THE QUEEN v. TSE HUNG-LIT AND ANOTHER

Headnote

                Defendants had by speedboat taken a number of video cassette recorders to a point just within Hong Kong territorial waters with the intention of handing them to the crew of a fishing junk who would then smuggle the sets into China. The arrangement had been made by a third party. The fishing junk failed to adhere to the arrangement and the defendants were arrested as they returned to land.

                "Export" is defined in the Import & Export Ordinance, Cap. 60, as meaning "to take, or cause to be taken, out of Hong Kong any article other than an article in transit".

                Held, reversing the decision below, that the defendants were not guilty of attempting to export: O'Sullivan v. Truth & Sportsman Ltd. (1957) 96 C.L.R. 220, and cases therein referred to, followed.

BETWEEN

___________

JUDGMENT

___________

Cons, J.A.:

1. This is the judgment of my Lord the Vice President and myself, on an appeal which raises only a nice point of construction. The facts have at no stage been in dispute.

2. At about 10 p.m. on the 14th September last year the two Appellants set off in a speedboat from Lung Kwu Tan on Tsing Yi Island. They had on board with them 34 sets of video cassette recorders. Their intention was to rendezvous with a fishing junk near Sha Chau, that is just within Hong Kong territorial waters, where they would hand over the sets to the crew of the junk who, as the Appellants well knew, would in their turn take the sets further on their journey beyond the boundary of Hong Kong. The ultimate aim was of course to smuggle these sets into China, although only the 2nd Appellant specifically admitted this. For their services in this respect the Appellants had been paid respectively $700 and $1,000 (the 2nd appellant having provided the speedboat) by a restaurant acquaintance whom they knew only as Ah Fai or Chan Fai. In the event the fishing junk, did not appear, at the appointed rendezvous and after waiting some time in vain the Appellants decided to return to Tsing Yi Island. It was on their way back that they were apprehended by the Marine Police.

3. The video cassette recorders in question are mains powered and therefore "prohibited articles" within the Second Schedule to the Import and Export (General) Regulations. Regulation 4 makes it an offence to export any prohibited article except under and in accordance with the appropriate licence. It is also made an offence by Section 18(1) of the Import and Export Ordinance to export cargo which is unmanifested. The Appellants had neither licence nor manifest. In due course they were jointly charged and convicted on trio charges of attempting to export, in breach respectively of the provisions we have just mentioned. They appealed to a Judge of the High Court who has directed that the appeal be argued before this Court. The submissions which we have heard were not presented to the Magistrate below.

4. No point is taken with regard to the concept of attempt. Everything turns on the question of export, which is defined in Section 2 of the Ordinance as meaning -

"to take, or cause to be taken, out of Hong Kong any article other than an article in transit."

The Crown do not suggest that the Appellants were attempting themselves to take the sets out of Hong Kong.  It is argued that the Appellants were attempting to cause that to be done.

5. Similar words were considered by the Full Court in R. v. Suen Chuen⁽¹⁾. It was a question of importing dangerous drugs. To import is similarly defined in the appropriate ordinance as meaning -

"to bring; or cause to be brought into ...."

Counsel had argued that -

"the phrase 'cause to be brought'in the definition of 'import' could have no application to the case of the second appellant. Counsel's view was that a person can only 'cause' an article to be brought into Hong Kong if, being in Hong Kong he orders the article from abroad as an importer in the ordinary commercial sense and that the word has-no application to the case of a person who is responsible in any capacity for the physical delivery of the article into the Colony or who from abroad counsels and procures the importation of an article into Hong Kong by some other person."

6. The Court did not accept the argument -

"      We see no reason to limit the meaning of the word 'cause' in the way suggested. A person can 'cause' importation in many ways. The word undoubtedly applies to the ordinary commercial importer, and it cannot be said to be synonymous with the expression 'counselling and procuring'; but it is applicable to any person whose activities may be said to have been an effective operating factor in the importation."

7. Counsel for the Appellants relies very heavily on the decision of O'Sullivan v. Truth and Sportsman Ltd.⁽²⁾ which is a decision of the High Court of Australia on the words "cause to be offered for sale". With the aid of several United Kingdom authorities their Lordships analysize the inherent nature of the concept of causation in that context. The majority conclude-

"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."

8. Kitto J. put it a little differently.

"The truth is, I think, that one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will."

Counsel also drew our, attention to academic opinion to much the same effect⁽³⁾

9. Counsel for the Crown favours a more simple approach. He relies on dicta from the House of Lords in Alphacell Ltd. v. Woodward⁽4)a case of causing poisonous, noxious or polluted matter to enter a stream. At p.834 Lord Wilberforce said -

"In my opinion, 'causing' here must be given a common sense meaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be difficulties where acts of third persons or natural forces are concerned but I find the present case comparatively simple."

And then again Lord Salmon said at p.847 -

"The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges, in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory."

10. The facts of the case itself do not assist, nor do those of Wrothwell v. Yorkshire Water Authority⁽⁵⁾ in which it was applied, for both were concerned with prohibited conduct which was the direct although in fact unforeseen consequence of the defendants business operations. In one case it was the failure of pumps causing tanks to overflow and in the other an unknown system of drainage. In neither case was any other party involved.

11. It is suggested that in reality the present situation is the same. With the greatest respect we are not able to accept that view. Had the venture gone according to plan and the Appellants handed over the video sets to the crew of the fishing junk, the junk would not have left the territory of its own accord. Although likely or almost inevitable as would have been the ensuing action of the fishermen, it nevertheless required a conscious and deliberate decision on their part to set their junk in motion and over the boundary.

12. It is also suggested that there is a conceptual difference between a case where the offence is itself causing an act to be done and a case where the doing of the act is the offence but the doing..of the act is so defined as to include causing it to be done which is of course the present case. With respect it seems to us that there is no such distinction. A person cannot cause an article to be taken out of Hong Kong unless he has caused some other person to take it out. Accordingly we think that the line of cases of which O'Sullivan v. Truth and Sportsman Ltd. ⁽²⁾ is an example is directly in point.

13. While the Appellants would, as their Counsel conceded, have had no defence to a charge of conspiracy to export, we cannot see that they could properly be said to have caused the export, or to have attempted to cause the export, unless the word were extended to cover every precipitating action in the chain which ultimately led or would have led to the final prohibited conduct. That, as we understand it, is indeed the submission, limited only by the requirements of intention and proximity. Linguistically speaking it is perhaps not a great extension, and one that is not uncommonly made outside the law for emotive effect. But within the law it comes in our view dangerously close to the contention rejected by the court in Beatty v. Giilbanks⁽⁶⁾ where the court held that persons who assembled for a lawful purpose, and with no intention of doing anything unlawful, but who had good reason to believe that they would be opposed by persons who would then cause a breach of the peace, were not themselves guilty of unlawful assembly. Our criminal law, as we have just indicated, is already adequate to deal with conduct of this kind. We are not persuaded to strain language, even just a little, to strengthen it further.

14. For these reasons we would allow the appeal and quash the conviction of both appellants. In view of the time they have already spent in custody we would be reluctant to consider action under Section 27 of the Magistrates Ordinance but would prefer to make no further order.

(1)    (1963) H.K.L.R. 631

(2)    (1956-1957) 96.C-L.R. 221

(3)    Causation in the Law by Hart and Honore, Clarendon Press Chapter XIII

(4)    (1972) A.C. 824

(5)    Times Newspapers 31st October 1983

(6)    (1882) 9 Q.B. 308

Fuad, J.A.:

15. I have reached a different conclusion.

16. Mr. Sedgwick founds his contentions squarely on the arguments which found favour with the High Court of Australia in O'Sullivan v. Truth and Sportsman Ltd.⁽¹⁾. While it is a case of high authority, considerable caution must be used in applying the principles there enunciated by the Court although we have to construe statutory provisions that are similar in terms. In my opinion the High Court of Australia was following a lire of authority in the United Kingdom (the cases mentioned and discussed at pp. 227-228 of the judgment of Dixon, C.J. and three of the judges) that established and defined the proper test where one person is charged with having caused an offence to be committed by another person. McLeod (or Houston) v. Buchanan⁽²⁾, Shave v. Rosner ⁽³⁾ and Watkins v. O'Shaughnessy⁽⁴⁾ were all cases involving causing the user of a motor vehicle in breach of road traffic regulations. The law in such cases is well settled and may be fairly summed up by quoting Lord Wright's words in McLeod v. Buchanan (2): "To 'cause' the user involves some express or positive mandate from the person 'causing' to the other person, or some authority from the former to the latter, arising out in the circumstances of the case." The same principle was applied in Lovelace v. Director of Public Prosecutions⁽⁵⁾ where the manager of a theatre was charged with "causing to be presented" part of a play before such part had been approved by the Lord Chamberlain. There Lord Goddard, at p. 483, said: "if a defendant is to be convicted of 'causing' something, there must be some act of his which is equivalent to causing, that is to say, a command or direction to do the wrongful act."

17. It seems to me that the Australian High Court applied much the same test in O'Sullivan's case⁽¹⁾ , as the first passage from that Court's judgment, just read by Lord Cons, J.A.., indicates.

18. In my respectful judgment, different considerations apply in the case before us. Here, we are not concerned with an offence of the kind discussed in the cases to which I have referred. Although it would be a rare case that an 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 can 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 hard, 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⁽⁴⁾ ) are relevant.

19. 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.

20. There are a number of Hong Kong authorities (of which Klauser and Another v. The Queen⁽⁶⁾ is an example) that hold that the words in the definition of "import" (the converse of the definition of "export") in the Ordinance should be given their plain and ordinary meaning.

21. The concise Oxford Dictionary gives the following meanings to the verb "cause":-

"Effect, bring about, produce, induce, make, (person or thing to do, to be done something to)."

And in my judgment, if the Appellants had handed over the cassette recorders to others in the fishing boat (or allowed them to be placed on board) and the fishing boat had then proceeded as planned and desired by the Appellants into Chinese waters, I do not think it could be said, by any fair use of language, that they had not "caused" the goods to be taken out of Hong Kong, in the sense that they would have brought about that event.

22. Mr. Sedgwick has conceded that if this view of the law is correct, then on the facts found by the Magistrate, which were not challenged the Appellants were rightly convicted of the attempts of which they were charged.

23. I prefer not express a concluded opinion on that part of the decision of the former Full Court in R. v. Suen Chuen⁽⁷⁾ where Stair-Kerr, J. said at p. 638: “……. But [the word 'cause'] is applicable to any person whose activities may be said to have been an effective operating factor in the importation." With due respect, in my view it is dangerous to attempt a wide formulation of this kind where the governing facts of each case can be so different. It will be a question of fact in a particular case whether the acts proved against a person charged are sufficient, in the ordinary sense of the word "cause", to establish that he brought to pass the taking out of Hong Kong of the goods in question.

24. I will content myself by stating merely that in my judgment the Appellants, on the facts found, plainly attempted to export the prohibited goods, by attempting to cause them to be taken out of Hong Kong.

25. I would therefore uphold the admirably formulated judgment of the Magistrate, and dismiss the appeals.

(1)    (1956-1957) 96 C.L.R. 220

(2)    [1940] 2 All E.R. 179

(3)    [1954] 2 All E.R. 280

(4)    [1939] 1 All E.R. 385

(5)    [1954] 3 All E.R. 481

(6)    [1968] H.K.L.R. 201

(7)    [1963] H.K.L.R. 630