HKSAR v. CHAN MING KUEN

HCMA530/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 530 OF 1999

(Fanling magistracy Case No. 228 of 1999)

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J U D G M E N T

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1. The Defendant was found guilty and convicted for attempting to export unmanifested cargo contrary to S. 18(1)(b) of the Import and Export Ordinance (Cap. 60).

2. There was no dispute on the facts. The Appellant was the driver of a lorry. He had a set of cordless phone with 3 handsets which he did not record in the manifest. He gave evidence to the effect that the telephone set was bought on his request by his business partner and was intended to install in the company for the use of the company staff including himself.

3. "Cargo" is defined in Section 2 as any article which is imported or exported other than those items set out in sub-paras (a) to (f).

4. Sub-para (c) states, "items of personal property reasonably required for the personal use of the crew or passengers of such vessel, aircraft or vehicle".

5. The phrase "of the crew or passengers of such vehicle" is to describe the class of persons to be included in this definition section but not to qualify the use of the items.

6. The only issue is whether that telephone set was a personal property reasonably required for the personal use of the crew or passenger.

7. In respect of this telephone set, the learned Magistrate made the following finding, "the said cordless telephone was to be installed in the Appellant's company staff quarters in Mainland China for the use of the occupants thereat. The installation of the said cordless telephone is for the use and convenience of all the occupants, namely the company's employees. I find that the cordless telephone was not reasonably required for the personal use of the Appellant whether in the capacity of the crew of the said vehicle or not".

8. It seems that the learned Magistrate had adopted a very narrow meaning to the words "personal use" and construed that to mean the telephone set should only be used by the Appellant to the exclusion of other people.

9. To adopt such narrow construction could lead to absurdity. Take for instance if the Appellant were to take a television set and place it in the staff quarters so that he could use it while in China, other staffs could also use it or share with him. I do not think it could be said that he did not have personal use. Again if he were to have a clock and place it on the wall of the staff quarters so that he could read the time, other staffs no doubt can have the use of that clock to read time as well. That does not mean that he did not have personal use of the clock. Such narrow construction could not have been the intention of the legislature.

10. In my judgment any personal property of the crew or passenger of any vessel, aircraft or vehicle so long as it is not for disposal but retained for personal use whether to the exclusion of others or to be shared with others come under sub-para (c).

11. For reasons above I allow the appeal and set aside the conviction and sentence.