HKSAR v. Pun, Cheuk-yin

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 363 OF 2009

(ON APPEAL FROM KTCC 6860 OF 2008)

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BETWEEN

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Coram: Hon D. Pang J in Court

Date of Hearing: 20 October 2009

Date of Judgment: 16 November 2009

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JUDGMENT

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1.The appellant was convicted after trial of one count of Possession of Prohibited Goods, contrary to sections 7 and 14(1) of the Dangerous Goods Ordinance, Cap. 295, Laws of Hong Kong, and was fined $10,000.  He now appeals against conviction.

Offence

2.The appellant was charged that on 26 July 2008 “at Room 2415, Boon Yuet House, Choi Wan Estate, Kowloon, he had prohibited goods, namely five smoke grenades, in his possession”. 

Prosecution case

3.Basically, the prosecution case was not disputed.  At the trial, it was presented in the form of agreed facts.  It is set out as follows (only the parts which are of assistance to the appeal are quoted):

“1.      …Acting on information, Kowloon East Regional Crime Unit executed a search warrant, i.e. exhibit 1 in Room 2415, Boon Yuet House, Choi Wan Estate, Kowloon at 2032 hrs on 26 July 2008.  At that time male Pun Cheuk-yin (the defendant) was at home alone.

2.        PW2 (a DPC) searched the unit in the presence of the defendant.  He found a plastic box, i.e. exhibit 2 near a working table in the flat.  In exhibit 2 there was a plastic bag, i.e. exhibit 3. In exhibit 3 there were 5 smoke grenades, i.e. exhibit 4.  The 5 smoke grenades were separately contained in 5 sealed plastic bags which are produced today.  Thereupon PW1 declared to the defendant that he was under arrest for possession of prohibited goods without a licence and cautioned him.  The defendant said under caution, “I didn’t know these are dangerous goods and didn’t know it’s against the law either.”  Then PW2 seized the exhibits and drew a sketch at the scene, i.e. exhibit 5, while DSPC 45396 (PW3) took 16 photographs, i.e. exhibit 6.

……

4.        On 29 July 2008, PW2 sent exhibit 4 to the Explosive Ordnance Disposal Bureau, which was then examined by male Yuen Hon-wing (Senior Bomb Disposal Officer) (PW4).  After examination, it was confirmed that exhibit 4 fell within the definition of “explosive” in the Dangerous Goods Ordinance, Cap. 295 Laws of Hong Kong.

5.        On 15 December 2008, Government Chemist Dr. Tam Cheok-ning (PW5) extracted powder from exhibit 4.  The powder was then sent to the Government Laboratory for examination.  It was found that the powder consisted of 2.35 grams of a mixture which contained potassium chlorate and sulphur.”

4.The above-mentioned mixture containing “potassium chlorate” and “sulphur” is the prohibited goods specified in the charge.  These two substances are classified as “explosives and blasting agents” in the Dangerous Goods (Application and Exemption) Regulations.

Defence case

5.On the defence side, the appellant elected to give evidence.  He was the only witness of the defence.

6.The magistrate in his judgment summarized that the appellant was 27 years old and had no previous criminal record.  In 2007, he took part in a war game in Kam Tin, Yuen Long.  In the course of doing so, he saw that some team mates used a product which could emit coloured smoke.  Subsequently, between February and March 2008, he bought the 5 smoke grenades involved in this case.  The appellant claimed that he had not come into contact with this product before nor had he received any training about how to use this product.

7.The appellant went on to say that according to the shop assistant who sold the grenades to him, this product was lawful and was not dangerous.  After he bought them, he had never used them.  He had brought them along when he took part in a war game the second time, but in the end he did not use them.  He said that no one had ever told him about the nature of this product.  He himself had viewed the website about this product but what he could find in the website were only photographs and some information about the product; there was no detailed information about its ingredients.

8.The appellant further said that on the day when he was arrested, he really could not remember at which shop he bought the grenades.  Later, after he had given a statement, he went to Mong Kok Kwong Wa Street and the neighbouring areas.  Only then did he remember the correct location of the shop and he supplied the particulars to the police.  The appellant indicated that he would like the court to admit all the produced records of interview as true and accurate records provided by him voluntarily.

9.Finally, the appellant admitted under cross-examination that he was a serving Customs Officer and had been working in that post for 2 years.  However, he denied that he had much knowledge of different kinds of dangerous goods or had come into contact with them in the course of his duties.

10.To put it in a nutshell, the appellant’s case is that he did not know what ingredients there were in the 5 smoke grenades. Rather, he was informed that this kind of product was lawful and that it would be safe when they were used.

Verdict given at trial

11.The result was that the appellant was found guilty by the magistrate.

12.The reasons given by the magistrate can be summarized as follows: Firstly, he agreed with the prosecution’s argument and found that the offence in question was a strict liability offence.  Secondly, he agreed with the prosecution’s argument and found that the common law defence put forward by the defence was not applicable.  Thirdly, he found that even if the common law defence was applicable, the appellant had not made it out.

The appeal

13.The appellant just reiterated before me the arguments put forward by the defence at the trial.

14.After carefully considering the submissions of the two parties, I come to the conclusion that the findings made by the magistrate are all correct.

15.Section 7 of the Dangerous goods Ordinance reads:

“ 7.      Prohibited goods

No person shall manufacture or cause to be manufactured any prohibited goods or have any prohibited goods in his possession, custody or control or in the possession, custody or control of any servant, agent or warehouse owner.”

16.Section 14(1) of the same ordinance is mainly about penalties and defence:

“14.     Offences and penalties

(1) Any person who contravenes any of the provisions of section 6, 7, 8 or 10 shall be guilty of an offence and shall be liable to a fine of $25,000 and to imprisonment for 6 months:

Provided that any person accused of having contravened any of the provisions of section 10 shall not be liable to be convicted thereof if he shows, to the satisfaction of the magistrate before whom he is tried, that he did not know the nature of the goods to which the information relates, and that he could not, with reasonable diligence, have obtained such knowledge.”

17.The plain truth before the court is that the legislature deliberately removed the defence which I would call the “due diligence defence” from the offences under sections 6, 7 and 8 and made it applicable to section 10 only.

18.That being so, even if one put on one side the specific contents of sections 6, 7, 8 and 10 (actually, among the 10 sections of Part II “Control of Dangerous Goods” of the Dangerous Goods Ordinance, only these 4 sections carry with them criminal liabilities), the inescapable conclusion that one will come to is that the legislature does not intend that an offender who did not know the nature of the goods in question and who could not, with reasonable diligence, have obtained such knowledge should be exempted from the criminal liabilities laid down in sections 6, 7 and 8.

19.This is a matter of policy. I do not think that the court can look into the reason behind it, neither do I find it meaningful for the appellant to try to differentiate between the matters which the above-mentioned sections are directed against, hoping to find out any differences between them so as to create enough room to read into the provisions a common law defence similar to “due diligence” and purportedly hidden in section 7. I am of the view that this approach obviously contradicts the legislative intent of section 14.

20.Then, is there any problem with the way in which sections 6, 7, 8, 10 and 14 of the Dangerous Goods Ordinance are formulated? I believe that the answer must be no. As submitted by the respondent, the formulation of these sections fully complies with the requirements laid down in the classic authority Gammon (Hong Kong) Ltd v Attorney General [1985] 2 HKC 661. For example, the Dangerous Goods Ordinance is concerned with public safety, the offences which it created are not truly criminal in character and the formulation of the provisions in this way can clearly promote the objects of the ordinance by encouraging greater vigilance. All these factors support the view that section 7 is a strict liability offence.

21.In fact, in R v Cheng Kam-ming MA657/1987 this court applied Gammon (Hong Kong) Ltd (supra) and held that the offence under section 6(1) of the Dangerous Goods Ordinance is a strict liability offence. O’Dea J clearly pointed out in his judgment that at least in relation to section 6(1):

“… the appellant’s belief or ignorance or even absent-mindedness as to the nature of the goods was irrelevant.”

22.Certainly, in AG v Fong Chin Yue [1995] 1 HKC 21, the Court of Appeal indicated (to be precise, it is obiter dictum) that for certain offences under the Dutiable Commodities Ordinance, it would be a defence for the accused to show that he believed for good and sufficient reason, although erroneously, that the provisions of the ordinance had been complied with. These remarks have generally been interpreted as providing a common law defence for strict liability offences.

23.However, the respondent referred me to a recent case (20 February 2009) HKSAR v Shun Tak Properties Ltd HCMA 1014/2006, in which the Court of Appeal held that the above-mentioned common law defence was not applicable to certain provisions in the Factories and Industrial Undertakings Ordinance.  The Court of Appeal commented as follows:

“106.  Whether the gondola is properly maintained relates to its intrinsic character.  The intention of the legislation to make the offence in question an offence of absolute liability is clear when it imposes on ‘the owner’ the duty ‘to ensure’ that it is not used … unless it is properly maintained.

107.  More importantly, the offence in question concerns public safety.  When it comes to public health/safety and in order that fewer guilty men might escape, it may be necessary, in the public interest, to convict morally blameless persons if ‘blameless’ persons refers to people who lack mens rea.

108.  Fong Chin Yue (supra) and the cases referred thereto are not authorities supporting the proposition that the ‘common law due diligence defence’ applies to all cases of ‘strict liability’.  In our view, such a defence does not apply to an offence involving public safety under the Ordinance and the Regulations.

109.  …where strict liability is imposed, the defendant incurs criminal liability though he was ignorant of one or more of the factors which rendered his conduct criminal, and even though he was blamelessly inadvertent because his ignorance is not attributable to any default or negligence on his part (Halsbury’s Laws of England 4^th Edit Vol 11(1) at para 15).”

24.The above authority undoubtedly lent further and forceful support to the respondent’s view.  The appellant repeated what he had done before (see paragraph 19 above), hoping that some differences between the Factories and Industrial Undertakings Ordinance and the Dangerous Goods Ordinance could be dug out so that section 7 of the latter could be distinguished, but that was unrealistic.  I do not think that the provisions of the former imposed on the offender any “duty to take positive and vigorous measures” (words used by the appellant), while the latter did not.  The purpose of the Court of Appeal’s referring to the word “ensure” used in the Factories and Industrial Undertakings Ordinance was to point out that the content of the provisions obviously was favorable to a construction which supported strict liability.  This is crystal clear.  There can be no other meaning (see paragraph 106 of the judgment).

25.Finally, the appellant asked this question: if the common law defence is excluded from section 7 of the Dangerous Goods Ordinance, then will a person who has in his possession matches which contain the same substances commit an offence and be liable to prosecution?  My view is that it depends on the quantity and the circumstances.  The Department of Justice certainly has discretion not to prosecute cases which common sense informs us to be frivolous.

26.Up to this point, I have already dealt with the main arguments put forward by the appellant.  However, for the sake of completeness, I will briefly say this: even if the common law defence in question is really applicable to section 7, I do not think that the appellant can successfully rely on it.  What substances made a small tube, 9 cm by 5 cm (see the report of the firearms expert), work to emit coloured smoke continuously after activation?  Could the appellant, being a Customs Officer, claim that he had good and sufficient reason to erroneously believe that the product in question did not contain any prohibited goods when the shop assistant said that it was a lawful product but he could not find any information about that in the internet?

Decision

27.The appeal is dismissed.

Mr. Jones Tsui, Public Prosecutor of the Department of Justice, for the HKSAR.

Ms. Gloriane Hui, instructed by S.W. Tai & Co., for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.