HKSAR v. LEE LAW AND OTHERS

HCMA884/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 884 OF 2007

(ON APPEAL FROM FLCC 791 OF 2006)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1. The Appellants were jointly charged with one count of “attempting to export unmanifested cargo”, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance, Cap. 200.  They were convicted after trial.  They now appeal against the conviction.

2. The trial was conducted in Cantonese and the learned Magistrate prepared her Statement of Findings in Chinese.  By agreement of counsel appearing for both sides, their submissions were written in English and the submissions were made in English.

Ground of appeal

3. The sole ground of appeal argued by Mr Cheung on behalf of all the Appellants was that the Magistrate erred in her analysis of the evidence on the radar system resulting in her erroneous finding that a target with the label “6143” was not the 1^st Appellant’s vessel.  It was submitted on behalf of the Appellants that the Magistrate should have concluded that the vessel was following a northwest course heading towards the direction of Tap Mun rather than the northeastern maritime border of Hong Kong.  It was also submitted that the Magistrate should have found that the vessel at the material time was not heading out of Hong Kong waters and hence no inference should have been drawn that they were attempting to export unmanifested goods.

The Prosecution’s case

4. According to the written submissions for the Respondent, the facts of the case were as follows :

“5.   ... At about 2145 hours on 14.2.2006, PW2 (SSgt 10293), an officer on duty at the Radar Control Centre, saw from the radar screen a target at the position of ‘2624D’ following a northerly course.  At about 2150 hours, the target was at the position of 2723 at about 0.5 nautical miles from Wong Mau Chau and disappeared.  At about 2150 hours, PW2 alerted two police vessels (PL 87 and PL 89) to conduct an investigation.

6.    At 2158 hours, PW1 (Sgt 45233) saw the unlit vessel (M20222A) moving at west of Shek Ngau Chau heading Northeast direction at 45 degree.  The officers on board PL 87 turned on nautical lights and blue flashing to signal D1’s vessel to stop.  However, D1’s vessel ignored the warning and made a clockwise turn.  PL 87 made an anti-clockwise turn to avoid collision.  At the end, PW3 (SPC23245) fired a white parachute flare and D1’s vessel slowed down and stopped.

7.    At 2200 hours, D1’s vessel stopped at a position of ‘2724D’.  PW1, PW3 and PW4 (PC 50218) boarded D1’s vessel for investigation.  Upon search, a total of 995,500 optical disks and 1,600 rolls of Fujifilm Fujicolour paper were found on board D1’s vessel.  Upon enquiry made by PW3, D1 said that his vessel was heading Tap Mun.  The Appellants were arrested.

8.    At 1018 hours, D1’s vessel was escorted to the marine police quarter.  Under caution, D1 admitted that he was the vessel owner.  In relation to D2-D7, they under caution claimed that they did not know whereabout of the destination.

9.    There is no dispute that the Appellants were unable to produce any export manifest.”

The defence case

5. “10.  The Appellants elected not to give evidence but elected to call a defence witness (Mr WONG Chun-kit (‘Mr WONG’)), a radar expert, to give evidence for the defence based upon his reading of the radar report and radar plot (Exhibits D-1 to D-3).  In respect of the target ‘6143’, Mr WONG opined that it was a vessel.”

The evidence relied on by the Prosecution

6. According to the written submissions for the Respondent, the Prosecution case mainly relied upon the observations made by PW1, PW3 and PW4 who were on board police vessel, PL 87, to prove the offence.  The radar report and radar plot (Exhibit D-1 to D-3) at no stage formed part of the prosecution’s case.

7. The Magistrate found that the prosecution witnesses were all honest and reliable and she accepted their evidence.

Was the target “6143” the 1^st Appellant’s vessel?

8. Mr Hung appearing for the Respondent summarised the Appellants’ argument as follows :

“... the magistrate erroneously rejected the defence evidence that the target ‘6143’ was D1’s vessel because the Magistrate erroneously overlooked the striking similarities in terms of movement of the alleged suspicious target observed by PW2 and D1’s vessel on interception as described by the prosecution witnesses and subsequently shown by the radar record.”

9. The Magistrate noted that there was no evidence to indicate that the suspicious object seen by PW2 was D1’s boat which was subsequently stopped by the marine police.  At 2150 hours when the two police vessels PL 87 and PL 89 received the message from the radar control centre they proceeded to look for the suspicious object.  On their way to trying to find this suspicious object they came across D1’s vessel which was completely unlit.  The vessel was proceeding in a northeastern direction.  The police officers on board the two police vessels had no equipment to help them trace the suspicious object pointed out by the radar control centre.

10. The prosecution evidence was that D1’s vessel stopped at 22:00 hours.  The radar evidence showed that the target 6143 was still moving and changing direction at that time and it only became stable between 22:06 and 22:07 hours.  According to the prosecution witnesses, D1’s vessel stopped at “2724D”, about 0.5 nautical miles west of Shek Ngau Chau.  From the radar plot (Exhibit D-2) the target 6143 stopped at “2723D”.  Mr Hung therefore submits that the radar plot (Exhibit D-2) was wholly inconsistent with the prosecution evidence about where 6143 stopped.

11. The Magistrate in her Statement of Findings (paragraph 67) concluded that 6143 was not D1’s vessel.  She relied on the evidence that at 9:58 p.m. after PW3 on board PL 87 fired white parachute flare D1’s vessel slowed down.  D1’s vessel had also made one clockwise turn.  At 10 p.m. D1’s vessel stopped.  The Magistrate compared that evidence with the evidence relating to the target 6143 which was that at 9:59 p.m. its direction was not fixed and at 10:01 p.m. its speed was as slow as one nautical mile and its direction changed continuously and it was only from 10:06 p.m. until 10:07 p.m. that it became stable.  The Magistrate noted that for those six minutes its direction cannot be said to have been in a clockwise direction and it cannot be said that it had made only one turn whether that turn was in a clockwise or anti-clockwise direction and it appeared that the target made several turns.  The Magistrate also noted that according to the evidence of PW1 when D1’s vessel was stopped at 9:58 p.m., it was at position 2724D which was about 0.5 nautical mile west of Shek Ngau Chau.  However, according to exhibit D-2, 6143 stopped at position 2723D which was quite close to position 2823B.  She noted that the distance between positions 2724D and 2723D was at least one or two nautical miles.

12. Mr Hung submits that in paragraphs 68 to 73 of the Statement of Findings the Magistrate noted that there were inherent weaknesses/defects in the radar system used by the Marine Department and the marine police.  The purpose of the radar system used by the Marine Department was to detect large vessels for traffic control and the system was not for activities such as anti-smuggling operations.  The radar system can easily be interfered with and small vessels may not be detected.  There were “blind spots” in the vicinity of Shek Ngau Chau and Wong Mau Chau and the radar system can be interfered by large vessels.  PW2 gave evidence that there was a large vessel nearby which might have affected the radar system at the material time by blocking the pulse sent by the radar system.

13. The Magistrate noted that the two police vessels PL 87 and PL 89 did not appear in the radar screen.  The Magistrate said that she could not accept the proposition that that evening there was only target 6143 in the sea and no other boats.  She concluded that even if 6143 was a vessel, it was not D1’s vessel.

14. The next matter considered by the Magistrate was the fact that, according to the prosecution’s evidence, the two police boats PL 87 and PL 89 did not appear in the radar screen.  In paragraph 16 of the Statement of Findings the Magistrate mentioned that metal boats could be detected more easily by radar than wooden or rubber boats.  She noted that police launches were made of metal.

15. Mr Hung submits that even the defence expert could not give evidence that the target 6143 was D1’s vessel and he submits that no inference can be drawn from the radar report and plot (Exhibits D-1 to D-3) to prove that the target 6143 was D1’s vessel.  Taking into account the matters mentioned above, I agree with that submission by Mr Hung. 

Drawing of inference by the Magistrate

16. Mr Hung submits that taking into account the following factors, the Magistrate was entitled to draw the inference that the Appellants attempted to export unmanifested cargo :

(1) D1’s vessel at the material time was unlit and heading in the northeastern direction;

(2) D1’s vessel tried to escape when signalled by the police to stop;

(3) at that time D1’s vessel was in Hong Kong waters but was only two nautical miles from the waters of mainland China and would properly reach the boundary in 15 to 20 minutes; and

(4) a large quantity of unmanifested cargo was found in D1’s vessel and there was no explanation as to why the vessel was travelling in that manner at such time and in such a place.

17. Taking into account the matters mentioned above, I agree that the magistrate, in the circumstances, was entitled to draw the inference that she did.

The Magistrate’s conclusion

18. In paragraph 77 of the Statement of Findings, the Magistrate said that she accepted that that evening as testified to by PW1, PW3 and PW4, D1’s vessel was travelling in the sea in darkness and did not have on any lights, including navigation lights.  She found that the vessel was travelling in a northeastern direction and the intention was that the cargo on board the vessel should be exported.  At that time the vessel was very close to the maritime border with China.  If the vessel had not been stopped, she would very quickly have left Hong Kong waters thereby completing the object of exporting the goods.  She found that the Appellants were attempting to export the unmanifested goods out of Hong Kong.  She found that the defence was not able to prove on a balance of probabilities any defences to the allegation.  She concluded that the Prosecution was able to prove all the elements of the charge beyond a reasonable doubt and found all the Appellants guilty.

19. In my judgment, the Magistrate’s conclusion was based on the evidence adduced at the trial which she accepted.  This was a conclusion which in law she was entitled to come to.  There were no material irregularities during the trial.  The Magistrate made no errors of law.  In my judgment, there are no matters disclosed by the evidence which cause me to have any lurking doubts about the safety and propriety of the convictions.  The appeal against conviction is dismissed.