THE QUEEN v. FONG CHI MAN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 313 OF 1993

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J U D G M E N T

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1. There were originally eleven appellants who appealed against conviction. Five of them had abandoned their appeals and I am only dealing with the remaining six. Al appeared in person and the rest of the appellants were represented by Mr Lok who put forward the same gounds in respect of each of his clients. Al adopted the arguments put forward by Mr Lok and added nothing further. I shall deal with all the appeals on the same basis.

2. All the appellants and the five who had abandoned their appeals were convicted on 10th March 1993 by the magistrate of assisting with the removing of restricted articles with intent to assist another person to evade restriction, contrary to section 35A(1)(c) of the Import and Export Ordinance, Cap. 60.

3. The perfected grounds of appeal are as follows :

1.(i)    The magistrate erred in holding that there was no evidence before her to suggest the absence of the necessary intent on the part of any of the appellants including that contained in the cautioned statements, and she erred in failing to evaluate both the incriminating parts and the excuses and explanations contained in the cautioned statements in deciding where the truth lay;

(ii)    she failed to make any findings as to whether or not the contents of the cautioned statements represented the truth, either in whole or in part.

2.       The magistrate’s finding that the rear door of the premises was open when the sampans were loaded was erroneous and unsupported by the evidence, and by reason of this error, her conclusion that the goods must have come from the inside of the premises was likewise erroneous.

3.       By reason of the matters aforesaid the conviction is unsafe and unsatisfactory.

4. The main prosecution evidence against all the appellants came from PW1 PC 23071 and PW2 Inspector Colegate. I set out the evidence of these two witnesses inasmuch as it is relevant for the consideration of these appeals. On the night in question, i.e.,1st July 1992, PW1 was performing observation duty on the target at Ground Floor, No. 10, Hoi Pong Street (“the premises”) from his observation point about 230 metres away from the premises with the assistance of a telescope and night vision device. The premises had its rear towards the sea leading onto the water. At about 23:21 hours, he saw a yellowish or orange-coloured torch light on at the back door of the premises, which torch light only switched on for less than a minute and then it went off, and then goods were loaded onto sampans on the water. There was no light from the premises or from the sampans when loading was carried out. Cartons of what he believed to be television sets were being pushed from the back door to the sampans on the water. Betwen the back door and the sampan there was a wooden ramp (which he described as a sort of planks). He saw the cartons slide along the ramp. He saw altogether four sampans moving to the rear of the premises one after another to be loaded with the cartons. At bout 23:24, the first sampan left the loading point; at about 23:28, the second sampan left; and at about 23:34, the third sampan left. The fourth sampan then moved to where the third sampan had been, for loading. At about 23:40, he saw the area under observation being illuminated and PW2 rush to the rear of the premises, whereupon the fourth sampan left. At about 23:55, he saw light coming from torches at the back door of the premises, but when PW2 was about 20 feet from the back door, PW1 did not know if the back door was open or closed. Also, he did not know if the back door was open or closed when the fourth sampan left.

5. The only thing that could be described as an inconsistency in his evidence was when he said in cross-examination that after 23:21, during the rest of his observation, there was no other light coming from the premises.

6. PW2 Inspector Colegate was the officer in charge of the operation. He was one of the officers who went to the rear part of the premises that night. While he was within 20 metres from the premises, he saw a male person who was about 15 metres away from the premises jump into the typhoon shelter. The inspector ran to the rear of the premises. His colleagues illuminated the area with pyrotechnics. When he was approaching the rear of the premises, after the person jumped into the typhoon shelter, a sampan which was loaded with goods immediately departed from the rear of the premises. The ramp remained in the position at the rear of the premises. He heard a door at the rear of the premises being slammed shut. For the next 15 minutes, he tried to gain entry to the premises. He knocked on the doors, declared police identity and made noise, but there was no response from within the premises for about 10 to 15 minutes. Nobody opened the door and no sound or light came from within. The premises was in complete darkness. The inspector actually went to the back door standing outside it, and later he moved to the front. There was an iron grille in the front of the premises on the street. Most of the police’s knocking and yelling took place at the front grille. The grille was closed and locked from the outside with a strong padlock. The police had to break the lock to gain entry. Once the grille was open, the entrance was blocked by a large stack of cartons of televisions and the police had to climb over. They found eleven persons inside, some looked frighetned to see them. These eleven persons were arrested and they were the defendants in this case. There were one radio transceiver and several torches inside the premises. The inspector opened the back door which was locked from inside to identify to the observation point that the premises were secured by the police. He also saw a television at the base of the ramp, which was the same type as those inside the premises.

7. Only A3 and Dl 2 (who was acquitted on another charge) gave evidence.

8. In her Statement of Findings, after setting out the evidence of the witnesses, the magistrate said under the heading of Findings of Fact as follows :

“I carefully considered the evidence of all the witnesses in the trial,         all the cautioned statements and all the other exhibits, particularly the photographs taken by the police …… I carefully considered the demeanour of all the witnesses, the content of their evidence and the mariner in which they gave their evidence. I found the prosecution witnesses to be truthful honest and reliable witnesses and I accepted their evidence as the truth of what occurred. Any discrepancies in their evidence were only of a minor nature and did not in any way affect the required standard of proof. I found the 3rd Appellant and D12 to be totally dishonest witnesses....

The 3rd Appellant had had some control over the electrical items prior to the 1st July 1992....It is also clear from the phogographs that the Hitachi TVs were being moved to the rear of the building, and further one Hitachi TV was found abandoned at the bottom of the wooden ramp. I therefore totally rejected his evidence that they were all there to sort out and stack the electrical goods. I did accept his evidence though that he had recruited all the other 10 persons found on the premises. I totally rejected his evidence that if the rear door had been opened he did not know about it. It is a big door, the open space within the premises was very limited due to the quantity of goods involved, and the fact that torch light was used only for a very short time by the persons inside even though torch light was available leads one to the only reasonable inference that it was known that the rear door was open and that no light should be seen emanating from it.

I was satisfied beyond reasonable doubt and so that I was sure that smuggling activities were taking place for the following reasons :

9. 1.         it was just before midnight.

2. torch light was used only for a very short time, loading of the sampans took place without the assistance of any light, which would cause unnecessary danger.

3. the rear door of the premises was open when the sampans were being loaded. It was seen to be open by PW2 when the fourth sampan was waiting, and the quantity of goods PW1 saw being loaded onto the four sampans could not have been stored outside the rear of the premises as there was insufficient room to store them as shown on the photographs. The goods must have come from inside the premises on the observations.

4. the rear door was closed as soon as PW2 and his police officers were seen approaching, and was not opened as requested by the police.

5. a person was seen to jump into the typhoon shelter from a position close to the rear of the premises. In a position to be a lookout.

6. an abandoned TV set of the same type as those being stored on the said premises, was found at the bottom of a wooden ramp leading to the rear door of the said premises.

7. the 3rd Appellant had arranged for his friends to assist in moving the items.

I was satisfied that the above facts gave rise to a reasonable suspicion that there was intent to evade a restriction or prohibition and that the 1st to the 11th Appellants were assisting another person to evade a restriction or prohibition in respect of the electrical equipment in the said premises.

Having considered all the evidence including that in the cautioned statements, there was no evidence to suggest there was no intent to  do so on the part of any of the Appellants. Indeed I was satisfied beyond reasonable doubt and so that I was sure that the 1st to the 11th Appellants knew that the goods were being loaded onto boats via the rear door of the said premises with the intent to evade a restriction or prohition in respect of the electrical equipment in the said premises.”

10. I have underlined the two portions of the magistrate’s statement which are under attack.

11. Mr Lok, for the five appellants, submitted that their cautioned statements were “mixed” statements in that while there were admissions contained therein of the makers’ presence in the premises and their awareness of television sets inside the premises, there were also explanations and excuses for their presence. The explanation contained in the cautioned statements of A2, A3, Al0 was that they were in the premises at somebody else’s request to stack in order the cartons of televisions inside which had been placed in a very disordered fashion. The explanation in those of A8 and All was that they were simply chatting with other persons inside the premises. While Al’s explanation was identical to that in the statements of A2, A3 and A10 who had made no admission that they removed any of the goods out of the premises or that they saw the back door being open, in his cautioned statement taken in the early hours of 2nd July 1992, Al admitted his awareness of the goods inside the premises being put onto the sea, that someone closed the back door and that he heard boats coming.

12. Mr Lok submitted that the magistrate was wrong to say that there was no evidence before her to suggest the absence of the intent to evade the restriction imposed by the Ordinance, since there were explanations in the appellants’ cautioned statements. He further complained that she failed to evaluate both the incriminating parts and the excuses and explanations contained in the cautioned statements or to make any findings as to whether or not their contents represented the truth, either in whole or in part. He referred me to R. v.  Sharp [1988] 1 WLR 7 CA, where it was held that the jury should be directed that the whole of a “mixed” statement was to be taken into consideration as evidence in deciding where the truth lay. Mr Lok further drew my attention to the judgment of de Basto, J. in R. v. Lau Ka-kei (MA No. 653/89, 6/9/89, unreported), in which the learned judge said :

“The magistrate was wrong to have referred to the statement as ‘of course exculpatory’. It was a mixed-statement. But even if the statement had been exculpatory the magistrate was obliged to remind himself and, to be seen to have been reminding himself, in clear and careful terms of the basis upon which a self-serving statement is before him and the use to which he may put it (see Attorney General and Li Siu-Lam. Cri. App. 527 of 1988) (emphasis added). ... If the magistrate did evaluate the statement he cannot be said to have been seen to have done so.”

13. Mr Lok asked me to look at the magistrate’s utterance of “there was no evidence to suggest no intent ... on the part of any of the Appellants” in context. She had made findings of facts giving rise to the reasonable suspicion which was the basis for her to apply the presumption of intent to evade restriction by virtue of s. 35A(2) of the Ordinance “in the absence of evidence to the contrary”. By making the utterance, the magistrate had committed a fundamental flaw in ignoring the evidence of the explanations contained in the cautioned statements. Had she rejected the explanations, she could and would have simply said so. With that utterance and no reference at all to the explanations or rejection of them, the magistrate did not apply her mind to the explanations or make any finding as to them, or at least it could not be said to be seen that she had done so.

14. I accept that it was wrong for the magistrate to have said that there was no evidence to suggest the absence of the necessary intent. However, from the way that she presented the evidence, facts and reasons in her Statement of Findings, it is clear beyond any doubt that she accepted fully the prosecution witnesses’ evidence. She also rejected A3’s evidence the relevant parts of which were recited by her as

“He denied opening the rear door whilst he was there tidying the goods, he did not have the key to the back door and he did not know where it was, nor did he see the rear door open. He denied putting the wooden ramp up against the rear of the premises. He denied loading any goods onto the sampans and did not, see anybody else do so.”

On the other hand, she accepted A3’s evidence that he had recruited all the other 10 persons found on the premises. She also treated her 7-point reasons as findings of facts. When such facts as found are compared with the explanations in the cautioned statements, one will readily and surely reach the conclusions as the magistrate did, and no credence can be attached to the excuses and explanations. Although the magistrate did not say in so many words that she rejected each and every of the explanations, from the way she wrote her Statement of Findings one is left with no doubt that she did. She also wrote : “Having considered all the evidence including that in the cautioned statements, there was no evidence to suggest there was no intent....” It is not a case where there simply was no finding of fact upon which she was entitled to draw the final conclusion of guilt (contra. Hooper J.’s judgment in R. v. Tai Chi-ping & Anr. (MA No. 1107/88, 16/1/89, unreported, at p. 6).

15. Mr Lok was also right in his complaint that the magistrate was wrong in saying that the back door was seen to be open by PW2. In fact, PW2 did not exactly say that in his evidence. His evidence was that upon his approach to the rear of the premises, he heard the sound of a door being slammed shut. Moreover, there was evidence from PW1, which was accepted by the magistrate, that he saw torch light for less than a minute from the rear of the premises. From the photographs produced at the trial, it can clearly be seen that the back door in fact consisted of a pair of large metal doors, and there were no holes in them. There was also no window at the rear of the premises. If neither of the pair of doors was open, it would have been impossible for PW1 to have seen the torch light, and it would have been impossible for him to have said that cartons were being pushed from the back door to slide along the ramp down onto the sampans on the water. The only reasonable inference is therefore that the back door was open while loading onto the sampans was being carried out. The evidence that the back door was open was there, although the magistrate could have expressed herself more accurately to describe it either as a fact found by her or as an irresistible inference drawn from the primary evidence.

16. Albeit the magistrate was technically wrong in stating the two matters under attack as she did, there was overwhelming evidence upon which She could have convicted the appellants. I was told by both counsel that on hearing magistracy appeals, the High Court had no similarjurisdiction as the Court of Appeal had in applying the proviso to ss. 81(4) and 83(1) of the Criminal Procedure Ordinance, Cap. 221 on the basis of “no miscarriage of justice”. I find that startling because of the provisions of s. 119(1)(d) of the Magistrates Ordinance, Cap. 227 which reads:

“the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just...”

17. Identical provisions were relied on by Scholes J. in R. v. Albert Wu [1961] HKLR 467, 475 to entitle the High Court to consider whether there was substantial miscarriage of justice in dismissing the appeal there despite the error of the magistrate in failing to warn himself of accomplices’ evidence. The close resemblance of s. 119(1)(d) to the proviso was also alluded to in Leung Chi-kin v. R. [1970] HKLR 25 (Full Court) and Lam Kam-ming v. R. (Crim. App. 607/79, C.A.).

18. Had the magistrate chosen her language more carefully and felicitously and approached her task of writing the Statement of Findings in a proper manner, a conviction would without doubt have followed. I cannot believe that the magistrate did not consider the explanations in the cautioned statements of the appellants or that she did not reject them. As the grounds of Appeal are purely an attack on the magistrate’s failure to express her findings fully and correctly while the findings which are complained of being omitted are obvious from her other expressed findings and the way her Statement of Findings proceeded, I think it just that in the light of the overwhelming evidence her decision should be confirmed. I do not find the convictions either unsafe or unsatisfactory. In the result, I would dismiss the appeals against conviction.

19. A3 also appeals against sentence, which is a term of 15 months’ imprisonment, for it being manifestly excessive. A3 on his own admission was the one who enlisted the services of the ten others to participate in the activities that night, and he was found by the magistrate as having had some control over the electrical items prior to 1st July 1992 and being present when they were delivered and initially packed. He therefore knew the large quantity of the goods involved and played a leading role inside the premises that night. My attention was drawn to the learned Chief Justice’s judgment in R. v. Ng Choi-yau (MA No. 262/92, 1/7/92, unreported) on the appropriate sentence regarding this type of offence, being 12 to 15 months of imprisonment. I agree with him that this kind of offence is too prevalent in Hong Kong now. The courts will exert its powers and efforts to stand by the public and the law enforcement officers in the hope that this kind of activities will be stamped out, the sooner the better. I do not find that the custodial sentence of 15 months manifestly excessive. I therefore also dismiss A3’s appeal against sentence.