HKSAR v. LAM YICK SING

HCMA 1177/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1177 OF 2002

(ON APPEAL FROM TMCC 1478/2002)

____________

____________

_______________

J U D G M E N T

_______________

1. This Appellant was convicted on one count of Possession of Goods to which the Dutiable Commodities Ordinance applies, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap. 109. An offence under section 17 is a strict liability offence.

2. The original charge was that on 27 May 2002, he had dealt with goods to which the Dutiable Commodities Ordinance applies, namely motor spirit of about 30 litres.

3. During the trial, the Magistrate used his powers under section 27 of the Magistrates Ordinance, Cap. 227, to amend the charge to one of possession and on that amended charge the Appellant was convicted on 4 November 2002.

4. The Appellant, who was represented throughout his trial, filed Notice of Appeal against conviction and sentence on 9 November 2002. The appeal against sentence was abandoned by Notice on the 27 March 2003.

5. The prosecution's case was that on 27 May 2002, Customs Officers saw the Appellant sitting in the driver's seat of his car, which was parked in a container placed on a rural site, apparently undeveloped, except for truck containers. A woman was inserting an injector into the fuel tank of the car. She was seen pressing a button on the injector which was connected by a pipe to a large fuel tank concealed inside a container close to the car. The car engine was running; and the Appellant was wearing a seat belt.

6. Custom Officers took samples from the fuel tank of the Appellant's car and from the fuel tank in the container. These on analysis were found to contain light oil within the meaning of "dutiable commodity" of the Dutiable Commodities Ordinance.

7. The Appellant's defence was that he had been driving to Lok Fu with some companions and was looking for a garage to repair his car, which was stalling. He could not find a garage that he remembered dealing with in that area some 18 months previously. He stopped inside a container intending to have his car washed and while he was sitting in the car Customs Officers arrived. He said had been stopped about 10 seconds when the Customs Officers came. His seatbelt was fastened; the car engine was running. The Appellant denied he intended to refuel his car and denied that the fuel samples taken for analysis were obtained in his presence.

8. There were five grounds of appeal.

Ground 1

9. The Magistrate failed to give any or cogent reasons as to how he resolved inconsistencies and/or contradictions in the evidence of the prosecution witnesses as well as between their evidence and their respective witness statements. At the appeal hearing, fuller details were given based on the trial transcript.

Ground 2

10. The Magistrate failed to give any cogent reasons as to why he accepted the evidence of the prosecution witnesses and rejected that of the Appellant. It was suggested that the Magistrate's disbelief was based solely on his observation of demeanour and gesture.

Ground 3

11. The Magistrate erred in law in finding certain items which he particularized in paras. 28(7) and 28 (10) of his Statement of Findings, were direct facts, when that could not be borne out and was not supported by any evidence adduced.

Ground 4

12. The Magistrate failed to give a logical and cogent reason for rejecting the Appellant's evidence that he had earlier bought petrol from a licensed petrol station.

Ground 5

13. The Magistrate erred in law in finding that it did not matter whether the meter was functioning properly at the material time, as the meter was the only exhibit seized which could indicate whether petrol was actually bought from the alleged unlicensed petrol station.

14. A 6th "coverall" ground was that in all the circumstances, the conviction was unsafe or unsatisfactory.

Grounds 1 and 2 considered

15. Grounds 1 and 2 are connected and contend that the Magistrate had not adequately or properly evaluated the evidence before coming to his decision and that he failed to direct himself adequately on the issues.

16. This was a simple factual situation in which the Magistrate had to adjudicate. Guidance for magistrates is offered in R v. Yeung Chiu, Criminal Appeal No. 1043 of 1975, where McMillan J stated:

"It is always a delicate point for a Court of Appeal to decide to what extent it is entitled to intrude upon the domain of a trial judge or magistrate in respect of findings of primary fact. Certainly, there are cases in which the body of evidence led on behalf of the prosecution and the body of evidence led on behalf of the defence are each of them so simple so straight-forward and so succinct and within such a short and clear compass that the magistrate can virtually do no more than recite the evidence and then say that he believes one set of witnesses rather than another. Beyond such a simple case I think it may be said that there are cases, somewhat more complicated than that, in which nevertheless the failure of the judge or a magistrate to assign reasons for rejecting one body of evidence rather than another may not necessarily be fatal, since it may be evident, from what has been recited of the evidence, that such discrepancies or incoherences as exist in the story which he eventually does accept are of minor nature and therefore too trivial to have disturbed the judgment of a reasonable magistrate. But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of the magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them."

17. In my view, this case comes within the first category referred to. The Magistrate's task was to produce findings which took account of the type of case and which required him to assess its length and complexity. He had also to allow the parties to discern readily how he resolved significant issues. That would include a determination of the accuracy and credibility of the witnesses.

18. Here the evidence was very simple. The 4 Custom Officers described the facts and what their activities were as a result of what they saw when they came upon the Appellant's car, parked as it was in the container. The Appellant gave evidence on his own behalf and did not call other witnesses. The prosecution witnesses were subjected to detailed and stringent cross-examination and the Magistrate could judge their answers. He was obviously satisfied that the material parts of their evidence had not been affected by the cross-examination. After examining the prosecution evidence he found he believed the evidence of those witnesses.

19. The Magistrate rejected the evidence given by the Appellant. It is not the case that he relied overly on gesture, or demeanour, in judging the Appellant's evidence, rather he looked at the inherent probabilities of the situation described by the Appellant and rejected his account.

20. The Magistrate found various facts established. As a result, he was able to draw the irresistible inference that the Appellant had entered the yard to refuel his car and that light oil had passed from the illicit fuel tank inside the container to the petrol tank of his car. The Magistrate concluded

(1) The cap of the car fuel tank must have been opened for the operator to insert the injector into the fuel tank of the Appellant's car and that could not have been done without the Appellant's permission or consent.

(2) The injector was linked by an oil pipe to the large fuel tank in the container, which contained about 250 litres of light oil.

(3) The operator was pressing a button on the injector, apparently to effect the passing of fuel into the fuel tank of the Appellant's car.

(4) PW3, Customs Officer 9911, in the presence of the Appellant had taken 30 litres of petrol from the fuel tank of the Appellant's car as well as a sample from the large fuel tank in the container, and both were confirmed on analysis to contain light oil suitable for driving a car engine.

21. The Appellant's account of why he had chosen to drive into what was quite obviously not a garage of any kind, park there, and within seconds have somebody rush up, unbidden, to put a fuel injector into his car fuel tank was so nonsensical that it is hardly surprising the Magistrate was able to reject it.

22. There is nothing in the first two grounds of appeal.

Ground 3 considered

23. Ground 3 was that the Magistrate erred in law in finding certain items, particularised in paras. 28 (7) and (10) of his Summary of Facts, were "direct facts" when such was not borne out by any of the evidence adduced. The first item (28.7) was:

"After Customs interception, the car fuel tank contained about 30 litres of substance and the big plastic tank contained about 250 litres of substance."

And 28.10 stated:

"Defendant controlled and possessed about 30 litres of motor spirits in his car fuel tank."

Both matters were facts for the Magistrate to decide in the light of the evidence of the Customs Officers. They were based on the analysis of the motor spirits; they relied too on the Magistrate's acceptance that samples had been taken from the car fuel tank and the main fuel tank. The Magistrate accepted the evidence and was able to draw inferences as to facts. There is no substance in Ground 3 either.

Ground 4 considered

24. Ground 4 was that the Magistrate failed to give any cogent or logical reason for rejecting the Appellant's evidence that he had earlier bought petrol from a licensed petrol station. A reading of the Magistrate's Statement of Findings indicates that he did not reject the Appellant's evidence that he bought petrol earlier from a licensed petrol station. The comparatively small amount purchased, which was to the value of one hundred dollars, was not so large as to necessarily fill an empty tank. It was open to the Magistrate to decide that even if such quantity of petrol had been bought, it did not preclude the illicit fuel, in the quantity set out in the charge, being added to the fuel tank, and thus being possessed by the Appellant.

Ground 5 considered

25. The Magistrate was said to have erred in law in finding that it did not matter whether the meter was functioning properly at the material time, as the meter was the only exhibit seized which could indicate whether petrol was actually bought from the alleged unlicensed petrol station.

26. Reference to the meter is found in the evidence of PW3, the Exhibits Officer. He saw an injector connected to an oil pipe with a meter connected to a pump, which in turn was connected to a large fuel tank. He seized the injector, the meter, the pump and the pipe. In para. 31 of his Statement of Findings, the Magistrate comments: "Whether the meter was functioning properly at all is never known. Likewise whether it has ever been reset to "000" automatically was never known too. But I have already considered this point in my deliberation of verdict. I understand that, in fact, picture (the photographs) P6 (2), (3), and (4) those three pictures, clearly depict that the metre was "000" reading."

27. This ground related to the way oil was collected by PW3; from whence it originated and how it was taken for analysis and testing. Counsel submitted, as he had at trial, that because the meter was not proved to be working there was a possibility that the 30 litres of light oil referred to in the charge was not from the car fuel tank but had come from the main fuel tank in the container.

28. PW3 was subjected to lengthy cross-examination by defence counsel, and thereafter was questioned by the Magistrate, about the quantity of fuel obtained; how or whether samples were taken; the quantity of the samples sent for testing and whether or not the samples were taken in the presence of the Appellant.

29. PW3 confirmed the samples were taken, in the presence of the Appellant, over a period of 10-15 minutes. He thought the quantity taken from the car was about 30 litres. He ascertained the quantity, not from the meter, which he saw read 40 litres, but because the fuel he collected filled one 20 litre bucket and half of another 20 litre bucket - thus making 30 litres.

30. Some 250 litres was drawn from the main tank. After that, 10 litres was taken from the fuel drawn from the car fuel tank and 10 litres from the quantity of 250 litres in the main tank. Those quantities were taken for analysis.

31. The Magistrate had to be satisfied about PW3's credibility; clearly he was. PW3 did not rely on the meter and, as appears from his Statement of Findings, the Magistrate, in the absence of any technical evidence about the condition, or the operation, of the meter did no more than mention he had not relied on it, noting that the meter, as shown in the photographs, had a reading of "000".

32. The Magistrate had to be certain that the Appellant was in possession of the light oil - proof of possession of a specific quantity was not a key element of the charge.

33. Counsel for the Appellant, at trial, contended there was no evidence that any petrol flowed from the tank into the car and suggested that the 30 litres had come not from the Appellant's car, but from the big fuel tank. The only support for this suggestion was a further suggestion that the meter only recorded the amount of liquid flowing from the main fuel tank and not the fuel tank of the car.

34. There was however evidence other than the meter on which the Magistrate could, and did, rely. He did so after all the matters raised on this appeal were put before him. He was entitled to draw the inference that he did, namely, that the Appellant was in possession of the 30 litres of light oil. This ground of appeal is not made out.

Conclusion

35. After considering the matters raised on this appeal I would comment that this was an attempt to obtain a rehearing of all the matters raised before the Magistrate, who had the stellar advantage of hearing the evidence given by the prosecution witnesses and the Appellant and who could thereafter make judgments about their credibility.

36. An appeal to the High Court is not a rehearing of the case. The mere desire to obtain another finding on the facts "is not sufficient to justify the invocation of an appellate process which treats the findings of fact by a court of first instance as so sacrosanct as our system of criminal justice does." (See: R v. Hui Kee Fung Magistracy Appeal No. 196 of 1994 per Keith J.)

37. In R v. Sheik Abdul Rahman Bux & Others Criminal Appeal No. 756 of 1981, which, inter alia reviewed the question of District Court reasons for verdict, it was stated:

"the trial judge was not required, when setting out his reasons as required by section 80 of the District Court Ordinance, Cap. 336, to state precisely what evidence he accepted or rejected. Where, as in this case, a judge's findings appeared reasonable, having regard to the whole of the evidence an appellate court should be extremely reluctant to interfere."

Such considerations apply to Magistrates also.

38. The approach to be adopted by a trial court, and thereafter, an appellate court, was suggested by Stock J, as he then was, in Magistracy Appeal 574 of 1996 (The Queen v. Kwong King-man and Chung Wai-man):

"In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts."

39. Adopting the realistic approach thus advocated I note that the issues at trial were understood by the Magistrate who heard extensive evidence and submissions. He assessed the witnesses' credibility and made findings of fact from which he drew the inference of guilt. He considered the statutory defences available to the Appellant; he gave himself the necessary directions. He incorporated those matters in his Statement of Findings.

40. No matters of law or fact have been raised on this appeal which cause me to believe this conviction is unsafe or unsatisfactory. The appeal against conviction is dismissed.