HKSAR v. CHING CHIN PANG

HCMA732/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 732 OF 1999

(ON APPEAL FROM KTS 5047 OF 1999)

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J U D G M E N T

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History

1. On 8 January 1999, the appellant was driving a goods vehicle, registration number HM2122, along Cha Kwo Lang Road, Kwun Tong when it was intercepted by customs officers at 10.50 pm. The goods vehicle was found to be carrying 11,000 litres of diesel oil in a compartment at the back of the lorry. The compartment was in the form of a built-in metal tank. There was also a pump and pumping equipment. Attached to the ignition key of the goods vehicle was another key which opened the padlock on the rear door of the cargo compartment of the vehicle.

2. To prove knowledge on the part of the appellant, the prosecution relied on the evidence of a Customs officer who gave evidence that after he boarded the vehicle, he told the appellant that he suspected that an offence was being committed and asked him to drive the vehicle to the Canton Road Government Offices. That witness said that he asked the appellant what cargo was on board the vehicle and the appellant replied that it was oil. The oil was subsequently analyzed by the Government Chemist who found that it was dangerous goods and classified under Category 5, Class 3 of the Dangerous Goods (Application and Exemption) Regulations. The vehicle in question was not a licensed dangerous goods vehicle as approved by the Director of Fire Services and no duty had been paid in respect of the oil.

The charges

3. On 9 January 1999, the appellant was charged with an offence contrary to section 17 of the Dutiable Commodities Ordinance, Cap.109, namely, being in possession of goods for which duty had not been paid under the Ordinance ("DCO offence"). He was tried on this charge on 26 May 1999 by Mr W.C. Li at Kwun Tong Magistracy and acquitted.

4. The second charge that the appellant was charged with is the charge which is the subject matter of this appeal. The summons in respect of this charge was issued on 7 April 1999 which was before the trial of the DCO offence had taken place. The trial of the second charge, which is under Regulations 101(1) and 134(1) of the Dangerous Goods (General) Regulations made under the Dangerous Goods Ordinance, Cap.295 ("DGO" offence), was tried on 9 June 1999 by Mr Ian Candy at Kwun Tong Magistracy when he was convicted.

Grounds of appeal

5. The first ground of appeal is that the appellant, having been acquitted of the DCO offence, the plea of autrefois acquit, should have been entered and would have succeeded in the trial for the DGO offence. The basis of this ground of appeal was that the appellant could have been lawfully convicted of the DGO offence in the trial of the DCO offence had it been laid as an alternative charge and that the acquittal on the DCO charge would necessarily lead to an acquittal on the DGO charge.

6. I rejected this submission for the following reasons :

(1) the same set of facts showed that two offences were committed;

(2) the ingredients of the two offences were different;

(3) the facts were the same but the issues were different; and

(4) the gravamen under the two offences was different, in that for the DCO offence, the gravamen was whether or not duty had been paid and for the DGO offence, the gravamen was whether the vehicle in question had been authorized by the Director of Fire Services to carry the dangerous goods.

7. I agree with Miss Tsang, appearing for the respondent, that an acquittal on the DCO offence does not in inevitably lead to an acquittal of the DGO offence. I can do no better than to quote from Halsbury Law of Hong Kong, Vol.9 p.594 on Criminal Law and Procedure, para.130.750 :

"The charge in the first and second indictment must either be the same or be substantially the same, or the charge on the second indictment must not be one in respect of which the accused could have been lawfully convicted. It is the charge, not the facts, which must be substantially the same and the fact that the evidence called in the later trial is the same or similar to the evidence called at the previous proceedings is not sufficient to found the plea [autrefois acquit and autrefois convict]. Thus, it is not relevant to a plea of autrefois that the facts disclose two different offences and if the accused is convicted or acquitted on one, unless the indictment is the same or similar in subsequent proceedings, the plea is not open on an indictment alleging another offence arising out the same set of facts."

8. The ingredients of the DCO offence are :

(1) the appellant had in his possession, custody or control of the subject goods;

(2) they are goods to which the Dutiable Commodities Ordinance applies, namely diesel oil; and

(3) the possession, custody or control of the goods was not in accordance with the provisions of the Ordinance and the appellant had not discharged all the obligations with respect to the goods imposed upon him by or under the Ordinance.

9. The ingredients of the DGO offence are :

(1) the appellant used a vehicle;

(2) to convey by road in a container;

(3) a category 5 of dangerous goods, namely diesel oil; and

(4) when the use of that vehicle for that purpose had not been approved by the Director of Fire Services.

10. The second ground of appeal is that the verbal confession, having been ruled inadmissible by the magistrate in the first trial, the prosecution was estopped from again tendering the same evidence before Mr Candy. I reject that submission. In Reg. v. Humphrys [1977] AC 1, the House of Lords held that the doctrine of issue estoppel had no place in English criminal law and that determination at a first trial of an issue in favour of the accused was no bar to the admission at a second trial of evidence given at the first trial.

11. The third ground of appeal is in a sense tied to the second ground in that it alleged that it was an abuse of process for the prosecution to re-litigate the issue of whether the appellant was aware of the nature of the contents in the cargo compartment of the vehicle which he was driving. I also do not agree with that submission. Two offences were disclosed on the same set of facts and the two charges were instituted in separate proceedings. The issues in the two trials were different as the charges required different elements of offence as mentioned above. Whether this amounted to an abuse of process, the comments of Keith J as he then was in R. v. Chu To Chung [1995] 1 HKC 678, at 684 are relevant :

" It follows that, for this reason alone, a decision by a judge at the end of a voir dire that an admission alleged to have been made by a defendant to police officers was made voluntarily and is therefore admissible in evidence is not a decision which has the characteristics of the kind of finality which would justify the invocation of the doctrine of abuse of process, unless the judge at the subsequent trial was the same judge, and regarded his recollection of the evidence at the first trial (and his view of the witnesses) as sufficient to carry out the duty which Watson casts upon him. ...."

12. R. v. Watson [1980] 1 WLR 991 held that the finding at the conclusion of the voir dire that the statements alleged to have been made by the defendant were made voluntarily and are therefore admissible in evidence, is a finding which the judge was entitled to revisit at any stage in the trial.

13. The fourth ground of appeal is that the magistrate erred in law in finding that fumes must have emanated from the cargo compartment which would have been detectable by the appellant and therefore the appellant would have been aware from the smell that the cargo was diesel oil when there was no evidential basis for the magistrate to find as he did. I am satisfied and I agree with Miss Tsang that the magistrate was entitled to make the finding of fact that fumes had been emanating from the cargo compartment.

14. For these reasons, the appeal against conviction is dismissed.

Appeal against sentence

15. Mr Candy, after convicting the appellant, sentenced him to one month's imprisonment, suspended for 12 months and fined him $7,500 and costs $2,500. Statistics submitted by Miss Tsang showed that for the year 1997, there were four convictions for the offence under Regulation 101(1) of the Dangerous Goods Ordinance and the average fine was $3,000. In 1998, there were 10 convictions and the average fine was $2,950. In all of these cases, the defendants had pleaded guilty. Another table submitted by Miss Tsang showed the penalty in relation to the quantity of diesel oil involved in the commission of the offence under Regulation 101(1). For 400 litres of petrol, the fine was $2,000; 600 litres $5,000; 160 litres $2,000; and 2,142.5 litres of diesel oil the fine was $6,000. No sentence of imprisonment was ever imposed for this offence either as an immediate term or a suspended term. The defendants in the cases mentioned above all pleaded guilty to the charges during the first hearing. Even though this appellant pleaded not guilty and was convicted by the trial magistrate, I was of the view that a term of imprisonment, even though suspended, was out of range with the usual penalty imposed and can, therefore, in the circumstances, be said to be manifestly excessive.

16. I therefore allowed the appeal against sentence to the extent that the imposition of the term of imprisonment was quashed, but the fine and the order for costs would remain as in the original order. The appeal against conviction and sentence was disposed of by me on 19 November 1999. I said that I would give my reasons later and these are the reasons therefor.