HKSAR v. LAW SHING TAK

HCMA 579/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 579 OF 2004

(ON APPEAL FROM ESCC 3706/2003)

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J U D G M E N T

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1. The Appellant was convicted after trial in the Magistracy of one count of Attempting to Export Unmanifested Cargo, contrary to Section 18(1)(b) of the Import & Export Ordinance, Cap. 60. The Appellant was sentenced to 6 months imprisonment.

2. The Appellant was granted bail pending appeal and now appeals against conviction only.

Prosecution Case

3. The facts of the incident on the prosecution evidence were that at about 10:25 pm on 24 October 2004, the Appellant was seen as passenger of a speed boat loaded with unmanifested cargo，as particularised in the charge. The cargo mainly comprised electronic components. Two police vessels were on duty to monitor suspicious activity and the speedboat occupied by the Appellant and another man was seen in the vicinity of Chek Lap Kok, Hong Kong International Airport. The police notified the vessel of their presence by turning lights on and by trying to intercept it, at which point the speedboat immediately began to take evasive action. A high-speed chase developed which covered a considerable distance and occupied about half an hour.

4. During the chase, the driver of the speedboat adopted evasive measures including zig-zagging and it was alleged, that the Appellant threw cartons of the cargo into the path of the pursuing police vessels to deter them. Approximately 20 boxes were thrown overboard and soon afterwards there was a collision with the leading police vessel. At that point, the Appellant and the driver of the speedboat abandoned their vessel and jumped into the sea, from which they were rescued by the crew of the police vessels and subsequently arrested and charged.

Ground of Appeal

5. The perfected grounds of Appeal against conviction are as follows:

(1) The Magistrate erred in deciding she could safely accept the contested evidence of PW1 and PW2 as to the circumstances of the chase;

(2) The Magistrate erred in deciding she could rely on PW2's evidence about the Appellant's oral admission on arrest, notwithstanding his failure to record the same in the preamble to the post-record of the arrest;

(3) The Magistrate failed to consider the inherent improbability of the Appellant's alleged verbal admission that he was transporting the goods to Zhuhai.

6. It was not disputed that the Appellant was a passenger on the speedboat, nor was it disputed that there was unmanifested cargo on that vessel.

7. Mr McGowan for the Appellant submitted that this was not simple case of assessing credibility, but more a case of the Magistrate failing to properly resolve, or give sufficient weight to the discrepancies in the evidence of the main police officer witnesses, PW1 and PW2, who were on separate vessels during the chase.

8. Although according to PW1 some 20 odd cartons had been thrown out of the boat to hinder the police pursuit, nobody had retrieved the cartons thrown overboard.

9. Counsel submitted that the absence of those cartons, or any attempt at recovery, cast doubt on whether or not the Appellant did throw the cartons overboard to deter pursuit, or whether he was a blameless passenger as he contended. The cartons were important evidence of smuggling and of obstruction, but had not been mentioned either in PW2's statement, or in his evidence-in-chief.

10. However that omission is unsurprising because PW2 was not in the leading pursuing vessel and it was PW1 who gave evidence about the cartons thrown overboard; he being better able to observe.

11. Mr Shiu, for the Respondent, pointed out it was not likely there could be any recovery of these exhibits, given the circumstances of the lengthy chase, the great distance covered by the vessels, the shortage of resources and manpower and the complications caused by police having to rescue the Appellant and his companion as well as trying to retrieve the cargo still on the sinking vessel.

12. There is nothing significant in the first ground, that would lead to this conviction being regarded as unsafe. It was in any event a point made before the Magistrate by Counsel representing the Appellant at trial and commented on by the Magistrate in her Statement of Findings.

Ground 2

13. The second ground related to the behaviour of PW2 in relation to the Appellant, after he had been rescued. The Appellant was taken to the police vessel. Complaint was made that although he had bare feet and was soaking wet no dry clothes were provided to him, but that, nevertheless, PW2 conducted a cautioned interview with him.

14. In that interview, the Appellant allegedly admitted that he was to be paid $800 for his work guarding the goods after delivery to Zhuhai, China.

15. The Appellant allegedly asked for dry clothes. This had been denied initially by PW2, but later he agreed that the Appellant had asked for dry clothes. PW2 said he was unable to provide dry clothing because the Marine Police Base did not have such resources but when the Appellant complained of the cold, he had switched off the air-conditioner.

16. Counsel submitted that a Marine Police Base must have basic equipment for rescued parties and this statement indicated that PW2 was not telling the truth.

17. Later at the Tai Lam Marine Police Base, PW2 took a Record of Interview from the Appellant. This was not produced by either the prosecution or defence, but PW2 was cross-examined about its content. The prosecution relied on the Appellant's verbal admission allegedly made on the police launch, about his being paid $800 once the goods were delivered. When cross-examined PW2 agreed that when he wrote the preamble to the Record of Interview, he did not include the information that the Appellant would be paid.

18. It was submitted that this admission was remembered by PW2, only after the Appellant's solicitor visited the Appellant and the Appellant declined to continue the interview. PW2 belatedly invented the alleged admission and recorded it as the last paragraph of the Record of Interview. The Appellant refused to sign it and PW1 was asked to sign to certify the Appellant's refusal.

19. The discrepancies about the admission were said to be extremely important because it was only from circumstantial evidence that the court was able to draw the necessary inferences about the attempted smuggling.

20. However the Court would be entitled to draw inferences from the circumstance of the chase and apprehension and the evidence of PW1 and PW2 as to what the Appellant had done on board the speedboat and after arrest. The Court could infer that the Appellant knew the goods were to be smuggled to China. Such inferences could be drawn only if the evidence of PW1 and PW2 was reliable and counsel submitted, it could not be so regarded by the Magistrate.

21. Mr McGowan submitted that the absence of the admission from the preamble in itself was sufficient to cast doubt on whether or not it was made, but in any event, the suspicious way it was added to the end of the Record of Interview confirmed the likelihood that PW1 and PW2 were not telling the truth.

22. The transcript of the evidence of PW1 and PW2 was available on appeal and the Magistrate made a detailed Statement of Findings. She was aware of the matters raised by Mr McGowan, because they were raised by counsel at trial.

23. In particular, the matters relating to PW2's dealing with the Appellant and his recording of the verbal admission were fully before the Magistrate. PW1 and PW2 were subjected to lengthy cross-examination and the Magistrate had ample time to observe them and consider their credibility.

24. Although it was suggested that PW2 was lying at various parts of his evidence, a detailed reading of the evidence and consideration of the way the questions were framed indicated they were not necessarily lies, but answers to misunderstood questions.

25. Part of the problem resulted from questions being asked as two questions in one and one answer being given by the witness. For example at B132(B) the question was: "The Defendant again requested for dry clothing and you again declined his request saying it would be done after the interview?"

26. This elicited the answer "no" but it was not clear whether the "no" related to both parts of the question. At B132(D) PW2 says he turned the air-conditioning off because the Appellant complained he was cold. It was put to him he was lying, at which point, B132(G), the court asked "Did he ask you for dry clothes?" and PW2 replied "yes". He explained he did not have clothing available to give to the Appellant and as a result, could only switch off the air-conditioning.

27. Similar rolled-up questions were asked about the admission that was recorded later in the preamble.

28. At B133(H), Counsel embarked on a question which confused the court and which had to be clarified for the record. Discussion of how the question should be formulated, ran, in the transcript, from B133(H) to B134(I), at which point the court put the question to the witness.

29. That question too could be considered a rolled-up question, to which the answer "I disagree" could apply to either part. At B134(S), however, PW2 made it clear the paragraph about payment and destination of the goods was added after the interview ended. PW2's point was that he wanted to make a post-record and was trying to write it in chronological order, but this proceeding was interrupted because of the interview with the solicitor.

30. The Magistrate was aware that it was an unusual course for the officer to adopt as shown by her questions of the officer at B136 (T) to (U) and B137(A)(a) to (c). She elicited from PW2, that he was a police officer of some 14 years experience, who had been in the Marine Police for 10 years and had dealt with many cases involving unmanifested cargo.

31. As a result, he recognized the destination of the cargo was quite important but nevertheless failed to record what the Appellant had told him about it.

32. That is a matter the Magistrate considered in her Statement of Findings. Having done so she found PW1, PW2 and PW3 honest and credible witnesses. She referred to PW2's evidence of what the Appellant said after the caution. She was satisfied beyond reasonable doubt the Appellant had made such an admission.

33. She went on:

"PW2 was cross-examined in respect of the preamble in the post-record and why it was that he had omitted reference to the goods being destined for China and that he would be paid $800 initially, and only added the paragraph in respect of that after the Appellant refused to take part in the interview after seeing his solicitor.

PW2 explained that he had admitted to record this in the preamble initially, and when he realized subsequently that he had forgotten this paragraph, he added this back. I accepted his explanation as to why the preamble in the post-record was so recorded. I saw nothing sinister in this. I believed that he genuinely forgot to include that initially and he was trying to correct his error.

PW2 was an honest witness, he agreed that the Appellant told him of feeling cold back at the base and he asked for dry clothes - as no dry clothes were available, he shut off the air-condition for the comfort of the Appellant. I accepted the evidence of the Prosecution witnesses in its entirety." [B14]

34. Mr McGowan suggested that there was an element of ex post facto reasoning in the Magistrate's Findings. However, this was a matter on which lengthy evidence had been heard by Magistrate. She was aware of the alleged discrepancies in the evidence of PW1 and PW2, and aware that PW2 had not followed what might be considered the logical procedure in recording a verbal admission, but she had the opportunity to see and hear PW2 give evidence, something this court could follow only in the black and white of the transcript. Although Mr McGowan in making his opening, submissions denied this was a case of seeking for the matter to be retried, it does appear from his submissions as a whole, that, in effect, is what he wants this court to do.

35. I can see no grounds for interfering with the Magistrate's decision in relation to the credibility of PW2. She came to her conclusion that he was a credible witness after a lengthy hearing and after having had time to consider what he said and what he did. Ground 2 is dismissed.

Ground 3

36. Ground 3 related to the alleged inherent improbability of the route the police described as apparently taken by the driver of the speed-boat.

37. There is no validity in the suggestion that what the Appellant described was, or was not, the intended route for the attempted smuggling. The route was a matter for the captain, or the organizer of the smuggling venture as to what route was taken, who the personnel were and what vessel, or vessels, were to be used to transport the cargo.

38. Police gave evidence as to where they found the vessel and the general route of the chase. To suggest the smuggling vessel was unlikely to have been in the prohibited area does not help the Appellant's case one way or the other simply because there was no evidence about that matter.

39. Ground 3 also fails.

40. Accordingly, I dismiss the appeal against conviction.