HKSAR v. Chang Nim Hing

HCMA 145/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 145 OF 2010

(ON APPEAL FROM TWCC 3227/2009)

____________

BETWEEN

____________

Before: Hon  Wright J

Date of Hearing and Judgment: 9 April 2010

_______________

J U D G M E N T

_______________

1.The appellant was convicted after trial by JT Glass Esq of a single charge of possession of goods to which the Dutiable Commodities Ordinance, Cap. 109, applies. He was found in possession, other than in accordance with the Ordinance, of 2200 cigarettes, on which Hong Kong duty had not been paid.

2.It was not in dispute that the appellant had been seen, on his own, by two Customs and Excise officers carrying a large paper carrier bag. When he was intercepted and the bag searched the only items it was found to contain were 11 cartons of cigarettes plus a plastic bag which had been placed over the top of them. At the time of his apprehension the appellant protested that the cigarettes did not belong to him claiming, in a subsequent interview, that he had only come to know the nature of the contents of the carrier bag when intercepted by the Customs officers and explaining, at that interview, that he had "... bumped into a relative of mine in the street, he/she asked me to give the white paper bag and the cigarettes therein to another relative of mine". When questioned further he indicated that he did not know the name or any method of contacting either of these two supposed relatives.

3.When he testified at trial the appellant said that he had accepted the carrier bag from a person whom he thought may be a relative or clansmen but that he knew nothing whatsoever about the person to whom the bag ultimately was to be delivered to say that that person would recognise him.

4.The magistrate, entirely unsurprisingly, rejected the appellant's version. That left the evidence of the prosecution witnesses. There were, the magistrate recognised, as do I, minor inconsistencies between the evidence of the two prosecution witnesses: the magistrate took the view that one of them was material and resolved it, whilst I take the view that none was material.

5.I do not accept that the appellant was unaware of the nature of the contents of the carrier bag. The magistrate arrived at the same conclusion. I am unable to improve upon his reasoning for doing so.

6.The prosecution case establishes the essential elements of the offence to the requisite standard. The appellant was correctly convicted. The appeal is dismissed.

Ms Mickey Fung, Senior Public Prosecutor, Department of Justice, for the Respondent.

Appellant in person.