HKSAR v. DIAO RUI AND ANOTHER

[English Translation – 英譯本]

HCMA 606/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 606 OF 2013

(ON APPEAL FROM FLCC 1491/2013)

_______________

_______________

JUDGMENT

1.  The two appellants herein were, respectively, the first defendant (“D1”) and the second defendant (“D2”) at trial. They faced the following charges:

D1

Charge 1: Importing unmanifested cargo[1];

Charge 3: Carrying a cargo into Hong Kong in or on a prescribed vehicle without lodging information (“the Failure to Bundle Information Offence”)[2];

Charge 5: Importing specimens of Appendix II and Appendix III species otherwise than in accordance with the provisions of section 11(1) of Cap 586[3] (“the Endangered Species Offence”);

Charge 6: Importing plant pests otherwise than in accordance with the provisions of section 7 of the Plant (Importation and Pest Control) Ordinance, Cap 207[4] (“the Pest Offence”).

D2

Charge 2: Importing unmanifested cargo[5];

Charge 4: Importing an undeclared cargo in or on a prescribed vehicle[6] (“the Failure to Make Electronic Customs Declaration Offence”).

2.  D1 and D2 appeared before Fanling Magistracy. They pleaded not guilty to the charges and were convicted on all of them after trial before a deputy magistrate (“the Magistrate”). D1 and D2 appealed their convictions.

3.  D2 also appealed the sentence imposed on him in respect of Charge 2. On the second day of the appeal hearing, D1 applied for leave to appeal out of time against the sentence imposed on him in respect of Charge 1. The respondent did not oppose the application, and I granted leave. The sentences against which D1 and D2 appealed were both custodial sentences for a term of 4 months.

Prosecution case

4.  The prosecution case, which was by and large not in dispute, can be stated briefly as follows.

5.  Shortly after 7 am on the day in question, D1 drove a goods vehicle bearing registration mark MH 1992 into Hong Kong from Man Kam To Control Point.

6.  He dropped a cargo manifest in the cargo manifest collection box at the customs clearance booth. He then drove off to the Cargo Examination Building as instructed for Customs officers to inspect the goods.

7.  According to the cargo manifest, the goods were 100 numbers of fresh flowers and the recipient was one Ho Shi Nin Fresh Flowers Trading Company (transliteration) (“Ho Shi Nin”).

8.  During the inspection, Customs officers found from the driver’s cabin of the vehicle:

(1) One bag of live fish on the passenger seat;

(2) One bag of live fish under the driver’s seat;

(3) 3 bags of live fish on the long sofa behind the driver’s seat.

9.  Present inside the loading platform were many paper boxes, plants and fresh flowers. There were also 28 polystyrene boxes sealed with plastic adhesive tapes. Inside the polystyrene boxes were the following living creatures:

(1) 78 bags of tropical fish;

(2) 61 turtles, 8 live snail-eating turtles;

(3) 5 live South American river turtles of Podocnemis species;

(4) 15 live map turtles of Graptemys species;

(5) 455 grammes of live mealworms and 730 grammes of live crickets.

All these creatures were found only after the polystyrene boxes were unsealed. The creatures set out in (2)–(5) above were all kept inside the same polystyrene box.

10.  The said 8 live snail-eating turtles were of the species specified in Appendix II of the Endangered Species of Animals and Plants Ordinance[7].

11.  Those 5 live South American river turtles of Podocnemis species and 15 live map turtles of Graptemys species were of the species specified in Appendix III of the Endangered Species of Animals and Plants Ordinance.

12.  No valid export licence had been issued by the exporting country/countries in respect of any of those turtles.

13.  The 455 grammes of live mealworms and 730 grammes of live crickets were plant pests under the Plant (Importation and Pest Control) Ordinance[8]. There was no import authorization in respect of these pests.

14.  D2 was the proprietor of Ho Shi Nin and the registered owner of the said goods vehicle.

15.  D1 and D2 each made statements during interview subsequent to his arrest.  I shall turn to the content of the statements later when necessary.

Defence case

D1

16.  At trial, D1 gave evidence and also called one witness who was another China-Hong Kong driver working for D2.

17.  The Magistrate summarized the evidence of D1 and D2 as follows[9]:

D1

“34. …., started working at about 7:05 am to 7:10 am on the day in question, that is, 19 October 2012. His job was to drive a vehicle for the second appellant across the border from Man Kam To to Hong Kong. He had been working as a cross-border driver for the second appellant, the proprietor of Ho Shi Nin Fresh Flowers Trading Company, for 6 or 7 years. The second appellant had three vehicles and was in the transportation business delivering pet fish, fresh flowers and seedlings.

35. The first appellant stated that there were two Mainland drivers at Man Kam To, namely Mr Cheng Lau Kuen (transliteration) and Mr Leung Kam Wing (transliteration). They had been working for the second appellant for 2 or 3 years. The routine arrangement was that the Mainland drivers, whom the first appellant knew, handed a vehicle over to him at Beidou Road, Man Kam To, alighting from the vehicle after 5 to 6 minutes. The first appellant then got onto the vehicle and drove it into the Customs. The first appellant said he had been doing this every day for 6 to 7 years.

36. The first appellant stated that it was the second appellant who was responsible for making Customs declarations. He hired a Customs declaration company to make the declarations, and then handed the Customs declaration documents to the first appellant, who knew a staff member of the Customs declaration company called Mr Leung. Every day they wrote down the same floral goods in the declaration form.

37. The first appellant stated that on the day in question, he had to transport goods to Mongkok Flower Market. At about 7:10 am, a Customs declarant handed him a printed copy of the Customs declaration document like prosecution exhibit P.1. He knew that the goods included horticultural products, pet fish, fresh flowers and seedlings, but the Customs declarant told him that declaration had already been made electronically. The first appellant said the electronic Customs declaration was not made by him and on that day no declaration had been made for pet fish. As electronic Customs declaration had already been made, he thought that the handwritten and electronic Customs declaration documents were to be ‘combined for use’.

38. The first appellant said on the day in question, he did open the rear door of the vehicle in Shenzhen and saw fresh flowers and seedlings and noticed the smell of flowers. He also opened the side door and saw that there were paper boxes and one or two polystyrene boxes. There were pet fish in the paper and polystyrene boxes and also five bags of fish inside the vehicle. The first appellant said that, as 20 boxes of fish had been declared electronically, he thought that the five bags of fish were already included in the 20 boxes.

39. The first appellant stated that the boxes inside the vehicle were too big to be moved by only one person, and that he was only responsible for driving the vehicle through the Customs and not for loading the goods. The first appellant stated that the second appellant was responsible for loading the goods, and that he (the first appellant) did not witness the loading process because it was not done by him. He only knew that the goods were loaded in Guangzhou on 18 October 2012, and a Mainland driver handed the vehicle over to him. He trusted the second appellant.

40. The first appellant said that, as a rule, he had to hand over the goods punctually at 8:30 am every day. He set off at 7:00 am and arrived with the goods at 8:30 am. As he had to wait for his turn in the queue, only one-odd hour was available for transporting the goods.

41. The first appellant said that on the day in question, he did tell the Customs officer at the scene that someone had forgotten to put down pet fish on the Customs declaration document although a declaration had been made electronically. The first appellant said the Customs officer asked him to first open the rear door of the goods vehicle. Later, when the first appellant opened the side door and the polystyrene and paper boxes were seen, three transportation workers had to be engaged, and a ladder had to be used, to help Customs officers remove the goods from the vehicle. Whenever a box of goods was removed from the vehicle, its lid was not opened immediately. The boxes were opened only upon completion of the removal. The boxes were sealed with plastic adhesive tapes.

42. The first appellant said that it still took 4 or 5 Customs officers to open the boxes when they had all been removed. It was only after twenty-odd boxes had been opened that turtles, mealworms and lizards [sic] were seen inside one of the boxes. The first appellant said he himself neither knew that there were those items inside the vehicle nor had any idea where exactly they were located, although he guessed that they were at least in the middle section of the vehicle. The Customs officer did not tell him from where they were removed either. The boxes were opened and the contents thereof shown to him only after they had all been removed from the vehicle.

Defence witness

43. Defence witness (DW) Cheng Lau Kuen was a Mainland-Hong Kong driver. On the day in question, he was also working for the second appellant, being responsible for transporting goods to Hong Kong from the Mainland by means of a goods vehicle. He had been working for the second appellant for more than two years but no longer works for him now as he knows nothing at all about the goods on board the second appellant’s goods vehicle, and what happened to the first appellant has also deterred him from working for the second appellant anymore.

44. DW said that some time after 7 am on the day in question, that is 19 October 2012, a Mainland driver handed over the vehicle to DW outside the Customs declaration company at Beidou Road, Man Kam To. Three vehicles, all of which belonged to the second appellant, were placed together. The first appellant drove one, DW drove another. They drove off together after getting into the vehicles.

45. DW said that when the goods vehicle was handed over to him, he only saw the exterior of the goods inside the vehicle. As the goods were very heavy, he had no idea about their contents. He said the Customs declaration document was provided by the Customs declaration company. The queuing up took more than 10 minutes, and Customs declaration was made while waiting in the queue. The Customs declaration company gave him a printed copy of the Customs declaration document. However, only fresh flowers were declared. The same declaration was made every day, with the only variation lying in the weight of goods.

46. DW said on the day in question, he only opened the side door of the goods vehicle briefly and took a very superficial look inside. He saw fresh flowers inside the vehicle. The rear door of the goods vehicle, which was sealed up with a sealing tape, could not be opened. It was only to be opened when necessary in the presence of a Customs officer, but not by DW himself. DW said the goods were not packed in the presence of the driver and that the drivers could not make any requests or the boss would tell them to quit the job.

47. DW said electronic Customs declaration could be done online. As electronic Customs declaration was a recent initiative, no one taught him how to do it, and he was not familiar with it. He said if the electronic Customs declaration document was not the same as the handwritten Customs declaration document, he would add onto the handwritten Customs declaration any difference he spotted, but if it was not spotted, there would be an omission in the declaration. As regards his not noticing that, on the day in question, before going through the Customs, the first appellant had already gone through the Customs after picking up the vehicle, Mr Cheng mentioned again during cross-examination that when he picked up the vehicle on the Mainland, he did not notice whether the first appellant had opened the door of the vehicle.”

D2

18.  D2 neither testified nor call any witness at trial.

19.  He gave mixed statements during the interviews. In essence, he stated as follows:

The first record of interview[10]

(1) He was responsible for receiving business for the company and assigning staff to collect and transport goods;

(2) Mainland staff of the company was responsible for looking for and engaging a Customs declaration company to make declarations to the Customs on the Mainland and in Hong Kong;

(3) On 18 October 2012 (the day immediately preceding the date of the offences), he received orders from two customers whom he knew well, instructing him to transport pet fish and fresh flowers respectively to Hong Kong. He arranged for Mainland staff to collect the goods and handle Customs declaration;

(4) It was a rule of his company that goods collected would be inspected by staff members. In this transaction, no one had told him that there were other goods inside the polystyrene boxes;

(5) His company did not require its staff to inspect all the goods as it would be impossible to do so. Only random checks would be conducted;

(6) Although he had reminded the staff to clearly declare the quantity of the goods, he “did not know why” the Customs declaration company declared only the fresh flowers;

(7) His company delivered goods in the following mode: first, a Mainland driver drove the goods vehicle from Guangzhou to Man Kam To where the vehicle was handed over to D1, who then drove it to Hong Kong to distribute the goods;

(8) D1 would make Customs declaration based on the Customs declaration document filled out by the Mainland Customs declaration company.

The second record of interview [11]

(1) That batch of goods was loaded at Ling Nan (transliteration) Flower Market, Guangzhou. The staff of his company would conduct random checks during the loading process, opening approximately one to two of every ten boxes.

(2) No record was kept on the random checks;

(3) On learning that there were other items on board the vehicle, he tried to contact the owner of the goods by phone, but the owner could not be reached;

(4) Orders were usually taken over the phone and not evidenced by document;

(5) The Customs declaration company that he authorized was run by a friend. Apart from preparing Customs declaration papers, it was also responsible for making Customs declarations via the electronic system of the Hong Kong Customs.

(6) Apart from transporting pet fish, horticultural items and fresh flowers, his company did not transport any other goods. Therefore, he made no special mention to the driver about what goods he was transporting;

(7) The goods on board the vehicle on the day in question concerned over 30 customers, all of whom appeared on the list prepared by his company.

The third record of interview[12]

(1) The owner of the goods was a Mr Lau. He told his (D2’s) “men” that the goods were pet fish. He (D2) did not know that turtles and mealworms had been secretly hidden among the goods.

(2) As the proprietor of a transportation company, he was merely responsible for receiving business and making transportation arrangements. He left it to his “men” to deal with Customs declaration and the particulars of the goods. He had no idea how his “men” and drivers filled out the Customs declaration documents.

Findings of the Magistrate

20.  The prosecution called four witnesses who were all Customs officers. The Magistrate was satisfied that all of them were honest, reliable and truthful. [13]

21.  On the question of whether or not an electronic cargo manifest could replace a hard copy cargo manifest, or whether the goods stated on the two manifests could be combined for the purpose of Customs declaration, that is, whether the two documents could complement each other, PW1 answered in the affirmative, but PW2 and PW4 did not agree. Taking the view that PW4 was well-versed in that area by reason of his job duties, the Magistrate accepted PW4’s evidence that the filing of an electronic Customs declaration did not obviate the need to file a hard copy Customs declaration. The Magistrate also considered that the discrepancy in this part of their evidence was not such as to affect the credibility of each of the four witnesses.[14]

22.  On the other hand, the Magistrate considered D1’s evidence not credible and was not satisfied that he had stated the truth of the matter. She further considered that the evidence given by the defence witness was of limited assistance to D1.

23.  She further pointed out that she would not attach any weight to the statements made by D2 during the interviews.

24.  She ruled that Charges 1 and 2 (the offence of importing unmanifested cargo) involved a strict liability offence. If the appellants sought to rely on the relevant statutory defence, they bore the burden of establishing the defence on a balance of probabilities.

25.  The same applied to Charge 4 (the Failure to Make Electronic Customs Declaration Offence).

26.  The Magistrate further ruled that Charge 5 (the Endangered Species Offence) was an absolute liability offence to which she could not see any defence that D1 could put forward. [15]

27.  On the remaining charges, the Magistrate did directly spell out her rulings. However, in respect of Charges 3 (the Failure to Bundle up Information Offence) and 6 (the Pest Offence), she pointed out she could not see what reasonable excuse D1 had.

28.  In respect of the charges, the Magistrate found that the prosecution had discharged the burden of proving the elements of the offences and that neither of the two appellants had established an excuse (if there was any excuse they could rely on). Accordingly, she found the two appellants guilty on all of the respective charges against them.

Grounds of appeal

D1

29.  Ms Karen Cheung, Counsel for D1 in this appeal[16], has put forward grounds of appeal which can be summarized as follows:

(1) The Magistrate failed to sufficiently consider the evidence and erred in finding that had D1 made a brief check, he would have had no difficulty at all in discovering the presence of the goods in question[17].

(2) Also by reason of her failure to sufficiently consider the evidence, the Magistrate erred in finding that D1 knew that the 28 polystyrene boxes were on board the vehicle in question[18].

(3) On the basis of the said erroneous findings, the Magistrate’s ruling that D1 could not rely on the defence to Charge 1 was unsafe.

(4) The Magistrate erroneously mixed up the offence in Charge 3 (section 7(4) of the Import and Export (Electronic Cargo Information) Regulation) with another offence under the same enactment (section 4(4)), and also erroneously convicted D1 on Charge 3 when the prosecution had not adduced any or any sufficient evidence.

(5) In respect of Charge 5, the Magistrate erred in failing to consider that D1 could rely on the defence of “honest albeit mistaken belief”.

(6) As a result of the said erroneous findings of fact, the conviction on Charge 6 is also unsafe.

D2

30.  Mr Jeremy Cheung, Counsel for D2 in this appeal[19], has put forward grounds of appeal which can be summarized as follows:

(1) At trial, counsel for D2 submitted that when D2 sought to rely on the statutory defence in respect of the two charges he was facing, if the burden of proof imposed on him was a persuasive burden (“persuasive burden”), which meant that he would have to prove his defence on a balance of probabilities, then this contravened the principle underlying article 87 of the Basic Law and article 11(1) of the Hong Kong Bill of Rights Ordinance[20]. In rejecting that submission without giving any reason therefor, the Magistrate acted in breach of procedural justice.

(2) In proving the defence to the two charges against D2, he was only required to bear an evidential burden. The Magistrate erred in proceeding on the basis that D2 bore a persuasive burden.

(3) D2’s counsel at trial was incompetent, as a result of which D2 did not receive a fair trial.

Discussion and consideration

31.  In my view, other than Ground (3) advanced by D2, it is more appropriate and convenient to deal with this appeal by discussing and considering each of the counts separately instead of looking at each of the grounds of appeal separately. I shall proceed accordingly.

32.  Although not as clearly stated in D1’s written grounds of appeal as D2’s was, it appears from the written submissions of Ms Cheung and the oral submissions she made during the hearing that D1 has also raised issues regarding mens rea and the standard of proof applicable to the statutory defence.

33.  Given that difference in nature between Ground of appeal (3) put forward by D2 appeal and the other grounds of appeal, and given the relevance of Ground (3) to both of the convictions against D2, it would have been appropriate to deal with this ground of appeal first. However, as some of the considerations pertinent to this ground of appeal depend on the rulings to be made in respect of the other grounds of appeal, I will therefore leave Ground (3) to the very end.

34.  The appeals against convictions in the present case involve, directly or indirectly, the issues of burden of proof and standard of proof. I will therefore start by dealing with these issues.

35.  D1’s case is that, as the Failure to Bundle Information Offence[21] and the Pest Offence[22] are not strict liability offences, the prosecution must prove knowledge on the part of the accused. The remaining offences are strict liability offences, and in relying on the statutory defence the appellant had to bear only an evidential burden and not a persuasive burden.

36.  D2’s case is that, as the two offences with which D2 was charged are both strict liability offences, in relying on the statutory defence D2 had to bear only an evidential burden.

37.  Mr Ngai, Senior Public Prosecutor for the respondent, puts forward the following case:

(1) Apart from the Endangered Species Offence[23] which is an absolute liability offence, the remaining offences are strict liability offences.

(2) Those who are charged with these strict liability offences have to bear a persuasive burden in relying on the statutory defence.

38.  The issues here are whether the constitutionally guaranteed right to be presumed innocent[24] has been derogated, and if it has, whether the relevant statutory provisions are nevertheless constitutional and hence not liable to be struck down. Closely linked to the right to be presumed innocent is the presumption that prosecution has to prove mens rea. A related question is whether or not the latter presumption should be displaced or even whether the burden of proof is reversed.

39.  The considerations in this respect, as well as the principles involved, are applicable to the appeals against the various convictions in the present case.

40.  The right to be presumed innocent is not an absolute right; it can be derogated by legislation. However, any such derogation must be supported by compelling reasons.

41.  In a series of decided cases[25], the Court of Final Appeal laid down the following principles to be applied in dealing with statutory provisions which appear to derogate from the presumption of innocence:

(1) To decide, as a matter of statutory construction, whether it is the clear legislative intent to reverse the burden of proof;

(2) Whether such a reversal of the burden of proof constitutes a derogation from the presumption of innocence;

(3) Whether such derogation from the presumption of innocence is justified. The prosecution must give sufficiently compelling reasons to convince the court that the reversal of the burden of proof is for the pursuit of a legitimate social aim and satisfies the requirements of rationality and proportionality.

42.  In the present case, in respect of the offences which the parties have accepted to be strict liability offences, it is also common ground that the clear legislative intent is to reverse the burden of proof. As regards the Endangered Species Offence, which the respondent submits is an absolute liability offence, although D1 only accepts that it is a strict liability offence, Ms Cheung has conceded that the clear legislative intent is to reverse the burden of proof.

43.  The following two matters are also not in dispute:

(1) If the legislative intent is to reverse the burden of proof, then as far as those offences against which the provisions are directed are concerned, such reversal aims to pursue a legitimate social aim; and

(2) such reversal also satisfies the rationality test.

44.  Therefore, in considering the various offences in the present case, the main issue is whether the proportionality test is satisfied.

Charges 1 & 2(Importing unmanifested cargo)

45.  D1 and D2 were respectively convicted on Charge 1 and Charge 2.

46.  The Magistrate expressly held that Charges 1 and 2 involved strict liability offences and that, if the appellants were to rely on the statutory defence, the standard of proof would be on a balance of probabilities.

47.  The relevant provision which provides for the offence of importing or exporting unmanifested cargo is section 18 of the Import and Export Ordinance[26]:

“ (1) Any person who -

(a) imports any unmanifested cargo; or

(b) exports any unmanifested cargo,

shall be guilty of an offence and shall be liable -

(i) on summary conviction to a fine of $500,000 and to imprisonment for 2 years;

(ii) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 7 years.

(2) It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested.”

48.  In my view, in order to prove that an accused committed this offence, the prosecution must prove that:

-  The accused imported (or exported) the goods;

- The goods were unmanifested.

It is not necessary for the prosecution to prove that the accused knew that the goods he imported (or exported) were unmanifested.

49.  However, the accused will not be convicted if he can successfully invoke the defence under section 18(2).

50.  This much is not in dispute. The crucial consideration is: can this reversal of the burden of proof satisfy the proportionality test?

51.  Proportionality means whether or not the reversal of the burden of proof goes beyond what is necessary to achieve the relevant objective. In Hung Chan Wa & Another v HKSAR[27],Stock JA, as he then was, pointed out: what the court has to do is balance the legislative objective and the constitutional right to be presumed innocent, in order to determine whether the derogation exceeds what is necessary to achieve the objective. In doing so, the court does not necessarily have to look for a means of achieving the objective which minimizes derogation from the right[28] , but rather must ascertain whether there is a means of achieving the objective which entails a relatively slight derogation from the right[29] .

52.  The respondent submits that even if a persuasive burden were imposed on the accused, it would still be proportionate. Mr Ngai relies on a number of decided cases, including the Court of Final Appeal case of Fu Kor Kuen Patrick v HKSAR[30], to support his argument.

53.  The appellants take issue with this. Mr Cheung submits that although the burden placed on the defendant is, applying the general rules of statutory interpretation, clearly persuasive, this burden of proof is too onerous to satisfy the proportionality test. The reason is, even if the court was satisfied, on the defence evidence, that the defence was as likely to have been made out as it was not, the defendant would still be convicted; and even if the court found that there was a reasonable doubt as to whether the defendant was guilty, a conviction would still follow. It is submitted that, to avoid the relevant statutory provision from being declared unconstitutional and invalid, a remedial interpretation would have to be applied, construing the provision as merely imposing an evidential burden, so that the provision could satisfy the proportionality test.

54.  Mr Cheung cites the following observation made by Ribeiro PJ in Lee To Nei v HKSAR[31]: The possibility of a conviction in such circumstances is the hallmark of a derogation from the presumption of innocence.

55.  Ms Cheung agrees with Mr Cheung on this point.

56.  In addition to citing a series of Court of Final Appeal cases in point, Mr Cheung also relies on the case of R v Wong Hiu Chor[32]to support his argument.

57.  The case concerned the following two offences under the Import and Export Ordinance[33]:

(1) Assisting in the export of unmanifested cargo (section 18A of the Ordinance);

(2) Assisting in the carriage of prohibited articles (section 35A of the Ordinance).

58.  Both of the offence-creating sections provide that, in circumstances that give rise to a reasonable suspicion that the accused had the specified intent to commit the offence, he will be presumed to have such intent in the absence of evidence to the contrary.

59.  This magistracy appeal was heard by the Court of Appeal. Fuad V-P held that in rebutting the above presumption, the accused had to bear only an evidential burden of proof.

60.  When considering the relevant issues, I have referred to a number of Court of Final Appeal decisions in point.

61.  In both Hin Lin Yee v HKSAR[34] and Kulemesin v HKSAR[35], Ribeiro PJ pointed out the following: when the presumption that the prosecution has to prove mens rea should be displaced and the offence in question is regulatory in nature, the court will be more prepared to accept that the legislative intent is to impose a persuasive burden of proof on those who seek to rely on the statutory defence. Where, on the other hand, the offence in question is serious and attract a severe penalty, the court will be inclined to infer that the legislative intent is to impose only an evidential burden of proof on the accused.

62.  In HKSAR v Ng Po On[36], Ribeiro PJ also pointed out that:

(1) Where the legislative provides for a relatively low level of penalty, this is one of the factors for assessing proportionality but does not necessarily provide a positive justification for a persuasive burden;

(2) The situation is the same where the facts constituting the defence are within the defendant’s peculiar knowledge. Another consideration is whether the prosecution is able to adduce evidence in rebuttal;

(3) Even if a mere evidential burden is placed on the accused, this must not be seen as something nominal or illusory, because the evidential burden requires the accused to adduce sufficiently substantial evidence to raise the issue and, in the end, to demonstrate a reasonable doubt about his guilt.

63.  In considering the matter, the court must examine the specific facts and circumstances of the particular provision as applied in the particular case, and focus on the provision itself.[37]

64.  In HKSAR v Lam Kwong Wai[38],the Court of Final Appeal pointed out:

“Appropriate weight should be accorded to the legislature’s judgment that a persuasive onus was appropriate; but this issue turned on matters of proof, onus and evidence, and in this area the court was able to form its own judgment without labouring under a disadvantage vis-à-vis the legislature. A provision requiring proof of possession threw the onus onto a defendant who was unfairly called upon to disprove his moral blameworthiness. His conviction might rest on conduct which was in no sense blameworthy.”

65.  In Kulemesin,Ribeiro PJ pointed out that, in considering whether the presumption of innocence has been displaced as a matter of statutory construction, the court should examine the language and purpose of the provision, and the following matters should be taken into consideration:

(1) The nature and seriousness of the offence;

(2) The severity of the penalties and social or professional stigma;

(3) The utility of imposing sanctions;

(4) The prevailing societal conditions.

Ribeiro PJ went on to say that, even if the presumption of innocence is to be supplanted, the court should also consider what alternative legal regime governing the mental requirements might take the place of mens rea (see paragraph 217 of this judgment).

66.  In Lee To Nei, after referring to R v Johnstone[39], the Court of Final Appeal pointed out that the court must examine whether, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, as well as the extent to which the burden on the accused related to facts which are readily provable by him as matters within his own knowledge or to which he has ready access, have to be taken into account.[40]

67.  Returning to the provision with which the present case is concerned, the statutory defence requires the accused to prove not only that he had no knowledge that the goods were unmanifested, but also that he could not with reasonable diligence have known that the goods were unmanifested.

68.  In HKSAR v Kong Hing Agency Ltd[41], Ma CJHC (as he then was) pointed out that:

(1) “Reasonable diligence” and “due diligence” are different requirements.  The use of the word “reasonable” connotes an objective test and requires the court to examine just what could reasonably have been expected in the circumstances of the case;

(2) In other words, the question to ask is: what could the accused have been reasonably expected to have done in the circumstances of the case? What an accused had actually done is not crucial, because even if he had done nothing, he may escape liability where the exercise of reasonable diligence would not in the circumstances have resulted in the discovery of the contravention;

(3) The test has a subjective aspect, in that one must look at the particular circumstances of the accused.[42]

Regarding what is reasonable, the Court of Appeal concurred with what Stock J (as he then was) said in R v Mulitex (Exports) Ltd[43]:It does not require the doing of everything possible, but the doing of that which, under ordinary circumstances, and having regard to expense and difficulty, can reasonably be required. What are reasonable steps, and what is reasonable diligence, will vary with the legislative context in which those words appear and with the facts of the case.[44]

69.  I have been told that, in dealing with magistracy appeals involving this offence[45], judges of the Court of First Instance have consistently pointed out that the standard of proof required of an accused who seeks to invoke the statutory defence is a balance of probabilities. None of the parties has been able to locate any case in which the court made a different ruling.

70.  However, all the parties have accepted that:

(1) In those cases, the question whether a persuasive or evidential burden was imposed on the accused was not in issue;

(2) It appears that in none of those cases had any of the parties referred to the abovementioned Court of Final Appeal decisions for consideration by the court.

71.  Mr Ngai points out that the smuggling of goods, particularly those from the Mainland, is a mischief to Hong Kong which, in the interests of Hong Kong as a whole, ought to be curbed by means of stringent law and regulation. Smuggling activities have been on the rise over the last 3 years: the numbers of detected smuggling cases involving cross-border goods vehicles in 2011, 2012 and 2013 are, respectively, 141, 160 and 244.

72.  Therefore, section 18 of the Ordinance imposes a positive duty on those who bring goods into Hong Kong, such as consignors and drivers.

73.  Mr Ngai presses the point that, given that goods were imported from outside Hong Kong and processes such as the loading of goods and Customs declaration also took place outside Hong Kong, and that the enforcement powers of Hong Kong Customs do not extend beyond Hong Kong, it would be difficult for the prosecution to prove its case and gather evidence to rebut what the accused said if the accused did not have to bear a persuasive burden of proof.

74.  Besides, various kinds of people, including consignors, consignees, shipping agents and drivers etc, import goods into Hong Kong and export goods from Hong Kong. These people play different roles, and the circumstances in which the relevant goods are dealt with also vary from case to case. If an accused were to bear only an evidential burden, it would be impossible for the prosecution to rebut beyond reasonable doubt what the accused said.

75.  Mr Ngai points out that in quite a number of cases in the past, defendants who sought to rely on the statutory defence claimed that they had either inspected the goods in person or arranged staff to do so, or that the Customs declarations were handled by a Customs declaration agent on the Mainland. As the alleged reasonable diligence had very often been exercised outside Hong Kong, it was not possible for the Customs to cross the border to investigate if such allegations were true.

76.  Mr Ngai stresses that whether an accused had knowledge of the contravention is a matter within his mind which is difficult for the prosecution to disprove.

77.  Mr Ngai also points out that the circumstances of the conduct involved in the present case are vastly different from those involving trade descriptions in Lee To Nei. This is particularly so as the latter conduct does not necessarily involve any cross-border element. In most cases involving trade descriptions, the prosecution is able to gather evidence or call witnesses in Hong Kong to rebut what the defence case. The prosecution can also call the trademark owner to give evidence on the obvious differences between the genuine goods and the counterfeits, for the purpose of proving that it would have been impossible for the accused not to know whether the goods were genuine.

78.  As it is difficult for the prosecution to gather evidence, smugglers can escape legal liability simply by making false claims of having done acts which are said to constitute reasonable diligence. This will severely curtail the effectiveness of the Ordinance in regulating the import and export of merchandise, protecting legitimate trade and preventing smuggling.

79.  Accordingly, Mr Ngai submits that the imposition of a persuasive burden on the accused should be capable of satisfying the proportionality test.

80.  The appellants take a different view. They argue that the maximum penalty for the offence is 7 years’ imprisonment and a fine of $2,000,000, and the stigma brought by smuggling is by no means minor. Moreover, it must not be ignored that one may be convicted of the offence merely by reason of his having neglected his duty which fell short of an intentional contravention of the law.

81.  In R v Wong Hiu Chor[46]the Court of Appeal said thateveryone who lived in Hong Kong did not have to refer to statistics to appreciate how serious a problem smuggling had become. The enormous difficulty in preventing smuggling was also widely known. As the fight against smuggling activities helped maintain the integrity and reputation of Hong Kong as a hub of international trade, it was necessary to encroach on the presumption of innocence. However, being concerned about the possibility of the innocent being convicted, the Court of Appeal concluded that, in seeking to rebut the presumption which would otherwise lead to a conviction, an accused had to bear only an evidential burden.

82.  The statutory defence involved in the present case is similar to section 9 of the Trade Descriptions Ordinance, the provision with which Lee To Nei was concerned. The accused has to prove that he:

(1) did not know that the goods were unmanifested; and[47]

(2) would not have known, even with reasonable diligence, that the goods were unmanifested.

Section 9 contains a third requirement, namely that the accused had no reason to suspect. This does not form part of the statutory defence under section 18 of the Import and Export Ordinance.

83.  In relation to section 9 of the Trade Descriptions Ordinance, Ribeiro PJ considered that, as the accused must adduce evidence to satisfy the aforesaid three requirements, the perceived difficulty in disproving the accused’s claim of lack of knowledge would not present much of a problem because it was not sufficient for him to prove merely that he had no knowledge.

84.  Ribeiro PJ further pointed out that, as far as the offence in that case was concerned, as long as the prosecution could prove that the accused should have been able to discover that the trade description was false if he had taken steps that were considered to constitute reasonable diligence, he would not be able to escape liability even if he could prove that he had neither knowledge nor reason to suspect.

85.  In Ng Po On,Ribeiro PJ made it clear that even if the accused bears only an evidential burden, he must adduce or point to evidence sufficient to give rise to a reasonable doubt as regards the relevant excuse. If the evidence is not sufficient or credible, then he cannot rely on the excuse. Therefore, whether the burden of proof placed on him is persuasive or evidential, he has to adduce the best evidence to support his excuse. What the standard of proof is and what evidence the accused adduces are relevant only in so far as they affect how the fact-finding tribunal assesses the evidence relied on to support the excuse.

86.  Whether the diligence exercised is reasonable or not is to be assessed objectively. Therefore, the defence is not solely concerned about the personal knowledge of the accused.

87.  For the purpose of rebutting the evidence adduced in support of the statutory defence, is there any distinction between the section 18 offence and the offence in Lee To Nei which justifies different considerations and approaches being adopted for them?

88.  As mentioned above, for the offence with which Lee To Nei was concerned, the statutory defence imposed one additional requirement, namely that the accused had no reason to suspect.

89.  In my view, this in itself does not justify a different conclusion. The important point is, the statutory defence involved in the present case also contains both objective and subjective elements. Even if the accused bears only an evidential burden, he must adduce evidence to put in issue both of the requirements of the statutory defence and must raise a reasonable doubt in the end in order to escape criminal liability. In Lee To Nei, the Court of Final Appeal concurred with the observation made by McMahon J that there is an overlap between the two excuses of lack of reason to suspect and reasonable diligence, as what constitutes reasonable diligence depends on the specific circumstances of the case.

90.  In my view, where the circumstances are unusual or cause unease, there should be a commensurate enhancement of the degree of diligence required.

91.  In other words, even if the accused bears only an evidential burden and the burden of proof remains on the prosecution, as long as the prosecution can disprove beyond reasonable doubt one of the grounds of the statutory defence, the accused will fail in the statutory defence.

92.  It is very often difficult for the prosecution to prove that the accused was aware of the contravention, but depending on the evidence, it is not always impossible. It must be noted that in Hung Chan Wa v HKSAR[48], Stock JA (as he then was) pointed out: for the purpose of raising the defence of lack of knowledge, it may not be a sufficient discharge of the evidential burden for the accused to make a bare statement, unsupported by evidence, that he had no knowledge. To prove that the accused cannot rely on the other ground of statutory defence, the prosecution has to prove that if the accused had exercised reasonable diligence, he would have become aware of the contravention.

93.  In so far as the offence under the Trade Descriptions Ordinance is concerned, if an accused adduces evidence in purported reliance of the statutory defence, it is open to the prosecution to adduce evidence to show that if the accused had exercised reasonable diligence, he would have discovered the contravention. Such evidence includes the availability of reputable sources of goods supply, the dubious reputation of the supplier from whom the accused sourced the goods, the availability of an authoritative supplier (such as the sole agent) of whom enquiries could be made, and the appearance of the goods which gave rise to reasonable suspicion, etc.

94.  Regarding the offence of importing or exporting unmanifested cargo, as far as the transportation business is concerned, reasonable diligence generally means supervising the loading of goods or inspecting the goods. Both can be done by means of full-scale supervision/inspection or random checks. What constitutes reasonable diligence depends on the circumstances, and random supervisions or checks may be considered reasonable.

95.  Where random supervision or checks may be regarded as reasonable diligence, whether the ratio and method of selection are reasonable will also depend on the circumstances, including whether the ratio is adequate and whether the sampling is sufficiently representative.

96.  Whether reasonable diligence will result in the discovery of the smuggled goods will again depend, to a large extent, on the actual circumstances of each case. The significant evidence in this regard includes how the smuggled goods are stored, where they are hidden, and the nature of the goods.

97.  Even if, in the circumstances of that case, random checks on the goods constitutes reasonable diligence, this is not to say that it is already sufficient if, in terms of number, a certain percentage of the goods have been checked randomly. For the diligence exercised to be regarded as reasonable, not only does the percentage of the goods subjected to random checks have to be reasonable, the extent to which they are representative is also an important factor. For example, if checks are conducted on only the outermost layer of goods, the diligence exercised can hardly be described as reasonable. Generally speaking, for the random checking to qualify as reasonable diligence, it has to be done extensively. Goods placed on the bottom layer, deep down in the lot or at the inner corners should not be neglected, unless there is evidence from the accused to prove that checking these goods will go beyond reasonable diligence. Moreover, if there are goods the appearance of which invites suspicion, they should be checked. Therefore, even where random checking may be regarded as reasonable diligence, it is very often necessary to move the goods around in order to conduct the checks.

98.  Having considered the matter carefully, I take the view that, for the offence in question, the imposition of a persuasive burden on the accused fails to satisfy the proportionality test as it creates an excessive encroachment on the presumption of innocence. It is only by holding that the accused bears only an evidential burden that such undue encroachment, as well as the need to declare the relevant statutory provision unconstitutional, can be avoided. It has to be borne in mind that in respect of this offence, once the prosecution has proved that the accused imported or exported goods and that those goods were unmanifested, it is then for the accused to prove his innocence.

99.  In my judgment, therefore, an accused who seeks to rely on the statutory defence under section 18(2) bears only an evidential burden of proof. Once he discharges this burden, the prosecution will have to prove beyond reasonable doubt:

(1) that the accused knew that he had imported or exported unmanifested goods; or[49]

(2) that he would have discovered the presence of these goods had he exercised reasonable diligence.

100.  As long as one of these is proved and the elements of the offence are established, the accused should be convicted.

101.  The first ground of appeal put forward by Mr Cheung on behalf of D2 is that the Magistrate’s failure to give any reason in respect of her ruling on the aforesaid point of law was a violation of procedural justice.

102.  In light of the decision I have made on this point of law, which overturns the ruling of the Magistrate, Mr Cheung’s argument has become academic. I should mention in passing that I do not agree that the Magistrate has violated procedural justice. She made a ruling on this point of law after considering the submissions of defence counsel had made; it is just that she did not state the reasons for her ruling. What the Magistrate made was a ruling on a point of law, not an assessment of credibility of a witness or a finding of fact. It would have been desirable for the Magistrate to give reasons for her ruling on the point of law. However, even though she did no more than delivering her ruling, generally speaking this is not a ground for overturning a correct ruling.

103.  It follows from the decision I have made that the Magistrate erred in considering the first and the second offences on the basis that the appellants bore a persuasive burden of proof. However, this does not mean that the convictions should automatically be quashed. A magisterial appeal takes the form of a re-trial, and I am entitled to consider whether the two appellants should be convicted on the basis of the evidence correctly established.[50]

104.  In the present case the following facts have been admitted:

(1) There was unmanifested cargo on board the goods vehicle driven by D1: 83 bags of pet fish, 61 turtles, 28 turtles (endangered species), 455 grammes of mealworms and 730 grammes of crickets;

(2) The vehicle was entering into Hong Kong from the Mainland via Man Kam To Control Point;

(3) The goods vehicle was laden with goods, including 28 polystyrene boxes sealed with plastic adhesive tapes, and also many paper boxes, plants and fresh flowers, as shown in the photographs[51];

(4) The goods listed on the cargo manifest were 100 numbers of fresh flowers;

(5) The recipient of the goods was Ho Shi Nin;

(6) D2 was the proprietor of Ho Shi Nin and the owner of the said goods vehicle;

(7) The goods listed on the electronic cargo manifest, which was filed on 18 October, were 100 numbers of fresh flowers, 20 numbers of horticultural products and 20 numbers of pet fish.

105.  D1 testified and called as witness a cross-border driver who also worked for D2. Their testimonies can be found in paragraph 17 of this judgment.

106.  D2 did not testify but made statements in three interviews, the contents of which are set out in paragraph 19 of this judgment.

107.  The Magistrate made the following findings on the evidence: D1’s evidence was neither credible nor reliable. Not believing that he had told the truth, the Magistrate rejected his evidence.  She also considered that the evidence given by the defence witness was not of much assistance to D1.

108.  As regards D2’s statements, she said she would not accord any weight on them.

109.  It was within the Magistrate’s duty and power to make findings in this respect. Generally speaking, the appellate court will be slow to interfere with those findings.

110.  However, in the present case, the Magistrate adopted the standard of proof of a balance of probabilities, and it is by no means certain whether she would have arrived at the same had she adopted the standard of proof which, in my judgment, should be adopted. Therefore, in considering the matter, I will not rely on the Magistrate’s findings in this respect, but will instead take what the two appellants said as the basis.

111.  I have to emphasize that this approach is adopted in light of the unusual circumstances of the present case. I am not saying that the fact that an accused bears only an evidential burden means that the court has to accept everything he says. Even where an accused bears no burden of proof whatsoever, the fact-finding tribunal is entitled, for sufficient reasons, to reject his testimony.

112.  As Ribeiro PJ said in Lee To Nei,to rely on the statutory defence, the accused has to adduce or point out what credible[52] evidence there is to support the defence.  Ribeiro PJ said in Ng Po On that only evidence which in the end is capable of raising a reasonable doubt can be relied on to support the statutory defence.

113.  Stock VP pointed out in HKSAR v Yeung Wai Ho Henry[53] that to discharge the evidential burden, the accused must adduce or point to evidence which, if believed, can support his defence.

114.  As far as the present case is concerned, it is not that there is no reason not to believe the two appellants. It is just that the Magistrate adopted a balance of probabilities as the standard of proof, as a result of which her findings are unsafe.

115.  Insofar as D1’s grounds of appeal are directed at the Magistrate’s findings of fact in this respect, no matter with which charge they are concerned, I do not have to deal with them anymore because they are no longer material to the determination of this appeal. The matters set out in paragraphs 5 to 14 and 104 of this judgment, which were not in dispute at trial, can be taken into account.  Furthermore, in considering the matter, I will proceed on the basis that the testimony or statements given by the two appellants should be accepted. The same applies to the testimony of the defence witness. The statements made by D2 should, as far as they are favourable to D1, also be adopted.  Therefore, the judgment of the present case is influenced by the way the evidence is dealt with as a result of the special circumstances of the case.

116.  In my view, in respect of Charges 1 and 2, the prosecution has proved beyond reasonable doubt the essential elements of the offences that have to be proved. On the other hand, the two appellants have sought to rely on the statutory defence and, except for the allegation against D1 regarding the pet fish, they have discharged the evidential burden.

117.  Both appellants claimed that they had no knowledge. In this respect, except for what D1 knew about the fish on board the vehicle, the prosecution has failed to disprove those claims.

118.  D1 must have known that there was fish on board the vehicle which was unmanifested. Not only had he been so told by the Customs declaration company, he himself also saw that there were 5 bags in the driver’s cabin. He also admitted in his testimony that he knew there was fish in the loading platform.

119.  His explanation was that he was told by the people of the Customs declaration company that although no declaration was made in the cargo manifest, declaration had been made in the electronic Customs declaration that was filed. He thought that the two documents could be “combined for use”.

120.  Ms Cheung, Counsel for D1 argues that there is nothing in the Ordinance which prohibits the combined use of the two types of Customs declaration documents. Besides, even Customs officers such as PW1 thought that such combined use was allowed.

121.  There is no evidence that D1 had been misled in any way, either directly or indirectly, by Customs or its officers, into thinking that the two types of Customs declaration documents could be combined for use. If this was what he thought, it was at most a result of what he had been told by those at the Customs declaration company. If D1 believed this to be true, he could blame no one but himself for having mistakenly believed what was objectively speaking unreasonable.

122.  The hard copy cargo manifest and the electronic Customs declaration document are two distinct legal requirements under different ordinances.  There is no provision which stipulates that the two Customs declaration documents can be combined for use. This being the case, there is no doubt that the requirements under the two ordinances must be observed separately and independently.  What D1 said is rather forced and unreasonable.  In any event, ignorance of the law is no defence.

123.  The next question I have to consider is: would each of the appellants have known that the goods being imported into Hong Kong were unmanifested if he had exercised reasonable diligence?

D1

124.  Being the person who put the cargo manifest into the Customs collection box, D1 must have known that fresh flowers were the only goods listed on the cargo manifest.  As he knew that the goods on board the vehicle included fish which was unmanifested, he must be guilty on Charge 1 against him, because he at least did knowingly import fish and such goods were unmanifested.

125.  As regards the turtles and worms, these goods were hidden in only one of the 20-odd polystyrene boxes. In my view, D1 has discharged the evidential burden required to invoke the statutory defence.

126.  Even if it was D1’s belief and understanding that Ho Shi Nin had all along only transported pet fish, horticultural products and fresh flowers, the presence of fish on the vehicle must, in the normal course of events, have aroused his suspicion about the accuracy of the cargo manifest. The Customs declaration was handled by a Customs declaration company. According to D1, they wrote down the same floral goods every day. D1’s explanation was that those at the Customs declaration company told him that although no declaration was made in the cargo manifest, declaration had been made in the electronic Customs document. He thought that the two documents could be “combined for use”. It is true that the goods listed in the electronic Customs document were 20 boxes of pet fish. Although the concern could be allayed, it can hardly be said that the concern arose out of the omission in the cargo manifest could be completely swept away.

127.  I therefore proceed to consider whether the prosecution would be able to prove beyond reasonable doubt that D1 would have discovered those goods had he exercised reasonable diligence.

128.  What constitutes reasonable diligence was discussed in paragraph 68 of this judgment. What qualifies as reasonable diligence varies from case to case.

129.  I agree that the duty imposed by the Ordinance on importers or exporters of goods is positive and specific, particularly on someone such as D1 who submitted the cargo manifest by hand.

130.  The present case is not one where a consignor rode on a vehicle carrying the goods in person, but one where the goods were completely entrusted to the driver of the goods vehicle.

131.  The goods were packed in Guangzhou. D1 did not witness the packing of the goods into the boxes, the sealing up of the boxes and the loading of the goods. And the goods vehicle was driven over to him by a Mainland driver who handed over the vehicle to him. There is no evidence that D1 had sufficient reasons for to believe the driver completely. He said he was in much of a hurry as he only had an hour to transport the goods including Customs clearance. However, there is no evidence to show why the temporal arrangement could not be adjusted, nor is there evidence to show why it was necessary to have the arrangements as described by D1.

132.  Although it was the policy of Ho Shi Nin to require the staff loading the goods to check them, specifically to check one out of every two or three boxes, there was no system to speak of in its enforcement. There was no record, not to mention any substantial supervision and management. In fact, D1 and D2 did not have the faintest idea whether the goods had been checked.

133.  Even if there was a better system of enforcement, a driver who did not witness the packing and loading of the goods would, pursuant to the positive and specific duty to which he was subject, be obliged to check them. Save in very reasonable and credible circumstances, a driver who merely relied on other people’s assurances can hardly be said to have exercised reasonable diligence.

134.  Where it was known that the vehicle driver had to be changed, the duty to check the goods would assume even greater importance unless there were very good and credible reasons for not performing that duty, for example, when there had been sound and satisfactory inspection, record-keeping and sealing up, or when the source of the goods was reliable and the circumstances as a whole were such that it was reasonable for the accused to rely on them. This is because the risk of cross-border goods vehicle being used for smuggling obviously exists and drivers cannot possibly be ignorant of such risk.

135.  In HKSAR v Tsui Sun Wah[54], Deputy High Court Judge Derek Pang, as he then was, concurred with the view taken by the trial magistratethat drivers had the duty to supervise on the spot where the goods were loaded, and  went on to say that this was the basic requirement. Besides, in HKSAR v Ngan Shu Hung[55] and HKSAR v Chan Kin Keung (transliteration)[56], Pang J and Maggie Poon J respectively stressed the importance of inspection of the goods by drivers. I respectfully concur with the observation made by these three judges.

136.  The goods involved in the present case were by no means light. Even the Customs had to deploy three persons who had to use an aluminium ladder and spend as long as one hour in order to move all the boxes down. Be that as it may, what the polystyrene boxes contained was fish, the weight of which would not be such that one person alone could not handle.

137.  D1 said he did not know what was inside the boxes, which were fully sealed up. Of the 20-odd polystyrene boxes, only one of them contained turtles, mealworms and crickets. Besides, he did not know where exactly in the loading platform the box was placed. Apart from these polystyrene boxes, there were also many paper boxes in the loading platform. Even if the loading platform was not completely filled with goods, they took up most of the space in the platform.

138.  Only 30-odd boxes of goods were involved in the present case. It was not technically difficult to open the boxes to have a look and then to reseal them. While this would certainly use up extra time, the amount of time involved could not be considered excessive. Nor is there evidence to suggest that it was not reasonably practicable to do so. In the context of the present case, to open the boxes to check all the goods to the extent as described was reasonable diligence to be exercised by the driver which did not go beyond reasonable requirement or expectation. Ms Cheung submits that this would be tantamount to checking 100% of the goods. Whether checking 100% of the goods is reasonable diligence depends on the circumstances and may not necessarily be excessive. It must be remembered that during the handing/taking over of the goods vehicle, the Mainland driver was at the scene, and there is nothing to show why he could not have provided assistance.

139.  In the present case, there is no evidence to show that the contract did not allow the boxes to be opened for inspection. However, even if the contract did forbid that, if there were no objective circumstances or measures capable of giving rise to a reasonable belief in what the boxes contained, this would certainly put one on alert or even arouse one’s suspicion. An accused who, with full knowledge of his legal liability, nevertheless chooses to take the risk may be debarred from relying on the statutory defence. Whether this is indeed the case will of course depend on the overall evidence in the particular case.

140.  Nor is there evidence in the present case to demonstrate any practical and technical difficulties involved in opening the boxes. As far as D1 knew, the goods were only plants and fish. For him to open the boxes to take a look would not create a grave risk of the goods being damaged.

141.  Furthermore, the appearance of the goods can hardly be said to be capable of giving rise to a reasonable belief that they came from a reliable source. I am not trying to say that those who transport goods that appear to have been directly loaded in the country of origin or by the authorized dealer do not have the duty to check the goods. What I am trying to say is that the requirement of reasonable diligence should be strengthened if the goods do not have an appearance that gives rise to a reasonable belief that their source is dependable.

142.  There is no evidence to indicate that it would not be commercially viable to conduct such checking. One only had to open the boxes to take a look, and it was not necessary to carry out a detailed inspection. Apart from the extra time involved, there is no evidence to show that the checking was so impractical as to constitute an unreasonable requirement. It must be borne in mind that there were only 30-odd boxes of goods on board the vehicle. Had there been boxes within the boxes or a large number of boxes, the requirement of reasonable diligence would have been different.

143.  The boxes would not be light. In terms of their contents, however, it would not go beyond reasonable diligence to move them for the purpose of checking their contents. This was particularly so when the polystyrene boxes were not sizable and contained only fish. In order to exercise reasonable diligence, the goods vehicle could be fitted out or equipped with accessory apparatus or tools such as hoisting pulley, wheeled pallet, rear-end height adjustable goods rack etc. As far as D1 knew, the goods were not of the delicate or fragile type that had to be handled with extreme care in order to avoid damage, and no extra care or special skill was needed to move them around for inspection. Besides, the driver did not have to unload all the goods. He only had to unload some of them to make sufficient room on the vehicle for him to conduct the inspection. Such space would be available when some of the polystyrene boxes were removed.

144.  In the circumstances of the present case, reasonable diligence merely required D1 to open the boxes one by one to take a look. D1 did not even have to fully open the lids. The contraband goods in the present case were easily visible. Had they been properly hidden and not been discoverable by merely conducting the said inspection, the circumstances and conclusion might not necessarily be the same.

145.  Ms Cheung contends that if the employer was not willing to increase cost, hire more hands or install more equipment, there was nothing drivers like D1 could do.

146.  I understand the situation of the driver. Even so, the basic premise is that he had to make a choice: was he going to take this job, knowing it was difficult to fulfill the legal duty? If the legal requirement is established, the employer must also take corresponding steps in response. This sort of interaction is very often needed to give effect to the legislative intent and to uphold and protect the collective interests of the community.

147.  In my view, in the circumstances of the present case, to open the boxes one by one to take a look at their contents was the reasonable diligence to be exercised by a reasonable person who was under the duty to ensure that all the goods taken through the Customs were manifested. Had he discharged this duty, D1 would have discovered all the unmanifested cargo.

148.  For the above reasons, the prosecution has, in my judgment, proved beyond reasonable doubt that, had D1 exercised reasonable diligence, he would have discovered the unmanifested cargo on board the vehicle.

149.  Turning to D2, he was the proprietor of the company that arranged the transportation and delivery on the occasion in question. He was also the owner of the goods vehicle and the person who employed D1 as its driver.

150.  Given his capacity and role, it would of course go beyond reasonable expectation to require him to check the goods himself. For this type of people, reasonable diligence generally means formulating a suitable system for checking goods along with sufficient supervision and record keeping.

151.  Even on the account given by D2, he had merely instructed his staff to conduct random checks on the goods when they were being loaded, with one or two boxes out of every 10 boxes to be checked, but no record was kept. He did not know how cargo manifests were to be filled out. He did not say that any supervision system was in place.

152.  In my view, what D2 did was obviously inadequate. However, this is not crucial because the defence is not that he had exercised reasonable diligence but that he could not have discovered the unmanifested goods even if he had exercised reasonable diligence.

153.  The kind of goods-checking system that satisfies the requirement of reasonable diligence will depend on the circumstances. On facts like those in the present case, given that each driver has the duty to conduct extensive brief checks on the goods he transports and delivers, there is no reason why the proprietor who employs the drivers should not set up a comprehensive system and provide equipment to ensure that the drivers perform their duty. In my view, only by doing so can the requirement of reasonable diligence be met. It has to be noted that the transportation arrangements made by D2 involved the switching of drivers in the middle of the journey. It is not reasonable diligence for an employer to simply let cross-border drivers transport goods when they in fact have no idea what the goods are.

154.  Merely giving instructions cannot by itself ensure that drivers and staff will fulfill the duty. There must be monitoring. One method is to appoint supervisors. A complete record should also be kept. Nowadays, video recording devices, which are commonly used and inexpensive, can be very effective monitoring tools.

155.  All this will certainly increase the cost of operation. But as I pointed out earlier, this is a reasonable responsibility imposed for a reasonable societal objective. There is no evidence that the extent of increase in cost is disproportionate to the duty to be discharged.

156.  Referring to the case of HKSAR v Kan Bing Yau(transliteration)[57], Mr Cheung points out that there is a tripartite goods-checking system on the Mainland. In that case, Maggie Poon J allowed the defendant’s appeal on the ground that the defendant genuinely believed that the tripartite system was a foolproof system which was even more stringent than reliance on random checks by drivers.

157.  The above case does not assist D2 because he had neither mentioned the existence of such an organization nor relied on the measures of this organization.

158.  In my view, in the circumstances of the present case, the prosecution has proved beyond reasonable doubt that if D2 had exercised reasonable diligence, he would have known that there was unmanifested cargo on board the vehicle.

159.  Although there is no evidence that D2 contravened the law intentionally or that the contravention was the direct result of his fault, a proprietor or an employer could, for reasons clearly set out in Reynolds v Austin & Sons Ltd[58], be punished for the acts of his subordinates. Devlin J said: A man may be made responsible for the acts of his employees, or for defects in his business arrangements, because by such sanctions people are induced to keep themselves and their organizations up to the mark expected by the public.  Although in one sense he is being punished for the offence of others, it can be said that, if he had been sufficiently alert to see that the law was observed, the offence might not have been committed.[59]

160.  In Hin Lin Yee[60], Ribeiro PJ said: If the employer knows that he will be held to account, even without direct fault on his part, if his employee or contractor is slack, sloppy, careless or incompetent on the job that concerns his business, he will have the will and incentive to ensure that the job is properly done, or even to replace employees or contractors who are not up to the task.[61]

161.  The law does not require all those in the transportation business and those in the trade having different capacities and playing different roles to take risk in order to carry out their perfectly legitimate business and work, but they must take appropriate steps, having regard to their respective capacities and roles and the actual circumstances, to make sure that the law will not be contravened.

162.  For the above reasons, I find that the prosecution has proved all the elements of the offence beyond reasonable doubt and that, even if the two appellants did not know that there were unmanifested goods on board the vehicle, they would have discovered those goods if they had exercised reasonable diligence.

163.  Accordingly, I find that the two appellants should be convicted on Charge 1 and Charge 2 respectively.

Charge 3(the Failure to BundleInformation Offence)

164.  Charge 3, which is levelled against D1, is based on section 7 of the Import and Export (Electronic Cargo Information) Regulation[62]. The relevant provisions read as follows:

“ (1) A prescribed vehicle must not carry any cargo into or out of Hong Kong unless the person in charge of the prescribed vehicle has lodged the following information with the Commissioner in accordance with subsection (2) —

(a) the customs cargo reference number of the cargo; and

(b) the registration mark of the prescribed vehicle within the meaning of the Road Traffic Ordinance (Cap 374).

(2) The information must be lodged by —

(a) sending the information by telephone to the Road Cargo System; or

(b) sending an electronic record of the information to the Road Cargo System.

…

(4) The person in charge of a prescribed vehicle commits an offence and is liable on conviction to a fine at level 3 if —

(a) the prescribed vehicle carries any cargo into or out of Hong Kong; and

(b) the person fails to lodge the information as required by subsection (1).

…

(6) It is a defence to a charge under subsection (4) … if the defendant proves that the defendant has a reasonable excuse for failing to lodge the information as required by subsection (1). …”

165.  Prescribed vehicles refer to any motor vehicle other than private cars and buses as set out in the Ordinance.  Therefore, the goods vehicle driven by D1 was a prescribed vehicle.

166.  The Ordinance does not expressly state who the person in charge of a vehicle is. In the present case, however, it is not in dispute, and I accept, that the driver was the person in charge.

167.  It appears from the above statutory provision that the prosecution is only required to prove that:

(1) there was a prescribed vehicle which carried goods into (or out of) Hong Kong;

(2) the person in charge of the vehicle failed to lodge the following information in accordance with the provision:

(i) the Customs cargo reference number of the cargo on board the vehicle;

(ii) the registration mark of the vehicle.

168.  Upon proof of the above two matters, the accused will be convicted unless he can prove that he had a reasonable excuse for failing to lodge the information as required.

169.  In respect of the conviction on Charge 3, Ms Cheung advances the following grounds of appeal:

(1) The Magistrate mixed up this offence with another offence under the same Regulation (section 4(4) offence);

(2) The Magistrate convicted D1 in the absence of any evidence or any sufficient evidence from the prosecution; and

(3) The Magistrate did not explain how D1 had committed this offence.

170.  She also pointed out in the appeal hearing that, as far as this offence was concerned, the prosecution must prove that the defendant knowingly failed to lodge the information as required, and that an accused who relied on the section 7(6) defence had to bear only an evidential burden.

171.  Ms Cheung submits that the prosecution must prove that D1 committed the offence knowingly. She argued that it would be difficult to conceive any reasonable excuse that an accused could put forward if he knew nothing about the failure to lodge information, and that, therefore, the legislative intent is to target those who have knowingly chosen not to lodge the information.

172.  Mr Ngai submits that this offence is a strict liability offence for which the prosecution is not required to prove knowledge on the part of the defendant. Nonetheless, Mr Ngai accepts that an honest and reasonable belief constitutes a reasonable excuse and hence a defence.

173.  In respect of point (1) in paragraph 169 above, Ms Cheung points out that in the document shown on page 57 of the appeal bundle, the Magistrate wrote down section 4(4) for the offence in Charge 3.

174.  I see no substance in this argument. First, it may well be only a slip of the pen. Besides, the content of that document shows that its purpose was to briefly set out the offences involved and some basic information relevant to the trial, such as the plea tendered, the date and the sentence imposed etc. The Magistrate’s Statement of Findings is also attached to that document. The document does not form part of the Statement of Findings, nor does it not bear the Magistrate’s signature.

175.  The Magistrate clearly stated in both the Statement of Findings[63] and the certificate of conviction[64] that Charge 3 concerned a section 7(4) offence. Nothing in the relevant paragraph of the Statement of Findings[65] indicates that the Magistrate was not considering a section 7(4) offence. She pointed out clearly that she did not see how D1 “had any reasonable explanation for ‘failing to lodge the information’”.

176.  I do not agree that this shows that the Magistrate had mixed up the offence under Charge 3 with another offence.

177.  As for points (2) and (3), Ms Cheung complains that the Magistrate had merely repeated the evidence of PW4 and pointed out that she was satisfied that the prosecution witnesses were credible, without explaining how D2 had committed the offence under Charge 3.

178.  It is true that the Magistrate did not make it clear on what basis she convicted D1 and held that D1 did not have a reasonable explanation.

179.  Ms Cheung also submits that D1 had in fact made a Customs declaration in accordance with the requirements of section 7(2), and that there was simply nothing to substantiate the allegation against D1 under Charge 3.

180.  The particulars of Charge 3 are as follows:

“Diao Rui, you are charged that on the 19^th day of October, 2012 at Import Cargo Examination Building, Man Kam To Control Point in Hong Kong, you, being in charge of a prescribed vehicle, namely, a lorry with Hong Kong Registration Mark ‘MH1992’, which carried a cargo into Hong Kong, failed to lodge the information, namely the Customs cargo reference number of the said cargo and the registration mark of the said prescribed vehicle within the meaning of the Road Traffic Ordinance (Cap. 374), as required by section 7(1) of the Import and Export (Electronic Cargo Information) Regulation, Cap. 60L, Laws of Hong Kong.”

181.  Mr Ngai points out that the prosecution case was, in fact, that as only fresh flowers, horticultural products and pet fish were listed on the electronic Customs declaration document while there were other goods on board the prescribed vehicle, the statutory requirement was not met.

182.  He submits that, while it is clear that the offence is in effect directed at those who did not lodge any information as required, it is also possible to commit this offence even if information has been lodged, because the implicit legislative intent must be to require the lodging of complete and accurate information so that the provision will not become meaningless. It follows that as long as there were on board the vehicle any goods in respect of which information was not lodged in accordance with the regulation, then there has been a contravention of section 7 of the Regulation.

183.  In my view, the focus of this offence lies not in the omission in lodging information for some of the goods or the accuracy or otherwise of the electronic information lodged, but in whether or not the accused has, to use a term used in the trade, “bundled information”. The information to be bundled is:

(1) The Customs cargo reference number of the goods on board the vehicle in question; and

(2) The registration mark of that vehicle.

184.  The acts which lead to the commission of this offence are commonly as follows:

(1) Knowing that no information has been lodged, which means that the “bundling” procedure could not be completed;

(2) Failing to “bundle” by reason of the belief that someone else has done it;

(3) Failing to “bundle” by reason of the belief  that there were no goods at all on board the vehicle and hence there was simply no need to lodge any electronic information;

(4) Failing to “bundle” for other reasons.

185.  The first category of people should of course be convicted if there is sufficient evidence against them. As regards those in the other categories, they can seek to rely on the statutory defence and adduce evidence in support. Having considered the aforesaid considerations and factors, in my view, it is only by ruling that an accused who relies on the statutory defence of reasonable excuse has to bear only an evidential burden that the proportionality test can be satisfied.

186.  Besides, in my view, this being a strict liability offence for which only the common law excuse is available, it is only by allowing an accused to prove on a balance of probabilities that he honestly and reasonably believed that there were no goods on board the vehicle in respect of which information had not been lodged that the presumption of innocence will not be derogated and the legislative provision rendered invalid. This common law excuse can be applied to situations where an accused had no knowledge.

187.  In my view, the statutory defence of reasonable excuse is applicable to situations where an accused was aware of the presence of the goods in question but had a reasonable excuse for actually failing to lodge information.

188.  The Magistrate ruled that D1 had no reasonable excuse but did not clearly state what she had taken into account in reaching this conclusion.

189.  The following facts were admitted at trial:

“At all material times, MH1992 was bundled with Customs cargo reference number 1295043176. The goods covered by the said Customs cargo reference number included (1) fresh flowers: cut flowers, landscaping saplings; (2) horticultural products; (3) pet fish.”[66]

190.  This offence is premised on the question of whether or not the person in charge of the vehicle (not confined to the driver) has lodged the requisite information, namely the Customs cargo reference number and the registration number of the vehicle. D1 had already discharged the duty set out in section 7, and there was simply no need for him to rely on the statutory defence.

191.  I agree that the conviction is unsafe. D1’s appeal against the conviction on Charge 3 is allowed and the conviction is quashed.

Charge 4(the Failure to Make Electronic Customs Declaration Offence)

192.  This charge was against D2, alleging that he failed to lodge information relating to the goods, namely creatures and pests of endangered species, on the day in question via electronic Customs declaration.

193.  The offence is created by section 4 of the Import and Export (Electronic Cargo Information) Regulation[67].  D2 was alleged to have contravened section 4(4):

“ (1) A person must not import or export any cargo in or on a prescribed vehicle unless the information specified in Part 1 or 2 of Schedule 1 has been lodged with the Commissioner in relation to the cargo in accordance with subsections (2) and (3).

(2) The information must be lodged by sending an electronic record of the information to the Road Cargo System.

(3) The information must be lodged not earlier than 14 days before the date on which the cargo is expected to be imported or exported, as the case may be.

(4) A person who imports or exports any undeclared cargo in or on a prescribed vehicle commits an offence and is liable on conviction to a fine at level 3.

(5) A person who imports or exports any undeclared cargo in or on a prescribed vehicle, knowing that the cargo, or part of the cargo, consists of a prohibited article, commits an offence and is liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(6) It is a defence to a charge under subsection (4) or (5) if the defendant proves that the defendant did not know and could not with reasonable diligence have known that the cargo was undeclared cargo.”

Part 1 of Schedule 1 relates to cargo in packages and Part 2 relates to cargo in bulk. The present case is therefore concerned only with the requirements of Part 1, which sets out the following information which has to be lodged:

1. Description of packages.

2. Number of packages.

3. Description of articles contained in each package.

4. Name of consignor of each package.

5. Address of consignor of each package.

6. Name of consignee of each package.

7. Address of consignee of each package.

8. Expected date of bringing cargo into Hong Kong (if applicable).

9. Expected date of taking cargo out of Hong Kong (if applicable).

194.  The goods in respect of which information had not been lodged were the turtles, mealworms and crickets. In respect of this offence, the key issue on appeal is the standard of proof required for the purpose of invoking the statutory defence under section 4(6). The principles and factors to be considered in this connection are the same as those discussed hereinabove, paragraph 39 et. seq.

195.  I note that section 11 of the Regulation expressly provides that an accused who raises the statutory defence under sections 6(2), 7(7) and 10(3) bears only an evidential burden of proof. Section 11 does not refer to the statutory defence under section 4(6), but does this mean that the legislative intent is to adopt a different standard of proof in respect of section 4(6)? Having considered the aforesaid principles and factors, I rule that an accused only has to bear an evidential burden, otherwise the proportionality test will not be satisfied.

196.  The Magistrate said she did not see “any justification for D2 to invoke this defence”[68].

197.  She also said had D2 exercised reasonable diligence to check this batch of goods, the undeclared goods would have been discovered. She found that he failed to prove on a balance of probabilities that he would not have become aware of the contravention even if he had exercised reasonable diligence[69].

198.  The Magistrate had asked the correct question but, with respect, had applied an incorrect standard of proof.

199.  I have considered the evidence to decide if D2’s conviction on this Charge can be upheld. The factual circumstances are the same as those for Charge 2. Although the Regulation requires that the information be lodged before going through the Customs, the duty imposed on importers of goods is the same, namely to make an accurate and complete declaration. The particulars of Charge 4 also set out clearly that the date on which D2 allegedly committed the offence was the day on which the goods vehicle went through the Customs. Under section 6 of the Regulation, D2 had a duty to inform the driver the information that had been lodged. The “bundling” procedure required by section 7 of the Regulation is to be carried out only before the goods go through the Customs.

200.  Given D2’s identity and role, a sound system would have to be established, coupled with appropriate supervision and record-keeping, so that the abovementioned duty could be discharged.  Factors that were taken into account in considering Charge 2 are also applicable here.

201.  I find that there is sufficient evidence for the prosecution to prove beyond reasonable doubt that if D2 had exercised reasonable diligence, he would have known that the goods in question were on board the vehicle, and no electronic Customs declaration had been made in respect of those goods.

Charge 5(the Endangered Species Offence)

202.  This charge was against D1. The offence is created by section 11 of the Protection of Endangered Species of Animals and Plants Ordinance[70]:

“ (1) Subject to section 47, a person shall not import a specimen of an Appendix II species or Appendix III species —

(a) except as provided in section 17, 18, 19 or 22; or

(b) except under and in accordance with —

(i) a licence issued in respect of that specimen under section 23(1)(a) prior to the import; and

(ii) a Convention certifying document or certificate in lieu issued in respect of that specimen.

…

(3) A person who contravenes subsection (1) … commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months. …”

203.  Unlike the offences discussed earlier, this provision does not provide for a statutory defence.

204.  The Magistrate ruled that this was an absolute liability offence.

205.  Ms Cheung argues that the Magistrate was wrong. She points out that, while the penalty of this offence is not severe, in interpreting this provision the court should allow an accused to rely on the common law defence of “honest but mistaken belief” so that the provision would not become unconstitutional by reason of derogating from the presumption of innocence. She submits that the imposition of absolute liability does not serve a strong deterrent effect and does not appear to do much good to the community.  Ms Cheung cites the case of Kulemesin to support her argument. In that case, the Court of Final Appeal dealt with the offence of endangering the safety of others, contrary to section 72 of the Shipping and Port Control Ordinance[71]. Ribeiro PJ pointed out that in determining whether that offence should be one of absolute liability, the court should consider whether such a statutory interpretation would be effective in preventing the commission of the offence.

206.  Mr Ngai agrees with the Magistrate and contends that the offence should entail absolute liability for the following reasons:

(1) The law was enacted for the purpose of implementing an obligation under an international treaty[72];

(2) The objective of the treaty is to regulate the import and export, possession and control of certain endangered species of animals and plants and their parts and derivatives;

(3) The imposition of absolute liability will help ensure compliance with the relevant regulations.

207.  He points out that section 11 of the Ordinance neither makes any reference to mens rea nor provides for any statutory defence. He cites the decision by District Court Judge Moylan in Leung Kam Hung v R[73], a case concerning the same offence, in support of his argument.

208.  He submits that, having regard to the nature and purpose of the offence, the requirement to prove mens rea would render it difficult to stop the smuggling of endangered species. The presumed requirement to prove mens rea should therefore be displaced.

209.  Further, relying on the case of Hin Lin Yee, hesubmits that if the mens rea presumption is displaced, which means that the statutory offence becomes one of absolute liability, then an accused will be debarred from raising a common law defence.

210.  The Court of Final Appeal established the following legal principles in Hin Lee Yee[74]:

(1) In deciding whether the presumption of mens rea has been displaced expressly or by necessary implication, the first (and possibly most crucial) consideration is the statutory language, including the use of words carrying a connotation of knowledge or intention. Second, the nature and subject matter of the offence are also of great importance. The more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted, although this is not impossible. On the other hand, there is generally less need to feel inhibited about overriding the presumption in relation to what may compendiously be called “regulatory offences”, eg public health, licensing and industrial legislation. Third, the legislative purpose, and its possible frustration by insisting on full mens rea, is obviously an important consideration.

(2) Given the severe consequences, the court should find that an absolute liability arises only where such a conclusion is compelling. The mere fact that the relevant offence is regulatory is not of itself sufficient to justify absolute liability. Rather, as per the Lim Chin Aik principle, it is necessary to justify absolute liability on the basis that it serves some useful purpose, ie it can affect observance of the law. Further, the Lim Chin Aik principle is supplemented by an additional consideration, namely the court has to be satisfied that the statutory purpose cannot sufficiently be met by making the offence subject to the common law defence.

(3) There are two situations, among others, where absolute liability may in principle be imposed. The first is where the law does not consider the conduct in question to be essential or even necessarily acceptable from a societal point of view, as in the case of certain sexual offences. The second involves the statutory imposition of a duty on a person (which may be a corporate body) where the conduct or task being the subject of the duty is in practice likely to be carried out or performed by someone else, such as an employee or a contractor. Many regulatory offences may fall within the second situation.

211.  In HKSAR v So Wai Lun[75], the Court of Final Appeal held that the offence of having unlawful sexual intercourse with a girl under the age of 16[76] was an absolute liability offence. The key issues in the case were:

(1) Whether, by criminalizing the conduct of the male but not the same conduct of the female, the male would be deprived of equality before the law; and

(2) As an absolute liability, was it arbitrary?

212.  The Court of Final Appeal answered both questions in the negative. The judgment also pointed out[77]:

“ (5) Where the legislature has enacted an absolute liability offence, the judiciary will not strike down the offence merely on the basis of a view that it would be preferable for the offence to admit of a defence of belief or reasonable belief.

(6)It is not arbitrary for section 124 to be an absolute liability offence. The deterrent effect of the criminal law is not confined to deterring people from doing what they know is unlawful.  It also encourages them to take care to avoid what may be unlawful.  In the context of section 124, carefully avoiding what may be unlawful and steering well away from the line between legality and illegality would add materially to the pursuit of the paramount objective, namely to protect young girls.”

213.  When the case was before the Court of Appeal, Ma CJHC referred to the English case of Sweet v Parsley[78] and pointed out[79]:

(1) Whether a statutory provision creates an absolute liability offence is a matter of construction.  Only where a clear intention to this effect is shown will an absolute liability offence be created.  Such cases would be rare, given the fundamental requirement to prove mens rea.

(2) Even where a statute does not expressly require proof of mens rea, it should be presumed, as a matter of statutory interpretation, that mens rea has to be proved.  The greater the gravity of the offence and the stigma it entails, the stronger the presumption is.

(3) The fact that other provisions of the same statute use words that define or qualify the mental element or mens rea does not necessarily mean that the provision which is silent on mens rea must be intended to create an absolute liability offence. 

(4) In construing a statutory provision the wording or language of which does not clearly indicate the legislative intent, the court may determine the issue by examining all relevant circumstances, including the legislative history of the provision.

214.  In the English Privy Council case of Lim Chin Aik v R[80], Lord Evershed pointed out that the court should examine whether the imposition of strict liability (although Lord Evershed used the term “strict liability”, what he meant was absolute liability as stated in this judgment) would assist the enforcement of the regulation; in particular, whether an accused could have complied with the regulation by means of direct or indirect conduct, eg by carrying out such supervision and inspection to improve the mode of operation, to remind those over whom he should have had control or influence. Unless he was allowed to comply with the regulation as aforesaid, to punish him would be neither reasonable nor conducive to promoting compliance with the law.

215.  In He Kaw Teh  v R[81],Brennan J also placed importance on whether or not an accused was able to take effective measures to prevent contravention of the regulation.

216.  Even where the presumption of mens rea is to be displaced, the court still has to determine whether the offence is one of absolute liability or whether the common law defence should be allowed to exist notwithstanding the absence of provisions on excuse.

217.  In considering the matter, I have considered the aforesaid principles and factors and also taken into account Hin Lin Yee[82] in which Ribeiro PJ pointed out that:

“If the presumption that the prosecution has to prove the mens rea for a statutory offence is displaced, by express or necessary implication, three possible alternatives arise:

(1) First, there is a common law defence which will absolve the defendant if he or she can prove on a balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he or she would not be found guilty of the offence …

(2) Second, if the common law defence is clearly inconsistent with express statutory defences relating to the honest and reasonable belief of the defendant, then the former will be displaced and the defendant will be confined to the latter;

(3) Third, if the presumption of mens rea has been displaced to a point where the statute creates an offence of absolute liability, then the common law defence is not available.”[83]

218.   This provision casts a very wide net, catching as it does drivers of goods vehicles such as D1, proprietors of small transportation companies such as D2, and also transportation companies equipped with large fleet of vehicles, agents of consignors, rail transportation companies, container line companies and captains of vessels.

219.   Each of these parties assumes his own capacity and role. For example, in the case of a shipping agent, as Ma CJHC said in HKSAR v Kong Hing Agency Ltd[84], he is normally responsible for the transportation and delivery of goods, and what actually the goods are may not concern him. It is true that a shipping agent may be made responsible for packing and inspecting the goods. I only want to make it clear that different people in the cargo delivery industry have different duties, and depending on the circumstances of each case, their legal liability should also differ.

220.   As far as this offence is concerned, the alternative circumstances that can be foreseen include:

(1) The accused did not know that the goods in question existed at all;

(2) The accused knew that the goods existed, but did not know that they were species regulated by legislation;

(3) The accused, knowing that the goods existed and that they were of endangered species, contravened the law with intent;

(4) Same as (3), but the accused did not contravene the law with intent; he had a reasonable excuse for contravening the regulation.

221.   In my view, to disallow reliance on any excuse, and to convict an accused whenever endangered species was found among the goods, will not render noticeable assistance in preventing trafficking in endangered species, but instead may cause injustice. By way of example, as long as endangered species were found among the goods on board a container liner sailing into Hong Kong, the captain of the vessel will inevitably be convicted even though he had no knowledge whatsoever of those goods and had taken reasonable measures to inspect the goods. Whether this is the proper approach in dealing with people set out in category (1) of the preceding paragraph is something which merits careful consideration.

222.   As regards the circumstances of those under category (2), I have taken into consideration what endangered species encompass.

223.   It can be seen from Appendices II and III that endangered species cover a wide range of species. Where animals are concerned, there are different species of antelopes, deer, cats, sea lions and whales. For birds, there are many species of cooers, hawks, cranes and parrots. In the category of reptiles, there are many kinds of snakes and tortoises. The Appendices also cover insects such as a certain kind of butterflies. And then there are corals and many types of flowers, trees and plants.

224.   Some of these species are widely known, while some are rarely known, so much so that ordinary people do not even have an idea what they look like. Endangered species do not necessarily assume a particular look or shape.

225.   Nevertheless, they are all living creatures that are dealt with differently from goods that are objects. Barring possible exceptions, goods that are living creatures should, generally speaking, attract attention.

226.   Be that as it may, by reason of the great variety of species, it may not be easy for those dealing with the goods to identify the endangered species.

227.   This being the case, will it assist the protection of endangered species to punish those who had no knowledge? And can such punishment satisfy the proportionality test?

228.   Those under category (3) should of course be punished.

229.   As regards those under category (4), as neither of the appellants falls within this group, and in the absence of assistance provided by way of submissions, I do not consider it desirable to make any determination in that respect in the present case.

230.   The legislation is enacted for the protection of endangered animal and plant species, which is not only a matter of great concern to the public but also a major demand of civilized territories around the world. It would of course facilitate the enforcement of the law to impose absolute liability. However, this might result in people who had no knowledge whatsoever also being caught by the law. Is this an excessive derogation from the presumption of innocence? In my view, it is. Accordingly, in my judgment, the imposition of absolute liability on those in category (1) fails to satisfy the proportionality test, and the common law defence should be allowed to exist.

231.   In my view, an accused should not be convicted if he can prove on a balance of probabilities that:

(1) he did not know that the relevant goods existed; and

(2) he honestly and reasonably believed that such goods did not exist.

232.   Where an accused knew that the goods in question existed but was unable to identify them as endangered species, having regard to the aforesaid principles and factors, in particular the fact that maximum penalty for this offence is only 6 months’ imprisonment, the imposition of absolute liability does, in my view, satisfy the proportionality test.

233.   Furthermore, as Bokhary PJ said in the case of Noise Control Authority v Step In Ltd[85],this approach can help raise alertness among those in the transportation business so that they will guard against unlawful conduct and steer well away from the line between legality and illegality. In my view, those who transport goods which are live creatures are under a duty to ascertain whether those creatures are of endangered species. This will greatly help achieve the objective of protecting endangered species.

234.   I now go on to consider whether D1 can prove on a balance of probabilities that he honestly and reasonably believed that the goods in question were not on board the vehicle.

235.   He held this belief. The standard of proof has been met.

236.   But did he have reasonable ground for such belief? The situation is the same as that in respect of Charge 1: D1 did not witness the loading of the goods. After taking over the vehicle, he opened the rear and side doors, saw fresh flowers and seedlings as well as polystyrene boxes. At best, he only looked at the contents of the polystyrene boxes placed by the side door. The vehicle was laden with goods, the contents of which he did not check. In my view, D1 had no reasonable ground for such a belief. In the circumstances of the present case, he did not have any reasonable ground for relying solely and believing entirely on the information provided by others.

237.   D1’s grounds of appeal against his conviction on Charge 5 are also not made out. The prosecution has proved the requisite elements of the offence, and D1 cannot rely on the common law defence. The conviction should be affirmed.

Charge 6 (the Pest Offence)

238.   This charge also concerns D1.

239.   his offence is created by sections 7 and 23 of the Plant (Importation and Pest Control) Ordinance[86]:

“Section 7: No person shall import any plant pest … save in accordance with the terms of an authorization in writing issued to him by the Director.

Section 23: Any person who without reasonable excuse contravenes -

(a) any provision of section 4, 7 …  shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.”

240.   The Magistrate did not directly and expressly say what type of offence she ruled it to be. All she said was that she did not see what reasonable excuse D1 had. Nor did she expressly say what standard of proof she adopted in determining the charge.

241.   Mr Ngai submits as follows:

(1) The prosecution is not required to prove that the accused knew there were pests;

(2) The statutory defence of reasonable excuse includes:

(i) the accused did not know there were pests; and

(ii) he had reasonable ground(s) for believing that there were no pests.

He further points out that, pursuant to section 94A of the Criminal Procedure Ordinance[87], the prosecution is not required to prove that the accused had a reasonable excuse.

242.   Ms Cheung submits that the prosecution is required to prove that the accused knew there were pests and that, as one of the elements of the offence, he had no reasonable excuse for contravening the regulation. She relies on Securities and Futures Commission v Liu Su Ke[88] to support her argument. She contends that the provision in section 94A of the Criminal Procedure Ordinance which Mr Ngai relies on is not applicable to the present case. She also submits that D1 should be able to rely on the defence of honest and reasonable belief.

243.   She relies on Hin Lin Yee and Kulemesin to support her argument. She points out that, in Kulemesin, in which the provision underlying the offence in question also contained the words “without reasonable excuse”, the Court of Final Appeal held that the prosecution had to prove that the accused endangered, without reasonable excuse, the safety of those the Ordinance referred to, and that an accused who sought to put forward a reasonable excuse had to bear only an evidential burden.

244.   Section 94A of the Criminal Procedure Ordinance provides as follows:

“ (1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings -

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

…

(4)The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

245.   The case of Securities and Futures Commission, on which Ms Cheung relies, is a magisterial appeal. The judgment in that case referred to a number of Court of Final Appeal decisions, including Tong Yiu Wah v HKSAR[89] and Ng Po On referred to below.

246.   In Tong Yiu Wah, Chan PJ pointed out that s.94A is invoked only when the statutory provision has created not only an offence but also an exception, exemption or qualification to the offence. The presence in a statutory provision of a phrase such as “without reasonable cause” does not necessarily mean that section 94A(2) is applicable. The provision in section 94A(2) applies only to a genuine exception, exemption or qualification as set out in section 94A(1).

247.   In Ng Po On,Ribeiro PJ stated thatthe court must look at the substance of the enactment rather than its form. The court need not be concerned about whether the ultimate fact which the defendant is required to prove constitutes an essential ingredient of the offence. The court should only consider whether the effect of the enactment exposes the defendant to a conviction even though there may be reasonable doubt regarding some matter determinative of his criminal liability.[90]

248.   In my view, as far as the present provision is concerned, there is indeed a risk of an accused being convicted despite the existence of reasonable doubt on the evidence. Therefore, it is necessary to consider whether such derogation from the presumption of innocence is sufficiently justified.

249.   Having considered the aforesaid principles and factors, I consider this to be an offence of strict liability. The prosecution is not required to prove that the accused had knowledge of the existence of the offending goods, but the accused can rely on the following common law defence:

(1) He did not know the offending goods existed, and

(2) He honestly and reasonably believed that the offending goods did not exist.

The standard of proof in relying on this defence is a balance of probabilities.

250.   The statutory defence to this offence is “reasonable excuse”. An accused who invokes this defence is only required to bear an evidential burden of proof.

251.   I have considered whether the aforesaid common law defence and can co-exist with this statutory defence.

252.   In Hin Lin Yee, the Court of Final Appeal held that even if a statute provides for a statutory defence, this does not automatically exclude the common law defence. Bokhary PJ pointed out that in deciding whether the common law defence should co-exist with the statutory defence, the court should examine the scope of the latter and the objective sought to be achieved by providing for such defence. When the application of the common law defence is inconsistent with the wording of the statutory defence, the legislative intent should be deemed as seeking to exclude the statutory defence.

253.   In my view, the statutory defence of “reasonable excuse” is applicable where an accused was aware of the existence of the goods and did not have the authorization of the Director. This defence is not inconsistent with the aforesaid common law defence; it is just that they rest upon different factual bases. Nor does the provision impose conditions restrictingthe scope of its application or requires certain conditions to be met over and above the requirement of reasonableness before the defence can be relied on. The two defences can therefore co-exist. Indeed, Mr Ngai has not sought to deny the existence of the common law defence.

254.   On the evidence, what D1 can expect to rely on is the common law defence.

255.   Having regard to the matters that I referred to when I consideredCharges 1 and 5, I am of the view that D1 did not have a reasonable cause to believe that there were no goods in the form of pests on board the vehicle. The grounds of appeal against conviction on this Charge are also not made out.

Incompetence of counsel (D2’s ground of appeal (3))

256.   This ground concerns whether the defence counsel at trial, Mr Joe Chan, was flagrantly incompetent. Mr Cheung identifies the following matters in support of this ground:

(1) Mr Chan failed to act on D2’s instruction to call one Mr Nip(transliteration), a member of his staff whom he had arranged to come to Hong Kong to testify at trial, to give evidence on how the goods were checked on the Mainland;

(2) He failed to use the delivery order D2 gave him to identify the kind of goods that his company was consigned to transport on the day in question;

(3) In explaining the relevant statutory provisions in respect of the defence, Mr Chan was proceeding upon an obviously erroneous understanding;

(4) He gave D2 misleading advice, as a result of which D2 decided not to give evidence in court;

(5) He failed to raise the constitutional issues pertaining to the relevant legislation and invite the Magistrate to make a ruling on them at an appropriate time (for example, at the commencement of trial or, at the latest, when the prosecution was closing its case), before allowing D2 to decide whether to give evidence in court or call any witness.

257.   Items (1), (2), (4) above involve serious factual disputes.

258.   D2, Mr Nip and Mr Chan had each filed affirmation setting out their own versions of the facts. At the appeal hearing, they all testified, adopting their respective affirmations as evidence and also giving supplemental evidence. The salient points of their evidence are as follows:

D2

(1) His legal representatives were Mr Chan of counsel and Jacky Kam of the solicitors’ firm;

(2) He only had one meeting with Mr Chan;

(3) Matters discussed at the meeting included:

(i) How the business in Guangzhou operated;

(ii) How the goods were delivered and received on the Mainland;

(iii) How the goods were handed over to the Hong Kong driver;

(iv) The transportation and delivery of the goods;

(v) Customs declaration matters;

(4) Mr Chan told him that he stood a slim chance of being convicted as only one of the 28 boxes of goods on board the vehicle contained contraband;

(5) On the day of trial, Mr Nip came to Hong Kong from the Mainland. He met Mr Chan alone in the court.

(6) Thereafter, drawing on D1’s failure to respond to questions while being cross-examined, Mr Chan made the following suggestions to D2:

(i) Not to call Mr Nip, for fear that he might not be able to cope with cross-examination; and

(ii) For the same reason, he(D2) should not give evidence but should instead rely only on the three records of interview as defence evidence;

Mr Chan did not explain to him the risks that came with his not giving evidence, for example, the Magistrate might not accept the statements he made during the interviews because he did not testify;

(7) He signed the confirmation not to give evidence[91] because both Mr Chan and Jacky Kam told him that D1 was “dumbstruck” by the questioning and it would be better for D2 not to testify in court, and further that he had already given a full account of the matter in the three records of interview;

(8) He based his decision not to give evidence on what Mr Chan and Jacky Kam told him. Moreover, Mr Chan had told him that as only one out of the 28 boxes contained contraband, he stood only a 1/28 chance of being convicted. He was misled into making the above decision, and Mr Chan did not urge him to testify;

(9) He handed the freight bill[92] to Mr Chan to deal with but did not know why it was not used or produced in the court;

(10) Mr Chan did not explain to him how the statutory defence would be applied;

(11) He admitted he also got the impression that D1 was “dumbstruck” by the questioning.

Mr Nip

(1) The goods consigned for transportation by customers fell into three categories: fresh flowers, pet fish and horticultural flowers and grass;

(2) He was hired to check the goods;

(3) He worked as usual on the day in question and did not find anything wrong with the goods consigned;

(4) He told Mr Chan at their meeting that no goods other than those in the aforesaid three categories would be accepted;

(5) He said random checks were conducted on three to four out of every 10 boxes;

(6) He denied having told Mr Chan that D2 adopted a “could-not-care-less” attitude towards the business or that D2 neither asked what goods they were nor gave him instructions on checking the goods;

(7) Mr Chan told him that he would avoid calling him to give evidence if possible, for fear that he would be “dumbstruck” by the questioning.

Mr Chan

(1) Apart from meeting D2 in his office, he discussed the case with D2 prior to each hearing and sought his instructions and gave him advice;

(2) Although he did point out that only one out of the 28 boxes contained contraband, he never advised D2 that the chance of a conviction was slim. On the contrary, he told D2 all along that he was facing a predicament and that the court would very likely convict him;

(3) Still, he would try his best to convince the court with this piece of undisputable evidence and submit to the court that the statutory defence could made out in the circumstances;

(4) He only had a chance to meet Mr Nip on the first day of trial. Mr Nip told him:

(i) he did not have a specific job position in the company;

(ii) hid duties included conducting checks on the goods;

(iii) no one apart from him would check the goods;

(iv) he would conduct random checks on the goods, checking one to two of every 10 boxes;

(v) D2 did not know if he had checked the goods;

(vi) D2 never asked what goods the customers had consigned to the company to transport;

(vii) D2 adopted a “hands off”[93] attitude towards the business;

(viii) D2 did not give him any substantive instructions on how to check the goods.

(5) In his judgment, what Mr Nip said would be highly detrimental to the defence case;

(6) After he told D2 what Mr Nip had said to him, he suggested not calling Mr Nip to give evidence. However, he left it to D2 to make a decision, and D2 decided not to call him;

(7) His suggestion of not calling Mr Nip was not due to his concerns about Mr Nip’s performance in the witness box, but was based on his assessment of the effect Mr Nip’s evidence might have on the defence case;

(8) Similarly, he never advised D2 not to give evidence because he was worried about D2’s performance in the witness box. He told D2 clearly the pros and cons of giving and not giving evidence and urged him to give evidence;

(9) D2 told him firmly at a number of meetings that he did not want to give evidence. He (D2) told him that even if he was called, he would not perform well in the witness box;

(10) He (D2) told him that during the three interviews he had already said what he wanted to say;

(11) In this regard, his advice to D2 was: although these statements would be considered by the court, the court was entitled not to attach any weight to them;

(12) He had told D2 that if he elected to give evidence, he would be cross-examined, but he did not invite D2 to take into consideration D1’s performance during cross-examination;

(13) After D1 had finished giving evidence, he had a meeting with D2 again to confirm with him whether he would give evidence. He told him clearly the risks of not giving evidence and again urged him to give evidence because he was facing a tough case;

(14) D2 decided not to give evidence;

(15) He then told D2 that the thrust of his defence was to submit that D2 did not know that there was contraband on board the vehicle, and as only one out of the 28 boxes contained contraband, he would not have acquired such knowledge even if he had exercised reasonable diligence;

(16) He told D2 that his submission by itself might not be strong enough, but D2 still indicated that he would not testify;

(17) He had never advised D2 that the chance of his being convicted was only 1/28 or was slim;

(18) He had not by any means misled D2 into signing the confirmation not to give evidence in court;

(19) He had never received written instructions from D2, but their many meetings enabled him to have a clear grasp of what D2’s instructions were. Although he did not make any written record, he remembered them clearly;

(20) Throughout the trial, he had followed D2’s instructions in presenting his case and conducting the defence.

259.   During cross-examination, Mr Chan agreed that it was not the case that he never wrote down clients’ instructions. But in the present case, he had asked D2 to give him written instructions which he thought he would receive later, and so no record was made. He had never received D2’s written instructions.

260.   Although D2 said during an interview that he would only accept those three categories of goods, the instruction Mr Chan received during their meeting was that D2 mainly accepted[94] those three categories of goods.

261.   As regards the delivery orders D2 gave him, he did not find them useful as they contained no particulars. Moreover, when he asked D2 why it was so, he replied: perhaps his colleague had not checked the goods. This being the case, after he had confirmed with D2 how the matter should be handled, it was decided not to adduce the delivery orders in the court.

262.   He said he still urged D2 to give evidence no matter whether the burden to be borne in relying on the statutory defence was persuasive or merely evidential, and it was for that reason that he considered it proper to raise the question of the standard of proof during and only during his closing speech. He did not consider it necessary to invite the Magistrate to make a ruling on this legal issue when the prosecution closed its case.

263.   The confirmation not to give evidence [95] mentions that “two persons” had given D2 professional advice. Mr Chan said that in fact only he alone had given D2 professional advice, and that he had not paid any attention to this part of the document as he was focusing on the more important parts.

264.   He did explain to D2 what the statutory defence although he did not illustrate the explanation by reference to decided cases.

265.   There is no absolute duty on counsel to keep written records of the matters discussed in meetings with clients and the instructions they give. However, in case of disputes such as the one in the present case, Mr Chan does not have the protection that a written record can offer him, and he could only rely on his memory when testifying.

266.   I have also carefully evaluated Mr Chan’s testimony, taking into account the fact that he only relied on his memory without the benefit of a written record and in the absence of written instructions acknowledged by D2.

267.   Mr Chan remained unshaken in his testimony. What he said was consistent, reasonable and sensible. He said that after he explained to D2 the pros and cons of giving and not giving evidence and told D2 that he would be cross-examined on details of how the goods were checked and the truthfulness or otherwise of the statements he made during the interviews, D2 indicated that he did not want to give evidence. At no stage did D2, as described by Mr Chan, act and react unusually or in a way that caused suspicion or concern.

268.   Having carefully considered the evidence as a whole, I am satisfied that Mr Chan was veracious and credible and that his testimony was truthful.

269.   On the other hand, I do not believe that D2 and Mr Nip were honest in the evidence they gave.

270.   D2, who had been doing business for years, was not someone inexperienced with the ways of the world. Regarding the confirmation not to give evidence, which D2 had signed, apart from the dispute over the accuracy of the statement that the staff member of the solicitors’ firm had also provided detailed explanation and professional advice, the confirmation sets out clearly that:

(1) He had been advised on the pros and cons of giving evidence;

(2) The professional advice was that he was urged to give evidence;

(3) The question of whether or not to call witness had been discussed;

(4) He decided not to give evidence;

(5) He also decided not to call any witness;

(6) He made the decisions after carefully considering the matters by himself;

(7) The decisions were made out of his own free will without influence from any third party.

271.   Faced as he was with a criminal prosecution, D2 could not possibly have failed to appreciate the importance of the matter, and he could not possibly have signed this document without understanding its content and implications.

272.   He said in his testimony that he did not take a good look at the document, and he was asked to sign the document “casually”, and so he signed it. This, in my view, does not accord with reason and sense and is not credible.

273.   He said Mr Chan did not explain the statutory defence to him. This is not credible.

274.   I believe that D2’s act of arranging for Mr Nip to come to Hong Kong must have been done after he had discussed the case with Mr Chan and obtained professional advice. This reflects, to a certain extent, that Mr Chan had told him matters regarding excuse.

275.   Besides, D2 wavered on a number of matters when he gave evidence, and at times he failed to give a reasonable and sensible account and was evasive. For example, under cross-examination, he said he did not find it strange that Mr Chan did not explain the case to him because he thought Mr Chan would “fix the matter for him”. He said a staff member of the solicitors’ firm told him at the meeting that it was a matter as minor as bringing milk powder across the border.  This belief that he allegedly held was at variance with the situation he was in. On being asked whether he knew he would have a criminal record in the event of a conviction, he answered in the negative. On being asked about the signing of the confirmation not to give evidence, he said he seldom signed documents and had never even signed a cheque. Only upon repeated questioning did he admit that he knew the content of the document.

276.   As for Mr Nip, he said Mr Chan told him that he would avoid calling him as far as possible for fear that he would be “dumbstruck” by the questioning. I do not believe it is true. As indicated above, the act of bringing Mr Nip here must have be done upon Mr Chan’s advice to D2. If Mr Nip could give evidence favourable to the defence, no counsel would have told the client what Mr Chan allegedly said, although how a witness would respond to questions put to him during cross-examination might have been part of the equation in the calculation of individual counsel.

277.   I am satisfied that Mr Chan is honest and credible, and I consider the matter on the basis of the facts as described by him. Where the evidence given by D2 and Mr Nip is inconsistent with that given by Mr Chan, the latter shall prevail.

278.   In Chong Ching Yuen v HKSAR[96]the Court of Final Appeal set out the principles and considerations applicable to an appeal brought on the ground that the defence counsel at trial was incompetent.

279.   Sir Thomas Eichelbaum NPJ pointed out:

“The expression ‘flagrant incompetence’ rightly underlined an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely to succeed, an appellant must be able to show that he received less than a fair trial.”

280.   Bokhary PJ pointed out:

“ (1) As a general rule, an accused person was bound by the way the trial was conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it was not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence;

(2) The crucial question was whether the appellant had a fair trial (the ‘fair trial’ criterion) and not how severely defence counsel deserved to be criticized. It was unlikely that anything short of a very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial;

(3) There was a direct correlation between the fairness of a trial and the viability of a conviction. No appellate court would lightly declare a trial unfair. But where it so concluded, that left little, if any, room for saying that the conviction was just;

(4)Appellate courts would approach these situations with a sense of realism, and not in such a way as would put a premium on briefing incompetent defence counsel at trial and then criticizing them on appeal.”

281.   As regards item (1) Mr Cheung has raised (the various items are set out in paragraph 256 hereinabove), I am of the view that D2 arranged for Mr Nip to come to Hong Kong after he obtained Mr Chan’s advice. When Mr Chan learned what Mr Nip was going to say, he assessed the situation and advised D2, leaving it to him to decide whether or not to call Mr Nip. There was nothing improper in what Mr Chan did. On the evidence given by Mr Chan, what Mr Nip was going to say would indeed do more harm than good to the defence case. Mr Chan’s judgment on the matter can hardly be criticized.

282.   As regards item (2), the document supplied by D2 to Mr Chan[97] did not state any description and quantity of the goods, and D2 was unable to give him more detailed information or instruction in this respect. Nor could D2 explain why the aforesaid information was not filled in, apart from saying that it might be the result of staff indolence. In such circumstances, Mr Chan formed the judgment that the defence case would be damaged rather than strengthened if the documents were produced to the court. He withheld the production of the documents only after he had obtained D2’s consent. In my view, Mr Chan had neither made an error of judgment nor been negligent. D2 can hardly claim that he did not receive a fair trial because of this.

283.   As regards item (3), Mr Cheung argues that Mr Chan had misunderstood the statutory defence. In support of his argument, he refers to the following exchange between the Magistrate and Mr Chan during mitigation:

“ Magistrate: I — because it has been completed.

MR CHAN: Right, right, Your Worship.

Magistrate: But if at this stage, your — your sub- — the court will find it strange that you put forward the mitigation to the court in this way, because the primary consideration in respect of this offence is whether or not the defendant had exercised reasonable diligence.

MR CHAN: Right.

Magistrate: If the defendant did not give evidence, how can the court know that he had exercised reasonable diligence?

MR CHAN: Yes, Your Worship. Of course, my reply here is …”[98]

284.   On the face of it, what the Magistrate said was not entirely accurate, and Mr Chan did not correct her. However, it must be noted that when the above exchange took place it was already at the stage of mitigation. Besides, Mr Chan’s written closing submissions show that he had sufficiently elaborated on his understanding of the statutory defence which can hardly be described as erroneous.

285.   Mr Cheung also complained that, in adducing evidence in support of the statutory defence, Mr Chan did not submit to the court the best evidence then available. In other words, when knowing full well that the court would not attach any weight to the records of interviews per se (at various points Mr Cheung did submit that the court would not attach weight to them. If what he meant was that the court would definitely assess this kind of exhibits in this way, then I beg to differ), Mr Chan should have called D2 to give evidence.

286.   In Chan Fat Chu Raymond v HKSAR[99],Lord Woolf NPJ said it was for an accused to decide whether or not to give evidence. The duty of the lawyer is to explain to his client the pros and cons of giving or not giving evidence, so as to enable him to decide whether to give evidence.

287.   On the evidence I have accepted, D2 had not been in any way misled. Mr Chan urged him to give evidence, and he decided not to do so after considering the matter. He cannot now shift the blame to Mr Chan, less so use this as a ground to overturn the verdict.

288.   Item (4) that Mr Cheung has put forward also fails.

289.   As regards item (5), it is true that Mr Chan raised the constitutional issue during and only during his closing submissions.

290.   This issue concerns the standard of proof applicable to an accused who relies on the statutory defence. In some cases, had the matter been raised at the outset and the court’s inclination known, this might have a bearing on the conduct of the case by the parties, in particular the defence.

291.   However, leaving the issue to the closing submission stage may be a matter of tactics and does not necessarily mean that counsel was incompetent.

292.   The thrust of Mr Cheung’s submission is that Mr Chan should have raised the issue latest by the time the prosecution closed its case, and that only after a ruling was made by the court could a decision be made as to whether D2 was to give evidence and call witnesses.

293.   First, it is not true that the Magistrate made no ruling on this legal issue. She obviously did not accept Mr Chan’s argument, taking the view that an accused who sought to rely on the statutory defence was under the duty to prove it on a balance of probabilities.

294.   At the trial, the court finished hearing the evidence on 7 August 2013 (or may even be on 5 August). The Magistrate directed the parties to file written submissions on or before 14 August.

295.   Mr Chan set out his legal arguments in this respect in his written submissions.

296.   There is no indication that the Magistrate omitted this issue when she delivered the verdict on 20 August. She mentioned in her verdict that the charge involved a strict liability offence and that, as far as the statutory defence was concerned, the standard of proof was on a balance of probabilities.

297.   I do not see how — nor is there any indication that— the Magistrate would have made a different ruling had this legal issue been raised at the outset.

298.   Had the defence known about this ruling at the outset, they would have expected the Magistrate to adopt a higher standard of proof in so far as the defence was concerned. Would this have affected the decision on the calling of witnesses? If one were to play absolutely safe, this might well be a factor to be considered. However, if counsel firmly believed that his view on the law was correct (and I agree with his viewpoint) and left it to the final stage to make submissions thereon, this was after all his reasonable judgment for which he can hardly be criticized as incompetent.

299.   In any event, where a ground of appeal rests upon incompetence of counsel, the crucial issue for consideration is whether such incompetence had deprived the appellant of a fair trial. Therefore, what actually happened at trial must be taken into account.

300.   On the evidence that I have accepted, Mr Chan had all along urged D2 to give evidence, and D2 had all along been reluctant to do so. And in the end he decided not to give evidence or call any witness, a decision which he acknowledged by his signature.

301.   Furthermore, D2 told Mr Chan that if he gave evidence, all he could say would be what he had said during the three interviews, to which he would have nothing further to add.

302.   There is nothing in the affirmation that D2 filed for the purpose of the appeal and his testimony at the hearing to suggest that he would give further evidence.

303.   It is true that the Magistrate refused to accept the statements D2 made during the interviews mainly because he had not testified in the court and his statements had not been tested by way of cross-examination. However, Mr Chan had already told D2 the pros and cons of giving and not giving evidence. The final decision not to give evidence was made by D2 himself.

304.   Mr Chan was not flagrantly incompetent in handling the matter the way he did. More importantly, it did not result in a trial unfair to D2. This ground of appeal fails.

Conclusion

305.   Except in relation to Charge 3 against D1, the grounds of appeal against the convictions on the remaining charges are not made out. Those appeals are all dismissed.

306.   Charge 3 against D1 is dismissed, and any fine he has paid in respect of that charge is to be refunded. The convictions on all the other charges, whether against D1 or D2, are upheld.

Appealsagainst sentence

D1

307.   D1 appeals the 4-month custodial sentence imposed on him in respect of Charge 1.

308.   Ms Cheung argues that the sentence is manifestly excessive. She also complains that the Magistrate failed to sufficiently consider the following factors:

(1) There was no evidence to show that the goods smuggled were valuable;

(2) There was also no evidence to show that the goods affected public hygiene and safety;

(3) Nor was there evidence to show that the smugglers would obtain huge benefits;

(4) The turtles, mealworms and crickets were all kept in the same box, and there was no evidence to show where precisely this box was placed in the vehicle which contained more than 30 boxes in total;

(5) D1 took over the vehicle from a Mainland driver and had no right to check the goods;

(6) D1 could only rely on the documents he was given, and he did not deliberately turn a blind eye.

309.   She also relies on HKSAR v Pang Kei Put[100] and submits that in the circumstances of the present case, the court was not bound to impose an immediate custodial sentence. Besides, that case involved an aggravating factor, namely rotten pork that posed hygiene and health hazards to the public, and no such factor exists in the present case.

310.   Mr Ngai submits that the sentence is appropriate. He refers to the relevant sentencing considerations, as follows:

(1) D1 committed a similar offence in 2009, and the goods smuggled on that occasion also included pests and creatures of endangered species;

(2) The appellant in Pang Kei Put was a first offender. Besides, although Deputy High Court Judge Barnes (as she then was) allowed the appeal against sentence and varied the original sentence of 4 months’ imprisonment to one of 4 months’ imprisonment suspended for two years, she pointed out that while suspended sentences were effective deterrents against those so sentenced, they did not have widespread deterrent effect, and that generally speaking a suspended sentence was not adequate for this type of offences.

(3) In that case, Judge Barnes took into account certain factors which do not exist in the present case. For example, the defendant in that case was a first offender, he was indisposed at the time of the offence, and he merely failed to check the goods with care.

(4) D1 did not show that he was truly remorseful;

(5) The quantity of smuggled goods in the present case was not insignificant and their value was not negligible. Besides, the goods included live creatures such as endangered species and pests.

(6) Sentences imposed for this type of offences should serve a deterrent effect.

311.   For this offence, upon conviction after trial in a Magistrate’s court, the maximum penalty is two years’ imprisonment and a fine of $500,000. Upon conviction on indictment, the maximum penalty is 7 years’ imprisonment and a fine of $2 million.

312.   There is no sentencing guideline in respect of this type of offences. The reasons are obvious: the nature and the circumstances of the offence vary from case to case, and the culpability of an accused depends on his role and conduct in the particular case.

313.   In R v Ng Choi-yau[101], Yang CJ pointed out that, in view of the rampant smuggling activities, imprisonment for 12 to 15 months should be imposed if a large quantity of goods was involved. The goods involved in that case were motor vehicles.

314.   In R v Ng Wai Hong[102],Litton JA (as he then was) pointed out that a sentencing consideration is the value of the smuggled goods. If the value of the goods is low and the profit to be made is also low, and the number of cases on that particular type of smuggling is not large, then the court may adopt a more lenient sentencing approach. That case involved 40 video cassette recorders and 130 laserdisc players. Litton JA took the view that, following a plea of guilty, the highest appropriate sentence to impose would be 12 months’ imprisonment.

315.   This view was shared by Leong J (as he then was) in R v Lam Ting[103].

316.   In HKSAR v Yip Shuk Tat[104], the Court of Appeal pointed out that the smuggling of motor vehicles would warrant a starting point of 18 to 20 months’ imprisonment. That case involved 11 luxury cars of a total value of approximately $2 million. The appellant had committed the offence unknowingly. The Court of Appeal considered that, given the appellant’s plea of guilty, the proper sentence was 2 years’ imprisonment.

317.   In HKSAR v Yip Shing Wing (transliteration)[105], the smuggled goods were for self-use, not for making profit. Besides, the goods were machine parts which did not involve advanced technology. Woo J (as he then was) considered that, in light of the appellant’s plea of guilty, the appropriate sentence was 4 months’ imprisonment.

318.   In HKSAR v Tsang Chiu Kin[106],Cheung JA pointed out that it is a serious offence to smuggle goods with a view to evading payment of Customs duties.

319.   The seriousness of this type of offences lies not only in the loss of revenue but also in the impact upon the international reputation of Hong Kong and the relationship between Hong Kong and the Mainland and other countries.

320.   The basis of D1’s conviction in the present case is not that he knowingly committed the offence, but that he failed to rely on the statutory defence of reasonable diligence. The conviction suggests that if D1 had exercised reasonable diligence, the offence could have been avoided. I have taken into account the fact that D1 had knowledge of at least a small part of the fish in question, and that he was under the impression that there was no need to file hard copy cargo manifest for Customs declaration in respect of the 5 bags of fish in the driver’s cabin and those seen on the loading platform. His culpability is somewhat diminished by reason of his ignorance of the law. However, it must not be overlooked that there were still more than 70 bags of fish on the loading platform.

321.   The court must also take into consideration the quantity and types of the smuggled goods. As Mr Ngai has rightly pointed out, the sentencing court must have regard to the fact that there were creatures of endangered species and pests among the goods.

322.   This is the second time D1 committed this type of offence. It is obvious that the community service order imposed on him in respect of his first conviction has not served an effective deterrent effect.

323.   The sentence imposed by the Magistrate is considerably less severe than that which a knowing smuggler should receive. It is also considerably less severe than the sentence generally imposed in cases involving the smuggling of goods of value, goods of the types that are frequently being smuggled (such as cigarettes), or food that will obviously affect public hygiene or health.

324.   A suspended sentence rests upon the premise that a custodial sentence is appropriate but the court may, in the special circumstances of the case, consider suspension of that sentence. No special circumstances exist in the present case.

325.   As D1 is neither a first offender nor truly remorseful, a community service order is clearly not a viable sentencing option.

326.   An immediate custodial sentence is warranted, and I do not think that the sentence imposed by the Magistrate is manifestly excessive. D1’s appeal against sentence in respect of Charge 1 is therefore dismissed. The sentence of 4 months’ imprisonment is upheld.

D2

327.   D2 appeals the 4-month custodial sentence imposed on him in respect of Charge 2.

328.   Mr Cheung contends that this sentence is manifestly excessive.

329.   Mr Ngai submits that the Magistrate correctly imposed the sentence for the following reasons:

(1) The types, quantity and value of the goods in question are important sentencing considerations;

(2) The public hygiene and safety hazards posed by the goods must also be taken into account;

(3) The turtles, mealworms and crickets involved in the present case are endangered species which should be protected. Their impact on hygiene and safety is also a concern;

(4) Being the proprietor of a transportation company, D2 played a pivotal role, and assumed unshirkable duties, in arranging the transportation of goods;

(5) He was convicted after trial and showed no sign of remorse at all.

330.   The goods relevant to the charge against D2 are turtles and pests of endangered species. Their quantities cannot be described as huge. Their true values are unknown.

331.   I agree that the factors stated by Mr Ngai are proper sentencing considerations. No sufficient grounds have been put forward on behalf of the appellant to convince me that the sentence as it stands is manifestly excessive or wrong in principle.

332.   However, I notice that prior to the present case, D2 had a clear record whereas D1 had one previous conviction for the same type of offence. When D2, who was not clearly more culpable than D1, was nevertheless given the same sentence as D1, his sense of grievance would be justifiable[107]. In this special case, while respecting the sentence imposed by the Magistrate, I shall, in the exercise of my discretion, reduce D2’s term of imprisonment by one month in order to reflect the difference between the circumstances of the two appellants.

333.   Accordingly, I allow D2’s appeal against his sentence for Charge 2 and reduce the term of imprisonment to 3 months.