Attorney General v. Sin Tin Tak

Case No.

Court

Date05 Mar 1981

Judge—

Case Document

100%

CACC000753A/1980

IN THE COURT OF APPEAL

	1980 No. 753
	(Criminal)

BETWEEN
	ATTORNEY GENERAL	Appellant
	and
	SIN TIN TAK	Respondent

Coram: Li, J.A., Baber and Addison JJ. in Court

Date of Judgment : 5th March 1981

-----------------

JUDGMENT

-----------------

Li, J.A.:-

1. This is the third hearing of an appeal by way of case stated arising from an application of the Attorney General. On 20th October last year this Court disposed of the appeal in respect of 2 out of a total of 7 of the relevant respondents, the 6th defendant and the 10th defendant respectively known as Cheung Shing and Chan Shun-cheung in the court below.

2. On 14th November last year this Court against disposed of the appeal against another three of the remaining respondents, namely the 1st defendant, Li Nai-ho, 3rd defendant, Lo Ma-shing and 8th defendant, Sin Koi-wing. The present hearing of the appeal concerns only one of the remaining two respondents, namely the 9th defendant in the court below Sin Tin-tak. At the hearing on 20th October, 1980 this Court had already returned answers to the questions relevant to the matter of general principle in the appeal against the 6th and 10th defendants in the court below. What really affects this appeal would be the answer of this Court to the first three questions of general principle namely,

	(1)	Whether a reasonable tribunal properly directing its mind to the evidence adduced before it by the Prosecution would have found that the Respondents had no case to answer.
	(2)	Whether it was correct to withdraw the evidence of the accomplice HUI Shui-chuk from myself sitting as the Tribunal of Fact and in particular whether upon a submission of no case to answer I should have had regard to discrepancies between the witnesses testimony and matters set out in statements made to the police.
	(3)	Whether it was correct to withdraw the evidence of the accomplice Li Chan from myself sitting as the Tribunal of Fact and in particular whether upon a submission of no case to answer I was correct in finding that the witness was a deliberate liar.

To all these three questions as generally we return a negative answer except in the question of the 10th defendant. This court found that there was no evidence against the 10th and that his statement was not sufficient evidence against him as to his knowledge and his part in the conspiracy.

3. The short summary of facts was that there was a group of persons who agreed, at one stage or another, to buy an old vessel in Macau to sail to Vietnam, take over a huge number of Vietnamese refugees and sail the vessel to international water near Hong Kong or between Hong Kong and Macau. That at least was known to all respondents at that time before the vessel sailed to Vietnam. In the course of the journey the principal of those conspirators let it be known that the vessel would eventually come to Hong Kong. The vessel did sail to international waters between Hong Kong and Macau. On arrival the whole lot of the ship's officers and crew including the 9th defendant left the ship. The refugees were told to fence for themselves. Eventually the refugees sailed the ship grounded it in Lantao island. That was the general effect of the evidence.

4. On behalf of this particular respondent learned counsel suggests that he is in a different position from the other respondents in the sense that he only received a briefing at the dock before the ship set sail. All he knew was that the ship would sail to Vietnam to pick up refugees. There was some evidence that one of the co-conspirators said on board that the ship was going, after picking up the refugees, to Hong Kong. There is no evidence that this respondent (9th defendant) knew that the destination of the vessel on its return journey was to Hong Kong. However, the evidence led by the prosecution was that everybody on board knew that they were going to Vietnam to pick up some 1,400 refugees and more. The ship was to sail into Macau or Hong Kong. Even if one of the refugees landed in Hong Kong the offence of conspiracy would be complete. This particular respondent was on board as a worker in the engine room. He knew that the ship would go to Vietnam to pick up refugees to sail back to waters between Hong Kong and Macau. On arrival between Hong Kong and Macau he joined others in leaving the refugees to do whatever they liked. Anybody in that position should know, that the refugees would rather come to Hong Kong than to go to Macau. That placed him in a position where there was prima facie evidence against him. In that respect he was in no different position than the other co-conspirators or other respondents in this appeal.

5. In the circumstances we find that the evidence against him was not in any less secure footing than those against the other respondents in respect of whom this court had ordered a re-trial on 20th October and also 14th November last year. We order that this respondent (the 9th defendant) should be retried together with the other respondents that had been ordered to stand a re-trial.

	(Simon F.S. Li)
	Judge of the High Court

Representation:

J.P. Chandler for Crown/appellant

C. Young & B. Chau (D.L.A.) for respondent