Porsche, obviously of a value roughly of about $2m.  Indeed, the appellant told us this morning that the vehicles were worth several million dollars.  As the judge said, although the appellant did not know that the containers contained stolen motor vehicles, they might have contained anything of any description whatsoever, be it drugs, weapons or anything else.  Notwithstanding, bearing in mind that the appellant committed the offence out of stupidity, ignorance and blindness to the obvious caused by greed rather than deliberate contravention of the law, we are of the view that the proper sentence should have been two years’ imprisonment after trial.”

17.Bearing in mind what was said in Yip Shuk-tat, it is immediately apparent, with the value of the present cargo in mind, that the sentences for those in this case who played a role which was more than that of a mere labourer could be described as having veered on the side of leniency.  The judge had understandably declined to utilise the provisions under the Organized and Serious Crimes Ordinance, Cap. 455, to enhance sentence on the grounds that the crime covered by the 1^st charge was one which was ‘prevalent’ and the remaining charges were “organised”, taking the view that, while the application was justified on both counts, he had ample powers of sentence as matters stood.

18.The judge gave individual attention to each of these applicants when passing sentence on them.  None of them had pleaded guilty and, although D1 and D2 had relatively minor blemishes to their names, they were all treated as if they were of previous clear record.

19.D1, then aged 50, was sentenced on the basis that, as operator of the sampan, he was more than a mere labourer.  Although So Law may have been the principal architect behind the scenes, plainly D1 had a leading role to play at the scene and was in a trusted position.  The same can be said about D2, then aged 37, who was the driver of the lorry.  Mr Andy Hung’s submission on their behalf that they were to be paid small rewards for their services, which was based entirely upon what they had claimed to the police, was not to the point.  Each of them played a crucial role in this operation and were well aware that they were dealing in a cargo without a manifest.  This was a classic smuggling operation and, from the way in which D1 sought to mislead the police into thinking otherwise, his actions richly merited the additional sentence imposed on him on the 5^th charge.  In saying this, we should indicate that we were not assisted by a number of Magistracy sentencing appeals concerning offences of a similar kind to those now before us but which involved different facts.  We are only concerned with ensuring that the sentences in the present case are appropriate.

20.D5, who was represented by Mr Bruce Tse, was 16 at the time of the offence and on this account he, like D3 and D6, was ordered to undergo training at a Training Centre.  We consider that this was entirely appropriate.

21.Also represented by Mr Tse were D4, who was 22, and D7 who was 50 years old.  Each received a sentence of 21 months.

22.Mr Tse’s submission that the lack of premeditation and planning on the part of D4 and D7 rendered their sentences manifestly excessive was not something with which we felt able to agree.  The judge was fully aware of the circumstances of the case and of each participant’s involvement in the 1^st charge and we have not been provided with any good reason to interfere with his assessment of the criminality involved.  However, we think that as a matter of principle the judge ought, with respect, to have made a greater distinction in this case in terms of the sentences imposed on D4 and D7 when compared to the much greater roles played by D1 and D2.

23.D9 was represented by Mr Edward Fan and D10 was represented by Mr Chan Siu-ming.  In each case, it was submitted that the judge had failed to make a proper assessment of the criminality involved in the conspiracies covered by charges 4 and 2, respectively.  However, the judge was well aware of the roles played by each and he expressed the overall criminality and gravity of these offences very clearly when giving his Reasons for Verdict.  He said:

“70.   These were, as alleged, concurrent conspiracies with a common aim, some common documentation and one common participant. There is therefore an overlap between them; but I am satisfied that they are properly characterised as three conspiracies rather than one. In each case, a main player has been introduced to take the role: D9 was put up as the legitimate claimant for the goods in one case; D10 in another and PW12 in the third. There is however no clear link between these actors themselves, that they knew each other or that they were co-conspirators. Furthermore, although the aim might have been more or less the same and So Law may have been involved in each case, the method being used in each case to achieve that aim was different.

71.     I will turn to the individual cases in a moment; but I need to state clearly that after the seizure and the arrest of the defendants, these goods were the subject of an investigation by police. That investigation clearly contemplated curial proceedings. There was a course of justice in progress even though no charges had been laid. The goods themselves were manifestly an integral part of that course of justice.

72.     It is common sense that if goods are seized and retained by the police, then they are the subject of investigations with a view to such curial proceedings. It is also plain that false claims as to ownership, entitlement or disposal of the goods amount to lies about them and will tend to influence and pervert the course of justice. Such a tendency is clear and manifest.”

24.The judge returned to this topic in his Reasons for Sentence when he said:

“35.   As to the charge of perverting the course of justice, it is obvious that where police have seized goods, they are likely to have substantial reason for so doing and that they are investigating suspected crime. Those who seek unlawfully to obtain the release of such goods, essentially by telling lies to the police or presenting information deflecting the police from the truth, are committing a serious offence because it is conduct which strikes at the rule of law and at the proper and effective investigation of crime. Such conduct has to be deterred and it can only be deterred by imposing sentences of imprisonment on those who offend in that manner.” (Appeal bundle p. 96)

25.We find ourselves in full agreement with the sentiments expressed by the judge.

Conclusion

26.Accordingly, for the reasons we have given, the applications made by D1, D2, D5, D9 and D10 are dismissed.

27.So far as D4 and D7 are concerned, we are satisfied, as a matter of principle is involved, that the sentences they have already served are sufficient.  In their cases we shall grant leave and, treating the hearing in each case as the hearing of their appeal, we allow their appeals.  We impose such sentence on D4 and D7 as will enable their immediate release.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr Andy Hung, instructed by Director of Legal Aid, for the 1^st and 2^nd Applicants (D1 and D2) (re: sentence applications).

Mr Bruce Tse, instructed by Messrs M K Lam & Co., for the 3^rd to 5^th Applicants (D4, D5 and D7) (re: D4 and D5’s sentence applications and D7’s sentence out of time application).

Mr Edward Fan, instructed by Messrs C P Cheung & Co., for the 6^th Applicant(D9) (re: sentence out of time application).

Mr Chan Siu Ming, instructed by Messrs Leung Kin & Co., for the 7^th Applicant(D10) (re: sentence application).