THE QUEEN v. CHEUNG KAM HUNG

IN THE HIGH COURT

1993, No. 320
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. The appellant Cheung Kam Hung was convicted by Mr. White at the Eastern Magistracy on 26 March 1993 of one charge namely possession on board a vessel of a prescribed article without lawful excuse contrary to Regulation 3(1) and (5) of the Import and Export (Carriage of Articles) Regulations.

2. The facts before the Magistrate were not in dispute. The  appellant was in charge of a fishing vessel which on 4 November 1992 was intercepted by Customs and Excise officers off the Chai Wan typhoon shelter and there were found on board five television sets which for the purposes of the Import and Export (Carriage of Articles) Regulations are prescribed articles. The vessel was a fishing trawler. The appellant was on board with two other persons. No evidence was led at the trial as to where the applicant was intending to go when the fishing vessel was intercepted. The five television sets were all tuned to the TVB Chinese station and they were placed and connected, in working order, in different cabins of the vessel.

3. Photographs have been put before me which indicate that these were crew cabins and the photographs show bedding in these cabins. They were however very small, some of them no bigger than five feet by six.

4. There were also found on board the foam-boxing and carboard sheets which were probably used for packaging these television sets in the first place and could have been used for repackaging.

5. As the magistrate found, the television sets were relatively new. One had a sticker on it which might have hindered viewing. Two had scratches. It is common ground that the burden was upon the prosecution to prove beyond reasonable doubt that none of the five television sets was intended for the personal use of the crew members.

6. The Magistrate correctly directed himself in these terms:

“The Crown case as to the defendant’s intent was circumstantial in nature and that the Crown would have failed to discharge its burden unless the only available inference established proof certain that the goods were being carried on board with the intention of resale.”

7. A court sitting on appeal would hesitate to differ from an experienced magistrate with regard to the proper inferences to be drawn from the facts adduced. However, this court is in essence in the same position as the magistrate in viewing the facts because the case proceeded on the basis of the statement of facts and the exhibits and there was no question in the court below of the magistrate having to weigh the testimony of witnesses.

8. On being arrested the defendant made a cautioned statement admitting that the television sets belonged to him and that he did not possess a licence to export.

9. As I view the facts, the possibility that at least some of these television sets might well have been intended for the use of the crew could in no way be excluded. Whether all five television sets were intended for that purpose is perhaps a different matter. There was therefore a clear possibility of a mixed intent in relation to the subject-matter of the charge: that is, some of these sets might have been intended for use on board the vessel but others for re-sale. This does not appear in the Reasons for Verdict. Having reached this point it does appear to me that the verdict upon the charge as it stands is unsafe and unsatisfactory.

10. I explored with counsel what the proper conclusion might be, having reached the point that some of the sets might have been intended for personal use; in particular, whether the charge could properly be amended. In my judgment such an approach would have been a step in the dark. I have reached this conclusion with some hesitation, having regard to the fact that I am differing on a question of fact from the view of an experienced and careful magistrate. I conclude, however, that the conviction is unsafe and unsatisfactory and must therefore be quashed. I allow this appeal and the consequence must be that the appellant must be forthwith discharged from custody.