HKSAR v. SIN CHUNG MAN

HCMA795/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.795 OF 2002

(ON APPEAL FROM TMCC 1419 OF 2002)

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J U D G M E N T

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1. The appellant in this case appeared before a magistrate at Tuen Mun Magistracy, facing a single charge of possession of goods to which the Dutiable Commodities Ordinance applies. He denied the charge but was convicted after trial and sentenced to three months' imprisonment. He now appeals against conviction.

2. The facts alleged are straightforward. Customs Officers were keeping observation on premises at 580 Tsing Chuen Wai Road, Lam Tei. At around 9:30 a.m., the appellant approached on a bicycle and wandered around the vicinity, seemingly aimlessly. At 11:10 a.m., he used a key to open a door of the premises and went inside. He emerged again after about 10 minutes. From then until 2:00 p.m., he hung around outside the premises, either sitting on a bench or wandering around. No-one else was in the area. At about 2:00 p.m., he was arrested as were others inside the premises.

3. Seized from him were a bunch of keys which opened the main and side doors of the premises, a walkie-talkie which was switched on, and inside the premises another walkie-talkie was found on one of the men therein arrested. Also, inside the premises were five metal oil tanks, three of which were being used to filter marked oil. At the bottom of the three tanks were a total of 12,000 litres of white diesel oil and a further 5,000 litres were in an oil tanker at the scene. In all 17,000 litres of light diesel oil were found, all of which, it was accepted, was light diesel oil, the possession of which is proscribed save in certain specified circumstances in the Ordinance.

4. The magistrate found it as a fact that inside the premises a light oil detreating plant was in operation. It was not disputed at the trial and from the facts that plainly must have been the case. Otherwise the interiors of the premises were in poor condition, with dust and water lying around and the ceiling worn out.

5. The appellant had told the arresting officer that he was a car mechanic, but, and again, not disputed, there were no vehicles being repaired in the premises nor were there any suitable tools inside.

6. It has never been contended that the appellant was lawfully in possession of the oil, his case was that he was never in possession of it at all. He chose not to give evidence or call any witnesses and did not feel it necessary to challenge the prosecution evidence.

7. He now appeals on the following grounds :

1. There was no direct evidence of possession.

2. The question for the magistrate was whether possession could be inferred from the evidence.

3. The magistrate selected three findings of fact from which he drew the inference of possession :

(a) The appellant was wandering outside the premises for a number of hours.

(b) The appellant was in possession of keys to the premises.

(c) The appellant was in possession of a walkie-talkie.

4. No one of the three findings of fact by itself permits the only reasonable inference that the appellant was in possession of the dutiable commodity :

(a) The appellant had said, when arrested, that he was a car repairer. Although the magistrate found that there was no car repair work going on inside the premises there remained the possibility that the appellant was waiting for work on premises nearby.

(b) The ability to enter the premises by possession of keys cannot, by itself, impute knowledge to the appellant of the contents of the premises or of the activities of others within the premises.

(c) Possession of the walkie-talkie does no more than establish the ability to communicate. It cannot, by itself, impute to the appellant knowledge of the contents of the premises or of the activities of others within the premises.

5. The magistrate held that the cumulative effect of 3(a), (b) and (c) resulted in the appellant being a lookout as the only reasonable inference. If there are other reasonable inferences in respect of 3(a), (b) and (c) individually the cumulative effect cannot arise.

6. Alternatively, if the magistrate was entitled to infer that the appellant was acting as a lookout this, by itself, does not establish that he has knowledge of either the nature of the activity inside the premises or the contents of the premises. The appellant's role as a lookout may have been in the belief that some unlawful activity other than that with which accomplices were charged was taking place.

8. The appellant was never on the evidence in physical possession of the oil. He was rather, found the magistrate, acting as a lookout for those operating the plant and to make that finding he relied on inferences.

9. It was open to the magistrate to infer, from the facts which were clearly established, the existence of some further fact, in this case that the appellant was the lookout for those treating the oil. But that inference must be a compelling one, the only one that no reasonable man could fail to draw from the direct facts proved.

10. Were the facts in this case such that they could not fairly admit to any other inference being drawn from them? The inference does not have to be the only possible one, because a good imagination can create all manner of theoretically possible inferences, but it must be the only reasonable inference which may be drawn from the facts proved.

11. The appellant suggests that the individual areas highlighted by the magistrate as suspicious could not on their own compel the inference the prosecution sought. Counsel goes on to say that they should not thereafter be taken together cumulatively to produce that inference. With respect, I do not agree. Such an approach is not supported by law and it seems to me to fly in the face of common sense.

12. The authorities relating to circumstantial evidence, in my judgment, apply equally to inferential evidence. Circumstantial evidence "works by cumulatively, in geometrical progression, eliminating other possibilities", said Lord Simon in the DPP v. Kilbourne [1973] AC 729.

13. Pollock CB likening circumstantial evidence to a rope comprised of several cords said :

"One strand of the cord might be insufficient to sustain the weight, but three stranded together might be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a strong suspicion, but the whole taken together, may create a strong conclusion of guilt, that is with as much certainty as human affairs can require or admit of ."

I have not gone to the original 1866 case report for that quotation. It is more readily accessible in Blackstone, 2002 Edition, at paragraph F110.

14. Here the magistrate pointed to the fact that this appellant was apparently aimlessly hanging around outside the premises wherein diesel was in the process of being treated for 4 1/2 hours. He had keys to the premises, he had entered the premises and he had with him a switched on walkie-talkie which could have been used to communicate with a man inside the premises who had his own walkie-talkie. The premises were abandoned apart from detreatment of diesel oil. Nothing else was going on there. In particular no cars were being repaired there although the appellant claimed that he was a car mechanic.

15. Counsel for the appellant reminds me that even if I am against him and accept that the magistrate was correct in concluding that the appellant was a lookout, there is no direct evidence that he knew the nature of the activity in the premises. He may, suggests counsel, have thought he was keeping a lookout for a dangerous drugs' operation, or for people dealing in another dutiable commodity, like cigarettes. This to my mind is fanciful. The appellant had been inside the premises for 10 minutes, they were apparently abandoned apart from the diesel detreatment plant and the only people inside the premises were those operating the plant. If he were the lookout, the evidence well demonstrates that he knew what he was involved in.

16. The magistrate concluded that when all the evidence was :

" ...... considered together the only reasonable and compellable inference is that the appellant was acting as a look-out for the diesel oil detreatment plant inside the premises and that he was to alert the people there by means of the walkie-talkie in case of a raid by law enforcement officers or any other untoward incidents.

Being the lookout the appellant must know what was going on inside the premises. He must know that an oil detreatment plaint was in operation and the substance being detreated was light diesel oil."

17. In these circumstances, he concluded that the appellant was in possession of the oil. In my judgment, this simply cannot be faulted. The magistrate had drawn the only inference which could reasonably be drawn from the fact proved. Indeed, it would have been remarkable if he had not drawn that inference.

18. This appeal is dismissed.

19. The appellant will pay the costs of this appeal, taxed if not agreed. They shall be taken from bail, and any costs above that are recoverable as a civil debt.