THE QUEEN v. LUI TAK HOI

IN THE COURT OF APPEAL

Magistracy Appeal
1993, No. 1

HEADNOTE

Appellant charged with attempting to export unmanifested cargo contrary to s.18(1)(b) of the Import and Export Ordinance Cap. 60. Defence contended that the offence was one of strict liability and that the Crown was required to prove mens rea. Court of Appeal was satisfied that, the interpretation of s.18(1)(a) was governed by the words of the Ordinance itself and that the insertion of the word ‘knowingly’ in s.18A and the failure to insert such word in s.18(1)(a) were clear indication that the Legislature did intend that the latter offence be one of strict liability.

IN THE COURT OF APPEAL

Magistracy Appeal

1993, No. 1

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BETWEEN

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The appellant faced, together with a co-defendant Chan Pak-chiu, a charge of attempting to export unmanifested cargo contrary to s.18(1)(b) of the Import and Export Ordinance Cap.60. It was charged that he jointly with Chan, on 19th August, 1992 at the Export Cargo Examination Complex, Lok Ma Chau Control Point, attempted to export a large number of disc players, cassette recorders and other video equipment. Chan pleaded guilty to that charge and was dealt with. The appellant pleaded not guilty before Mr. Christie in the Magistrate Court of Fanling and was after trial found guilty and fined $5,000. He appealed against that conviction. When the matter came for hearing in the High Court, Leonard J. directed that the case be transferred for hearing in the Court of Appeal which is how the matter comes before us.

3. Section 18 reads as follows:

4. “18. Offence of importing or exporting unmanifested cargo

(1) Any person who -

(a) imports any unmanifested cargo; or

(b) exports any unmanifested cargo,

shall be guilty of an offence and shall be liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(2) It shall be a defence to a charge under this section against the owner of a vessel, aircraft or vehicle, if the owner proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested.”

5. The appellant was the driver of a tractor hauling a trailer with a 40 foot container from Hong Kong to China. He was employed by Au Kwan and was registered as the driver of the unit for the purpose of driving it between Hong Kong and China. On 19th August 1992, at about 6 p.m. he was returning from China with a consignment of plastic toys. During the journey he was paged by a Mr. Chan who told him that Au Kwan had asked him to call the appellant directly with an instruction to deliver an empty container with trailer to Shenzhen and to collect a consignment of shoes. These were at the Kong Chit Carpark in Lok Ma Chau where the appellant was due to set down the container and trailer that had been brought from China. Having been told their numbers, he went to pick up the trailer and the container. Having located them he stated that he had opened the door of the unlocked container at about 7.10 and that it appeared to be empty. He then proceeded to drive what he believed to be an empty container to Lok Ma Chau control point in order to return to China. The container was searched by Customs Officers and was found to have a wooden partition behind which the items listed in the charge were concealed.

6. The Magistrate in his Statement of Findings said:

“I accepted that what Appellant had given in evidence was truthful, and that he had no guilty knowledge or intention in respect of the contraband. But I did not accept the defence contention that this was sufficient to entitle Appellant to an acquittal. I concluded that the only defences available to him were those recorded in subsection (2) of Section 18 of the Ordinance. With my finding that Appellant’s evidence was truthful he had the benefit of the defence that ‘he did not know …… the cargo was unmanifested.’

This left me to consider whether he ‘could not with reasonable diligence have known’. Photographs of the container were part of the evidence presented by the prosecution. Number 3 of the 16 photographs showed the view which Appellant would have had when he opened the doors of the container. This photograph makes it clear that it would have been readily apparent to Appellant that the interior wall of the container was constructed of wood, a different material to the metal used in the construction of the container itself. I considered it the responsibility of Appellant to enquire further into why there should be such a wall, so constructed.”

The Magistrate went on to say that other photos indicated the depth of the concealed compartment and that the existence of such a compartment could have been readily ascertained by measurement. He observed that even the cursory method of measuring by stepping the length of the container inside and outside would have given an indication that the interior length was well short of the exterior length. The actual difference being about 6 feet or 15%. He concluded:

“Considering these matters I concluded that the efforts of Appellant fell well short of the diligence required by subsection (2). I accordingly convicted him of the charge.”

7. The sole ground which has been argued by Mr. Macrae, who has appeared today for the appellant, was that

“The learned magistrate ‘accepted that what the Appellant had given in evidence was truthful, and that he had no guilty knowledge or intention in respect of the contraband.’ However, he ‘concluded that the only defences available to him were those recorded in subsection (2) of s.18 of the Ordinance.’ In so finding, the learned Magistrate erred in law by holding in effect that the offence was one of strict liability for which the absence of mens rea did not afford the Appellant a defence.”

Mr. Macrae has today pursued that ground advancing arguments which he suggests conclusively establish that s.18, properly interpreted, involves proof of mens rea as an element of the offence it defines.

8. He relied firstly upon the reasoning in Cathay Pacific Airways Ltd. v. The Queen [1952] HKLR 30 which, he suggested, when inverted, as it had to be to fit the facts of the present case, supported his contention.

9. He submitted, paraphrasing the words of Gould J. in that decision, that it was the breach of that duty to record the cargo in a manifest as required by s.17 which was made an offence by s.18. He submitted that if it was the duty of the appellant to record the cargo in a manifest he could only be held not to have fulfilled that obligation if it was proved that he knew of the existence of the cargo.

10. He submitted that this clearly indicated that the legislature did not intend that s.18(1) should create offences of absolute liability.

11. Mr. Macrae then sought to distinguish the decision in The Attorney-General v. Yip Man-cheong[1989] 2 HKLR 547. This had held that an offence under s.17I(1) of the Immigration Ordinance (Cap.115) had to be construed as imposing strict liability because it made provision in terms for a specific defence as does s.18. He submitted that that authority had no application when one came to consider s.18 as the defence provided itself rested upon a presumption of knowledge of the existence of the cargo.

12. He then referred to the case of Gammon (HK) Ltd. & others v. Attorney-General of Hong Kong (1985) 80 Crim.App.R. 194, and to the five propositions that were propounded by Lord Scarman relevant to determine whether an offence is one of strict liability. He submitted that these propositions, when applied to s.18 clearly favoured an interpretation that did not involve strict liability.

13. We mean no disrespect to Mr. Macrae’s arguments if we do not canvass them further. We are satisfied that before a court falls back upon approaches of the nature suggested by Mr. Macrae it must look at the words of the Ordinance itself to see whether the legislature declared its intention therein. If it did then interpretations that might, arguably, otherwise be appropriate must clearly be discarded.

14. Mr. Macrae concedes that s.18(1) does not anywhere use the word “knowingly”, but, of course, falls back on the presumption that mens rea is required to establish guilt of a criminal offence. This presumption can, however, be displaced not only for reasons such as those set out in Gammon but also if the intention of the legislature so to do is demonstrated by the words of the Ordinance.

15. We turn then to s.18A

16. “Assisting, etc. in export of unmanifested cargo:

(1) Any person who knowingly-

(a) has possession of any cargo;

(b) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any cargo; or

(c) otherwise deals with any cargo, with intent to export the cargo without a manifest or with intent to assist another person to export the cargo without a manifest is guilty of an offence and liable on conviction to a fine of $500,000 and to imprisonment for 2 years.”

17. Section 18A uses the word “knowingly”. It is important to note that s.18A was added to the Import and Export Ordinance by Amending Ordinance 22 of 1991 which also amended s.18(1). We think it unarguable that the legislature, given that it inserted the word “knowingly” in s.18A and did not insert any such word in s.18 could have intended anything other than that s.18A was not an offence of strict liability and that s.18 was. That being so the magistrate was right to proceed in the way in which he did.

18. The appeal must, therefore, be dismissed.