The Queen v. Tse Kwok Keung
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IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO.325 OF 1993 ------------------- BETWEEN
------------------ Coram : Hon. Bewley J. in Court Date of hearing : 4th November 1993 Date of delivery of judgment : 9th December 1993 ------------------------- J U D G M E N T ------------------------- 1. On 7th April, 1993, the appellant was convicted by Mr Thomas in Fanling Magistrate’s Court on one charge of constructing a vessel of less than 250 gross tons for the purpose of smuggling, contrary to s.14A(1) of the Import and Export Ordinance, Cap.60. An identical charge in respect of another vessel was dismissed on the grounds that too much work remained to be done for the magistrate to be sure of the purpose of its construction. The appellant was sentenced to six month’s imprisonment and to a fine of $50,000, plus $5,000 costs, with six months consecutive in default of payment. He now appeals against both conviction and sentence. 2. The appellant is the proprietor of the Wan Kee shipyard in Tai Po. It was founded by his father and he has worked there for 20 years. He is now 35. 3. On 25th March, 1992, observation of the shipyard was carried out by Senior Inspector Joyce of the Anti-Smuggling Task Force. He saw in the shipyard two hulls of vessels which he identified as similar to those commonly used for smuggling purposes in Hong Kong waters and known as tai fei. In the previous six months Senior Inspector Joyce had carried out two to three operations a week and had become familiar with tai fei. They were designed to be powered by three, four or five outboard engines of about 275 HP and were capable of 60-70 knots. They were big boats capable of carrying a car. 4. Senior Inspector Joyce noted that the transoms of both hulls had been modified. Holes had been bored to fit engine mountings which had been covered by tape and painted so that they were not apparent on casual inspection. He believed that this had been done deliberately because it was a professional job and, if the tape had been removed, the transom paintwork would have been ruined. 5. On 31st March Senior Inspector Joyce returned to the shipyard with Superintendent Dando, Engineering Officer of the Marine Police, and other Task Force officers under the special power contained in s.21 of the Ordinance. Superintendent Dando is a Chartered Marine engineer with 34 years service in the Royal Navy. While in the police force he has examined over 100 tai fei and vessels of that ilk. He said that the general characteristics of tai fei are that they are large vessels 12 meters long and three meters wide and powered by three, four or five engines of up to 300 H.P. They have a large open area aft for cargo. They are minimally equipped with a compass and controls but no seats or other equipment normally found in seagoing craft. They possess a planing hull to permit high speeds. 6. Superintendent Dando examined the two vessels Al and A2 on 31st March. A2 was not in as advanced a stage of construction as Al. The latter needed installation of the fuel tanks, the engine mountings, the engines, the throttles and the steering wheel. After the fuel tanks had been installed and the bottom deck built over them, the boat would then be substantially complete. 7. Al exhibited the classic characteristics of a tai fei. Significantly, in Superintendent Dando’s view :
8. He deduced from the four sets of holes and the distances between them that the transom was being prepared to mount four large outboard engines. He estimated that its maximum speed in an unloaded condition would probably be about 60 knots. He concluded :
9. Superintendent Dando also examined some new outboard engines in the shipyard. They had been modified to enable the covers to be removed from the top rather than the side. This was an advantage if four engines were to be mounted side by side since it made them easier to service. The engines were each of 275 HP and would fit the transom of Al . Superintendent Dando also examined two fuel tanks that were seized. He calculated that they would give Al a range of 100 nautical miles at full power. 10. There were four separate fuel lines and four separate hydraulic steering pipes. The gauge panel showed four R.P.M. meters, one speedometer and one fuel level gauge. This indicated that the boat was to be equipped with four engines. The panel was covered with plastic sheeting. Superintendent Dando said :
11. One of the grounds of appeal is that the magistrate erred in accepting the evidence of Superintendent Dando as his cross-examination shows the witness to be biased and unreliable and his evidence inconclusive in consequence. 12. He said first that seized smuggling crafts were usually painted dark grey, the most suitable colour to camouflage a boat at sea. He recollected Al was grey-blue in colour but not as bright as in the photographs. He had however seen tai fei of that colour. 13. He was then asked how many petrol filters he found and he replied that there were four to the best of his recollection. Shown photograph 31 he was obliged to admit that only two were visible. He said two may have been concealed behind the officer but it was also possible that there were only two on board. In re-examination he said that photographs 31 and 34 showed four sets of holes and fittings but only two filters had actually been fitted. 14. He was asked about the two sets of piping in photograph 32 and he said these were steering rams. Four engines could be controlled by two steering rams as easily as four. The wiring in photograph 33 could have supported steering rams for two or four engines. 15. Superintendent Dando conceded that photograph 33 showed only two batteries, whereas his recollection was that there were four. But his memory was confirmed by the last prosecution witness, Mr Lam Sin-tong, who said the other two batteries were hidden by the officer’s knee in photograph 33. There can be faintly seen on the left of the photograph an object of apparently similar shape and colour as the batteries. 16. Superintendent Dando agreed that the fuel tanks were some distance away from the boats. He said there were five, not just the two shown in the sketch, and points to photograph 16 which confirms his evidence. He said there were 20-30 identical fuel tanks neatly stacked. The next stage of construction would have been to install the tanks. 17. The final prosecution witness was Mr Lam, a Shipping Safety Assistant in the Marine Department. His evidence was also technical and tended to support that of Superintendent Dando. There were at any rate no contradictions. 18. The appellant gave evidence but called no witnesses. He said that in March, 1991, 17 vessels had been seized from his shipyard on the grounds that they failed to conform to new regulations inhibiting the Director of Marine from licensing pleasure vessels mounting more than two outboard engines. He admitted that he originally intended to install four 275 HP engines on Al nevertheless, but changed his mind because he thought it would be too dangerous as they would be too close together. He did not enlarge upon this. 19. Al was intended to be a pleasure vessel and more than 30 boats from the same mould had been licensed in the past year. Construction of Al had started in January, 1992. Despite the new regulations he decided to install four engines because this vessel was smaller. I would comment here that it was never suggested that the size of the boat made any difference under the regulations. 20. The 16 holes in the transom were drilled in February and the two additional sets of nuts and bolts in photographs 31 and 34 were installed shortly thereafter. When he realised they had made a mistake about the four engines - the distance between the engines being too close - he decided to fill up the unwanted holes. They affixed adhesive tape to the transom and painted fibre-glass resin over it and allowed it to dry. After two days, when the resin was dry, the holes would be filled in from the other side. This explanation was put to Superintendent Dando, who said that, if that had been the object of the exercise, there would have been no need to paint over the tape. The paint was the same as that which covered the rest of the transom and was not fibre-glass resin. 21. At the time they made the change the appellant did not have a buyer for Al. This was one month before the seizure. Consequential modifications were necessary - filters, cables, ignition switch and the hydraulic system. These had not yet been done by 31st March. 22. As to the engine covers, the appellant said the vertical lift-off type was more popular than the two-piece. The reason that all the engine covers in his yard were mechanically held together was that it was a requirement of his customers. 23. At the end of the appellant’s evidence this question was asked by the magistrate :
24. There was no evidence that the appellant made any attempt to sell Al overseas. He must have known in January, 1991, when construction was started, that he would not be able to license Al with four engines. Any would-be purchaser would have to come to Hong Kong, buy the boat and ship it out unlicensed. It was therefore a very risky gambit to begin to build a boat, which the appellant admits would be worth $400,000, and which he knew he would not be able to license in Hong Kong. Particularly is this the case if business was bad, as the appellant avers. No explanation was given why the appellant ever considered such a risky venture. Was there no market for two-engined pleasure boats? He did not say. 25. Not surprisingly, the magistrate did not believe the appellant’s explanation about the four-engine design. In a short judgment he said :
26. He added :
27. The presumption referred to is contained in s.14A(6)(b)(iv) of the Ordinance : 14A. Construction, etc., of vessels for the purpose of smuggling
28. In his Statement of Findings the magistrate examined this provision at length in the light of the Bill of Rights and came to the conclusion that it was not thereby repealed. He then said this :
29. The magistrate then turned to a consideration of the facts and concluded :
30. The first and second grounds of appeal are :
31. In the light of the way the magistrate has approached the case, I am bound to agree with Mr Cheng Huan Q.C., for the appellant, that I must ignore the presumption in deciding this appeal. Mr Chan, for the Crown, submits that the magistrate would not have written nine pages of typescript, deciding that the presumption did not offend against the Bill of Rights, if he did not intend to rely on it. There is force in this argument but, having regard to the magistrate’s plain language that he did not need to rely on it, I conclude that he meant what he said and that, in coming to his conclusion, he did not consider whether the presumption had been rebutted by evidence led by the prosecution or the defence. The question remains whether there was sufficient evidence for the magistrate to conclude that the vessel was constructed for the purpose of smuggling and for no other purpose. 32. In spite of counsel’s criticism, I see no reason why the magistrate should not have accepted the evidence of Superintendent Dando, supported as it was by the other two prosecution witnesses. He has a high level of technical competence and the passages cited by Mr Cheng Huan do not persuade me that the witness is motivated by bias. Nor is there evidence of unreliability. The magistrate may not be far wide of the mark in his assessment of his evidence thus :
33. It is urged upon me that the evidence nevertheless falls short of that required for a conviction. Mr Cheng Huan submits that, even if the appellant’s intention was at all times to construct a four-engined vessel - which realistically was the only reasonable conclusion open to the magistrate - that does not lead to an inevitable inference that the vessel was built for smuggling purposes. He draws an analogy with Ferrari or Porsche motor cars, which he says are not necessarily purchased with breaches of speed limits in mind. Whether that is so or not - I am inclined to doubt it - the magistrate was bound to keep in mind the situation in Hong Kong and apply his common sense. It is a notorious fact, of which he may take judicial notice, that smuggling of goods, in particular motor cars, has been taking place between Hong Kong and China in the past several years. There was evidence, which he accepted, that the nearly completed vessel Al was being “constructed for the sole and only purpose of carrying goods at high speed in open waters”. In these circumstances the only reasonable inference was that the boat was being built for the purpose of smuggling. 34. The appeal against conviction is dismissed. 35. As to sentence, the appellant, in the magistrate’s words, played for high stakes and lost. The smuggling of goods to China is still taking place, although it may have decreased in scale, as counsel submits. Nevertheless, deterrent sentences are still required. 36. The maximum sentence for this offence is two years’ imprisonment, plus a fine of $500,000. The magistrate took all the mitigating factors into account. In my judgment a sentence of six months’ imprisonment after trial is not wrong in principle or manifestly excessive. The appeal against sentence is also dismissed.
Mr David Chan, Crown Counsel, for Crown Mr Cheng Huan, Q.C. leading Mr P. Nguyen, inst’d. by M/s Paul Kwong & Co., for Appellant |