THE QUEEN v. TSE KWOK KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.325 OF 1993

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J U D G M E N T

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1. On 7th April, 1993, the appellant was convicted by Mr Thomas in Fanling Magistrate’s Court on one charge of constructing a vessel of less than 250 gross tons for the purpose of smuggling, contrary to s.14A(1) of the Import and Export Ordinance, Cap.60. An identical charge in respect of another vessel was dismissed on the grounds that too much work remained to be done for the magistrate to be sure of the purpose of its construction. The appellant was sentenced to six month’s imprisonment and to a fine of $50,000, plus $5,000 costs, with six months consecutive in default of payment. He now appeals against both conviction and sentence.

2. The appellant is the proprietor of the Wan Kee shipyard in Tai Po. It was founded by his father and he has worked there for 20 years. He is now 35.

3. On 25th March, 1992, observation of the shipyard was carried out by Senior Inspector Joyce of the Anti-Smuggling Task Force. He saw in the shipyard two hulls of vessels which he identified as similar to those commonly used for smuggling purposes in Hong Kong waters and known as tai fei. In the previous six months Senior Inspector Joyce had carried out two to three operations a week and had become familiar with tai fei. They were designed to be powered by three, four or five outboard engines of about 275 HP and were capable of 60-70 knots. They were big boats capable of carrying a car.

4. Senior Inspector Joyce noted that the transoms of both hulls had been modified. Holes had been bored to fit engine mountings which had been covered by tape and painted so that they were not apparent on casual inspection. He believed that this had been done deliberately because it was a professional job and, if the tape had been removed, the transom paintwork would have been ruined.

5. On 31st March Senior Inspector Joyce returned to the shipyard with Superintendent Dando, Engineering Officer of the Marine Police, and other Task Force officers under the special power contained in s.21 of the Ordinance. Superintendent Dando is a Chartered Marine engineer with 34 years service in the Royal Navy. While in the police force he has examined over 100 tai fei and vessels of that ilk. He said that the general characteristics of tai fei are that they are large vessels 12 meters long and three meters wide and powered by three, four or five engines of up to 300 H.P. They have a large open area aft for cargo. They are minimally equipped with a compass and controls but no seats or other equipment normally found in seagoing craft. They possess a planing hull to permit high speeds.

6. Superintendent Dando examined the two vessels Al and A2 on 31st March. A2 was not in as advanced a stage of construction as Al. The latter needed installation of the fuel tanks, the engine mountings, the engines, the throttles and the steering wheel. After the fuel tanks had been installed and the bottom deck built over them, the boat would then be substantially complete.

7. Al exhibited the classic characteristics of a tai fei. Significantly, in Superintendent Dando’s view :

“...            the transom had been drilled by sixteen holes, in sets of four holes each, and from my experience, these holes had been drilled to accept the engine mounting brackets of large outboard engines. I would also add that efforts had been made to mask these holes by placing masking tape over the holes and then painting the entire transom so that the holes would not readily be seen.

Thus, from the nature of the construction and design of the boats and because they had been designed to accept large outboard engines I concluded that these boats constituted ‘tai fei’.”

8. He deduced from the four sets of holes and the distances between them that the transom was being prepared to mount four large outboard engines. He estimated that its maximum speed in an unloaded condition would probably be about 60 knots. He concluded :

“            In view of the fact that the vessel was not being fitted out for any other purpose, such as the fitting of tanks for fish or with seats for passengers and in view of the fact that it was being prepared to carry up to four engines of the size I have described and as it fitted exactly the characteristics of boats known to be used for smuggling I concluded that this boat was constructed for the sole and only purpose of carrying goods at high speed in open waters.”

9. Superintendent Dando also examined some new outboard engines in the shipyard. They had been modified to enable the covers to be removed from the top rather than the side. This was an advantage if four engines were to be mounted side by side since it made them easier to service. The engines were each of 275 HP and would fit the transom of Al . Superintendent Dando also examined two fuel tanks that were seized. He calculated that they would give Al a range of 100 nautical miles at full power.

10. There were four separate fuel lines and four separate hydraulic steering pipes. The gauge panel showed four R.P.M. meters, one speedometer and one fuel level gauge. This indicated that the boat was to be equipped with four engines. The panel was covered with plastic sheeting. Superintendent Dando said :

“Normally, gauges and instruments would be protected whilst construction work was proceeding on the rest of the boat by plywood sheeting which would give sufficient protection from damage. This plastic sheeting was very thin and could easily be torn off It would not afford any protection to the gauges. I concluded that the purpose of the plastic sheeting was to conceal the gauges from view.”

11. One of the grounds of appeal is that the magistrate erred in accepting the evidence of Superintendent Dando as his cross-examination shows the witness to be biased and unreliable and his evidence inconclusive in consequence.

12. He said first that seized smuggling crafts were usually painted dark grey, the most suitable colour to camouflage a boat at sea. He recollected Al was grey-blue in colour but not as bright as in the photographs. He had however seen tai fei of that colour.

13. He was then asked how many petrol filters he found and he replied that there were four to the best of his recollection. Shown photograph 31 he was obliged to admit that only two were visible. He said two may have been concealed behind the officer but it was also possible that there were only two on board. In re-examination he said that photographs 31 and 34 showed four sets of holes and fittings but only two filters had actually been fitted.

14. He was asked about the two sets of piping in photograph 32 and he said these were steering rams. Four engines could be controlled by two steering rams as easily as four. The wiring in photograph 33 could have supported steering rams for two or four engines.

15. Superintendent Dando conceded that photograph 33 showed only two batteries, whereas his recollection was that there were four. But his memory was confirmed by the last prosecution witness, Mr Lam Sin-tong, who said the other two batteries were hidden by the officer’s knee in photograph 33. There can be faintly seen on the left of the photograph an object of apparently similar shape and colour as the batteries.

16. Superintendent Dando agreed that the fuel tanks were some distance away from the boats. He said there were five, not just the two shown in the sketch, and points to photograph 16 which confirms his evidence. He said there were 20-30 identical fuel tanks neatly stacked. The next stage of construction would have been to install the tanks.

17. The final prosecution witness was Mr Lam, a Shipping Safety Assistant in the Marine Department. His evidence was also technical and tended to support that of Superintendent Dando. There were at any rate no contradictions.

18. The appellant gave evidence but called no witnesses. He said that in March, 1991, 17 vessels had been seized from his shipyard on the grounds that they failed to conform to new regulations inhibiting the Director of Marine from licensing pleasure vessels mounting more than two outboard engines. He admitted that he originally intended to install four 275 HP engines on Al nevertheless, but changed his mind because he thought it would be too dangerous as they would be too close together. He did not enlarge upon this.

19. Al was intended to be a pleasure vessel and more than 30 boats from the same mould had been licensed in the past year. Construction of Al had started in January, 1992. Despite the new regulations he decided to install four engines because this vessel was smaller. I would comment here that it was never suggested that the size of the boat made any difference under the regulations.

20. The 16 holes in the transom were drilled in February and the two additional sets of nuts and bolts in photographs 31 and 34 were installed shortly thereafter. When he realised they had made a mistake about the four engines - the distance between the engines being too close - he decided to fill up the unwanted holes. They affixed adhesive tape to the transom and painted fibre­-glass resin over it and allowed it to dry. After two days, when the resin was dry, the holes would be filled in from the other side. This explanation was put to Superintendent Dando, who said that, if that had been the object of the exercise, there would have been no need to paint over the tape. The paint was the same as that which covered the rest of the transom and was not fibre-glass resin.

21. At the time they made the change the appellant did not have a buyer for Al. This was one month before the seizure. Consequential modifications were necessary - filters, cables, ignition switch and the hydraulic system. These had not yet been done by 31st March.

22. As to the engine covers, the appellant said the vertical lift-off type was more popular than the two-piece. The reason that all the engine covers in his yard were mechanically held together was that it was a requirement of his customers.

23. At the end of the appellant’s evidence this question was asked by the magistrate :

“Q.       If the boats were being built ‘on spec’ why was any configuration of engine being fitted before a buyer was found and why did you try to mount four engines if you knew that there was legislation in relation to the number of engines?

A.        The business of the shipyard was not good so I tried to do so and I tried to do so to have it sold overseas. And before I gave it a try the police came to the shipyard.”

24. There was no evidence that the appellant made any attempt to sell Al overseas. He must have known in January, 1991, when construction was started, that he would not be able to license Al with four engines. Any would-be purchaser would have to come to Hong Kong, buy the boat and ship it out unlicensed. It was therefore a very risky gambit to begin to build a boat, which the appellant admits would be worth $400,000, and which he knew he would not be able to license in Hong Kong. Particularly is this the case if business was bad, as the appellant avers. No explanation was given why the appellant ever considered such a risky venture. Was there no market for two-engined pleasure boats? He did not say.

25. Not surprisingly, the magistrate did not believe the appellant’s explanation about the four-engine design. In a short judgment he said :

“There are various presumptions in Section 14A of Chapter 60 which purport to help the Prosecution.

As to the facts, without the aid of the presumptions, I have no doubt whatsoever that the boat Al was being constructed for the purpose of smuggling. The general configuration, the absence of any type of fittings and fixtures that would one expect to find in a boat which Dl said would sell for $400,000 and the fact that, in my judgment, the boat was being fitted out to take four powerful outboard engines all go to satisfy me so that I am sure, beyond a reasonable doubt, that the sole purpose of Al was for smuggling purposes.”

26. He added :

“The filling of the sixteen holes was done sufficiently crudely that they could still be seen on inspection. I reject any notion that in a vessel costing some $400,000 the standard of workmanship was thought appropriate in a vessel which was merely to be left in the yard to attract buyers, according to Dl’s first Cautioned Statement, or even to be exported, according to Dl’s oral evidence.”

27. The presumption referred to is contained in s.14A(6)(b)(iv) of the Ordinance :

          14A. Construction, etc., of vessels for the purpose of smuggling

(6) In subsections (1), (2), (3), (4) and (5), where -

(a) ……

(b) it is a vessel that has –

……

(iv) a facility to mount more than 2 outboard engines where the total power of the engines could exceed 448 kilowatts;

……

28. In his Statement of Findings the magistrate examined this provision at length in the light of the Bill of Rights and came to the conclusion that it was not thereby repealed. He then said this :

“Thus all that the Appellant had to do in the present case was to adduce evidence which would raise a reasonable doubt as to whether the prosecution had proved that the vessel was constructed for the purpose of smuggling. He did not even need to adduce evidence if he did not wish to; he could point to the quality (or lack of it) or to any lacuna in the prosecution evidence itself.”

29. The magistrate then turned to a consideration of the facts and concluded :

“....            Without at first even considering the presumptions in section 14A(6)(b), as they assisted the prosecution, I was entirely satisfied that the prosecution had satisfied me so that I was sure, beyond a reasonable doubt, that the boat Al was being constructed for the purpose of smuggling and for no other purpose.

I went on, however, to consider also the question of the presumptions as argument had been addressed to me on behalf of the Appellant. It was clear that the only presumption that could apply to the vessel Al was that contained in section 14A(6)(b)(iv). There was no definition of the phrase therein ‘... a facility to mount more than 2 outboard engines ...’, but I considered that the boring of holes to allow the engine mounting brackets to be attached was sufficient to amount to ‘a facility’. The presumption in section 14A(6)(b)(v) did not apply as the vessel did not have the sort of fuel tanks described therein. Theywere found away from the vessel. The Appellant, I held, had introduced no evidence nor was able to point to no evidence in the prosecution case which might create a reasonable doubt on the issue. I held therefore that the presumption did apply and did not afford the Appellant any defence in the case.

As I have endeavoured to point out, however, I was able to decide the case, at least so far as vessel Al was concerned, without the benefit of considering the presumption.”

30. The first and second grounds of appeal are :

1.       That without the presumptions in Section 14A(6) of the Import and Export Ordinance (Chapter 60) there was no or no sufficient evidence adduced for the learned magistrate to conclude that the vessel was constructed “for the purpose of smuggling and for no other purpose” (page 133 of his “Record”).

2.         Additionally and/or alternatively, the state of construction of the vessel was such that it was impossible to be satisfied beyond a reasonable doubt that the vessel, when completed, was to be used for the sole purpose of smuggling. For example, PW1 said that the boat had “not been completed” (page 21); PW2 testified that the boat still needed “the installation of the fuel tanks, the engine mountings, the engines, the throttles (and) the steering wheel” (page 41); and PW3 said that the boat was “not seaworthy” (page 73).

31. In the light of the way the magistrate has approached the case, I am bound to agree with Mr Cheng Huan Q.C., for the appellant, that I must ignore the presumption in deciding this appeal. Mr Chan, for the Crown, submits that the magistrate would not have written nine pages of typescript, deciding that the presumption did not offend against the Bill of Rights, if he did not intend to rely on it. There is force in this argument but, having regard to the magistrate’s plain language that he did not need to rely on it, I conclude that he meant what he said and that, in coming to his conclusion, he did not consider whether the presumption had been rebutted by evidence led by the prosecution or the defence. The question remains whether there was sufficient evidence for the magistrate to conclude that the vessel was constructed for the purpose of smuggling and for no other purpose.

32. In spite of counsel’s criticism, I see no reason why the magistrate should not have accepted the evidence of Superintendent Dando, supported as it was by the other two prosecution witnesses. He has a high level of technical competence and the passages cited by Mr Cheng Huan do not persuade me that the witness is motivated by bias. Nor is there evidence of unreliability. The magistrate may not be far wide of the mark in his assessment of his evidence thus :

“PW2 was, in some respects, an over-opinionated and pedantic witness but there was no denying his considerable experience and expertise in the field of marine technology and engineering.”

33. It is urged upon me that the evidence nevertheless falls short of that required for a conviction. Mr Cheng Huan submits that, even if the appellant’s intention was at all times to construct a four-engined vessel - which realistically was the only reasonable conclusion open to the magistrate - that does not lead to an inevitable inference that the vessel was built for smuggling purposes. He draws an analogy with Ferrari or Porsche motor cars, which he says are not necessarily purchased with breaches of speed limits in mind. Whether that is so or not - I am inclined to doubt it - the magistrate was bound to keep in mind the situation in Hong Kong and apply his common sense. It is a notorious fact, of which he may take judicial notice, that smuggling of goods, in particular motor cars, has been taking place between Hong Kong and China in the past several years. There was evidence, which he accepted, that the nearly completed vessel Al was being “constructed for the sole and only purpose of carrying goods at high speed in open waters”. In these circumstances the only reasonable inference was that the boat was being built for the purpose of smuggling.

34. The appeal against conviction is dismissed.

35. As to sentence, the appellant, in the magistrate’s words, played for high stakes and lost. The smuggling of goods to China is still taking place, although it may have decreased in scale, as counsel submits. Nevertheless, deterrent sentences are still required.

36. The maximum sentence for this offence is two years’ imprisonment, plus a fine of $500,000. The magistrate took all the mitigating factors into account. In my judgment a sentence of six months’ imprisonment after trial is not wrong in principle or manifestly excessive. The appeal against sentence is also dismissed.