HKSAR v. NG NGA LEE

HCMA494/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 494 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of attempting to export unmanifested cargo, contrary to s.18(1)(b) of the Import and Export Ordinance, Cap. 60. She appealed against conviction. I heard and dismissed the appeal on 13th October 1998. I now give my reasons for dismissal.

2. The grounds of appeal are that the learned Magistrate

1. erred in interpreting s.18(2) so as to find that it required the Appellant to prove, on the balance of probabilities, that she did not know of and could not with reasonable diligence have found the existence of the items specified in the charge;

2. erred in not distinguishing knowledge of the existence of the items specified in the charge from knowledge that they are not manifested; and

3. failed to consider whether the Appellant had the intention to export the items specified in the charge.

3. The facts are quite simple. The Appellant was driving her company's vehicle, a private car, to Shenzhen. She was stopped at the border. She was asked by a Customs officer if she had anything to declare and she said that she had not. The vehicle was searched. In the passenger compartment of the vehicle were found 102 pagers, 102 batteries, 102 pager menus, 50 liquid crystal displays and 2 pager cases. They were unmanifested. The Appellant's evidence was that she did not know the items were in the car. She had not seen the bags containing them in the passenger compartment until the bags were discovered by the Customs and Excise officers. The learned Magistrate found that it was for the Appellant to prove this on the balance of probabilities, and in the event did not believe the Appellant.

Interpretation of S.18(2)

4. The first and second grounds relate to the question of interpretation of s.18(2) and may be dealt with together.

5. The question of interpretation of s.18(2) was canvassed at the trial. Mr Kwok, who appeared in the court below as well as before me, sought there as he sought before me to draw a distinction between knowledge of the existence of a cargo and knowledge that it is unmanifested.

6. The learned Magistrate however held following R. v. Lui Tak Hoi [1993]2 HKCLR 289 that the offence under s.18(1) (b) is a strict liability offence. She considered that in that case, which involved a driver who thought he was driving an empty container which in fact contained cargo in a hidden compartment, the prosecution obviously did not have to prove the existence of the cargo and that to require them to do so would render the statutory defence otiose.

7. She went on to say as follows:

"As far as drivers of vehicles are concerned, they produce a manifest or make a declaration on arrival at the border, and are deemed to know what has been stated therein. They know what is on the manifest. The question arises as to whether the manifest is consistent with the actual cargo. Hence it is the state of mind of the driver as to the existence of the cargo that is relevant when he already knows what is on the manifest, in other words, his knowledge as to any disparity between the goods and the paperwork".

8. Of course in this case there was no manifest but the position is the same. What was involved was a disparity between the existence of cargo in the vehicle and the absence of any manifest to cover it.

9. Section 17 of the Ordinance provides that all cargo which is imported or exported is to be recorded in a manifest. The definitions of "cargo" and "manifest" are contained in s.2 and I need not repeat them here, but the effect of them is that anything carried in a vehicle which is to be driven out of Hong Kong must be contained in a written manifest, unless it does not fall within the definition of "cargo".

10. In other words, if there is cargo, there must be a manifest consistent with it. If there is cargo and no manifest to cover any of it, there is no consistency. If there is cargo, and the manifest covers some but not all of it, there is no consistency. If there is cargo but the manifest declares it to be something which it is not, there is no consistency. It was that consistency which the learned Magistrate had in mind in the passage quoted above.

11. There is no doubt that the s.18(1)(b) offence is an offence of strict liability. All the authorities are agreed on that and it is not in dispute. So anyone who exports, or attempts to export cargo which is not contained in a written manifest is liable, unless he can avail himself of the statutory defence in s.18(2).

12. Section 18(2) reads:

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

13. There are two limbs to this defence, the first being lack of knowledge and the second being that he could not, with reasonable diligence, have obtained such knowledge. It seems to me that on any normal reading of the subsection, the defendant has to prove both limbs.

14. If there is unmanifested cargo the defendant must first prove that he knew that it was unmanifested. He may prove either that he knew there was cargo, but he did not know that it was unmanifested, or he may prove that he did not know that there was cargo in existence. If he can prove the lack of knowledge, the court has to go on to consider whether or not he could, with reasonable knowledge, have obtained it.

15. It was on this basis that the case of Lui Tak Hoi was decided at first instance. It was accepted by the trial Magistrate that LUI did not know of the existence of the cargo, which was concealed in a hidden compartment. The Magistrate went on to consider whether LUI could have found out about it with reasonable diligence and he decided that LUI could have done so and therefore had not proved the second limb.

16. A similar situation arose in R. v. Lei Sou Wa, Mag. App. 257 of 1996 which was also cited before me. In that case there was a manifest, and there was cargo with which it was consistent, but there was also other hidden cargo which was unmanifested. The defendant did not know of the existence of the hidden cargo but was convicted because he did not prove the second limb.

17. In neither of those cases was there any question of the prosecution having proved knowledge; in both cases, the defendant proved it. It is argued that in neither of those cases did the Court of Appeal have to decide on the specific question raised in the instant case.

18. In effect, however, Lui's case was decided on this very point. What LUI had succeeded in proving was his lack of knowledge of the existence of the cargo. The thrust of the argument advanced on his behalf was that if there was no guilty knowledge or intention, there was no mens rea. If it was the duty of the appellant to record the cargo in a manifest, he could only be held not to have fulfilled that obligation if it was proved that he knew of the existence of the cargo. But the Court held that it was an offence of strict liability. Knowledge was not an ingredient.

19. For these reasons, I find that the learned Magistrate's interpretation of s.(2) was correct. The first and second grounds of appeal therefore fail.

Intention to export

20. I think that all I need say about the Appellant's third ground of appeal is that if the offence is one of strict liability, as it clearly is, then intention is not an ingredient of it. The prosecution had only to prove the actus reus of exporting or the attempt to export. SeeR. v. Cheng Kai & Anor. [1996] 2 HKCLR 91. This ground accordingly also fails.