HKSAR v. LIU YAU FOOK

CACC 186/2019

[2020] HKCA 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2019

(ON APPEAL FROM DCCC NO 815 OF 2018)

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J U D G M E N T

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1.  The applicant, who was D3 at trial, and two co-defendants (“D1” and “D2”) jointly faced two charges. The first charge alleged an attempt to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap 60 and section 159G of the Crimes Ordinance, Cap 200. The second charge alleged an attempt to export without a licence specimens of the Hippocampus species (ie sea horses), contrary to section 13(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 and section 159G of the Crimes Ordinance.

2.  On 8 April 2019, following a trial in the District Court before His Honour Judge Casewell (“the judge”), the applicant and D1 were convicted of both charges, while D2 was acquitted.  The applicant was made the subject of a community service order for 200 hours, while D1 received a total of 12 months’ imprisonment.

3.  Having filed a Form XI Notice of Application for leave to appeal on 14 June 2019, the applicant now seeks leave by counsel to appeal against conviction only.

The prosecution case

4.  In the late afternoon of 28 June 2018, a joint Customs and Excise and police surveillance operation was conducted at the typhoon shelter on Cheung Chau Island.  At about 5:30 pm, PC11706 (“PW1”) arrived outside Kit Ho store at 5G Praya Road on Cheung Chau Island.  He saw five pallets of goods on the road wrapped in black plastic.  A cargo vessel (“V1”) was moored between Kit Ho store and Man Po store, with one pallet of goods on board.

5.  At 5:45 pm, PW1 went to the top of the staircase at the rooftop of Cheung Wing House.  From his position, he saw that there were two speedboats (“V2” and “V3”), each moored on either side of V1.  The bows of V2 and V3 each pointed out to the typhoon shelter and the sea, while V1 was moored with its bow facing land and was rafted to the adjoining vessels.  On V3, PW1 saw two men and some goods wrapped in black plastic. 

6.  Between 9:11 and 9:13 pm, PW1 saw the applicant operate the crane on V1 to lift two pallets of goods from the shore onto the front part of V1.

7.  At 11:52 pm, PW1 saw D2 emerge from V1’s cabin, and board V2.  The applicant then operated the crane at the direction of D1, and lifted a pallet of goods from V1 to V2.  D2 then returned to V1.

8.  At 11:53 pm, PW1 gave a signal to other police officers and the surveillance operation became overt.  Police officers then boarded V1.  Meanwhile, V3 left the scene at high speed with the two men and the goods in black plastic on board.  It moved without navigation lights and at high speed towards Chinese territorial waters.  A police launch tracking V3 was unable to intercept it as it entered Chinese territorial waters.

9.  The applicant, D1 and D2 were meanwhile arrested on V1.  PW1 was able to identify them by their clothing.  A total of six pallets of goods (including large quantities of seahorse specimens, bird’s nests, cough syrup, boxes of game pack, damaged and used mobile telephones and accessories, damaged and used tablets, ornaments, garments and cosmetics) were seized, the total value of which was $4.43 million; the value of the seahorses being $1.5 million[1]. No manifest was found on either V1 or V2, nor did the applicant, D1 or D2 have any manifest for the goods in their possession.

10.  In a statement under caution, the applicant claimed that a person surnamed Lam had instructed him to help lift cargo onto the shore and place it in a warehouse.  However, at the time, he could not see what the goods were.  He merely followed Lam’s instructions.

The defence case

11.  The applicant, D1 and D2, who were of clear record, did not give or call evidence.  It was argued on behalf of the applicant at trial that the evidence taken at its highest did not support the charges.  An inference of guilt could not properly be drawn from the facts proved.  In particular, it could not be shown that the goods were to be exported instead of being moved elsewhere for storage.  It was also submitted that the conduct of V3 was not evidence that V2 would have taken the same course and also entered Chinese territorial waters.

Reasons for verdict

12.  The judge directed himself that each of the charges and the respective cases of the applicant, D1 and D2 had to be considered separately.  Given their clear records, he gave himself a good character direction both in terms of propensity and the credibility of their cautioned statements.

13.  The judge accepted PW1’s evidence as to his observation and his identification of the applicant, D1 and D2.  He found that the only reasonable and irresistible inference to be drawn from the circumstances was that the goods were intended for export and that the applicant was thereby involved in the commission of the two offences charged. The judge took into account the following factors:

(a)  The Cheung Chau typhoon shelter (where the vessels were moored) was less than five nautical miles from the marine border of Hong Kong.  It was one of the closest loading points for vessels crossing the marine border.

(b)  By loading goods onto small fast boats and crossing the border in the dark, one would reduce the chances of detection and interception.

14.  The judge pointed out that the goods could have been legitimately shipped within Hong Kong, but no part of what PW1 had observed appeared to be a legitimate shipping operation.  The goods in question were covered in black plastic and loaded onto a speedboat at shortly before midnight.  The judge found that the only reason to load a speedboat in this way was to avoid interception by law enforcement authorities, and that the goods were intended for export.  He concluded that transportation was imminent[2] and that, if not interrupted, all the pallets would eventually have been despatched[3].  The storing and loading of the goods, as observed by PW1, amounted to an act that was more than merely preparatory for the exportation of the goods[4].

15.  Furthermore, the applicant was seen by PW1 to load the goods at D1’s direction, firstly onto V1 and then onto V2.  This contradicted his explanation under caution that he was lifting the goods from the vessel to shore for warehousing or storage.  The judge found that the applicant was involved together with D1 in carrying out the offences.  D2 was acquitted because his presence and movement between V1 and V2 was not a sufficient basis to draw the necessary inference of complicity against him.

16.  On the basis that the nature of the goods and the lack of a manifest could easily have been ascertained with reasonable diligence, the judge also held that the statutory defence under section 18 of the Import and Export Ordinance was not available to the applicant or D1.

Grounds of appeal against conviction

17.  Ms Lui, for the applicant, advances two grounds of appeal.  The first ground complains that there was insufficient evidence to draw the only irresistible inference that the applicant had intended to export the goods.  She relies, in particular, on the decision of the Court of Final Appeal in respect of the drawing of inferences in Winnie Lo v HKSAR[5].  The second ground of appeal simply avers that the conviction was unsafe and unsatisfactory.

18.  In respect of the applicant’s explanation under caution, Ms Lui argued that, since the transliteration of the surname of the person who instructed him to lift the goods was the same as the surname of D1, the applicant’s explanation was consistent with PW1’s observation that he was moving the goods at D1’s direction.  It could not, therefore, be discounted that the applicant simply believed what he was told, and the intent to export was not the only irresistible inference to draw from the direct facts proved.

19.  Counsel submitted that V3’s departure at high speed and disappearance into Chinese territorial waters was not evidence that V1 and V2 would have taken the same course and was not relevant.  She pointed out that the applicant had never in fact loaded any goods onto V3.  Importantly, no ignition keys to V1 and V2 were found on the applicant, D1 or D2[6]. Further, V1 was not seaworthy, since it sank after being towed away[7]. The judge was wrong, therefore, to conclude that transportation was imminent, or that all the pallets would have eventually been despatched by sea.

Respondent’s submission

20.  Mr Wong, for the respondent, submitted that, although the transliteration of D1’s name could be the same as the person mentioned in the applicant’s cautioned statement, there was no evidence that they were in fact the same person.

21.  He submitted that what PW1 observed was the precise opposite of the applicant’s explanation under caution.  The applicant was seen to have lifted two pallets of goods from the shore to V1 and then one pallet from V1 to V2, instead of lifting anything from any vessel to shore as he had claimed. Moreover, there was no evidence that the goods loaded onto V2 were to be delivered to a warehouse.  The judge was entitled to reject his explanation.

22.  Mr Wong submitted that the unseaworthiness of V1 did not assist the applicant.  V1 was not used as a vessel to convey the goods: its crane was used to move the goods.  Furthermore, the fact that the ignition keys for V2 were not found did not assist the applicant either, because it was possible that the two men who left on V3 were responsible for operating both speedboats (V2 and V3) and the keys could have been with them.  It was also possible that the applicant, D1 or D2 had discarded the ignition keys.  Other reasonable explanations for the missing keys were open and the fact that they were not found did not cast doubt on whether V2 would have been used for exporting the goods.

23.  Mr Wong pointed out that V3’s leaving at high speed was not something used by the judge to draw the necessary inference.  He pointed out that the five pallets of goods were already in position on the road when PW1 arrived at the scene at 5:30 pm, yet loading from V1 to V2 did not take place until shortly before midnight.  The irresistible inference was that the applicant was involved in a smuggling operation, in which the parties wanted to reduce the chances of detection and interception.

Consideration

24.  An attempt is an inchoate offence.  Accordingly, the prosecution must ordinarily prove that a defendant acted with the specific intent to commit the crime attempted, even if that crime is one of strict liability[8]. That does not mean that the prosecution must prove that the applicant knew or intended that the cargo would be unmanifested, because the substantive offence under section 18(1)(b) of the Import and Export Ordinance is one of strict liability: all it means is that the prosecution must prove he intended that the cargo was to be exported.  This was explained by P Chan J (as Chan NPJ then was) in R v Cheng Kai & another[9]:

“Apart from showing that the cargo was not declared or properly declared in the manifest, the prosecution is only required to prove that he intended to and did export the cargo, that is to say, proof of the actus reus that he had exported the cargo. I think it is of vital importance to distinguish between an intention to export (which is part of the actus reus of export) on the one hand and the knowledge or intention that the cargo exported is unmanifested or falsely described in the manifest (which is a mens rea which is not required for a strict liability) on the other.

With regard to an attempt to commit a s.18 offence, it is necessary for the prosecution to show that a defendant had done acts which are not only preparatory but also immediately connected with the act of exporting the cargo and were intended to and did constitute part of the act of export. … Since it is not disputed that the manifest in respect of the cargo in the present case was indeed wrong, the issue to be dealt with is whether the appellants had done acts which amounted to an attempt to export the cargo in question.  This includes of course their intention to carry out those acts.  This is not the same as the intention to export unmanifested cargo.  If, however, there is evidence that the appellants also had an intention to export unmanifested cargo (as opposed to the intention to export cargo), that would go a long way in establishing that they had attempted to commit a s.18 offence.”

See also HKSAR v Kan Chung Hung[10], where Cheng Kai & another and other authorities are discussed.

25.  Although the law was not explained in this way by the judge in the court below, it seems to me that he applied this approach in convicting the applicant.  He found that the only reason to load a speedboat at this time of night was to avoid interception of a cargo that those involved would not want the authorities to know about[11]. Accordingly, the only reasonable and irresistible inference was that “what was in motion here was an operation to export the black wrapped pallets out of Hong Kong by way of speedboat from Cheung Chau harbour that night”[12].  Although, as Mr Wong points out, the judge did not use the fact that V3 sped off across the marine border when the police presence became known, I do not necessarily see why he could not have made use of this piece of unchallenged evidence.  The fact is there were two speed boats moored on either side of V1, both with goods covered with black plastic on them, even though PW1 did not witness any goods being moved by the applicant onto V3.  One of them sped off at high speed over the marine border when the police operation became overt.  It seems to me that such evidence could have been relevant to the drawing of the inference, even though it appears not to have been so used by the judge.

26.  As for the absence of ignition keys, it is correct that the judge only seems to have noted this fact when considering D2’s case.  However, on reading his reasons carefully, the judge was simply saying that there was no evidence to prove that D2 had any sure role in the events that night and that the absence of the ignition key meant that one could not say “for certain that D2 was to drive the boat away”[13].  The absence of the ignition key was used, therefore, to say what D2’s role was not: by contrast, the evidence of the applicant’s role in operating the crane to move pallets was clear from PW1’s evidence and from his own admission in his cautioned statement.

27.  Once that was established, as was rather obvious from the circumstances prevailing that night, then the question is whether the applicant had done enough to reveal his intention to export this cargo, regardless of whether he realised that the contents were in fact unmanifested. In the words of P Chan J, the issue was whether he “had done acts which are not only preparatory but also immediately connected with the act of exporting the cargo and were intended to and did constitute part of the act of export”.  The applicant claimed he was lifting goods from the boat to the shore for placing in a warehouse.  However, as Mr Wong pointed out, that was the very opposite of what PW1 observed the applicant to be doing and what the judge found the applicant to have been doing.  The judge was entitled to give the exculpatory parts of the applicant’s cautioned statement, in the absence of any evidence on his part, no weight.

28.  That left the objective circumstances of what the applicant was doing moving goods from V1 to a speedboat (V2) at shortly before midnight in respect of a cargo which was unmanifested.  I cannot see any reasonable argument that the judge’s finding, or the obvious inference to be drawn from his actions, can be impugned.

29.  The application for leave must therefore be refused.