THE QUEEN v. SO KWOK LEUNG AND OTHERS

MA No. 198 of 1993

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HEADNOTE

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BETWEEN

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J U D G M E N T

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1. These three appellants (D1, D3 and D4) were among six defendants charged with smuggling and other offences before Miss Livesey in Kwun Tong Magistrate’s Court. They were sentenced on the smuggling charge to 15 months’ imprisonment on 2nd February this year. Dl was fined $750, or one month in default, for possession of an offensive weapon. D1 and D3 were fined $2000 for possession of a radio transceiver without a licence.

2. Sheung Sze Wan is a village lying on the coast at the southern end of the Clear Water Bay peninsula. The only road running along the peninsula is Clear Water Bay Road. The only road access from Clear Water Bay Road to the village is by Sheung Sze Wan Road. Siu Hang Hau Road is a road within the village, running off Sheung Sze Wan Road to the sea.

3. On the evening of 24th September 1992 a report of smuggling activities in the Sheung Sze Wan area was received by the police. PC 47496 and PC 46466 were dispatched to the village. At 8.53 pm, on arriving at Sheung Sze Wan Road near the junction of Siu Hang Hau Road, they saw a car parked with D1 sitting in the driver’s seat. When D1 noticed the arrival of the police he alighted and attempted to run away but was intercepted by the officers. D1 was searched and a knife with a sliding blade was found in his trouser pocket. The ignition key was in his right hand. He was taken back to the car and a search was carried out in his presence. PC 47496 seized a radio transceiver and mobile telephone from beneath and beside the driver’s seat respectively. The police constable questioned D l about the transceiver and he admitted that it was his, he could hear police radio messages on it, he was acting as a lookout for people on the beach, and he had intended to warn them if the police approached. When asked about the knife, D1 claimed it was for his own protection. He was then arrested.

4. PC 14509 and PC 21151 were patrolling on motorcycles when they were instructed to go to Sheung Sze Wan in response to the report of smuggling activities. At 9.04 pm they arrived at the car park at the junction of Sheung Sze Wan Road and Clear Water Bay Road, where they arrested D5, who was holding a radio transceiver. A minute later another police constable arrived and took over responsibility for D5. PC 14509 and PC 2115 then rode down to Sheung Sze Wan beach.

5. On arrival at the beach they saw two high-powered speedboats, loaded with cartons, being driven out to sea. Walking out of the water, away from the speedboats, were D2, D3, D4 and D6, who were arrested. D3 was holding a plastic bag containing $90,526, two transceivers, a mobile telephone and some keys, one of which fitted the doors and ignition of a goods vehicle parked nearby. In this vehicle, one of the rear doors of which was open, were 50 TV sets packed in cartons similar to those on the speedboats.

6. At the outset of the appeal Mr Coghlan, who appeared for the Crown, indicated that he could not support the convictions on charges A, C, D and E.

7. The particulars of charge A averred that D1 possessed an offensive weapon, namely a cutter, “with intent to use the said weapon for unlawful purpose”. The magistrate convicted D1 on this charge because she found as a fact that he did not give a satisfactory explanation for his possession of the cutter. The requisite intent was therefore not proved.

8. Charges C, D, and E alleged possession of radio transceivers by all three appellants but inaccurately and fatally averred that the offence was contrary to the Telecommunication Regulations, instead of the ordinance itself. Since Fai Ma Trading Co Ltd v.L.S. Lai (Industry Officer) [1989] 1 HKLR 582, this court has no power to make the necessary amendments are also dismiss the appeal.

9. The appeals were therefore allowed and the convictions quashed on these four charges.

10. Dl’s next two grounds of appeal concerned his admissions to PC 47496. His evidence was that, after finding the radio transceiver and the mobile telephone in the car, he first asked Dl the function of the cutter. He said that at first the appellant did not answer, but when warned that if he did not give a reasonable explanation he might be charged with possession of an offensive weapon, D1 stated that his friend Ah Kau gave him HK$300 to come there to watch for others who were down on the beach transporting goods, that if police officers came he was to inform them and that the radio receiver was to listen in to the police. PC 47496 said that at this stage he arrested D1 for possession of an offensive weapon only. He said that D1 repeated under caution that Ah Kau gave him HK$300 to watch for others, that if the police came he was to inform them and that the cutter was for self-defence.

11. PC 47496 then took D1 back to the police station, where he made a post-record of what had been said and took a caution statement from him. This was challenged at trial on the ground that it had been taken in an unfair manner, in that it was not read back to him and he was told it involved only a minor matter. In her findings the magistrate said :

“I was satisfied that the Caution Statement had been given voluntarily but within my discretion I excluded it because I considered that it had been taken unfairly as at that stage the First Appellant had not been cautioned for smuggling, and I was satisfied that he should have been. I did not consider that that unfairness existed when the alleged oral admissions were made at the First Appellant’s scene of arrest. At that stage smuggling had not been confirmed to PW1 and PW3 as having taken place on the beach. The First Appellant had been appropriately arrested and cautioned for his possession of an offensive weapon, and it is not a ground of complaint that a person admitted to another charge even though he was not being asked about it.”

12. Mr Sedgwick complains that the magistrate failed to make any ruling at the time in relation to the oral admission, in spite of counsel’s plea, at the conclusion of his address, that she should exclude that evidence on the grounds that D1 had not yet been cautioned.

13. The effect of this, Mr Sedgwick submits, was that counsel was misled, when the magistrate excluded the caution statement, which also contained the post-recorded statement, into believing that the oral admissions had also been excluded. This belief, he says, may have deprived D1 of a proper opportunity to decide whether or not to give evidence on the merits. In fact he did not do so.

14. This, I think, is unlikely. Had counsel been misled he would not have invited the magistrate in his final address to ‘treat it cautiously’. Moreover, had there been any doubt about the matter he should have asked the magistrate at the proper time to clarify her order. The magistrate cannot be criticized for not making it clear that she was not exercising her discretion to exclude the oral statement. It was voluntary and therefore admissible.

15. D1’s final ground of appeal is that there was no evidence that he knew that the goods were restricted goods i.e. TV sets. That is certainly true but I am satisfied that Mr Coghlan is correct in his submission that the Crown need not prove that he knew the precise nature of the cargo, since he knew that his colleagues were transporting goods to speedboats on a remote beach. He cites R v. Hussain (I.) [1981] 72 CAR 143, in which it was held that, if the prosecution proves that the defendant knowingly had in his possession an article which in fact is a firearm, as defined in the Firearms Act, the fact that he did not know that the article was a firearm within the Act, for which a certificate was required, is immaterial.

16. Coincidentally, there is an earlier authority of the same name R v. Hussain [1969] 2 QBD 567, in which the defendant was charged with being knowingly involved in fraudulent evasion of the prohibition against the importation of cannabis. It was held that, provided the defendant knew that the packages were subject to a prohibition and that the operation in which he was concerned was designed to evade that prohibition fraudulently, it was not necessary that he should know the precise category of the goods in question.

17. The circumstances of D1’s arrest, including his oral admissions, prove this element of the offence beyond reasonable doubt.

18. The main ground of appeal of both D3 and D4 arises from the evidence of PC 47939. He arrived at the car park in a patrol car and witnessed the arrest of D5. He then followed the motorcycle officers to the beach in his patrol car, but it is not clear from the evidence how far he was behind them. The motorcycles were out of his sight for three or four minutes. This is the time PC 14509 estimated it took him to reach the beach.

19. PC 47939 said, however, that when he reached the beach he saw PC 21151 and PC 14509 holding four men outside the store. He then guarded these men while the other two officers searched the beach. He was unable to remember the men.

20. In cross-examination he said the motorcycles were parked between the bridge and the store but failed to mark the spot on a photograph with precision. He could not recall what the men were wearing, or if they were wet. He was then asked if the black bag was found near a blue bucket, which was placed on the ground alongside the beachfront wall of the store. He replied – “I wasn’t clear”. He was then asked “Was it found in that vicinity?" He replied “Right”.

21. The following exchange took place in re-examination :-

“Q.A black bag was found?

A. Yes.

Q. Were you told a black bag was found, or did you see it found?

A. Neither.

Court:  Q.         When did you first see the black bag?

A.        After I held the 4 person.

Q. Where was it when you first saw it?

A. I can’t recall.

Q. Did you see it being found?

A. No.

Q. So you don’t know where it was found?

A. Not so.

Court:  Q.         How know where it was found?

A.        I can't recall.

Q. Do you know where the bag was found?

A. At first I did not know, later I came to know.

Q. Do you or do you not know where it was found?

A. I can’t recall.

Q. Did you find it yourself?

A. No.

Q. Was it found in your presence?

A. No.

Court:  Q.         At first I did not know, later I came to know. Please explain answer.

A.        Because I can’t recall and I don’t quite follow the questions.

Court:  Q.         Why give that answer if you didn't understand the question?

A.        I was questioned I answered.

Court:  Q.         Please explain at first I did not know, later I come to know.

A.        Please answer more clearly?

Court:  Q.         Question repeated - how come to know in particular?

A.        Because earlier I can’t remember things clearly.

Q.        You said not present when black bag found, said you did not find it yourself. Were you told where it was found?

A.        Right.

Q.        Who told you?

A.        I can’t recall.

Q.        Where were you told it was found?

A.        I can’t recall.

Q.        Why say found in the vicinity of the blue object?

A.        Because I misunderstand the question.”

22. The magistrate found these answers to be either vague or conflicting and did not indicate a competent police officer. He found the police constable to be a vague and unsatisfactory witness and concluded that he could not rely on his evidence.

23. Two points are made. Mr Sedgwick submits that the leading questions put in cross-examination by counsel for the Crown and by the magistrate amount to a material irregularity because they had the effect of warning the witness that his evidence did not support that of his colleagues.

24. Some of the questions were certainly leading, or in the nature of cross-examination, and should not have been asked, but many were not leading. It seems from the police constable’s evidence that the first he saw of the black bag was when it was on the ground at the store. He would have been unable to say where it was found because he was not present when the four men were arrested. He was certainly an unsatisfactory witness and the magistrate was right to disregard his evidence, but it did not contradict that of PC 21151 and PC 14509. If they had found D3 carrying the bag on the beach, it would have been reasonable for them to have placed it on the ground against the wall when they reached the store. I find therefore that the defence was not prejudiced by the re-examination.

25. Mr Sedgwick submits that the magistrate failed to give proper consideration to the discrepancies in the evidence of the two motorcycle police constables and PC 47939. I have recited the latter’s evidence. The magistrate was aware of the conflict and correctly directed himself that extreme caution in evaluating the evidence of the other two police constables was necessary.

26. An important difference in their evidence was that PC 14509 said the four men were walking on the beach when he first saw them; their trousers were wet and he believed they had come from the sea. PC 21151 said they were still in the sea and the water was 6-7” below their knees. PC 14509 said the men were only ten odd metres behind the speedboats. PC 21151 said it was only 12 yards from the bridge to the water’s edge and they checked the men’s identity cards near the water’s edge. I do not think therefore that there is any significance in this discrepancy. I bear in mind that the officers were riding motorcycles when they first saw the men. They would have had time for only a brief glance before alighting.

27. PC 14509 said the speedboats left gradually, PC 21151 said they left at high speed. There was also some confusion as to whether the men were wearing shorts or rolled-up trousers. These discrepancies were insignificant and the magistrate was right to disregard them.

28. There was no one else on the beach and the two officers could not have been in error about what they saw. If they were fabricating the evidence of arrest, their testimony on these points would be likely to have tallied more closely. The magistrate found that they were truthful and reliable witnesses. I am unable to say that he was wrong in coming to this conclusion.

29. Mr Grounds, for D4, has raised several technical objections to the verdicts on charge B. The first is that the re-amended charge B was not signed. The magistrate assumed the power to try the case summarily before the re-amendment. By virtue of s.93(a) of the Magistrates Ordinance the provisions of the ordinance relating to summary trial apply. Under s.10(4) of the ordinance it is sufficient if the complaint or information complies with the Indictment Rules. The information for charge B was signed by D/Inspector Varley.

30. Mr Grounds also submits that this charge is duplicitous because it charges two offences, namely contrary to s.35A(l)(c) and Reg. 3(1). Although the charge avers that the defendants committed an act that breached the regulation, by assisting with the carriage of the articles, it is clear from the wording of s.35A(l)(c) that it does not allege that they committed two offences. In fact the charge, as amended, follows the wording of the section precisely and is the most accurate way of describing what the defendants are alleged to have done.

31. Finally, it is submitted that the magistrate failed to comply with s.27 of the Magistrates Ordinance when she failed to amend charge B following a variance between the evidence and the particulars of offence.

32. Section 27 provides :-

          “(1) Where it appears to the adjudicating magistrate that there is-

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

          he shall, subject to subsection (2)-

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaints, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where-

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall-

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as may be occasioned by the amendment; and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4) In this section, “amend” includes the substitution of another offence in place of that alleged in the complaint, information or summons.”

33. The particulars of offence allege that the offence was committed on 25th September. The evidence was that it was on 24th September. This went unnoticed at trial - unlike in R v. Tse Ming-li, MA315/87, on which counsel relies - and no application to amend was made. In fact it made no difference to the case and the defendants were unprejudiced.

34. Nevertheless Mr Grounds says the magistrate was bound to amend because the date is, by virtue of s.23(1) of the Magistrates Ordinance, a non­material averment. Following the Fai Ma Trading Co case, it is too late to do it now.

35. The absurdity of this argument can be shown by stating the hypothesis that between trial and appeal it was shown that the police had miscounted and that there were only 49, not 50, TV sets in evidence as exhibits. The magistrate could not be expected to have amended the charge under s.27 and it cannot be right that this court should be required to direct a retrial on an amended charge. It is too trivial to call for amendment. See AG v. Wong Lau MA660/92 at page 19.

36. For these reasons the appeals against conviction of all three appellants are dismissed. The appeals against sentence have been abandoned and are also dismissed.