HKSAR v. TSUI SUN WAH

HCMA613/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.613 OF 2008

(ON APPEAL FROM FLCC 972 OF 2008)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge 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).  He was sentenced to 3 months’ imprisonment suspended for 2 years.  He appeals against that conviction.

The charge

2. The allegation is that :

“Tsui Sun Wah, on the 19^th day of February 2008 at Customs Export Cargo Examination Complex, Sha Tau Kok Control Point, New Territories in Hong Kong, did attempt to export unmanifested cargo, namely, 3,145 kilograms of American ginseng and 10,800 cans of fruit cocktail.” 

The prosecution case

3. Quoting from the magistrate’s Statement of Findings :

“5.   At about 1139 hours on 19 February 2008, an outgoing 40-feet container truck bearing Hong Kong registration number HH2580 (the vehicle), driven by the defendant arrived at Customs Department Kiosk No. 3, Sha Tau Kok Control Point (‘STKCP’), New Territories, for Customs clearance.  The defendant tendered a set of manifest [Exh. P1] declaring ‘1,750 cartons of ketchup’ to Senior Customs Officer 7954, who then directed the vehicle to mobile X-ray scanning system for X-ray inspection.  The X-ray image revealed that various shapes of goods were loaded in the container.  The vehicle was then directed to the Customs Export Cargo Examination Complex for further examination.

6.    In the presence of the defendant and Senior Customs Officer 7954, Customs Officer 7324 conducted a thorough cargo examination.  Apart from the manifested ketchup, a total of 3,145 kg of American ginseng [Exh. P2] and 10,800 cans of fruit cocktail [Exh. P3], which were not declared in Exh. P1, were found.  As Exhs. P2 and P3 were unmanifested cargo, Customs Officer 7324 immediately cautioned and arrested the defendant at 1230 hours.” 

The defence case

4. Again quoting from the magistrate :

“8.   The defendant is now 52 years of age …  He has been a container truck driver for nearly 30 years.  He has driven the cross-border route on and off for more than 10 years.  Up to the date of the arrest, he had transported cargo for Kindview Industries Limited (‘Kindview’), the named carrier in the export manifest [Exh. P1], for more than a year. 

9.    On 18 February 2008, Cheung Chin-hung (‘DW2’) of Kindview rang him up.  He had dealt with DW2 for a year before.  DW2 instructed him to transport a loaded container to Mainland China for the following morning.  Kindview had earlier on got the empty container ready for uploading in its depot. 

10.  Sometime before 9 a.m. on 19 February 2008, he drove the tractor unit into the depot of Kindview.  DW2 was not yet in but had left him the manifest [Exh. P1], which declared ‘ketchup’ only, and accompanying documents in the office.  At 9 p.m. he saw the labourers, monitored by Lo Chi-wai (‘DW1’), starting to upload white cartons onto the front of the container.  He opened a carton and saw cans of ketchup inside.  He observed the uploading for 10 minutes.  The uploading continued but he went away for breakfast.  He returned after 20 minutes.  At about 10 a.m., the uploading was completed.  Before the doors were closed, the rear of the container was stacked up with the white cartons like a wall nearly reaching the top.  He was satisfied that the cargo was all ketchup as declared in the manifest.  He departed for STKCP.  Later on, Customs officers found a large number of cartons (containing American ginseng and canned fruit cocktail) different in size, colour and outlook from those containing ketchup. 

11.   DW1 had the duty to determine what to be uploaded onto the container.  DW1 knew that cartons of goods other than ketchup were being uploaded onto the container.  However, he had not talked to DW1 [sic] or the defendant.  He just left the latest list of goods on DW2’s desk in the office.  He did not know that the manifest had in advance declared ‘ketchup’.  It was not his duty to look at the manifest. 

12.  The defendant had good reason to trust, and no reason to suspect Kindview or anyone.  He did not know and could not with reasonable diligence have known that the cargo (containing American ginseng and canned fruit cocktail) was unmanifested.”

The magistrate’ s findings

5. In the end, the magistrate found the appellant guilty.  This is how he reached his conclusion :

“14. The defence does not challenge the prosecution evidence.  I accept such evidence as credible and reliable. 

15.  I find DW1 very evasive when cross-examined as to who it was to determine what goods to be eventually and actually uploaded onto the container.  I do not find him a credible or reliable witness. 

16.  DW2 just left the defendant with the manifest he had prepared in advance in the office although he knew that DW1 might have uploaded other goods in his absence.  He is unable to outline any measures to tally the manifest with the actual goods (apparently unbeknown to the driver) uploaded on the container when he was not being in the office.  I do not find him a credible or reliable witness.

17.  … I accept that he did not know that the cargo contained American ginseng and canned fruit cocktail.  However, I do not accept that he had exercised reasonable diligence to ascertain what was in the container and, a fortiori, all goods were declared in the manifest.  Reasonable diligence would require him to remain in the depot throughout the uploading of goods onto the container.  After all, the uploading did not take long.  There were a substantial number of cartons (containing American ginseng and canned fruit cocktail) whose size, colour and outlook were different from those of the cartons containing ketchup.  If he had so remained there, he could have discovered other cartons and other goods.  The present instance was not a case where, say, the American ginseng and the canned fruit cocktail were of a small quantity concealed under the ketchup so that, short of opening each box for meticulous inspection, he could not have known of their presence. 

18.  Even if we assume that he had good reasons to trust Kindview and that DW1 and DW2 are credible and reliable, he would still have to exercise reasonable diligence to get hold of the latest and actual list of goods for the manifest.  He knew that DW2 was not in the office and the manifest had been prepared before the goods were actually loaded onto the container. Despite that, he failed to ring up DW2 to ascertain the latest and actual list of goods.  An honest DW2 would tell him that he (DW2) did not know of the latest and actual list and that he had better ask somebody presently in the depot.  Alternatively, he failed to ask DW1, who monitored the uploading.  An honest DW1 would tell him that there were American ginseng and canned fruit cocktail apart from ketchup.

19.  The defendant has failed to prove that he could not with reasonable diligence have known that the cargo (containing American ginseng and canned fruit cocktail) was unmanifested.”

This appeal

6. The appellant advances three grounds of appeal.

7. Ground (1) submits that the magistrate was wrong to find that the appellant had failed to make out the statutory defence under section 18 of the Import and Export Ordinance, namely he could not with reasonable diligence have known that the cargo (containing American ginseng and canned fruit cocktail) was unmainfested.

8. In short, the appellant argues that after a year with Kindview, during which there was never any incident, he was entitled to rely on the accuracy of the manifest that DW2 left him (paragraph 10 of the Statement of Findings) and not be held responsible for the break down of communication between DW2 and DW1 who supervised the loading (paragraphs 11 and 16 of the Statement of Findings).  In particular, the magistrate was wrong to place the burden of making final enquiries on the appellant, namely to make it his responsibility to ascertain with DW1 and 2 what goods were actually being loaded (paragraph 18 of the Statement of Findings).

9. I am not persuaded that this ground has merit.

10. In my judgment, the magistrate was wrong about the appellant having to ask DW 1 and 2 for a final list of cargo (paragraph 18 of the Statement of Findings) but only because it suggests that making such an enquiry would amount to an exercise of reasonable diligence.

11. Unlike other cases, the fact that the appellant had made himself absent for a good 20 minutes during the loading is what makes him fall short of what the law requires.  It could not have been rectified by a subsequent act of oral enquiry (not necessarily but more so because DW1 and 2 had been found to be incredible witnesses and were unlikely to tell the truth).  If the opposite were true then, pushing the logic to its limit, a driver would be excused for not turning up at all during the loading for so long as he has the verbal guarantee of the consignor that everything is as per the paperwork. 

12. By the same token, I find the appellant’s past experience with Kindview a poor excuse for absenting himself from part of the loading.  As a self-employed driver working on a non-retainer basis, the reliance he placed on DW1 and 2, just one of his customers and only of a year’s standing, was, whichever way one looks at it, unjustified.

13. Taking it further, I should think the least any self-employed driver should do is to remain present throughout a loading.  Whether and what other measures should be adopted for ensuring a legitimate consignment will depend on the facts of each case.  This is my judgment.  I do not see how a self-employed driver could otherwise claim to have excised reasonable diligence.

14. Finally, there is nothing to the submission that the evidence revealed no suspicious circumstances, by which the appellant means stacks of different colour boxes lying around in the loading area.  Whether these ginseng and fruit cocktail boxes were already on site or were subsequently brought to the location, it was still the appellant’s leaving the scene that enabled their being loaded onto the container.

15. Ground (2) contends that in finding fault with the appellant’s absence from just part of the loading, the magistrate had exceeded what is reasonable in the defence of reasonable diligence (paragraph 17 of the Statement of Findings).

16. Ground (3) criticizes the magistrate for failing to consider the reasonable possibility of deliberate concealment of the unmanifested cargo by DW1 hence the reasonably foreseeable futility of any enquiry that the appellant might have made (paragraph 18 of the Statement of Findings). 

17. But these are points that I have covered in the discussion above.

Conclusion

16.   The appeal is dismissed.