HKSAR v. TSUI LEE YING

HCMA273/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 273 OF 2006

(ON APPEAL FROM KTCC 4539/2005)

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J U D G M E N T

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1. This is an appeal against two convictions for dealing with goods to which the Dutiable Commodities Ordinance applies.  The goods in question were duty unpaid cigarettes.

2. The facts can be summarised in this way, and I take this from the helpful summary given by the magistrate, that at the material time PW1, a Customs officer, placed an order for cigarettes on a telephone number, 6285 6136.  After about 18 minutes, a female later identified as this appellant, turned up with two cartons of cigarettes which are the subject of Charge 1.

3. Keys were found in her handbag, and they then went to the address in Charge 2 where this appellant had previously lived and where her divorced husband was then living with her son.  The keys seized unlocked the metal gate to the premises.  A search revealed the cigarettes the subject of the second charge there. 

4. Under caution, there was an alleged admission that those cigarettes were hers.

5. The defence case, and the appellant gave evidence below, was that the prosecution case was a total fabrication; that she had been dealing with the Customs officer, PW1, since March of 2005, these events I have described occurring in June; and that he had been threatening her - indeed, threatening to set her premises on fire - if she did not reveal to him information concerning duty not paid cigarettes; that on the day in question, PW1 had called her up and invited her to the location where she was in fact arrested and that other officers turned up, and another officer brought a bag from outside and said there were two cartons of cigarettes in the bag which became the subject of charge one; and that the key to the premises was not found in her handbag.  She was taken to those premises, but it was cold there.  She put on a jacket, and the key happened to be in that jacket pocket.  She denied making any admission.

6. The appellant is now unrepresented, but nonetheless has presented her case clearly to me, and it comes to this:  that she has a letter from a lady with whom she was at the time acquainted and who is currently in Shenzhen.  This letter from the lady reveals that it was she who carried the two cartons of Marlboro cigarettes through Lo Wu into Hong Kong, and that she did this for the Customs & Excise officer involved, and that - this is what the letter reveals - it was that officer who had asked for the cigarettes to be delivered by this lady.  What the appellant then adds to that is this:  that the lady did not speak Cantonese well, therefore she went along with her to go and meet PW1 in order to translate, and that it was not just her alone, but it was the two of them who went along to meet PW1; and that whilst she did not know at the time, she now realises that the lady was carrying the duty not paid cigarettes; and that the lady ran off, and the Customs & Excise officers there saw that, because they chased her , but did not catch her.

7. So it really comes to this:  that today, her defence is substantially different from that which she ran in front of the magistrate.  I have asked her, of course, why she did not run what she now claims is the true defence at her trial.  Why did she edit out completely the role of the second woman which, if it was as claimed now, provided her with the substance of a defence?  Her answer to that is that she thought she would not be convicted.  When asked why she did not call the lady at her trial, she said she had looked for her at the time but could not locate her.

8. In the circumstances, remembering she is unrepresented, I think it right to treat what she is telling me today as an application to call further evidence, and in particular call the witness, the lady currently in Shenzhen, whom she says is now willing to come here and tell the truth.

9. It is an application that I refuse.  The prospects of that witness actually coming here and admitting to dealing in duty not paid cigarettes I regard to be wholly unrealistic, but even if she was available to come and do that and truly intended to do so and therefore justified the adjournment of these proceedings, I would regard the new defence, if I can call it that, as one that would not meet the threshold of necessary credibility.

10. This appellant simply does not have a satisfactory explanation as to why she did not run the present defence at her trial.  There was nothing to stop her doing it.  The defence run there was, in effect, planting by the Customs & Excise officers.  Having realised that will not do, there is now an attempt to produce some other explanation.  I am afraid the appellant simply cannot try one defence, then come here and ask for another in these sort of circumstances.

11. Before leaving the appeal, let me say because the lady is unrepresented, I have looked at the material before me to see whether there is any other argument which would support any reasonable doubt as to the correctness of this conviction.  There is one matter I ought to deal with which concerns telephone numbers.

12. At the trial, where she was represented, the defence sought to argue that the telephone records showed previous contact between PW1 and the telephone that was in the possession of this appellant when she was arrested.  On the face of it, it did; but analysis reveals that in fact all it established was that there was contact between the Customs & Excise, who own the relevant SIM card, and the number I have mentioned that ends in 6136 which was the number to ring if you wanted duty not paid cigarettes. 

13. It was clear from the facts of the case that there had been a call divert put in place between the 6136 number and the telephone in the possession of the appellant.  Call diversion is an explanation which robbed the point of real value in the hands of the defence, taken with the evidence of PW1, which was accepted by the magistrate, that the SIM card in question was one in general use with the Customs & Excise Department.  So what appeared to be a good point about the telephone records, upon investigation and with the help of counsel for the respondent here today, who has taken me through the relevant material, was not one that would raise any reasonable doubt in my mind.

14. The magistrate was alive to the issues.  There is a competent statement of findings.  He made findings as to the credibility of those involved, and they are findings I trust.

15. Accordingly, this appeal against conviction is dismissed.

(Further discussion re appeal against sentence)

16. The only notice of appeal in this case was that against the conviction.  There was no appeal against sentence.  The appellant was sentenced to 1 month’s imprisonment on Charge 1; to 3 months, concurrently, on Charge 2.  As I rise to leave court, the appellant asks me, “What about the sentence?”  So accordingly I have asked for her antecedents, and that reveals that in the year of 2000 she was fined for the unlawful possession of dutiable goods and for selling such.  In 2002 she was fined and given suspended sentences for a similar crime.  In 2003 she was before the court again for similar conduct and breach of the suspended sentence, and was sent to prison for 6 months.

17. In the circumstances, the sentence of 3 months that was passed here was modest.  So technically, I suppose I will give leave to appeal against sentence out of time, not on the basis of any perceived merit, but on the basis that if such an appeal is made, it is bound to fail, given the record and the lack of any significant mitigation.  I will not adjourn to have reasons for sentence from the magistrate in the circumstances.  The appeal against sentence is dismissed.