HKSAR v. KAN CHUNG HUNG

HCMA 794/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 794 OF 2001

(ON APPEAL FROM STCC 798/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. On 16 and 17 July 2001, the appellant, a male aged 38 years, appeared before Miss D'Almada Remedios, magistrate, charged with attempting to export unmanifested cargo. After trial, she found him guilty and sentenced him to imprisonment for 9 months.

2. He appeals conviction on the general grounds the conviction was against the weight of evidence or that there was not sufficient evidence to found the conviction. In the event that that appeal does not succeed, he appeals sentence on the general ground that it is too severe.

3. The prosecution's case at trial as to the salient features was admitted. On 9 March 2001 the appellant drove a container lorry to Lok Ma Chau for the purpose of crossing the border into the Mainland. He tendered a manifest for clearance which stated that he had 18 pieces of processed cattle hide in the container weighing some 20,000 kilograms. Customs officers searched the container. When they opened the rear doors there were revealed sheets of leather piled from floor to ceiling in purported compliance with the manifest. But by means of taking from the top a few of the sheets and making a tunnel, one of the officers discovered the pile was but 8 feet deep. Inside that he discovered unmanifested cargo which included eight partly dismantled motor vehicles, tyres, sundry spare parts, a printer, a video monitor, an oscilloscope, film, electronic circuitry and watch movements. The leather was valued at about $30,000. The unmanifested cargo was worth more than $6.9 million.

4. The appellant gave evidence. He has a clear record and said so. The night before a colleague had asked him to deliver some leather to the Mainland and he agreed to do that. He met the colleague at a container park near the border the next morning. He was given particulars of what had to be declared and he filled in the manifest. He took delivery of the container which was lifted on to his trailer. After that he inspected the contents by opening one of the rear doors. He climbed up for a closer look. He was faced with a wall of leather, floor to ceiling. Using his torch he tried to look through the wall, but could not. He pulled the leather but it did not move. He opened the other door for a better view. All that he could see were sheets of leather piled wall to wall, floor to ceiling. Then he drove to the check point. He had no idea he was carrying the unmanifested cargo until it was discovered on inspection.

5. The offence with which the appellant was charged was attempting to commit an offence under section 18(1)(b) of the Import and Export Ordinance which is one of strict liability. But there is a statutory defence under section 18(2) as follows:

"It shall be a defence to a charge under this section if the defendant proves that did not know and could not with reasonable diligence have known that the cargo was unmanifested."

6. Following the evidence, the magistrate found the appellant did not know he was carrying unmanifested cargo, so that left to be answered the question: Could he with reasonable diligence have known the cargo was unmanifested? In considering the answer of this question, she paid heed to the case of R v Chan Kin Fai, MA 982 of 1993 where Stock J (as he then was) said in a case which was of similar facts that:

"Reasonable diligence is not the doing of everything possible but the doing of that which under ordinary circumstances and having regard to expense and difficulty can be reasonably required."

The judge went on to say:

"In the context of the statutory framework which is before me in this case, it is to be remembered that the smuggling of goods across the border to the Mainland is a scourge which needs harsh legislation, and is one about which no lorry driver will be ignorant. So there must be a burden on drivers to make suitable enquiries about the nature of the goods they are carrying and it is in my judgment, no answer for a driver to say 'I am a mere driver. Who am I to make sure, if I can, what it is I am carrying?' What those steps are will depend on the facts of the case."

7. The magistrate then carefully analysed the steps taken by the appellant, he not having supervised the loading, to determine whether he had used reasonable diligence to satisfy the burden resting on him. She found those steps, shining a torch at the leather, prodding it, looking at it, to be wholly inadequate. She said given that a container is 40 feet long, it is not sufficient to check by sight what is at the threshold. He should have taken steps to ensure he was not looking at a wall, a façade, behind which there could be hidden unmanifested goods. She concluded having regard to the circumstances of the case that the appellant had failed to exercise reasonable diligence and thereby failed on a balance of probabilities to prove the statutory offence.

8. In perfected grounds of appeal, the appellant says the conviction is unsafe and unsatisfactory because the magistrate in treating the substantive offence for exporting unmanifested cargo as a strict liability one failed to consider sufficiently or at all as to whether intention is a necessary ingredient when the offence is one of attempt charged under section 159(G) of the Crimes Ordinance; that a plain reading of the section is that intent is a necessary ingredient and that the magistrate, finding the appellant had no knowledge of the existence of the unmanifested cargo, erred when she convicted him.

9. Those grounds derive from the words of section 159(G)(1) which state:

"A person who intending to commit an offence to which this section applies does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence." (emphasis added)

10. The appellant contends and Mr Tse on his behalf urges upon me that on a plain reading intention is put in heavy type clearly a necessary ingredient. Of course if that is so it would mean that the legislature intended the substantive offence to be one of strict liability but that to be convicted of an attempt required proof of intent.

11. The question of whether intent was a necessary ingredient of the offence of attempting to export unmanifested cargo was considered in three cases, all based on similar facts.

12. The first was R v Lau Sai Wai [1985] HKLR 423, a Court of Appeal decision. The second was R v Lei Sou Wa [1996] 3 HKC 494, also a Court of Appeal case. The third was R v Cheng Kai & anothers [1996] 2 HKCLR 91 which was an appeal to this court. In all three it was held that intent was not a necessary ingredient.

13. In Lau Sai Wai Barker JA said:

"In our view, attempt to commit a statutory offence of strict liability does not require mens rea. ...... All that the prosecution had to prove was that the respondent attempted to export the goods without a licence. It was not incumbent on the prosecution to prove that the respondent knew that a licence was required or that one had not been obtained."

14. In Lei Sou Wa, Litton V-P (as he then was) said:

"It is beyond dispute that this substantive offence of exporting unmanifested cargo is one of strict liability requiring no proof of knowledge on the defendant's part. Is the offence of attempt any different? Upon a plain reading of section 101(B) of the Criminal Procedure Ordinance, the answer must be 'No'. It would be bizarre if the legislature had imposed strict liability for the substantive offence, but nevertheless required proof of knowledge for the preparatory acts committing the attempt. This court in effect so concluded in Lau Sai Wai."

15. In Cheng Kai, Patrick Chan J (as he then was) said：

“It is clear that the offence created by s.18 of the Import and Export Ordinance, that is, exporting unmanifested cargo is an offence of strict liability..... As such it is not necessary to show that the defendant of this offence had intended that the cargo exported by him was to be unmanifested. Apart from showing that the cargo was not declared or properly declared on the manifest, the prosecution is only required to prove that he intended to and did export the cargo, that is to say, proof the actus reus that he had exported the cargo. I think it is of vital importance to distinguish between an intention to export (which is part of the actus reus of export) on the one hand and the knowledge or intention that the cargo exported is unmanifested or falsely described in the manifest (which is mens rea which is not required for a strict liability) on the other. With regard to an attempt to commit a s. 18 offence, it is necessary for the prosecution to show that a defendant had done acts which are not only preparatory but also immediately connected with the act of exporting the cargo and were intended and did constitute part of the act to export. ..... Since it is not disputed that the manifest in respect of the cargo in the present case was indeed wrong the issue to be dealt with is whether the appellant had done acts which amounted to an attempt to export cargo in question, that includes the intention to carry out those acts. This is not the same as the intention to export unmanifested cargo."

16. Returning to this case, Mr Tse's argument is that in those cases the courts were bound by different enactments from s. 159(G) of the Crimes Ordinance. Lei Sou Wa was decided when attempt was defined in s. 81(1) of the Interpretation and General Clauses Ordinance and Lau Sai Wai and Cheng Kai when attempt was defined in section 101(B) of the Criminal Procedure Ordinance just before it was repealed and replaced by s. 159(G). S. 81(1) read:

"A provision in any Ordinance which creates or results in the creation of an offence shall be deemed to include a provision that an attempt to commit such offence shall itself constitute an offence."

The wording in section 101(B) was identical.

17. Mr Tse points out that there was no specified ingredient of mens rea which having regard to the opening words to s. 159(G) is now a vital ingredient.

18. Is he right about this? There does not seem to be any authority post 1996 when section 159(G) was enacted dealing with this point. There is a case HKSAR v Ng Nga Lee HCMA 494 of 1998 where Muttrie DJ dismissed an appeal against conviction for the same offence, but it seems the new statutory wording for attempt was not canvassed before him.

19. Was it the intention of the legislature in enacting s. 159(G) to incorporate mens rea into an offence of strict liability when the charge is one of attempting to commit the substantive offence? That surely would be a bizarre intention, to paraphrase the judge in Lei Sou Wa. It seems to me that the intent to commit the offence the prosecution must prove is an intent to export, not an attempt to export cargo that the defendant knew was unmanifested. In that regard, I respectfully agree with the reasoning of Patrick Chan J in the extract from Cheng Kai that I have read out. The strict liability of the substantive offence is thus preserved in the attempt to commit that offence. That I believe is the only realistic interpretation, for to treat it otherwise does violence to the presumed legislative intent and common sense. For that reason, I find no error in the magistrate's finding which is one of guilt.

20. The appeal against conviction is dismissed.

21. I come now to the appeal against sentence.

22. The magistrate reviewed two cases on appeal; R v Ng Chui Yau MA 262/92 and R v Ng Wai Hong MA 797/92 which themselves reviewed a large number of similar cases on the issue of sentence. The then Chief Justice said in Ng Chui Yau the following:

"This type of offence is much too prevalent and seems to show signs of being on the increase. The usual sentence hitherto is one of imprisonment ranging from 9 to 12 months. Sometimes only a fine is imposed. It would appear that the present level of sentence is not sufficiently heavy to deter such offences. I am of the view that in the light of the increasing number of these offences, where a substantial number of articles as in the present case is involved, the proper range of sentence should be between 12 to 15 months."

He then increased the sentence imposed in the first instance after plea to one of 12 months. In Ng Wai Hong, the presiding judge did not interfere with the sentence of 12 months also after plea imposed by the magistrate.

23. I should state that the facts of Ng Wai Hong reveal that the trailer in question was partitioned to provide room for unmanifested cargo and the defendant could not say, as in this case, that he was not aware of the nature of his cargo. However, he did surrender to the authorities without which there may not have been a prosecution. These cases are guides only; each case must be dealt with on its own facts. But the message is clear; smuggling is an ongoing menace which poses a threat to the orderly conduct of trade between the Mainland and Hong Kong. Unless proper sentences are passed that reflect the gravity of the offence the courts will not be addressing the community's concern and smugglers will continue to engage in this grave offending.

24. In considering the sentence imposed on this appellant of 9 months after trial I have to ask: Was it wrong in principle or manifestly excessive? Mr Tse submits the magistrate failed to make allowance, or at least adequate allowance, for his lack of knowledge, and that also the high value of the goods should not have been taken into account because he did not know what he was carrying. As a matter of fact he was carrying extremely valuable cargo worth nearly $7 million; I do not see how that fact can be ignored, or should be, in the sentencing process.

25. The magistrate gave careful consideration to all issues before deciding the appropriate type of sentence should be custodial, and before then adopting 12 months as a starting point and reducing it to 9 months because of the favourable aspects of the case including the appellant's background.

26. But in my view, in what was otherwise a careful appraisal of all the salient features of the case, the magistrate failed to give adequate weight to the appellant's lack of knowledge of what it was he was transporting and his clear record after 38 years of life.

27. In the circumstances, I think the sentence of 9 months imprisonment is an appropriate one, but that justice would properly have been done if that were to have been suspended for a period of 2 years. I propose thus to allow the appeal against sentence and to replace the sentence of 9 months' imprisonment with one of 9 months' imprisonment which is suspended for 2 years.