HKSAR v. Tsang Wai Nam

[English Translation – 英譯本]

HCMA 461/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 461 OF 2006

(ON APPEAL FROM TMS NOS. 13063 OF 2005 & 227 OF 2006)

____________________

Between

____________________

Before: Hon Barnes J in Court

Dates of Hearing: 12 October 2006 and 27 February 2007

Date of Judgment: 12 March 2007

Judgment

1. The applicant was convicted after trial on one count of attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60, and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. She was sentenced to 3 months’ imprisonment. The applicant applies for leave to appeal against conviction only, having earlier abandoned her application for leave to appeal against sentence. 

2. There were two defendants in this case. The applicant was the second defendant. The first defendant, Hang Shing Shipping Cargo Company Ltd. (恆盛船務貨運有限公司), was also convicted after trial of the offence of attempting to export unmanifested cargo and was fined $25,000. The first defendant has also lodged an appeal but abandoned it before the hearing.

Prosecution case

3. The facts of the case are not complicated. In an operation, Customs & Excise(“C&E”) Officers discovered that the goods contained in 5 of the 30 containers on a river vessel ‘Bo Shi Yun 13’ (博石運13) which was about to depart from Hong Kong to the Mainland, were different from those described in the relevant manifest. In the manifest, the goods were described as ‘a batch of food’ but in fact, apart from food, there were cosmetic products, photographic papers, dyed cattle leather, wet-and-dry polishing papers, etc. The total value of goods involved was $1,421,566.70.

4. The first defendantwas the owner of the river vessel in question. After the incident, the first defendant’s Shipping Manager, Mr Cheung Shu Yan (張樹仁) gave a record of interview about the matter to the C&E.  The applicant also gave two separate records of interview to the C&E, to which I shall later refer.

5. The prosecution alleged that the first defendant was a carrier of the containers in question while it was the applicant who placed an order with the first defendant for shipment space to consign the goods in those containers, thereby committing the offence of attempting to export unmanifested cargo.

6. Mr Cheung Shu Yan testified at trial and adopted the contents of his record of interview given to the C&E as evidence. Basically, Mr Cheungclaimed that the first defendant had no knowledge whatsoever that there were unmanifested goods in the containers in question. The first defendant simply relied on the representations of the consignor and the consignee. In the industry, a carrier would only rely on the representation of the consignor.

7. The applicant elected not to give evidence.

Grounds of appeal

8. There is basically one ground of appeal advanced by Mr Joseph Tse SC, Counsel for the appellant, that is, even if the degree of involvement and the acts of the applicant constituted ‘making arrangement to export the goods’, the evidence shows that she was only an innocent agent, rather than a consignor or forwarding agent, and she did not have actual authority to authorize the shipowner to export the cargo. Mr Tse SC submitted that the circumstances of the applicant did not constitute ‘to cause’ as interpreted in the case of A.G. v Tse Hung Lit & Another [1988] 1 HKLR 25.

9. Mr Tse SC relied in particular on the testimony of Mr Cheung Shu Yan, who claimed that the first defendant, the shipping company, did not learn from the applicant what the cargo inside the containers was. Instead, Mr Cheung only arranged the documents in question, i.e., the bill of lading and the manifest, etc., according to the information provided by a Mainlander Mr Yip.

Judgment

10. An appeal is carried out by way of ‘rehearing’ on the evidence before the trial court (supplemented by such further evidence as the appellate court may admit upon its approval): see Chou Shih Bin v. HKSAR, FACC 11/2004.  In my judgment, where facts are concerned, an appellate court must recognize the advantage enjoyed by the magistrate of having heard and seen the witnesses giving evidence, whereas the appellate court can only rely on written transcripts. Whether a witness is credible or reliable is purely a matter for the magistrate to decide. However, if a magistrate has come to unreasonable, illogical or inherently improbable findings of fact, or has misquoted, overlooked or failed to take into account of or analyze any material fact, then a conviction will be unsafe.

11. Section 18 of the Import and Export Ordinance, Cap. 60, Laws of Hong Kong provides that:

“(1)      Any person who-

(a)        imports any unmanifested cargo; or

(b)        exports any unmanifested cargo,

shall be guilty of an offence and shall be liable-

(i)         on summary conviction to a fine of $500000 and to imprisonment for 2 years;

(ii)        …

(2)        It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested.”

Section 2 of the Ordinance defines ‘export’ as follows:

“‘export’ (出口、輸出) means to take, or cause to be taken, out of Hong Kong any article;”

12. The issue in this case is whether the acts and degree of involvement of the appellant in arranging the goods in question to be exported constitute causing the export of the goods, and whether they amount to ‘causing’ the export of goods as defined in the case of Tse Hung Lit.

13. In Tse Hung Lit, the accused acted upon an agreement with another person to carry 34 video recorders by a “speedboat” to a certain place in Hong Kong for a rendezvous with a fishing junk, so that the recorders in question could be moved to the junk for shipping to the Mainland. The junk never showed up. The accused were intercepted by the police on their return journey and were charged with attempting to export unmanifested cargo and attempting to export cargo without export licence. They were convicted. Their convictionswere quashed by the Privy Council upon appeal.

14. The Privy Council interpreted the term ‘cause’ to export. Lord Bridge of Harwich said in the judgment that (at page 27G-H):

“Questions of causation might arise in many different legal contexts and no single theory of causation could provide a ready made answer. … When, as here, the word ‘cause’ is used in a statutory definition which falls to be applied in ascertaining the ingredients of criminal offences, care must be taken to give it no wider meaning than necessary to give effect to the evident legislative purpose of the enactment.”

The Privy Council adopted the interpretation of ‘cause’ as expounded in an Australian case O’Sullivan v. Truth and Sportsman Ltd (1957) 96 CLR 220 (at page 28H):

“This appears to mean that when it is made an offence by or under statute for one man to ‘cause’ the doing of a prohibited act by another the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act. Nor is it enough that in producing the antecedent event or condition the first man was actuated by the desire that the second should be led to do the prohibited act. The provision should be understood as opening up a less indefinite inquiry into the sequence of anterior events to which the forbidden result may be ascribed. It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.” [emphasis added]

15. In Tse Hung Lit, the Privy Council ruled that the evidence of the prosecution was not sufficient to allow the inference that the accused had, in law or in fact, the authority to control or influence the crew on the junk, or that the crew on the junk would act upon the explicit or implied authorization of the accused, even if the plan had been carried through.

16. What was the role of the applicant in the present case? I refer to the details of applicant’s records of interview, a summary of which has been compiled by Mr Tse SC and is set out below:

Role & Defence	Answer
She is a housewife	Answer [5], P.90
Mr Cheng, her old schoolfellow introduced one Mr Zhan from the Mainland to her; she was to contact transport companies in Hong Kong for Mr Zhan	Answer [9], P.90
Mr Cheng also introduced Mr Yip to her	Answer [13], P.90
Mr Zhan of the Mainland faxed to her the particulars of the goods	Answer [6], P.90
Mr Zhan of the Mainland asked her to contact Yat Sing Transport Co. (translit.) to arrange for the loaded containers to be towed to the unloading site	Answer [6], P.90
Mr Zhan of the Mainland also asked her to reserve shipment space	Answer [6], P.90
She reserved shipment space with a freight company	Answer [11], P.90
She looked for the freight company because she was told to do so by a friend in the Mainland surnamed Yip	Answer [12], P.90
She looked for one Miss Fung of the freight company	Answer [18], P.90
She did not contact any other staff member of the freight company	Answer [34], P.90
She booked the shipping space and made inquiry of the pier with Miss Fung	Answer [21], P.90
One Miss Wong of Yat Sing Transport Co. faxed to her the particulars of the containers and the Seal Number	Answer [23], P.90
She faxed the above information to Mr Yip and the freight company	Answer [25], P.90
She notified Yat Sing Transport Co. to tow the containers	Answer [26], P.90
The freight company faxed her the bill of lading in relation to the containers	Answer [31], P.90
She faxed the bill of lading to Yat Sing Transport Co. for customs declaration	Answer [31], P.90
However, on this occasion, the customs detained the containers; Miss Fung did not fax her the bill of lading	Answer [25], P.91
Mr Cheng’s company was known as Ping Wu Creative XX Co. Ltd. (translit.)	Answer [10], P.91
She sent and received faxes at Mr Cheng’s company	Answers [18-20], P.91
On this occasion, she had no idea who the consignor was. However, in the past, Kin Fai Trading Company (translit.) was always written on the bill of lading.	Answer [37], P.91
She did not know Kin Fai Trading Company personally	Answer [38], P.91
She did not know on this occasion who the consignee was. In the past, it was always Shenzhen City Haite Import Export Co. Ltd. (pinyin)	Answer [39], P.91
She did not know that company	Answer [40], P.91”

17. Apart from the answers listed above, the applicant also admitted that after she had received ‘enclosure 1’ [particulars for loading the goods] and ‘enclosure 2’ [particulars of the containers], she faxed the documents to Mr Yip of the Mainland. She ‘thought Mr Yip would do the customs declaration up there on the Mainland’ [Answer 26, p. 52].

18. In my judgment, the applicant has taken up an important and active role in matters relating to the arrangement of the export of the goods and her degree of involvement cannot be mentioned in the same breath with that of the ‘deliverymen’ in Tse Hung Lit.

19. In this case, the consignor on the bill of lading was “Kin Fai Trading Co.”. Mr Cheung claimed that he learnt from his colleague that the arrangement was made by a Miss Tsang of “Kin Fai”. He did not contact that Miss Tsang personally. Mr Cheung was the Shipping Manager of the first defendant. To his knowledge, “Kin Fai” was the consignor of the goods involved in this case. Mr Cheung claimed that the first defendant had already had ten-odd dealings with “Kin Fai” before.

20. According to the testimony of Mr Cheung, it was Mr Yip of the Mainland who provided him with the particulars [namely, the goods were food] for him to arrange for the cargo bill and bill of lading. Mr Cheung confirmed that Miss Tsang of “Kin Fai” did not provide the particulars. There is no direct evidence showing that the Mr Yip mentioned by the applicant in her record of interview was the same person mentioned by Mr Cheung. However, the applicant faxed the documents to a Mr Yip, while a Mr Yip telephoned the first defendant to provide the particulars. Therefore, it is reasonable to draw an inference that the Mr Yip mentioned by the applicant was the same person mentioned by Mr Cheung.

21. The testimony of Mr Cheung shows that the documents, for example, the bill of lading and so on, prepared by the first defendant, had been confirmed by the “consignor” and “the consignee.”

22. In the record of interview, the applicant admitted that in the past, when arranging for goods to be exported, she “wrote down” “Kin Fai” as the consignor. She said that she did not know “Kin Fai”, nor did she know who the consignor was on this occasion.

23. Even though Mr Cheung had not talked to the applicant in person, a reasonable inference beyond any doubt is that on this occasion the applicant was again using the name “Kin Fai” as the consignor. The applicant claimed that she did not know “Kin Fai” and that in the past she only ‘wrote down’ that name. This does not make sense to me. If she had no idea who the consignor was, then under whose name did she arrange the consignment? It is impossible for the first defendant to accept the goods to be “loaded onto the ship” without a consignor. It was reasonable for the magistrate not to accept the applicant’s defence in this regard.

24. I find that in relation to the degree of involvement and role of the applicant, it can be inferred beyond doubt that the 30 containers were loaded onboard ‘Bo Shi Yun 13’ for exporting to the Mainland with the authorization or approval of the applicant. She was not an innocent agent. In law, her acts constituted ‘causing’ goods to be exported from Hong Kong.

25. For the foregoing reasons, I hold that there is nothing unsafe about the conviction. The appeal is dismissed and the conviction affirmed.

Ms. Lily Wong, Senior Government Counsel, for the HKSAR.

Mr. Joseph Tse, SC, instructed by Paul Kwong & Co., for the defendant.

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