HKSAR v. WU MEI LING

HCMA993/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 993 OF 2008

(ON APPEAL FROM TMCC 2464 OF 2008)

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J U D G M E N T

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Background

1.   The appellant was charged with one count of dealing with goods to which Dutiable Commodities Ordinance applies contrary to section 17(1) as read with section 46(3) of the Dutiable Commodities Ordinance, Chapter 109, Laws of Hong Kong. 

2.  The particulars alleged that : on the 12 May 2008 at the open space, opposite to wire pole no. 126998–11–45, Yung Yuen Road, Yuen Long, New Territories in Hong Kong, the appellant dealt with goods to which Dutiable Commodities Ordinance applies, namely, 23 litres of motor spirit, otherwise than in accordance with the provisions of paragraphs (a) or (b) of section 17(1) of the Dutiable Commodities Ordinance.

3.   The appellant pleaded not guilty to the offence and was convicted after trial.  The appellant now appeals against the conviction.

Prosecution case

4.  At the trial, the prosecution had called 2 witnesses to testify.  They were both Customs Officers (“PW1” and “PW2”).

5.  Apart from the oral testimonies, quite a number of exhibits and a set of admitted facts were produced.  The magistrate had summarized in detail the evidence of the case, I shall only mention the gist for the purpose of this judgment.

6.  PW1 was an officer from the Diesel Oil Enforcement Division.  On the material day, he arrived at the scene which was an open space in Yung Yuen, Yuen Long.  He said there he saw a private car and a light goods vehicle parked alongside, and so they drove up to inspect.  He saw there was a man standing between the 2 vehicles.  He was holding a nozzle that was inserted into the fuel tank of the car, and the rubber hose of the nozzle was connected to the body of the light goods vehicle with a container inside.  He said he heard noises coming from the oil pump, and he could smell petrol. 

7.  PW1 said he suspected there was illegal activity involved so the officers alighted.  The man fled immediately, PW1’s teammates gave chase.  PW1 walked up to the private car, and saw the appellant in the driver’s seat.  The windows were up.  He said he revealed his identity to the appellant and informed her of his suspicion. 

8.  PW1 said he later declared arrest and cautioned the appellant.  He recalled that he first had a conversation with the appellant, but he did not record that.  According to PW1, under caution the appellant said she was refilling fuel there, a friend introduced her.  However, she later refused to sign to acknowledge the contents as recorded in the notebook.

9.  The appellant was subsequently taken back to the Customs Office, but the other man could not be located.

10.  The defence had cross-examined PW1 extensively.  PW1 stated that he was not sure if the appellant was talking on the phone at the time and did not notice his approach.  He said that he did not write down the conversation with the appellant but he was sure that under caution she admitted she went there for refilling.

11.  As to PW2, he said that he had arrived at the scene by another car.  What he saw about the set up was essentially the same as PW1 had seen.  He added that there was liquid in the tank and he could hear noise coming from the pump.  He further pointed out that liquid was seen in the transparent rubber hose, and there was a strong smell of petrol.  He also suspected that it was a case involving illicit fuel.

12.  PW2 said that he was the one who took photographs and had handled the exhibits at the scene.  He testified that he had drawn fuel from the different units : 20 litres from the private car, 3 from the rubber hose and 400 from the plastic tank.

13.  In his cross-examination, PW2 said specifically that he released the 20 litres from the bottom of the private car by opening the switch of the fuel tank.  He said that he believed that this 20 litres of fuel drawn from the appellant’s car was transmitted from the light goods vehicle.  He agreed that part of the amount would be the original fuel in the tank, but he had not checked the fuel meter of the car beforehand.

14.  The magistrate noted that at the time of the final submission, the defence had made an application to re-open the defence case on the ground that defence wish to prove that there was actually no switch at the bottom of the car that could release the fuel as PW2 suggested.  Consequentially, the defence also applied for, and the magistrate granted, the amendment of the first paragraph of the admitted facts which originally stated that the 20 litres of motor spirit was drawn from the fuel tank of private car NF 7349.  

15.  The magistrate was obviously right in granting these applications although the trial would have been prolonged by this, as this seemed to be an important issue affecting at least the credibility of PW2.

16.  PW2 was recalled and in his further evidence, PW2 gave a different account about the collection of the fuel.  He now said that the 20 litreswas actually drawn out by using a hand pump.  He said his earlier account was an “error” on his part, the reason being that he had been dealing with a number of similar cases and that caused a confusion in his recollection.  But he insisted that the appellant was present witnessing the process when he used the hand pump to draw out the fuel.

17.  In the further cross-examination, PW2 admitted that before he was re-called to give evidence in court, his department had received a document indicating that there was no switch at the bottom of the car to release the fuel.  He said he then realised that it was impossible to draw fuel from the appellant’s car as he had testified.  In other words, this witness was made aware of the issue and he had returned to court “prepared”.

18.  The magistrate, obviously concerned, had asked PW2 whether he had made a record regarding how the fuel was drawn from the car in this case.  PW2 admitted that he had failed to do so, negligently.  When the defence put to him that the appellant had not witnessed his drawing out of the fuel at the scene, PW2 replied that he had an item which could prove that she did.  It turned out to be a bottle containing fuel and that the appellant’s signature appeared at the bottom.  PW2 said that the appellant had in fact volunteered to sign on the bottle when he showed it to her at the scene.  He disagreed that the 20 litre was actually drawn from the storage tank in the light goods vehicle. 

19.  That is basically the prosecution case.

The defence evidence

20.  The appellant had elected to give evidence and called no witnesses.

21.  According to the appellant, what had transpired was the result of a mixture of coincidence and misunderstanding.  She said that when she was driving that day, she noticed the fuel alarm was flashing.  She thought it meant that the tank was empty, but the fuel tank was supposed to be half full.  She checked the lid and found it was loose.  She called her husband who was then in Beijing.  He told her to drive to someone he knew who could take a look.  The location was supposed to be near Long Ping Estate.  She then drove to the area but at first failed to find the place.  She then happened to drive by the scene and saw someone beckoning her to drive forward, so she pulled up by the side of the goods vehicle, thinking that the man was the person mentioned by her husband.  At that time, what the appellant was supposed to be thinking was repair, not fuel.  That’s how she got there by mistake. 

22.  While a short conversation with the man there would have cleared up all misunderstanding, the appellant said, coincidentally, she had received a call at that crucial moment, and that was an important call.  Therefore, when the man approached, she ignored him and continued with the telephone conversation.  Then later, PW1 appeared and declared arrest on her.  The appellant said PW1 just asked her why she was there, there was never any caution.

23.  The defence had produced a telephone calls record to show that the appellant was indeed on the phone at the material time.  She said that the calls at 14:27 and 14:38 was the business calls and those were the calls she was answering at that time.  Then at 14:42, she called her husband to tell him that she had found the place and was arrested.  She was later asked to drive back with the officers.

24.  The magistrate noted that subsequent examinations showed that parts of the fuel tank of the appellant’s car needed to be replaced, and the float in the fuel tank was also found to be problematic.

25.  The appellant was carefully cross-examined by the prosecution.

26.  The appellant disagreed that a loosened fuel tank lid was a minor problem.  She said that her husband had not told her the name of the garage, nor the name of the mechanic, he only said that the location was opposite the Long Ping Estate, and it turned out to be a big area.  She said she was eager to get the car repaired, so she just followed the man’s instruction.  She said she did not detect any smell at the scene.

27.  It was suggested to the appellant that any worker at a gas station would first come up to get the instruction before putting in the fuel.  She said that she was on the phone and did not pay attention.  She said she did had asked the Customs Officer why he was arresting her, but the answer given was rather unclear.  She said she did not see any nozzle inserted in the fuel tank of her car, nor did she see any Customs Officer drawing motor spirit from her car.

The magistrate’s evaluation of the evidence

28.  The magistrate specially noted that the appellant had a clear record and he said he would adopt an approach which is most favourable to her when considering the issue of propensity and credibility.

29.  The magistrate had given a detailed assessment of the evidence.  In short, his conclusions were that : he did not believe the appellant and rejected all her evidence; he found PW1 to be a truthful and reliable witness and he accepted his evidence.  As to PW3 it was a bit unclear but it seemed that the magistrate had accepted his amended account.  However, at the end of the day, the magistrate was apparently convicting the appellant on PW1’s evidence alone.

The grounds of appeal

30.  The grounds of appeal were as follows :

“1.     The Learned Magistrate erred in law as to the manner in which he concluded that the appellant was guilty of the offence charged for the following reasons :

(a)   The Learned Magistrate was satisfied that the Prosecution has proved its case beyond reasonable doubt after he had only considered the evidence of PW1.

(b)   The Learned Magistrate was satisfied with the appellant’s guilt even before he considered the evidence of the appellant.

(c)   The Learned Magistrate was satisfied with the appellant’s guilt even before he considered the evidence and/or credibility of PW2.

2.  (a)   The Learned Magistrate erred in his approach to the evidence in that he concluded that the appellant was guilty without first assessing whether the reliability and/or credibility of PW2 might have affected the prosecution case as a whole.

(b)   Further, the Learned Magistrate failed to consider whether the lack of credibility and/or reliability of PW2 might have affected his decision on whether the appellant did deal with the 23 litres of fuel oil in question.

(c)   Further, the Learned Magistrate made no specific finding of fact as to whether PW2 did draw the fuel oil from the appellant’s car.

3.  The Learned Magistrate erred in his assessment of the evidence in relation to the following matters :

(a)   In his assessment of the credibility of the appellant, the Learned Magistrate erred in drawing on his own personal experience as a driver as stated in paragraph 13(iii) of his Reasons for Verdict.

(b)   The Learned Magistrate erred in convicting the appellant without making a finding of fact as to the amount of fuel oil that the appellant had dealt with, as particularized in the charge, i.e. 23 litres.  Alternatively, he made no finding of fact as to whether he believed PW2.

4.  By reasons of the above-stated grounds, either individually or accumulatively, the conviction is unsafe and unsatisfactory.”

31.  Mr Cheng, SC, for the appellant, had prepared a written submission to elaborate on these grounds, and Mr Leung, Senior Assistant Director of Public Prosecution, had given written replies to the matters raised.  I am indebted to their assistance and have considered their views carefully.

Discussion

32.  No doubt the magistrate had analysed the appellant’s evidence in detail.  One of the reasons why the magistrate rejected her evidence was about driving the car to seek a mechanic.  The magistrate said this in his Statement of Finding, (para. 13(b)(i)) :

“According to my experience as a driver, unless the problem is minor enough to allow the car to be driven to a garage for repair, the general way to deal with it is to call over a mechanic from a garage to conduct a preliminary examination.  If the problem cannot be fixed on site, the mechanic would drive the car to a garage for repair.  If the problem is serious, the car would need to be towed to a garage for repair.  Why were such arrangements not made at the time?  It was really unnecessary for the appellant to drive the car for repair herself?”

33.   Mr Cheng complained that the magistrate should not have used this own personal knowledge to assess the appellant’s evidence.  To some extent, I would agree with this, but then I think there is a fine line between using personal knowledge and relying on common sense.  Here I think the focus should be whether the magistrate’s comment was generally true.  I am sure the learned magistrate is an experienced driver, but how a driver reacts to a possible mechanical problem would really depend on the circumstances and the means of the driver.  Perhaps most drivers would, for different considerations, drive the car to the garage for a mechanic’s inspection, if the problem does not prevent him to drive the car, instead of summoning the mechanic to the scene.  Of course, the main factor is how serious is the problem.

34.   However, that was not the only reason the magistrate disbelieve the appellant.  On the whole, I do find the magistrate’s assessment to be fair and reasonable.  But one point should be mentioned.  The evidence did show that there was some problem found regarding the fuel signal system of the appellant’s car.  While the magistrate may be entitled to disbelieve the appellant’s general testimony, but there was some objective evidence to support the appellant’s claim why she had to go to the scene : mechanical problem.  That might lend some weight to at least part of the appellant’s account.  If the escaped man was an illegal fuel station attendant, and yet he could also do some repair work, the situation might have been different.  But then, we had not heard from the appellant’s husband as to who that person was. 

35.  Assuming that the magistrate was right in rejecting the evidence of the appellant, I think there remained to be 2 aspects of the decision that may cause problems.  In his Statements of Finding, the magistrate stated that : he accepted PW1 to be an honest, credible and reliable witness, and that he satisfied what PW1 said had actually happened, and the prosecution had proved its case beyond reasonable doubt, however, he still need to address the issue of the credibility of the appellant’s defence (paras. 12 and 13).  The appellant argued that this sequence of analysis and conclusion showed that the magistrate had already made up his mind before even considering the evidence of the defence and, furthermore, the evidence of PW2.

36.  The respondent disagreed.  Mr Leung contended that the paragraphs have to be read in context, and what the magistrate was really saying was that : “on the evidence of PW1, the elements of the charge was made out to the requisite degree, subject to any evidence which the appellant chase to adduce.  If the evidence of the appellant raised any doubt, then the appellant would be acquitted (para. 13 of the respondent’s written submissions).

37.  This argument would have been stronger had the magistrate not used the specific formula that “the Prosecution has proved its case beyond reasonable doubt.”  But having made such a definite pronouncement, the subsequent elaboration that “he still need to address the issue of the credibility of the appellant’s defence” does sound logically somewhat superfluous.

38.  If one takes a practical approach about this, it may be argued that when the magistrate is writing this Statement of Finding, he has in fact already considered all the evidence, prosecution and defence, and so the Statement of Finding may not have truly reflected the stages of thinking.

39.  To follow this through, one may need to look at the magistrate’s oral reasoning, which was closer in time when the decision to convict was made.  What the magistrate said in his oral judgment was the following (Transcript, page 51 of Bundle) :

「……本席小心考慮過所有嘅證供、同埋證據、以及控辯雙方所作嘅結案陳詞。從證物 P10嗰七張相，其中可見到涉案嘅地點的確係一處流動式嘅非法加油站，而被告嘅私家車就喺呢個地方出現，停泊喺嗰部設有儲油箱嘅客貨車旁，被告嘅汽車油箱嘅蓋係打開嘅，油箱嘅入口係插咗一枝加油槍，而嗰枝槍就連駁住放喺貨 van上面嘅摩打喇，另一端亦都係接駁住客貨車上面嘅儲油箱，從表面所見，無可置疑被告嘅私家車喺該處係加油嘅。

     此外，亦都有控方證人一作供，指稱被告人喺宣佈拘捕，懷疑佢喺該處進行非法燃油活動，觸犯《應課稅品條例》、同埋警誡之後所作嘅招認。而控方第二證人被傳召，呈堂證物當中就包括證物 1嘅汽油樣本，而樽底有被告人嘅簽名，而基於剛才提及嘅證供，控方對被告嘅指控係已經係成立嘅，惟是本席仍然須要考慮被告作出嘅辯解。」

40.  From the wording of this part of the oral judgment, it does seem clear that the magistrate had thought that the offence could be proved just by considering the evidence of PW1 and what PW2 said about the bottle and the signature.

41.  In this respect, the respondent had tried to distinguish the 2 cases cited by the appellant about the magistrate’s reasoning and justice ought to be seen to be done : HKSAR v Chan Lai Cheong, HCMA35/2007 and HKSAR v Chan Kin Hung, HCMA800/2001.  Mr Leung stated that the decisions were really based on the special facts of the cases.  I tend to agree with his view about these 2 cases.  But the respondent did not mention the other case of R v M.L.S. Santiago & others, HCMA755/1992 cited by the appellant.

42.  The main ground of appeal in Santiago was that the magistrate had made up his mind to accept the evidence of PW1 even before the cross-examination.  Counsel for that appellant submitted that the magistrate’s Statement of Findings showed that the magistrate had made up his mind to accept the evidence of the sole prosecution witness even before the witness was cross-examined.

43.  In his judgment, Leonard J had quoted Queen v Wong Man Yuen (CACC301/1985) in which Li VP stated that :

“   ‘Many a time in the course of proceedings judges hearing prosecuting evidence might feel that a certain witness was impressive and honest.  But it would be a different matter, were he to conclude that he was truthful.  He should have kept an open mind before all the evidence had been heard.  It would be unwise for any judge to form a confirmed opinion that the witness was truthful until all the evidence had been heard.  We come to this conclusion there was a distinct possibility that there had not been a fair trial.’

     Later, he said :

     ‘As we said there was a real possibility that the judge was so impressed by the prosecution witnesses at the time when the prosecution closed his case and before defence evidence was heard that he formed the impression that the two witnesses were truthful.  We are not completely satisfied that there had been a fair trial.’”

44.  Leonard J, in allowing the appeal, pointed out the following :

“   The appellants were entitled to expect the magistrate to approach the defence evidence in a fair and impartial way.  Unfortunately, this Statement of Findings suggests that he had made up his mind prematurely and there is a doubt in my mind as to whether the appellants had a fair trial. I therefore consider that the conviction was unsafe and accordingly allow the appeals, quash the convictions and set aside the sentences imposed on the appellants.” 

[My emphasis]

45.  Hence, the Statement of Finding should be viewed a reflection of how the magistrate has approached the analysis.  And in the circumstances, reluctantly, I have to agree with the appellant that a doubt has arisen as to how the magistrate had weighed the evidence in this particular case.

46.  In this connection, there is another problem.  It is simply this, in the Statement of Finding, the conviction is said to be based on the evidence of PW1 alone.  That was what he said in the concluding paragraph in the Statement of Finding.  But in his oral judgment, the magistrate had clearly taken into consideration of PW2’s evidence in concluding that the charge was proved.  This discrepancy would render the basis of the conviction unclear.

47.  The respondent may argue that what the magistrate meant was that the part of PW2’s evidence which formed the basis of conviction was not in dispute, i.e. the bottle and the signature, and that the defence only disagreed with the method of drawing the fuel, not the other matters.  Having read the relevant parts of the transcript, I am not sure about this.

48.   When Mr Leung, for the defence in the court below, made the application to re-open the case, the magistrate himself pointed out, inter alia, that (Transcript, Appeal Bundle page 96) :

“官:   你而家你質疑——你講咁多都係質疑嗰啲油唔喺架——被告架車抽出嚟，係咪？

MR LEUNG:   係，因為既然如果——如果根據第二證人嗰個方法去攞係冇可能攞到，所以變咗……”

49.   In these circumstances, if the defence did not mean to challenge the source of the fuel in the bottle and denied the implication of the appellant’s signature, it would seem pointless for them to ask for a withdrawal of the relevant admitted facts.  I noted that the sentence “drawn from the fuel tank of private car NF 7349” was deleted.  Hence, it becomes a matter that required proof by credible evidence, and not admitted.

50.  The appellant complained that the magistrate did not make any finding on the credibility of PW2 and also failed to assess the impact of PW2’s unreliability on the prosecution case as a whole.

51.  From what can be deduced, the magistrate was effectively saying that he would not rely on the evidence of PW2, except the part which he thought was not disputed by the defence.  Apart from the issue of what was the evidential status of the bottle of fuel and the appellant’s signature as discussed above, the more crucial point would be whether PW1’s evidence, standing alone, is sufficient to support the charge beyond a reasonable doubt.

52.  It would be difficult without the alleged admission under caution.  On this issue, I think defence counsel’s final submission was persuasive.  He queried that if the appellant did say under caution that she was refilling and was introduced by a friend, why would she refuse to acknowledge this in the post-record.  I take the view that it may be unsafe to rely on this admission.

53.  The appellant also made the point that the magistrate did not make a finding of fact on the amount of fuel that the appellant had dealt with, and that without the evidence of PW2, there is no evidence to support the allegation of 23 litres stated in the charge.

54.  I do not think there is any merit in this ground.  The amount of fuel handled could not be a material allegation in the context of the charge, as long as there was some fuel involved.

55.  In conclusion, I would say that what the appellant was doing was plainly very suspicious, but on the whole, in view of the weakness in the prosecution evidence, and the magistrate’s method of assessment of the evidence, as reflected in his oral reason and the Statement of Findings, the conviction is unsafe and unsatisfactory.

Result

56.  In the circumstances, and for the reasons given, I would quash the conviction and set aside the sentence.