HKSAR v. FUNG WAI LEUNG

1997, NO. MA 402

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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REASONS FOR DECISION

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1. These are my reasons for dismissing the appeal against conviction.

2. After his trial on 1 April 1997 the Appellant was convicted on one count of Possession of Dutiable Goods, contrary to section 17(6) of the Dutiable Commodities Ordinance. The goods involved were 797,400 pieces of cigarettes. The Appellant was sentenced to 6 months imprisonment. The appeal against sentence was abandoned.

3. The evidence before the learned magistrate was that in the evening of 24 December 1996 a group of officers from the Custom and Exercise Department conducted an observation in the vicinity of Cambridge Plaza in Sheung Shui. The Appellant and another female were seen to be pushing a number of carton boxes with a trolley and the cartons were later loaded into a truck. Subsequently the female was arrested inside Room 5, 5th Floor, Block B of the building. Upon searching the premises three carton boxes were found to contain the quantity of cigarettes forming the subject matter of the charge. A tenancy agreement bearing the name of the Appellant as the lessee was also seized and the Appellant was arrested three days later on 27 December. It is not disputed in the court below that the Appellant was the tenant of the flat where the cigarettes were seized. The cigarettes were dutiable goods.

4. The Appellant appeared in person at the trial and it was his evidence that he had no knowledge of the cigarettes in the premises. He had lent his ID card to his friend, one Chan Woon, and it was Mr Chan who took up the lease by using his ID card. He denied having anything to do with the 20 carton boxes in the evening of 24 December.

5. The learned magistrate rejected the evidence of the Appellant. He applied the presumption under section 40(d) of Cap.109 and there being no evidence to rebut the statutory presumption, he found the Appellant guilty as charged.

6. There were two main grounds of appeal. The first ground was that the learned magistrate failed to give the Appellant a fair hearing. The second ground was that the learned magistrate had wrongly admitted and relied upon hearsay evidence.

7. On the first ground I note from the record of proceedings that the learned magistrate had explained the procedures to the Appellant in clear terms before the commencement of the hearing. At the close of the prosecution case he explained to the Appellant his rights and also of the effects of the statutory presumption. Nowhere does it appear in the records that the learned magistrate was biased against the Appellant nor was it the case that the Appellant was obstructed in either cross-examining the prosecution witnesses or in presenting his case. The criticism levelled against the learned magistrate is unfounded.

8. The second ground of the appeal was that the learned magistrate had erroneously admitted hearsay evidence. The evidence was identified as the particulars of the Appellant appearing in the tenancy agreement. It was suggested that the learned magistrate concluded from the otherwise inadmissible evidence that the Appellant was the tenant of the premises where the cigarettes were seized. With the greatest respect to counsel for the Appellant, it should have been sufficiently clear to him that when the Appellant was arrested by the police he admitted that he was the tenant of the premises. The learned magistrate was acting on the admissions of the Appellant when he found that he was the tenant of the premises and not, as suggested by counsel, that he was relying on the contents of the tenancy agreement or on what the owner had told the police when questioned about the identity of the tenant.

9. Nothing in the Statement of Findings can remotely support the contention that the conviction was in any way unsafe and unsatisfactory.

10. I cannot find any substance in the points listed in the Perfected Grounds of Appeal and this appeal is dismissed.