HKSAR v. Ho Yung Tong

English Translation — 英譯本
CACC 146/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2004

(ON APPEAL FROM DCCC NO. 121 OF 2003)

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BETWEEN

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Before: Hon Yeung, Yuen & Tang JJA in Court

Date of Hearing: 30 August 2005

Date of Judgment: 30 August 2005

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.The appellant Ho Yung-tong was charged before His Honour Judge Line in the District Court with assisting the passage of unauthorised entrants within Hong Kong.

2.The appellant pleaded not guilty to the charge.  At the conclusion of the trial, His Honour Judge Line convicted the appellant and sentenced him to 4 years’ imprisonment.

3.Having obtained leave, the appellant now appeals against conviction and sentence.

The prosecution’s case

4.The prosecution’s case was straightforward and not seriously disputed.  On 22 October 2003, police officers on board a marine police launch spotted a motor-propelled sampan on the waters north of Wong Nai Chau off the Sai Kung Country Park.  The radar on the marine police launch showed that the sampan was leaving the Hong Kong waters and travelling in an easterly direction at 5 nautical miles per hour.  The police sergeant who was on duty on board the marine police launch also gave evidence to the effect that he saw the sampan and it was not drifting at the time.

5.The marine police launch then tooted the horn, shone the blue flashlight, gave chase to the sampan, and signalled it to stop.  As a result, the sampan stopped for the marine police to conduct a search.

6.At that time, apart from the appellant who was the helmsman, 3 male passengers were found on board the sampan. 2 empty petrol cans and 3 Buddhist pines were also found.  The appellant and the 3 males were all mainlanders.  The appellant had on his person a mobile phone and 2 SIM cards, one of which was fit for use on the Hong Kong network.

7.Upon enquiries by the police, the appellant admitted he was the helmsman of the sampan.  He stated that he set off in the sampan together with the other 3 males from Dan Gan Island in the night prior to the date of the offence, with a view to delivering the Buddhist pines to Nan Ao in Shenzhen, but then the sampan engine broke down and they attempted in vain to repair it, and as a result the sampan drifted for some 7 to 8 hours before it was intercepted by the marine police launch.  The appellant repeated the above during subsequent police investigation. 

The defence and evidence

8.The appellant did not dispute the prosecution’s case, save that he alleged that the sampan was not in a state of sailing at the time because its engine had broken down.

9.The appellant reiterated that the explanation he gave to the police upon being arrested was correct.  He stressed that he had no intention to enter Hong Kong waters and that the sampan might have drifted into Hong Kong waters as a consequence of engine breakdown.

The verdict of the trial judge

10.The trial judge found the police constable an honest and reliable witness.  He went on to hold that the sampan was in the state of sailing before it was intercepted and not drifting as alleged by the appellant.

11.The judge did not accept the evidence given by the appellant.  He considered it impossible that the appellant would have allowed the sampan, which was not equipped with any life-saving device, to drift for a long time and slept on the sampan all along without caring in what direction it was drifting.  The judge pointed out that taking the shortest marine route from Dan Gan Island to Nan Ao necessarily entailed traversing Hong Kong waters, and that the appellant agreed he had been warned of the risk involved in carrying Buddhist pines past Hong Kong waters.

12.The judge further noted that, with regard to the date and time when the appellant sailed from Dan Gan Island to Nan Ao and with whom he did so, there were discrepancies between his testimony at trial and what he said to the police at the time of investigation.

13.In particular, the judge noted that the police found 2 SIM cards on the appellant’s person and one of the SIM cards was fit for use in Hong Kong.  The learned judge posed this question: if the appellant was not entering Hong Kong, why would he possess a SIM card fit for use in Hong Kong?

14.The judge had also taken into account the explanation given by the appellant about the empty petrol cans found on the sampan, and the evidence on the directions of wind and current. The judge concluded that such evidence and the appellant’s explanation did not tally.

15.No examination had been conducted by the police on the sampan engine to check whether it was malfunctioning. This notwithstanding, the judge accepted the explanation put forward by the prosecution that it was dangerous to start the engine, and therefore this point did not amount to a point of doubt in the prosecution’s case.

16.The judge made some rather unusual remarks in Paragraphs 17 and 24 of the Reasons for Verdict.  They are set out as follows:-

“PW1 did tell me that this was a black spot for people coming to Hong Kong and taking Buddhist pines away.  I did not use that evidence in a way that would have been based on prejudice but it did tell me a fact which was obviously that Buddhist pines grow in this area, or used to, and the fact that this sampan had Buddhist pines on it therefore is some link between the sampan and that particular piece of Hong Kong shores.”

“ … It follows inevitably from the finding that the boat had not drifted in but was setting off from the shoreline of Sai Kung Country Park bearing three Buddhist pine trees that those mainlanders, including this defendant or that boat, had come in the sampan to the shore of Sai Kung to remove Buddhist pine trees and were caught on their return journey …”

17.These remarks plainly show that the judge found that the Buddhist pines found on the sampan originated from Hong Kong, and that the appellant and the other persons had not only entered Hong Kong waters in the sampan, but had also gone ashore and taken away Buddhist pines from the Hong Kong territory.

18.This can be confirmed by what the learned judge said in his Reasons for Sentence. Paragraph 2 of the Reasons for Sentence reads as follows:-

“In this case I am satisfied that the people you brought here and were taking away again had come to take the Buddhist pines and it is common ground in this case, from what I hear from the prosecution and not disputed by the defence, that such activities of taking Buddhist pines from the Sai Kung Country Park has caused environmental damage.”

19.We consider the judge’s remarks as quoted above unusual, because it had never been the prosecution’s case that the appellant went ashore in Hong Kong, cut the Buddhist pines in Hong Kong and then took them away.  The appellant had not been charged with the offence of stealing Buddhist pines.  Nor had the prosecution informed the appellant prior to trial that reliance would be placed upon such accusation.

20.Ms Louisa Lai, Senior Assistant Director of Public Prosecutions, also conceded that the prosecution did not have sufficient evidence to prove that the appellant had entered Hong Kong and gone ashore, let alone cut the Buddhist pines unlawfully near Sai Kung Country Park and then taken them away.

21.The only charge against the appellant was that he assisted the passage of unauthorised entrants within Hong Kong. To establish guilt on the appellant’s part, the prosecution need not go further than proving that the appellant had intentionally carried the other 3 males in the sampan into Hong Kong waters.  The 3 males were mainlanders, and it was beyond dispute that they had entered Hong Kong without authority.

22.The appellant has advanced a number of grounds of appeal against the learned judge’s approach.

Grounds of appeal

23.The main ground of appeal is that, while the prosecution alleged that the appellant unlawfully carried people into Hong Kong, the trial judge held that he and the other 3 males had cut Buddhist pines in Hong Kong and then left Hong Kong with those pines on a return journey.  At trial, the prosecution and the defence never discussed whether the appellant was entering Hong Kong or leaving Hong Kong.  Therefore, the appellant says, the trial judge’s ruling deviated from the arguments put forward by the prosecution and the defence, thereby rendering the conviction unsafe and unsatisfactory.

24.The appellant also argues that there was no evidence whatsoever to support the trial judge’s findings that they had gone ashore in Hong Kong, cut Buddhist pines in Sai Kung and taken them away.  The appellant argues that there was no evidence to suggest that Buddhist pines are plants unique to Hong Kong, and in fact Buddhist pines can also be found growing on many outlying islands off the China coast, and therefore the judge erred when he held that the Buddhist pines in the sampan came from the vicinity of Sai Kung Country Park.

25.The appellant stresses that, given the frequency of transactions between Hong Kong and mainland nowadays and in order to facilitate direct, hassle-free and cost-effective communication, it is very common for Hong Kong people to carry mainland network SIM cards and for mainland people to carry Hong Kong network SIM cards. It was therefore unsafe and unsatisfactory for the trial judge to infer, on the basis that the appellant was carrying a Hong Kong network SIM card, that he had entered Hong Kong illegally.

Discussion

26.As Ms Lai of the prosecution pointed out, the verdict in the present case was essentially grounded upon the credibility and reliability of the witnesses, and there was sufficient evidence to prove that the appellant’s sampan was intercepted in Hong Kong waters.  Further, the judge was entitled to accept the evidence given by the police constable that, before it was intercepted, the sampan was sailing away from Hong Kong waters instead of drifting in Hong Kong waters due to engine breakdown as was alleged by the appellant.

27.The learned judge very properly took into account the directions of the current and the wind at the time of the offence in rebutting the explanation put forward by the appellant.  Nor could the judge be faulted for taking into account the fact that the appellant had a Hong Kong network SIM card on his person.

28.However, it is clear from his Reasons for Verdict and Reasons for Sentence that, when the judge held that the appellant had entered Hong Kong waters intentionally, he was influenced by the presence of Buddhist pines on the sampan.  He noted that Buddhist pines were being grown near Sai Kung, and since Buddhist pines were found on the sampan, he linked the sampan to Sai Kung where Buddhist pines were grown.  The judge went on to hold that the appellant and the other 3 males had gone ashore in Sai Kung and taken away the Buddhist pines, and that they were intercepted by the marine police launch during their return journey.

29.The judge’s verdict did not rest on the prosecution’s case against the appellant, and therefore we harbour doubt about the logical basis of the verdict.

30.As was pointed out by the appellant, there was no evidence to suggest that Sai Kung was the only place where Buddhist pines were grown. Therefore, when the learned judge linked the sampan to Sai Kung on the basis of the presence of Buddhist pines on the sampan and then went on to infer that the appellant must have gone ashore in Sai Kung and taken away Buddhist pines, this was in fact not the only reasonable inference that could be drawn. A conviction based on such an inference could not be proper.

31.It is true that, in deciding whether the appellant was guilty, it was not necessary for the judge to take into account whether the appellant had landed in Hong Kong, cut Buddhist pines within the territory of Hong Kong and then taken them away. However, we cannot be sure that the judge was not influenced by these considerations when he rejected the explanation given by the appellant.

32.Besides, the appellant had all along insisted that the sampan drifted into Hong Kong waters as a result of engine breakdown. The police did examine the sampan after the incident but had never examined the sampan engine in order to ascertain the truth or otherwise of what the appellant said.

33.The police explained that it would be necessary to start the sampan engine in order to check whether it had actually broken down, but starting the engine would bring about a risk of engine explosion, and therefore it was the practice of the police not to start the engine in order to check if it had broken down.  We have reservations on such an explanation.

34.The sampan in question, including the engine installed thereon, obviously looked the worse for wear.  The appellant alleged that as the engine had broken down and failed to function, the sampan drifted into Hong Kong waters and this was unintended.  In the circumstances, for the purpose of strengthening the prosecution’s case and in all fairness to the appellant, the police should have thoroughly examined the sampan and its engine in order to test the truth or otherwise of the appellant’s explanation.  Instead, the prosecution had refrained from conducting the necessary investigation for the reason that the sampan engine might explode if started.

35.We take the view that the police must have been able to take the appropriate measures to ensure that the sampan engine could be examined under safe circumstances.  The examination would reveal whether the engine had broken down and hence determine whether the appellant had given a true explanation.

36.We also have reservations about the judge’s decision to accept the reasons provided by the police for not examining the sampan engine.

37.For the aforesaid reasons, the appellant’s conviction is in our view unsafe and unsatisfactory.  Therefore, we allow his appeal and set aside his conviction and sentence.

38.There is ample evidence to support the charge in the present case.  We would have ordered a retrial were it not for the fact that the appellant has been remanded in custody for almost 2 years since October 2003, such period being tantamount to 3 years’ imprisonment.

Ms Louisa Lai, Senior Assistant Director of Public Prosecutions and Ms Mickey Fung, Government Counsel, for the respondent.

The appellant in person.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.