THE QUEEN v. BIRAT BAHADUR KHADKA

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 432 OF 1987

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JUDGMENT

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1. The appellant, Birat Bahadur Khadka, was charged a total of 5 offences of which two were for Unauthorized Placing of Cargo on An Aircraft, contrary to Section 16(1) of the Import and Export Ordinance, Chapter 60, that is Charges (A) and (C), two for Exporting Unmanifested Cargo, contrary to Section 18(1)(b) of the Import and Export Ordinance, Chapter 60, that is, Charges (B) and (D) and Importing Unmanifested Cargo, contrary to Section 18(1)(a) of the said Ordinance. The appellant pleaded not guilty to all of the said offences. During the course of the trial, no evidence was offered in respect of the (A), (B), (C) and (D) charges, and these charges were accordingly dismissed. He was however found guilty of the offence in the (E) charge after trial. The facts which cover a small compass and agreed at the trial are that on the 6th February 1987 the appellant who is a merchant bought 260 taels of gold from a dealer in Hong Kong for the sum of $993,200 which he packed into two packets. On 7th February 1987 he went to the Hong Kong Airport to fly to Nepal by the Royal Nepal Airlines, Flight No. RA404, leaving about 10.00 to 10.30 a.m. that morning, carrying with him the 260 taels of gold. When the aeroplane arrived in Nepal he looked through the window to see whether his friend Lure was waiting for him at the landing area and not seeing him, he became frightened and threw the two packets of gold into the waste tank of the aeroplane's star board toilet. On the same day, Flight No. RA403 returned to Hong Kong from Nepal and the same two packets of gold were later found by a cleaner and a technician of the Hong Kong Aircraft Engineering Co. Ltd. The gold was obviously not shown in the aircraft's manifest. The appellant was not himself a passenger on board that plane. After inquiries, the appellant was arrested at about 2.20 p.m. on the afternoon of 10th March 1987 for contravention of the provisions of the Import and Export Ordinance and following his arrest, he made a cautioned statement admitting that he had thrown the two packets of gold into the said water tank. At the trial a submission of no case to answer was made on behalf of the appellant but the Magistrate ruled that there was, saying in his Statement of Findings, that:

“In the present case the appellant carried the gold bars with him when the aircraft arrived at Nepal. He threw the packets of gold bars into the waste tank, with the result, the two packets of gold bars were found in the aircraft when it returned to Hong Kong. I ruled the appellant technically caused the packets of gold bars to be brought into Hong Kong.”

Section 18(1)(a) of the Import and Export Ordinance provides that any person who brings or causes to be brought into Hong Kong any article other than an article in transit shall be guilty of an offence. The Crown at the trial relied upon on the definition of the word 'import' in the Ordinance, which is “to bring, or cause to be brought into Hong Kong, any article other than an article in transit.” In his Statement of Findings the Magistrate stated that:

"The person can cause importation in many ways although the appellant threw the two packets of gold into the waste tank of the aircraft, however, there was no evidence that he disclaimed the two packets of gold bars. The two packets of gold bars were found in the aircraft from Nepal. I found the appellant was technically guilty of the offence. "

2. It is apparent from the Magistrate's findings of guilt that he had considered the dissenting judgment of Fuad J.A. in the case of The Attorney General of Hong Kong v. Tse Hung Lit & Chan Yat Shing in which the learned judge stated:

“In my respectful judgment different considerations apply in the case before us. Here we are not c0ncerned with an offence of the kind discussed in the cases to which I have referred to, or it would be a rare case that intervening human agency is not involved, the offence here essentially is not causing someone else to do a prohibited act, but the very act of exporting, which could be done by the person charged either by taking the controlled goods out of Hong Kong himself, or by causing them to be taken out of Hong Kong. Put another way, there is a conceptual difference, it seems to me, between causing another to do an illegal act to which one is not a party in the usual sense, on the one hand, and being the actual perpetrator of an act which is the cause of an event taking place, on the other. It is only in the former case that considerations of 'control dominance, or compulsion' (Watkins v. O'Shaughnessy) are relevant. In my view, these authorities do not require us to give a restricted meaning to the words 'cause to be taken out' in the context of the Import and Export Ordinance."

3. In the subsequent appeal before the Privy Council (Privy Council Appeal No. 6 of 1986) Their Lordships analysed this statement in the following terms:

“Their Lordships express no view as to whether an offence under Regulation 4 or causing to be taken, as opposed to taking out of Hong Kong could theoretically be committed, as Fuad J.A. thought, without any intervening human agency. Let it be assumed that it could. Nevertheless the plain purpose of including among those absolutely liable for the export of goods without the appropriate licence persons who cause such goods to be taken out of Hong Kong as well as those who take them out is to apply the same criminal sanction to the consignor and his forwarding agent, who arrange and organise the illicit exportation, as to the owner of the ship, aircraft or vehicle which effects the exportation by actually taking the goods out of Hong Kong. Persons in these or similar categories would properly be held, on the narrow construction of the words "cause to be taken out of Hong Kong" to be exporting. The goods are taken out of Hong Kong by others acting on their express or implied authority.”

4. There follow other examples of persons who might be implicated or involved in the transportation or moving of cargo and following on, their Lordships say that they "fully appreciate the necessity in such a community as Hong Kong for the authorities to exercise strict control over imports and exports, but can discern no good reason why it should be necessary, in order to make such control effective, that the criminal net should be cast as widely as it would be if the construction urged by the appellant were accepted. In the light of this analysis, Their Lordships cannot accept that there is anything to be found in the context of the relevant Hong Kong legislation creating the offences of “causing to be taken out of Hong Kong” either unmanifosted cargo or articles without the required export licence which is apt to displace the principle prima facie applicable to statutory offences of this kind as expressed in O'Sullivan's case. Nor, with respect, can Their Lordship accept that there is a “conceptual difference” between "causing another to do an illegal act to which one is not a party in the usual sense” and “being the actual perpetrator of an act which is the cause of an event taking place” which provides a relevant basis on which O'Sullivan's case and the earlier authorities there considered can properly be distinguished." However, in allowing this appeal, I think I ought to refer to the two passages adopted by Their Lordships from the case of O'Sullivan, where from the judgments of Sir Owen Dixon C.J., Williams, Webb and Fullagar JJ.: “This appears to mean that when it is made an offence by or under statute for one man to 'cause' the doing of a prohibited act by another, the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act. Nor is it enough that in producing the antecedent event or condition the first man was actuated by the desire that the second should be led to do the prohibited act. The. provision should be understood as opening up a less indefinite inquiry into the sequence of anterior events to which the forbidden result may be ascribed. It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.” (my italics)

5. Although the instant offence is one of strict liability, it is clear that the appellant had no implied or express authority to cause the importation of the gold into Hong Kong by the Royal Nepal Airlines or any member of their staff nor was he in a position to control or influence their acts. Then their Lordships went further on to consider another passage in that judgment saying that:

“It tends to greater certainty in interpretation. It provides a sensible and workable test, which, at the same time, is hardly open to objection as inelastic. Without some such interpretation the words might be used to impose criminal sanctions in a manner that could not be foreseen on conduct vaguely and indefinitely described.”

6. What was the conduct of the appellant in this case? Here I think the evidence is quite clear and that is, that in order to avoid the discovery of gold on him in Nepal, he abandoned the gold bars by throwing them into the waste tank in the aircraft toilet while the aircraft was in that country. There is no evidence again in my view to indicate that the appellant had caused any person to act in the way in which the charge is framed, nor did he do so himself. The Crown does not seek to uphold the conviction and accordingly, his appeal against conviction is allowed and the fine of $1,000, if paid, is to be returned to the appellant.