HKSAR v. WAN WAI CHUN AND ANOTHER

HCMA 6/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 6 OF 1999

(On appeal from STCC 1068 of 1998)

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J U D G M E N T

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1. The Appellants were convicted together with a 3rd Defendant, after trial at Shatin Magistracy, of 2 offences of dealing with goods to which the Dutiable Commodities Ordinance, Cap. 109 applied otherwise than in accordance with the provisions of the Ordinance, contrary to s. 17(1) and s. 46(3) of the that Ordinance.

2. The 1st charged offence related to cigarettes in boxes found inside a house in a location particularised in the charge. The 2nd charged offence related to some 10 boxes of cigarettes carried from the house to the Appellants' van which was located just outside that house.

3. The facts of the case, as found by the magistrate, were that the Appellants were seen to drive the van into a compound enclosing a house in the New Territories. That house at the time was under observation by customs officers. The Appellants were seen to get out of their van, go into the house and subsequently commence loading boxes onto the van.

4. Customs officers then intercepted the Appellants. In the boxes they had been loading onto the van were dutiable cigarettes. Inside the house were further boxes, some opened, of dutiable cigarettes. Both Appellants were found to possess keys to the lock of the gate into the compound in which the house was located.

5. They appeal their conviction in respect of the 1st charged offence only, i.e. in respect of their having dealt with the cigarettes in the house.

6. The 1st ground is that the learned magistrate failed to deal with their cases on each charge separately.

7. Secondly, that the magistrate failed, in his Statement of Findings, to give reasons for finding they had "dealt" with the cigarettes the subject of the 1st charge.

8. And Thirdly, there was no evidence that they had dealt with the cigarettes the subject of that 1st charge.

9. For these reasons the Appellants say their convictions are unsafe and unsatisfactory.

10. I will deal with the 1st and 2nd grounds to some extent together as they overlap. So far as the 1st ground is concerned the learned magistrate in his Statement of Findings says this at paragraph 27:

"In reaching my verdict, I considered each charge and each Appellant separately. I had also carefully considered counsel's submission. With all the evidence, including all the exhibits before me, I had no doubt that both charges had been proved beyond reasonable doubt".

Earlier in delivering his oral verdict he had said:

"In considering this case I considered each charge and each defendant separately."

11. Mr Hemmings asserts that whatever the learned magistrate has said at verdict and in his Statement of Findings in this regard, he has in fact failed to consider each charge against each Appellant separately.

12. In considering the prosecution evidence the learned magistrate set out in some detail the different roles played by both Appellants and how each Appellant was dealt with. He set out for example what keys were separately found on each Appellant to the premises following their respective body searches. In other words he considered separately the evidence against each Appellant although because of the similarity of the roles of the Appellants in the course of these events a considerable portion of the evidence was common to both.

13. Further the learned magistrate considered the evidence of the 1st Appellant, who gave evidence, both as it was relevant to the 1st Appellant himself and as it was relevant to the 2nd Appellant who did not give evidence. He considered separately so far as the 1st Appellant was concerned his good record. He considered the 1st Appellant's evidence and the 1st Appellant's case separately from the 2nd Appellant and in some detail. He did not and could not do the same in respect of the 2nd Appellant, of course, as he did not give evidence and there was no evidence relating to character adduced on his behalf.

14. It is true the learned magistrate did not set out in his findings his separate considerations relating to the 1st and 2nd charges.

15. In Paragraph 6 of his Statement of Findings he says:

"The 1st Appellant who was the driver also alighted from the van. All three went into the house. PW1 (a customs officer) then overheard some noises, including conversations, noises as a result of pulling adhesive tapes and moving carbon boxes. PW1 later saw the 1st Appellant come out of the house and open the rear door of the van. Both 1st and 2nd Appellants were seen moving carbon boxes onto the van."

16. In other words he has set out the evidence of the activities of both Appellants both in the house where the cigarettes the subject of the 1st charge were and in the loading of the cigarettes the subject of the 2nd charge onto the van.

17. But considering the evidence adduced against each Appellant separately is not the same as considering the charges separately. Nowhere in his Statement of Findings or in his reasons given at the time of verdict does the magistrate deal with the charges separately or appear to analyse the evidence from the perspective of each separate charge.

18. The primary issue at trial was whether the Appellants were aware of the contents of the boxes. Nevertheless the magistrate, regardless of what he has said at paragraph 27 of his Statement of Findings does not appear to have dealt specifically with each charge separately.

19. I bear in mind Mr Cheung's urging upon me that the learned magistrate was a professional magistrate and I take into account what he has said in paragraph 27 in that regard and it may well have been that this lack of apparent separate dealings with the charges, in view of the contents of paragraph 27 of the magistrate's Statement of Findings, may not have sustained this appeal.

20. But I will go on and deal with the 2nd ground which I have said to some extent overlaps with the 1st ground. Mr Hemmings argues that there was no finding by the learned magistrate as to the Appellants "dealing" with the cigarettes in the house.

21. The magistrate accepted the evidence of PW1 that after the arrival of the Appellants both had gone into the hut and the noises of boxes being moved and of adhesive tape being applied was heard before the Appellants emerged to load boxes of cigarettes onto their van.

22. It was obvious during trial that the prosecution case had been put forward on the basis that in addition to transporting the items the Appellants had been involved in the packing of the items found in that van. It is obvious that the "dealing" alleged by the prosecution in both charges at trial was the packing or handling of these goods and their transportation.

23. The learned magistrate dealt with this aspect by inference in respect of the 2nd charge and no complaint is made on behalf of the Appellants in that regard. The evidence in respect of that charge was plain, the Appellants had carried those charged goods out of the house into their van.

24. But nowhere in his reasons after trial or in his Statement of Findings did the magistrate ever make a finding as to what "dealing" the Appellants had undertaken in respect of the cigarettes left in the house.

25. The element of dealing is central to the offence. All that the evidence comprised in this regard was that there were noises of adhesive tape and movement of boxes heard from inside the house before the Appellants were seen carrying the boxes the subject of the 2nd charge into the van. The Appellants also had keys to the compound in their possession, but there was no direct evidence of anything being seen to have been done by the Appellants in respect of the boxes that remained in the house.

26. It may well have been that the evidence which was given in this regard that I have set out briefly above would have been sufficient to allow an inference being drawn that the Appellants intended to transport all the cigarettes still remaining in the house, or were in a joint venture in some way with the 3rd Defendant, who apparently was the warehouseman guarding the compound, in respect of the remaining boxes inside the house.

27. But no analysis of the evidence in that regard was undertaken by the magistrate. There is nothing in his findings to suggest that he drew any such inference. Further nothing appears in his Statement of Findings, either expressly or implicitly, allowing the conclusion that he in fact arrived at any finding that the Appellants dealt with the cigarettes in the house.

28. In my view this was an issue at trial. The fact that the Appellants at trial simply denied any knowledge of the boxes containing cigarettes did not absolve the magistrate from considering this matter and making a finding in respect of it.

29. In my view the Appellants must succeed on their grounds of appeal. Their convictions in respect of the 1st charged offence are quashed and their sentences in respect of that charged offence are set aside.

30. Upon the conclusion of their appeal against conviction in this matter the Appellants sought leave to appeal out of time against their sentences imposed in respect of the 2nd charged offence by the learned magistrate. Their application to appeal out of time was allowed by me and indeed it was not objected to, very fairly, by Mr Cheung for the prosecution.

31. So far as the 1st Appellant is concerned he has a previous offence some years ago of unlawful sexual intercourse with a girl under the age 16. He is now 26 years old. So far as the 2nd Appellant is concerned he has previous offences of theft and assault and he is now 38 years old.

32. These offences involving contraband cigarettes in my view are relatively serious. Nevertheless the appropriate sentence to be imposed to some extent depends on the quantity of cigarettes involved in the offence. Apparently as regards this offence the quantity of cigarettes was 158,000, or in other words about 8,000 packets worth of contraband cigarettes. I am told that in respect of that quantity of cigarettes by Mr Cheung, again fairly, that the common range of penalty is that sentences of imprisonment are imposed which are suspended.

33. So far as the sentence imposed by the learned magistrate of 1 months imprisonment is concerned and so far as the term of imprisonment is concerned, there is nothing wrong in my view in principle with that sentence but I accept the common range of sentences relating to this level of contraband cigarettes is usually results in the imposition of a suspended sentence. In my view the appropriate sentence in this case is that the Appellants both be sentenced to 1 months imprisonment suspended for 12 months. The sentence of the learned magistrate is set aside and substituted with that sentence.