THE QUEEN v. CHAN LEUNG SUEN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 107 OF 1985

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BETWEEN

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JUDGMENT

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1. The three Appellants were convicted on two counts: in charge A, of attempting to export unmanifested cargo, namely, video cassette recorders, contrary to section 18(1)(b) of the Import and Export Ordinance (Cap. 60); in charge B, of attempting to export prohibited article, namely the same recorders, without a valid licence contrary to section 4(1) of the Import'and Export (General) Regulations. They were sentenced to concurrent terms of imorisonment of four and six months on each charge.

2. They appealed against their convictions and, at the hearing, I allowed their Counsel Mr. Hatton, to appeal against the sentences.

3. The evidence for the prosecution may be stated briefly. On 28th September, 1984, Sgt. 14430 (P.W. 3) and PC 9065 (P.W. 2) of the Marine Police were in a boat PV25 on night duty patrolling the waters east of Sha Chau. They stopped engines about half a mile off Tap Shek Kok, the limit of the Colony's territorial waters being about a quarter mile off Tap Shek Kok. At about 10.05 p.m., P.W. I saw a fast moving object in his night observance device which is an ultra-red light binoculars. The object was not showing any lights and was speeding to the west. It ignored the international signals to stop which P.W. 2 emitted from his light, and accelerated its speed. P.W.2 then fired a parachute light rocket and other police boats in the vicinity were alerted. P.W.3 started pursuing the white speed boat which was seen in the light, with three persons on board. As it got closer to the boundary, P.W. 2 fired two rounds of verey light. The speed boat was seen to spin, there were some sparks and smoke from it and a person was seen falling off it into the sea. He was rescued by one of the other boats and he is the first Appellant who is also the registered owner of that speed boat. The boat was boarded by P.W. 2, who found the other two Appellants on it. The boat and the Appeilants were taken to Tai Lam Pier. The speed boat had 50 boxes on board, containing National brand video cassette recorders, Model NV370, operated by 200 volts AC. There were two plastic buckets, of 4 gallons capacity, full of gasoline and a spare portable fuel tank, also full. P.W. 2 said that the fuel indicator of the boat showed that the tank was 70% full at the time he boarded the boat.

4. A submission of no case was over-ruled. This forms the first ground of appeal. It is submitted that the learned trial magistrate erred in finding that there was a case for the Appellants to answer. Mr. Hatton argued that the various circumstances upon which the Crown relied might have raised some suspicion against the first Appellant be in the owner and driver of the speed boat, but the evidence against the other two, who were passengers only, remained of a tenuous nature he said that the evidence of P.W. 2 was less than satisfactory on the position of the boat when first sighted and later arrested, and the Crown had adduced no evidence that the video recorders could not be used in Hong Kong. Regarding the latter, learned Crown Counsel submitted that all that had to be show under the regulations was that they were "electrical products (powered by mains supply)" about which P.W. 1 had testified.

5. Regarding the evidence of P.W. 2 it is true that he had said under cross-examination that he was not skilled in sea navigation, but had remained emphatic that they stayed within Hong Kong waters and the boat vas arrested near Tree Island which is on this side of the border. He said also that, had the boat gone a little farther, it would have entered the Chinese waters. All this and the other circumstances were matters which the learned trial magistrate had to bear in mind in ruling whether a prima facie case had been made out. He was not at that stage required to dissect the evidence of each witness or to look at each circumstance separately and draw conclusions as to credibility of witnesses. I bear in mind that the proper approach to a submission of no case to answer is to uphold the submission if either: (a) there was no evidence to prove an essential element in the alleged offences; or (b) when the evidence adduced by the Crown has been so discredited by cross-examination or is so manifestly unreliable that no reasonable tribunal could safely, convict upon it.

6. Looking at the evidence I am not persuaded that the learned trial magistrate erred in rejecting the submission of no case to answer.

7. Next, Mr. Hntton criticized the findings made by the learned trial magistrate. He submitted that if paragraph 19 of the findings where the learned magistrate mentions the burden of proof, were to be erased, it would appear that he had weighed the evidence separately, and had applied the standard of the balance of probabilities as to the measure of the Crown case.

8. It should be pointed out that the learned magistrate had set out the evidence of both sides meticulously before he proceeded to make his findings. It is true that he first referred to the evidence of P.W. 2 and P.W. 3, about whom he said:

"(3) I find both witnesses P.W. 2 and P.W. 3 to be honest and reliable; that has been borne out by their demeanours, in the case of P.W. 2 after a very lengthy and thorough cross-examination, I did not form the impression that ha was flighty or subject to fantastics, he was positive in his evidence in chief and under cross-examination."

Then follows a detailed evaluation of the defence evidence during which he dealt with the various details. He considered the inconsistency in the evidence of the Appellants concerning the invitation to the second and third Appellants to the pleasure sail, as well as to what led the first Appellant to switch off the lights of his boat and to accelerate the speed. He commented on the large quantity of fuel which he found indicated that the speed boat was "destined for a long journey beyond the borders of Hong Kong." He said that one would have to be "extremely naive" to believe the first Appellant's explanation that the boat was loaded with the recorders on the 26th August, 1984 to be delivered on the 29th September, 1984, and he refused to believe that in the meantime the club looked after the cargo while the boat was moored at Tai Lam Bay. He commented on the failure of the first Appellant to call the owner of the recorders whom he described "this fictitious Mr. Chan, the broker". He said that he could not accept that the lights were turned off and the speed boat put at full speed in pitch darkness so that it would be more interesting; that, he said, would be "tantamount to committing suicide". He found it strange that the second and third Appellants did not ask the owner of the boat, all three being friends, as to what was in the boxes, and stranger still that they would go out on a pleasure sail with the fully laden boat, and said:

"(17) I find that all these defendants have not spoken the truth, particularly Dl who I formed the impression was evasive, would not answer questions, was vague and quite clearly telling lies, for here is a man who bought the boat at the end of 1981, that he uses it for sport, yet does not know how much it costs to fill up the tank, least of all how much a gallon of gasoline costs, he has insulted the intelligence of the court in expecting to believe him.".

He accepted the prosecution evidence that D1 jumped into the sea to escape, and then comes paragraph 19:

"I bear in mind that the onus of proof remains on the prosecution from start to finish and that onus of proof at no time shifts to the Defendants.".

9. He found that on consideration of the whole of the evidence he was "satisfied beyond all reasonable doubt that each and every element of both charges had been proved......” and he rejected the defence evidence.

10. In LOK Chi-wai v. R. (1973) H.K.L.R.577, HUGGINS, J.(as he then was) said:

"I think it is a fundamental part of the judicial function to resolve any conflict in the material evidence, it being always remembered that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence but between the truth and possible falsehood of the story told by, the witnesses for the prosecution. There are usually two matters which enable a judge to resolve the conflict. One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is the assessment of the credibility of those witnesses from their demeanour.".

11. Now in the present case the learned magistrate made the comment in paragraph (3) of his findings concerning the veracity of P.W. 2 and P.W. 3 whom he found to be honest and reliable. He then dealt with the defence evidence during which he made findings of fact, which he was entitled to do, and rejected it partly on, the basis of those findings and partly for the demeanour of those witnesses. I do not get the impression that he disbelieved the defence evidence because he believed the prosecution. He accepted the Crown case upon consideration of the evidence as a whole and I have no reason to doubt the correctness of his conclusion upon it. To constitute an attempt, the act done must be immediately and not merely remotely, connected with the commission of the offence.  In other words, it must be something more than mere preparation for the commission of the offence. The circumstantial evidence which was accepted by the learned magistrate was, in my opinion, overwhelming against all three Appellants.

12. The appeals against convictions are dismissed.

13. Regarding sentence, learned Counsel for the Appellants submitted that the first Appellant's previous conviction for theft was in November, 1974; the other two were of clear records. He relied on A.G. v. SO Ma-por and others (1981) H. K. L. R. 696, in submitting that this was an appropriate case for the consideration of a suspended sentence. Secondly, he submitted that a distinction should be drawn between the first Appellant and his co-appellants. As learned Crown Counsel says, the maximum sentence for the substantive offence under charge A has since been increased. In the case cited, the Court did say that the case constituted a serious violation and an immediate sentence of three months' imprisonment would have been proper, but ordered that the sentence be suspended because it was an application for review. That is not the case here. However, the Court said that substantial weight could be given to the damage that is likely to be done to Hong Kong's relationship with other territories by activities of this nature. Taking into account that the maximum sentence for an offence under section 18 has been increased to 2 years, and the violation in the instant case was of a serious nature in which all the three Appellants were equally involved. I cannot say that the sentences imposed by the trial court were in any sense inappropriate or unduly excessive or harsh. The appeals against sentence will also he dismissed.