HKSAR v. LI TAI KAM AND OTHERS

CACC 373/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 373 OF 2008 

(ON APPEAL FROM DCCC 388 & 472 of 2008) 

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

 Introduction

1.  The applicants, Li Tai-kam (“Li”), So Choi (“So C”), So Yat-law (“So YL”), Tsang Hei (“Tsang”) and Sit Wai-hung (“Sit”) appeared before Deputy Judge Glass in the District Court, together with six others, on an indictment consisting of three charges.

2.  The 1^st charge alleged that Li, So C and So YL, together with six others, attempted, on 10 July 2007, to export unmanifested cargoes, namely 33,454 pieces of fur and 34 pieces of fur coats (“the furs”), and 180 pieces of LCD monitors, 210 sets of car radios, 9 pieces of computer servers, two boxes of accessories of LCD monitors and one box of skin care products (“the electrical goods”). The furs and the electrical goods will be referred to collectively as “the cargoes”.

3.  The 2^nd charge alleged that Tsang conspired with So YL to export the electrical goods without a manifest.

4.  The 3^rd charge alleged that Sit conspired with Li to export the furs without a manifest.

5.  The applicants pleaded not guilty to the charges, but were all convicted.

6.  In respect of the 1^st charge, Li was sentenced to 24 months’ imprisonment, So C to 16 months, and So YL to 18 months. In respect of the 2^nd and 3^rd charges, Tsang and Sit were sentenced to the respective terms of 21 months and 24 months’ imprisonment.

7.  The applicants sought leave to appeal against conviction only. On 15 January 2010, we dismissed their applications and these are the reasons.

The Prosecution Case and Evidence

On the 1^st Charge

8.  On 10 July 2007, police officers on board a police launch PL 80B received a radio message and as a result it went at full speed towards Sung Kung Island, arriving at 0520 hours. The officers found a cargo vessel BM 21701Y (“the vessel”) near the East Sung Kung Island and three speedboats, which were initially close to the vessel, then fled at high speed.

9.  The vessel also tried to flee from PL 80B, but was only intercepted after a chase with the assistance of another Police launch PL 63B, about 3.7 km from the boundary of Hong Kong waters adjoining the Mainland.

10.  The police officers boarded the vessel and found Li, So C and So YL on board with six other men. The cargoes, valued at $7.5 million, were located on the deck of the vessel and Li was moving them with others.

11.  Li told the officers that the cargoes were loaded onto the vessel at 9 p.m. on 9 July 2007 at Kwun Tong Pier and were then conveyed to the area near Sung Kung Island in the morning on 10 July 2007. Li further said that he would wait for instructions from the “Boss” for their disposal.

12.  Li, So C, So YL and the other men were arrested and taken to the Marine Police Headquarters for further enquiries.

13.  Li, in an interview under caution, admitted that he was the owner of the vessel and that the “Boss” would arrange for speedboats to receive the cargoes from the vessel and then convey them to another place.

14.  Li admitted that he would be paid $1,500 and each of the other eight men would be paid $300 for conveying the cargoes. Li said he had no means to contact the “Boss” and it was the “Boss” who would contact him by phone. He further said that he had been given invoices and receipts in respect of the cargoes, but he had not read/checked them.

15.  Li produced (i) a receipt from Lotwell International Ltd (“Lotwell”) (“the Lotwell receipt”) relating to 93 pieces of LC Monitors and car radios. The receipt stated the destination for the goods to be “the warehouse of Lotwell at Tap Mun” with a Mr Tsang and his telephone number 6518855 as the contact person, (ii) two delivery orders from Prosperity Trading & Logistics Co Ltd (“Prosperity”), with its printed address and telephone number, in respect of 53 and 65 pieces of furs/minks, and a Miss Ho of Great Wall Trading Company (“Great Wall”) at No 1 Hoi Pong Street, Tap Mun was stated to be the contact person, and (iii) two certificates Nos 00327209 and 00327223 both dated 29 June 2007 from the Kingdom of Denmark relating to 5500 and 7374 pieces of raw farmed mink skins-Mustela vision.

16.  The Tap Mun address was checked and it turned to be just an unattended rudimentary wooden structure with no electricity or water supply. The signage outside had also been removed.

17.  So C admitted to be a crewmember on board the vessel. So YL said he was an odd job worker earning $300 a day and that he boarded the vessel at 10 p.m. on 9 July 2007 at Kwun Tong Pier before he went to sleep without knowing where the vessel was going.

On the 2^nd Charge

18.  Based on the telephone number 6518855 that appeared on the Lotwell receipt, the police contacted Tsang and on 10 July 2007, Tsang arrived at the Marine Police Headquarters at Sai Wan Ho, claiming to be the consignor of the electrical goods, but not the furs. Tsang asked for the return of the electrical goods. In an uncautioned witness statement, Tsang stated that:

(i)    he was the sole proprietor of Lotwell;

(ii)  on 1 June 2006, he rented the warehouse at No 1 Hoi Pong Street in Tap Mun from Ho Shuk Yee and after the lease expired on 30 May 2007, he verbally agreed to continue to rent the warehouse;

(iii)    in July 2007, a company assigned a batch of goods including 56 boxes of LCD monitors and 37 pieces of vehicle sound apparatus to Lotwell for sub-sale;

(iv)    on 7 July 2007, he issued an invoice to So YL and instructed him to transfer the electrical goods to the warehouse at Tap Mun; and

(v)  he was willing to assist the police to identify the goods.

19.  On 30 July 2007, Tsang went to the Marine Police Headquarters where he identified LCD monitors, car radios, computer accessories and cosmetics to be samples of the electrical goods that he had passed to So YL.

20.  Tsang then gave another uncautioned witness statement saying that he had purchased the car radios and computer parts from Rich Best Asia Ltd (“Rich Best”) for $60,300 and the rest of the electrical goods from Sun Yuen Development Co Ltd (“Sun Yuen”) for $158,750.

21.  Tsang also claimed that the warehouse that he had rented at Tap Mun had electricity supply. The police was able to confirm the supply of part of the electrical goods from Rich Best but not those allegedly from Sun Yuen.

On the 3^rd Charge

22.  The police visited the registered address of Prosperity at Room 912, Hewett Centre, No 54 Hoi Yuen Road, Kwun Tong on 16 and 23 July 2007. A staff member produced Sit’s name card with Prosperity’s address and telephone number which matched those on the Prosperity delivery orders seized from Li, and said that Sit was the person in charge of Prosperity. The police requested Sit, through the telephone number as stated in the name card, to attend the Marine Police Headquarters.

23.  On 30 July 2007, Sit went, with a lawyer, to the Marine Police Headquarters to claim for the return of the furs, valued at $4.5 million. Sit then gave an uncautioned witness statement asserting that:

(i)    he was the sole proprietor of Prosperity which he set up in April 2007 to store minks/furs for clients;

(ii)  the furs were assigned to him by two companies for storage; and

(iii)    he had entrusted the furs to Li to transport them from Kwun Tong to a warehouse in Tap Mun Island which he had rented from Ms Ho Shuk-yee. Sit also produced an undated tenancy agreement, but said that he had never visited the warehouse.

24.  Sit identified the furs and was then arrested and cautioned for conspiracy to smuggle. Sit elected to remain silent.

25.  Tap Mun is a small island off Sai Kung with a population of 80 to 100 mainly old people. There is a ferry service at 1 to 2 hours intervals from Wong Shek Pier in Sai Kung operated with a double-decked vessel of 60 feet and the trip takes about 30 minutes.

26.  Apart from the evidence relating to the interception of the vessel and the seizure of the cargoes and their values, it was admitted that Li and So C made admissions in the interviews voluntarily and that their contents were true and correct.

27.  A number of police officers gave evidence relating how the vessel was intercepted when it was at a short distance from the boundary between Hong Kong and the Mainland, and when it was heading directly for it.

28.  According to the officers, as the vessel did not stop, PL 63B was summoned to assist in the chase and at some stage of the chase, three speedboats moved away from the vessel at very high speed.

29.  The warehouse at No 1 Hoi Pong Main Street in Tap Mun was searched and there was no one answering the door. The warehouse was empty with no signage and there was no indication of the presence of Lotwell, Prosperity or Great Wall.

30.  There was evidence to show that the warehouse had not been used for storing anything and that there was no supply of electricity. It was in fact not leased since the end of 2006.

The Defence Case

31.  None of the defendants gave evidence or called any evidence.

32.  Tsang challenged the admissibility of his uncautioned witness statements as evidence. He alleged that the failure to caution him was a deliberate breach of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (“the Rules”), and that the police had induced him by promising to return the goods to him upon written proof of ownership.

33.  Sit also challenged the admissibility of his uncautioned witness statements as evidence on the basis that those statements were obtained by inducement and as Sit had not been cautioned before the statements were taken, it would be unfair to admit them as evidence.

The Judge’s Findings

34.  The judge accepted the evidence of the police officers relating to the chase and the interception of the vessel. The judge also accepted that at some stage of the chase, three speedboats, which were initially close to the vessel, fled at high speed.

35.  The judge found that the warehouse at No 1 Hoi Pong Main Street in Tap Mun was just a ploy.

36.  On the prosecution evidence that he had accepted, the judge inferred that the vessel was used to try to smuggle the cargoes from Hong Kong to the Mainland.

37.  The judge rejected the allegations of Tsang and Sit that their witness statements were obtained by inducement. The judge found that their statements were given freely and voluntarily, and that there was no need to caution them, both before and during the taking of their statements, or to read to them a notice to suspect. The judge concluded that there was no ground to exclude the statements as evidence.

38.  On the prosecution evidence, the judge found that Li, So C and So YL did attempt to smuggle the cargoes with the six others. The judge also found that Tsang and Sit conspired separately with So YL and Li to smuggle respectively the electrical goods and the furs to the Mainland.

39.  The judge convicted all the applicants as charged.

Grounds of Appeal

40.  Representing Li, So C and So YL, Mr YL Cheung did not contend that on the evidence as found by the judge, there was insufficient evidence to show that they had attempted to smuggle the cargoes to the Mainland and that Li, So C and So YL were all involved.

41.  Mr Cheung, in his written submissions, only raised one ground of appeal, namely that the prosecution had failed to disclose the radar evidence relating to the movement of the vessel when the location of its interception was very much in issue.

42.  Mr Cheung emphasized that the judge, in finding the charges proved, relied heavily on the movement of the vessel as well as the existence and the alleged flight of the three speedboats, all of which could be verified by the radar record retained by the Marine Police.

43.  Mr Cheung submitted that by failing to disclose the radar record, the defence had been deprived of the chance to challenge the officers’ evidence in relation to the movement of the vessel and the existence of the alleged speedboats.

44.  In the circumstances, Mr Cheung suggested that the judge’s findings were flawed and that the applicants had been denied a fair trial.

45.  Mr Lawrence Lok, SC argued on behalf of Sit that the judge should not have admitted his uncautioned witness statements as evidence and that in any event, the evidence was insufficient to prove the 3^rd charge against Sit.

46.  Mr Lok suggested that the police could and should have arrested and cautioned Sit before inviting him to make any statement. He suggested that the police, by deliberately delaying the arrest and the caution, had in fact induced and tricked Sit into giving a confession and therefore it was unfair to allow the prosecution to rely on such a confession.

47.  Mr Lok emphasized that the interviewing officer himself admitted that the police believed that the furs on board the vessel came from Sit’s company and that he considered Sit a suspect involved in the case.

48.  Mr Lok further submitted that the police, in seeking a statement from Sit without cautioning him, had acted in breach of Rule II of the Rules.

49.  In any event, Mr Lok suggested that Sit’s admission is exculpatory in that he had denied any involvement in the smuggling when he said he simply entrusted the furs to Li to be moved to the warehouse for storage and had not admitted any intention to export the furs, not to mention exporting without a manifest.

50.  Mr Lok further suggested that the judge had wrongly relied on evidence relating only to the 1^st charge as evidence on the 3^rd charge when Sit was not involved in the 1^st charge.   

51.  Tsang, acting in person, raised no separate ground of appeal. His case was similar to that of Sit and he relied on the grounds submitted by counsel who had ceased acting for him.

Discussion

52.  In an adversarial system, the court will only consider and adjudicate upon issues raised by the parties.

53.  In his oral submission, Mr Cheung conceded that the prosecution had in fact provided two radar plots to the defence and that the alleged non-disclosure of radar evidence and unfair trial were never raised before the judge. Mr Cheung, however, still contended that the prosecution had a pro-active and continuous duty to disclose all relevant evidence and he suspected that the prosecution had failed to discharge the duty.

54.  Mr Alain Sham, for the respondent, produced evidence showing that copies of the Hong Kong Marine Police Radar Plots of the relevant location and at the relevant time had been served on each of the applicants on 8 August 2008. On 21 August 2008, the two Radar Plots, the only radar records in the possession of the prosecution, were again served on the solicitors acting for Li, So C and So YL.

55.  Mr Cheung at one stage challenged such evidence and suggested that according to Ms Kamina Lai, who acted for Li, So C and So YL at the trial, she had no memory of receiving the radar plots. Mr Cheung also said that it was ambiguous if the prosecution only had the two radar plots as they had suggested. Mr Cheung then admitted that Ms Lai had been mistaken and confirmed that the prosecution did provide the two radar plots.

56.  Mr Cheung appeared to suggest that the prosecution might not have retained all the radar records when the two radar plots disclosed did not indicate the location or presence of the vessel nor the fleeing speedboats, but only the partial voyage of PL 80B.

57.  Mr Cheung even suggested that the Marine Department had the practice of only retaining radar records for not more than one year and it was therefore likely that when the prosecution disclosed the police statements and other materials to the defence, the relevant radar records would have been destroyed.

58.  The prosecution did disclose all relevant radar records in its possession and no issue was taken at trial on any alleged non-disclosure or insufficient disclosure.

59.  We do not wish to comment on Mr Cheung’s conjecture that the radar records disclosed by the prosecution might not be completed or that the Marine Department could have destroyed some of the radar records, and therefore even if specific disclosure were sought, they would not have been available.

60.  We only wish to point out that if those issues had been raised before the judge, they would have been properly investigated and the issues would be resolved accordingly.

61.  In the absence of any application before the judge for the production of further radar records and/or any allegation of an unfair trial, we fail to see how Mr Cheung could complain, as a ground of appeal, about any non-disclosure or insufficient disclosure.

62.  We agree with Mr Shum’s written submission that the only ground of appeal put forward by Mr Cheung was completely misconceived.

63.  In a criminal trial, all relevant evidence is admissible. Lord Goddard stated unequivocally in Kuruma, Son of Kaniu v R [1955] AC 197:

“The test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”

64.  Of course, the court retains the discretion to exclude evidence if to admit it would be unfair or oppressive, although the discretion should only be exercised in exceptional circumstances when the police had acted not only without authority but had also been guilty of trickery and had misled someone or in other respects had acted in a reprehensible manner. (See Jeffrey v Black [1978] 1 All ER 555.)

65.  In R v Sang [1980] AC 402, Lord Diplock, in emphasizing the judicial discretion to exclude admissible evidence which had been obtained unfairly or by trickery or oppressively, explained further how such discretion should be exercised at p 436:

“…the function of the judge at a criminal trial, as respects the admission of evidence, is to ensure that the accused has a fair trial according to law. It is no part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it were obtained illegally there will be a remedy in civil law, if it were obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.”

66.  When Li was arrested, he produced two delivery orders purportedly issued by Prosperity with its address and telephone number, and the police visited its address at Room 912, Hewett Centre on 16 and 23 July 2007. At the initial stage, the police had no idea that Sit was involved in Prosperity; let alone the conspiracy to smuggle. It was after the visit to the Prosperity’s address that the police was told that Sit was the person in charge of Prosperity.

67.  The police might suspect that Prosperity was connected to the smuggling particularly after the warehouse at Tap Mun was searched, however, there was no evidence to show that Sit was involved when the delivery orders could have been forged or might have been issued without Sit’s knowledge or authority.

68.  Mr Lok SC suggested that the police must have all along wanted to arrest Sit at the outset, but chose not to do so until after he had given the statements. Mr Lok further suggested that the police must have believed that if they chose to arrest and caution Sit at the outset, he would have remained silent and in the circumstances, the delay in arresting and cautioning Sit amounted to inducement if not trickery.

69.  Section 50(1) of the Police Force Ordinance, Cap 232 empowers a police officer to apprehend (arrest) a person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of (an offence).

“The test as to whether reasonable grounds for the suspicion to justify an arrest existed is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there had to be reasonable grounds for forming such a suspicion; such grounds could arise from information received from another (even if subsequently proves to be false), provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion.” (Archbold Hong Kong 2010 para 15-12)

70.  In Hussien v Chong Fook Kam [1970] AC 942 at 948, Lord Devlin emphasized that proving a reasonable suspicion is not the same as showing a prima facie case, describing the latter as importing “a much stiffer test”. His Lordship continued:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete, it is ready for trial and passes on to its next stage.”

71.  At p 949, Lord Devlin further pointed out that prima facie proof consists of admissible evidence whereas suspicion can take into account matters that could not be put in evidence at all.

“Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it for a kind which a court would adjudicate to be reasonable.” (Per Sir Fredrick Lawton in Castorina v The Chief Constable of Surrey (CA) The Times 15 June 1988)

72.  It must also be borne in mind that Article 28 of the Basic Law protects Hong Kong residents from any arbitrary or unlawful arrest.

73.  The fact that the interviewing officer believed that the furs on board the vessel came from Prosperity and that he considered Sit a suspect involved in the case is not sufficient justification for his arrest without objective evidence to support such a belief or suspicion.

74.  In our view, objectively there was no factual basis or sufficient evidence to justify the arrest of Sit before he made the admissions in his statements.

75.  We rejected Mr Lok’s submission that Sit should have been arrested and cautioned before taking a statement from him. The suggestion of an inducement or trickery was unfounded.

76.  The Rules provides:

I.    When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.

II.   As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall cautioned that person or cause him to be cautioned before putting to him any question or further questions, relating to that offence…

77.  The interviewing officer was clearly entitled to question Sit with a view to obtain further information. At that stage, the police had two delivery orders purportedly from Prosperity and there was information that Sit was the person in charge of Prosperity. However, the delivery orders could have been forged or could have been issued without Sit’s knowledge and/or authority. There was no evidence that Sit was actually involved in anyway with the furs, let alone the conspiracy to smuggle them.

78.  We agreed with Mr Sham’s written submission that before interviewing Sit, the police simply did not have sufficient evidence, which would afford reasonable grounds for suspecting that Sit was involved in the smuggling of the furs, and that reasonable grounds only existed after Sit made the admissions in his statement.

79.  The judge was right in his conclusion that there was no breach of Rule II and that a caution was not necessary before the commencement of the interviews.

80.  Having been informed that the police were looking for him, Sit went with a lawyer to the Marine Police Headquarters to seek the return of the furs valued at $4.5 million. Sit explained how he set up Prosperity and claimed that the furs were assigned to him by two companies and that he secured the services of Li to store them in a warehouse in Tap Mun. Sit then identified the furs.

81.  Sit had provided the information freely and voluntarily in order to regain the $4.5 million furs. There was no evidence of any inducement or other improper conduct on the part of the police. Sit was clearly eager to provide the information to stand a chance to get back the furs.

82.  In the circumstances, it was not unfair or oppressive to admit Sit’s statements as evidence and there was no reprehensible conduct on the part of the police to justify their exclusion. The judge was right to allow those statements as evidence.

83.  When the vessel was intercepted after a chase near the East Sung Kung Island, close to the boundary with the Mainland, cargoes valued at $7.5 million were found. Shortly before, there were three speedboats, which were initially close to the vessel, fleeing at high speed.

84.  The police seized from the owner of the vessel documents, which suggested that the cargoes were to be stored in an unattended rudimentary wooden structure with no electricity or water supply and without any security devise. The wooden structure, o n an inaccessible and remote island, was not a suitable place for storing the high valued cargoes.

85.  The judge was clearly entitled to conclude as he did that the warehouse in Tap Mun was just a ploy. The judge was entitled to infer that there was indeed an attempt to smuggle the cargoes to the Mainland involving a number of people.

86.  Sit, in his statements, denied any involvement in the smuggling. He said he simply entrusted the furs to Li for storage in the warehouse in Tap Mun, although he had never inspected the premises. Sit’s explanation could not be true.

87.  On the other hand, Sit admitted to have instructed Li to transport the furs from Kwun Tong to Tap Mun and that he had issued two delivery orders with a Miss Ho at the Tap Mun warehouse address as the contact person.

88.  Sit also claimed to have rented the warehouse at Tap Mun although he had never inspected the premises. It was reasonable to infer that Sit was a party to the ploy relating to the Tap Mun warehouse and his own admission linked him to Li. What Li did on 10 July 2007 were acts in furtherance of the conspiracy and were admissible against Sit.

89.  In our view, in the absence of any explanation or evidence to the contrary, the only reasonable inference to be drawn was that Sit was a party to the conspiracy to smuggle the furs from Hong Kong to the Mainland.

90.  Tsang had not separately advanced any ground of appeal. However, our decisions relating to Sit’s case applied with equal, if not greater force, to Tsang’s case.

91.  In the statement given by Tsang voluntarily on 10 July 2007, he admitted that he had rented the warehouse in Tap Mun Island and that he had issued an invoice to So YL, instructing him to transfer the electrical goods to the warehouse for storage.

92.  On the evidence, the judge was entitled to infer that Tsang was a party to smuggle the electrical goods from Hong Kong to the Mainland.

93.  In our view, the applicants were rightly and properly convicted and there was nothing unsafe or unsatisfactory about those convictions. We therefore dismissed their applications for leave to appeal against conviction.