THE QUEEN v. TSOI WAI KUNG AND ANOTHER

1991, No. MA 1166

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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BETWEEN

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J U D G M E N T

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1. The appellants were jointly charged with attempting to export unmanifested cargo contrary to section 18(1)(b) of the Import & Export Ordinance, Cap 60 and section 81 of the General Clauses and Interpretation Ordinance, Cap 1.

2. The particulars were that on 13th December 1990 on board motor vessel Kai Yuan at Yaumatei Encourage in the Waters of Hong Kong, they attempted to export unmanifested cargo. That cargo included 267 television sets, 165 video recorders and 300 micro-cassettes. The trial lasted from 11th to 14th November 1991. On 19th November the Magistrate convicted each appellant and sentenced each of them to 12 months' imprisonment. Against their convictions, the appellants now appeal.

3. The case against the appellants depended upon a number of pieces of circumstantial evidence. As both the Crown and the Magistrate have put it, these pieces form parts of a jigsaw which can be fitted together to form a complete picture demonstrating beyond doubt the guilt of each appellant. The evidence can, I think, be rehearsed briefly for the purpose of this appeal. Customs Officers boarded the vessel in question. They obtained a manifest from the master. They identified two containers which were said to contain cloth, removed them from the vessel and later broke the seals and opened the containers. In addition to the manifested cloth, there was a quantity of electrical equipment as set out in the charge. Bills of Lading relating to the two containers were obtained. These documents showed the shipper as "Ping Fung Trading Co.". A witness from the carrier's agent said that instructions in relation to the two containers had been received from a company called Ever Reach. The manager of Ever Reach said that, before this particular consignment, he had had dealings with TSOI Wai-kung and a Mr. Ng of Ping Fung Company. He had never met Mr. Tsoi although had obtained indirectly a business card with Mr. Tsoi's name. He had met Mr. Ng once. Both men had spoken to him on the telephone about this consignment.

4. A Madam Hoi gave evidence that she had known the 2nd appellant for about a year. The 2nd appellant ordered 162 rolls of cloth from her husband's company which she personally delivered to the godown on 7th December 1990. At the godown she saw the 2nd appellant who paid her for the goods with his personal cheque.

5. Mr. Chan, the proprietor of an electrical company, gave evidence that on 5th December 1990 by telephone he sold 300 Sanyo units (which I take to be micro-cassettes) to a Mr. Ng. He never met Mr. Ng in person. He was unable to identify Sanyo exhibits shown to him as the units 'which he had sold to Mr. Ng.

6. A Mr. Lam, who was a warehouse or godown keeper, knew the 2nd appellant through casual acquaintance. The 2nd appellant introduced him to the 1st appellant. Following a conversation with a person he thought to be the 1st appellant, Mr. Lam went to an office where he saw the 1st appellant who gave him certain documents and asked him to make arrangements in relation to the loading and transport of two containers. A day later he saw two containers being loaded in Oil Street. It appeared that rolls of cloth were being loaded into the containers. He saw the 2nd appellant there.

7. Mr. Fok, a container truck driver, gave evidence of taking a container to Oil Street on 8th December. He saw cloth being loaded. Later, he saw a number of boxes also being loaded.

8. Finally, Customs officers visited the office of Ping Fung Trading Co. The 1st appellant was apparently the sole proprietor of the company. In the office were found two acceptance orders which would be exchanged for copy Bills of Lading. The Bills of Lading in turn could be sent to the consignees to enable them to obtain release of the containers at their destination. The 1st appellant made a cautioned statement in which he said that he knew nothing of the release orders or of the consignments under investigation. At first, he said that the 2nd appellant was employed by him as his manager. Later, in answer to further questions, he said that the 2nd appellant was not connected with his company but simply shared office space and ran his own business. The 2nd appellant also made a cautioned statement. He said he was an employee of Ping Fung Trading Co. and responsible to the 1st appellant. He also said he did some banking business on behalf of the company. Neither appellant gave evidence.

9. After reviewing all the evidence, the Magistrate said that each appellant in his statement had tried to confuse the court as to his position in relation to the other appellant. He found the 2nd appellant to be more than a mere employee. He went on "I felt on the evidence that I was entitled to conclude that each was actively involved in the business of Ping Fung in a prominent way and that they had acted together in this particular venture". He found both appellants were fully involved in the attempted transportation of unmanifested cargo. He inferred that both appellants were involved in the purchase of cloth which were placed at the doors of the containers in an attempt to hide the true nature of the cargo. He said "I found the facts before me were sufficient for me to draw the irresistible inference of the guilt of both appellants".

10. I think I should make it plain that this was a difficult case. The Magistrate was called upon to resolve a number of questions as to the admissibility of documents and other evidence. The piecing together of the evidence was by no means straightforward. The Magistrate's statement of findings ran to 34 pages in which he reviewed the case with considerable care and thoroughness. I have given only the barest outline of what was involved and what was done.

11. A number of grounds of appeal were advanced on behalf of each appellant by Mr. Sedgwick. Those grounds reduce to four basic submissions. First, the Magistrate wrongly admitted into evidence the export manifest upon which, of course, the whole case depended.

12. Second, the Magistrate wrongly relied on or drew erroneous conclusions from various documents admitted in evidence.

13. Third, there was no or no sufficient evidence to support the various inferences drawn or conclusions reached by the Magistrate.

14. Fourth, the Magistrate failed to consider the possibility that the unmanifested cargo was placed in the containers by only one of the two appellants or by a third party and if in those circumstances he could not be sure who was responsible, both appellants were entitled to be acquitted.

15. I need only deal with the final ground. I am conscious that it is always easy to see things with the benefit of hindsight but it is clear to me that the 2nd appellant might well have been upon a frolic of his own. This was a possibility which, in my judgment, the Magistrate should have canvassed and, if appropriate, rejected. My sympathies lie entirely with the Magistrate who, clearly intent upon questions of admissibility and the inferences which might appropriately be drawn from various pieces of evidence, overlooked this particular facet of the case.

16. In the circumstances, the conviction of the 1st appellant is unsafe and unsatisfactory. Although there is, in my view, evidence of the guilt of the 2nd appellant, I do not think his conviction can be sustained. The Magistrate having arrived at his conclusion by another route, I would in effect be applying the proviso if I allowed the conviction to stand. Accordingly, I allow the appeals. The convictions are quashed and the sentences set aside.