HKSAR v. POON CHUN WAI AND ANOTHER

HCMA 819/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 819 OF 1998

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J U D G M E N T

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1. This is an appeal by both Appellants against their conviction on 11th August 1998 of an offence of dealing with goods to which the Dutiable Commodities Ordinance applies, contrary to sections 17(2) and 46(3) of that ordinance (CAP 109).

2. The prosecution's case in the court below was that, on 22 April 1998, Customs Officers observed a lorry entering a metal shed in Ma Tin Village and leaving about 30 minutes later. As the lorry left, the 2nd Appellant was seen to be inside the shed and closing its door. Some 10 minutes after that, these 2 Appellants came out of the shed and the 1st Appellant locked it with a padlock. They were apprehended and the Customs Officers forced their way into the shed and found therein 209 wooden doors in 7 pallets, one of which pallets had been unpacked. The Customs Officers found on the floor in the shed, next to the unpacked pallet, some packing equipment and 36,000 cigarettes. In the doors in the remaining pallets were found 2,431,200 cigarettes, and a search of the 1st Appellant revealed an import manifest relating to the importation of the wooden doors which had been delivered by the lorry earlier on.

3. During the trial 4 customs officers gave evidence for the prosecution: neither appellant elected to give evidence.

The grounds of appeal

4. Mr. Allan, counsel for both Appellants, has advanced the following 4 grounds of appeal

1. That the learned magistrate failed to consider the Appellants' case properly or at all, and he appears to have relied solely on the evidence of the 4 prosecution witnesses

2. That the learned magistrate found that the 4 prosecution witnesses were credible and reliable, despite their inconsistent and/or flawed evidence concerning a padlock (Exhibit P1)

3. That the learned magistrate erred in drawing the inference that the Appellants knew that the cigarettes were not 'duty paid'

and

4. That by reason of the aforesaid the conviction of the Appellants was unsafe and unsatisfactory.

5. I will deal with each of those grounds of appeal in turn as follows:-

1. Mr. Allan firstly complains in relation to the 1st Appellant that there was evidence in the court below that upon his arrest he had, inter alia, agreed that he had just moved the goods but that he had no knowledge of the cigarettes hidden inside them. In relation to the 2nd Appellant there was evidence upon his arrest that he told the customs officers that the cigarettes were nothing to do with him. These were exculpatory verbals, the truth of which the learned magistrate clearly did not accept. This is implicit from his careful and fully reasoned statement of findings. He then proceeded, as he was fully entitled to do, to draw the inescapable inference from other evidence before him that the appellants knew full well that they were dealing with a cargo of cigarettes which were not 'duty paid'. Quite apart from any other consideration, as I have said, neither appellant chose to give evidence and they cannot now complain that the learned magistrate, as he was perfectly entitled, placed no weight on exculpatory verbals the truth of which was not exposed to the scrutiny of cross-examination.

6. In relation to this first ground of appeal Mr. Allan goes further, and in effect complains that the learned magistrate failed to speculate about or to consider the lack of other evidence - such as fingerprint evidence; keys to the premises and the role of the lorry driver. As to that complaint, I say no more than that it is not the function of a magistrate or a judge sitting alone to speculate about what evidence there might have been. His function is to decide the case on the evidence placed before him. The learned magistrate in the present case did precisely that.

7. This ground of appeal is in my view ill-conceived and must fail.

2. The second ground of appeal advanced by Mr. Allan is also, in my view, ill-conceived and is wholly speculative in the face of learned magistrate's finding that he accepted the evidence of the customs officers. One of those officers gave evidence to the effect that he opened the padlock in question by means of a hammer and a screwdriver, and the fact that he was apparently unable, despite several attempts to repeat that feat whilst giving evidence, does not of course mean that his evidence was untrue. In his statement of findings the learned magistrate said that he did not regard that fact as significant and, for what it is worth, neither do I.

8. This ground of appeal must fail.

3. I have already referred to this third ground of appeal in dealing with the first ground. It too must fail.

9. It must follow that I am quite satisfied that the conviction of these Appellants is neither unsafe nor unsatisfactory and their appeals against conviction are accordingly dismissed.