HKSAR v. BANGLOY RUBYLYNN IMPERIAL

HCMA 340/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 340 OF 2013

(ON APPEAL FROM ESCC 1026/2013)

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R E A S O N S  F O R  J U D G M E N T

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1.  The appellant was convicted after trial of one charge of possession of goods to which Dutiable Commodities Ordinance applies, namely 5,200 sticks of duty not paid cigarettes, and was sentenced to 8 weeks’ imprisonment. I allowed her appeal against conviction and set aside the sentence. I now give my reasons.

Prosecution case

2.  The appellant was seen by Customs Officers to pull a trolley with a red, white and blue nylon bag filled to its capacity and looking around. When intercepted and asked of the contents of the bag, the appellant replied she did not know and that it was an old woman who asked her to take the bag to the market.

3.  The bag was searched and the offending cigarettes were found.  After the arrest and caution, the appellant said she understood and asked the officer whether she could leave.  The appellant was asked if she could contact the old woman.  She replied in the negative.  Upon discovering the appellant’s employment status a search was conducted at her employer’s residence. No further offending commodities were discovered.

Defence case

4.  It was the evidence of the appellant that at the material time, she was employed by Madam Chong as a domestic helper.  The mother of Madam Chong, whom the appellant called Por Por, ran a store at the market and the appellant was instructed to deliver various items or things to that store from time to time, the appellant would receive instructions to make delivery of various items or things to the store operated by Madam Chong’s mother.

5.  The appellant said that the red, white and blue bag was brought back by Mrs Chong’s husband the night before and prior to her arrest she received instructions from Por Por to deliver the bag to the market for her.  She said that although she found the bag heavy, she never knew or tried to find out about the contents of the bag.

Grounds of appeal

6.  The learned magistrate erred in ruling, during the closing submission, without having heard full legal arguments, that the appellant’s testimony concerning a conversation she had with her employer Mrs Chong was hearsay and thus inadmissible.

7.  The learned magistrate erred in excluding from his consideration the appellant’s evidence as to (1) the identity of the person who arranged for provision of legal service to the appellant; (2) the contents of the legal advice given; and (3) the circumstance of the entering into the latest Contract of Employment.

8.  The learned magistrate erred in placing disproportionate weight on the demeanor of the appellant, namely, the looking around before the appellant was intercepted, whilst failing to consider that such demeanor might also be consistent with innocent explanations.

9.  The magistrate erred in law in treating what the appellant said to the police officer under caution amounted to a “mixed statement” when it was clearly purely exculpatory statement of denial of knowledge of the contents.

10.  The magistrate erred in rejecting the evidence of the appellant on the mere grounds of inherent improbabilities, which, if accepted to be true or maybe true, would exonerate her guilt.

11.  In the circumstance, the conviction is unsafe and unsatisfactory.

12.  In respect of appeal against sentence, it was submitted that in the absence of any evidence indicating that the appellant was the primover, nor that she was in possession of the dutiable cigarettes for sale or personal gain, an immediate custodial sentence was uncalled for and the 8 weeks manifestly excessive.

Respondent’s reply

13.  The respondent submitted that the “lawyer” point was a red herring.  The core issue being one of knowledge, it was immaterial whether the appellant was acting under instructions of others, or even her employers.  Whilst conceding that what the appellant claimed to have heard from Mrs Chong, namely, a lawyer would be instructed on her behalf, was not hearsay, the respondent submitted that the magistrate was entitled to attach no weight to it on the basis that this was not supported by testimony of Mrs Chong and it did not advance the case of lack of knowledge of the appellant.

14.  It was also submitted that the magistrate, being the sole fact finder, was entitled to reject the appellant’s explanation of her “looking around” prior to interception, and her exculpatory statement upon arrest.  Rather, it was submitted, the fact that she was “looking around” was one of the facts from which an irresistible interference could have been drawn as to her knowledge of the contents of the bag.

15.  The respondent relied on the cases of HKSAR v Lo Lin Fung, HCMA 357/2006 and HKSAR v Kwok Sau Chun, HCMA 543/2010, and submitted the a short term imprisonment is not unusual for possession of small quantity of illicit cigarettes and the present case involving 5,200 sticks of illicit cigarettes could not be said to be “small quantity”, and the 8 weeks’ imprisonment was not manifestly excessive in the circumstances of the case.

My judgment

16.  According to the case of HKSAR v Chou Shih Bin [2005] 1HKLRD 838:

“As noted by Blair-Kerr J in R v Lo Yim‑kai [1966] HKLR 414, a rehearing in this sense is not a rehearing de novo, being instead a rehearing on the material before the magistrate supplemented by any fresh evidence which the appellate court may admit. Nor is it limited to errors of law or excess of jurisdiction as an appeal by way of case stated is limited. As Chan PJ said in Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466 at p 472 H, ‘[a]n appeal by way of case stated under s 105 of the Magistrates Ordinance is not an appeal by way of rehearing.’ The characteristics of different classes of appeals were explained in the High Court of Australia by Dawson J in Harris v Caladine (1991) 172 CLR 84 where he said this at p 125:

‘A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at pp 619‑620; Quilter v Mapleson (1882) 9 QBD 672, at p 676; and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at pp 107‑111.’

An appeal under s 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.  I have gratefully taken that way of putting it from the decisions of the High Court of Australia in Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616 at pp 619‑622 and Fox v Percy (2003) 214 CLR 118 at p 124.  Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first‑hand which the magistrate enjoyed.  Even so, it will not fail to quash a conviction that it considers unsafe. . . . ”

17.  The real bone of contention, thus, is whether the magistrate had fully evaluated the appellant’s evidence and whether he had erred in finding that the appellant’s version was so inherently incredible to be devoid of any weight or belief.

18.  Counsel for the appellant submitted that magistrate erred in excluding the evidence as to who instructed the lawyer to assist the appellant as hearsay in nature, and placing no weight on the further contract, which was in the end withdrawn by the appellant.  All these, it was submitted, if properly evaluated, would support her evidence that her employers had something to hide and she was just acting on instructions and had no knowledge of the contents of the bag.  The relevant part of the transcript relating to who instructed the lawyer in the Defence closing submission went like this (AB 39‑40):

“The suggestion, clearly, is that the family had used her as an innocent agent to deliver something that they knew very well they didn’t want to be caught with. . .

. . . but it seems to me suspicious that an employer immediately gets on to the phone to a solicitor, at some expense, and sends the solicitor down to advise, in other words, ‘Don’t say anything to the Customs and Excise, don’t admit anything…that would be a risk for the family.’ So that’s why the lawyer was sent over, that’s why she was bailed out.

Court: But this is all hearsay. Who exactly was it who sent the lawyer in?

Mr Percy: It’s quite clear who sent the lawyer in. It’s quite clear.

Court: All I know is that ‘an employer’. I don’t know whether that necessarily means Madam Chong.

Mr Percy: Well, who else is the employer? Who signed the contract, Sir?

Court: I don’t know.

Mr Percy: Perhaps I can look at the contract, I’ll tell you who the employer is.

Court: no, no, Mr Percy, I’m telling you that this is a piece of hearsay evidence.

Mr Percy: Sir, if. . .

Court: Who sent the lawyer in is a piece of hearsay anyway. Now, you are asking me to speculate?

Mr Percy: With the greatest respect, Sir, it is a matter of strong inference – strong inference.

Court: From a piece of hearsay evidence.

Mr Percy: It’s strong inference. Who else. . .

Court: Well, what inference can I draw – what inference can I draw from a piece of hearsay evidence, tell me? This is fundamental.  This is basic, Mr Percy.”

19.  The appellant’s evidence, as recapitulated in the Statement of Findings, in relation to that is as follows:

“18. She insisted in evidence that she never knew the contents of the bag. . .

20. After the conclusion of the search (at her employer’s residence), when the defendant was about to be taken to the headquarters of the Customs & Excise Department, her employer told her, according to the defendant’s evidence, that a lawyer would be instructed on her behalf.

21. Later at the Customs & Excise headquarters, a lawyer did turn up to assist the defendant. He handed over to her $500.00 so as to enable her to comply with her bail conditions.

22. The defendant explained in evidence that she did not incriminate Por Por out of her loyalty to her employer’s family.

23. She said it was a condition for the employer to provide her with the money to post bail that she must enter into another employment contract with Madam Chong. The defendant agreed, and she drew up an employment contract and obtained Madam Chong’s endorsement the day after she was released from custody.

24. The contract was subsequently handed over to the Immigration Department for processing of the defendant’s work visa.  However, when the Immigration Officer asked the defendant for proof that Madam Chong would, despite the court case against the defendant, support her in her application for further stay in Hong Kong, the defendant withdrew the application for a further work visa.”

20.  The appellant’s defence, as discerned from her evidence, was that she was used by her employers as a conduit to deliver the bag contents of which were unknown to her.  A witness can testify as to what he or she saw and heard.

21.  In Oei Hengky Wiro and HKSAR (No 2), (2007) HKCFAR 98:

“39. To determine whether the hearsay rule has been breached, it is necessary to determine the purpose for which evidence of an out‑of‑court statement is tendered. An out‑of‑court statement, made in the absence of a party, is not necessarily inadmissible. As long as its contents are not relied on to prove a fact recited or asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue. . .

46. Evidence of an out‑of‑court statement by one person may also be admissible because it gives rise to a factual inference that proves or disproves the conduct of another person. . . ”

22.  The appellant alleged to have heard Mrs Chong mentioning about instructing a lawyer to see her.  It is admissible to prove a fact relevant (the reaction of her employer) to a fact in issue (her knowledge).

23.  The weight, of course, to be attached to such without the evidence of Mrs Chong, was an entirely different issue.  However, there was evidence coming from the appellant that a lawyer did go to see her whilst she was in custody, and bail money was put up for her, it was only natural to conclude that the lawyer was instructed by Mrs Chong other than anyone else.  The appellant also explained why a new contract was signed between her and her employer immediately following her day of release and not earlier when her old contract was only due to expire in about a week after her arrest.

24.  I agree that these matters should be properly evaluated in the light of her defence. Unfortunately, the magistrate, by ruling out or disregarding these evidence, placed too great a weight on her demeanor of looking around, and of not giving Por Por away：

(1) The fact that according to the appellant, Por Por was not present in the flat the night before when Mr Chong brought the bag back from Shenzhen it could clearly instruct the appellant the next morning as to where to get that bag was “totally improbable and contrary to common sense”;

(2) The explanation of the appellant as to why she looked around at the rear lane as looking for Por Por was unnecessary, “impromptu and improvised”, and that she looked around at the zebra crossing “for the green light” was against common sense and unreasonable, and that “the defendant has had something to hide in putting forward that false claim”; and

(3) That there was “no plausible reason” that the appellant, on interception and confronted with a criminal allegation, did not lead the Customs Officers to the market to find Por Por.

25.  There could well be equally innocent reasons for her doing so, and I am of the view that the matters above, those matters, if given the appropriate consideration, would not necessarily render a conviction inevitable.

26.  I find the conviction unsafe and unsatisfactory, and set aside the conviction and sentence.  I do not find it necessary in the circumstances to deal with whether the sentence of 8 weeks is manifestly excessive in the circumstances of the present case.

27.  Costs of the appeal be to the appellant, to be taxed if not agreed.