THE QUEEN v. WONG SIU WAH AND OTHERS

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 792 OF 1991

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BETWEEN

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J U D G M E N T

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1. This is an appeal against the Decision of Mr. Wright sitting at the Eastern Magistrates' Court, when 6 defendants were convicted of using a Pleasure Vessel without a Valid Licence and 3 of obstructing a police officer.

2. I would like to say at the outset how impressed I have been by the Magistrate's very careful findings which he has set out in a most clear and able manner. I have come to an opposite conclusion to that which he has reached, but this is not to be taken as any disrepsect to the obvious care which he has put into this matter.

3. The real problem which I have found in this case as far as the first 6 defendants are concerned is simply this-the police had been watching a boat yard on which a very large speed boat was being constructed; mounted at the rear were 5 outboard motors providing some 1375 h.p., the tip of the bow was armoured with steel plating, the driver's position was protected by steel plating and there was a large open area behind. This was in ordinary common sense a boat utilised or to be utilised for smuggling purposes. It falls precisely within the new legislation which was added in April of last year and is now to be found in Section 48 of the Import and Export Amendment ordinance as a vessel constructed for the purpose of smuggling. Unfortunately, at the time when the police raid on this premises was made, shortly before this new legislation, there was very little on which the police could bring a prosecution other than perhaps under the earlier sections in the Import and Export Ordinance. Alternatively, a general charge of conspiracy to smuggle which is of course very difficult to prove.

4. The prosecution therefore was driven to utilise regulations passed some twenty years ago for the licencing of pleasure craft in Hong Kong in order to convict these defendants of some offence and that is the problem in the case; it is the utilisation of an Ordinance to achieve a purpose for which it was never designed. In those circumstances, therefore, to bring about a prosecution for a smuggling boat being described as a pleasure vessel might, at first blush, appear very difficult. The magistrate, as I have said before, in very clear and careful findings has sought to put this boat within a category which causes a conviction to be recorded and not unnaturally, he has somewhat strained the construction of these regulations to fit in with these particular facts.

5. I approach the matter on a different basis and I ask myself first of all whether or not an offence has been proved which is contrary to this regulation. The simple issue is whether at the material time these defendants used an unlicenced pleasure vessel in the waters of Hong Kong. Looking at all the facts which have been found, in my judgment, I cannot see how they did this. At the time of the raid, the boat was not in the water but was about to enter the water. There were six men on board and the boat was in the condition I have indicated; it gave no indication of being a pleasure vessel; then wrt for example no cushions or chairs. Much time was spent at the Magistrates' Court and has been repeated in front of me as to the various definitions - in particular, as to whether or not the boat was launched. The magistrate asked himself the correct question was this speed boat a pleasure vessel, but in my judgment, looking at the matters with common sense it was not. He went through an exercise to demonstrate this smuggling boat could fall within that definition. It is defined as any "launch etc." and importantly "is possessed or used exclusively for pleasure purposes"; I cannot find any evidence that this boat was being used exclusively for pleasure purposes on that date; it was being used in my judgment for a criminal activity. Far from a purpose for pleasure it was being used for a commercial operation. There is added to the definition the words "but does not include any launch etc. that has never been launched" and therefore much time was spent as to whether or not this vessel had been launched or was in the process of being launched.

6. The magistrate, in my judgment, was wrong to find this vessel was a pleasure vessel and I do not wish to go into the intricacies as to whether or not it was launched. The magistrate relied on a number of matters. Certain portions of the evidence that the boat was water-tight, in my judgment, give no assistance at all. The fact that its bow has just entered the water may well in normal circumstances justify the fact that this was in the process of being launched, but the words say "does not include any launch that has never been launched.This might indicate that it had to be fully launched. Secondly, was it being used in Hong Kong waters? Although the words 'Hong Kong waters' may have some, as the magistrate pointed out, territorial limitations, in my judgment, as a matter of common sense this boat was not being used in the waters of Hong Kong. The magistrate relied upon some evidence, which was inadmissible, regarding the description of the boat some time after the incident and also on evidence which was called that if this boat had been licenced, the only licencing provision would have been as a pleasure vessel. In my judgment that does not help at all. The appropriate authority should have refused to have registered this boat as a pleasure vessel. It was never constructed as one and it was never to be used as one.

7. The 7th Defendant gave evidence and the magistrate analysed that evidence. What appears to have been forgotten is that D7 was not charged with the offence of having an unlicensed vessel. He was only charged with obstructing a police officer. His evidence therefore could not be used and was not admissible against the other 6 defendants. He was testifying in his own defence with regard to the charge he faced. Having regard to these matters and in particular, as I have said before, having regard to the fact that this smuggling boat was being prosecuted for an offence relating to a pleasure junk, this demonstrates that the law cannot be stretched to cater for a set of circumstances for which there was no provision until a few months later when the Import and Export Ordinance was amended to cater precisely for this type of smuggling operation.

8. The appeal by the first 6 defendants is therefore allowed.

9. As far as the 7th, 8th and 9th defendants are concerned, this was somewhat unusual in that they were charged with an offence which does not exist. Section 63 of the Police Force Ordinance which I do not read in full/ deals with a person who assaults or resists any police officers of acting in the execution of his duty. The charge that was laid here was obstructing the Inspector in the execution of his duty. In my judgment there was no evidence that there was any resistance here or assault on this police officer at all. This charge is defective and the Crown concede that it is so. The prosecution appear to have muddled this charge with the one in the Offences against the Persons Ordinance. In my judgment, these 3 defendants should not have been convicted of this charge and their appeal also is allowed.