HKSAR v. LO PING KWAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.372 OF 1997

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J U D G M E N T

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1. After his trial on 27 February 1997 the Appellant LO Ping-kwan was convicted of one count of Attempting to export unmanifested cargo contrary to s.18 (1)(b) of the Import and Export Ordinance and s.101B of the Criminal Procedure Ordinance. The events took place on 4 March 1996 when a tug-boat towing the barge "Fu Ho 22448Y" was intercepted by the Marine Police off Lamma Island. On board the barge were two used private cars and those on board the vessels were unable to produce an export manifest in respect of the two vehicles.

2. The particulars of the charge reads:

"TSUI Yau-kam, CHOW For-shui and LO Ping-kwan (the appellant), you are charged that on the 4th day of March, 1996 on board a barge 'Fu Ho 22448Y' which was towed by a tug boat 'Ming Wai 2744', off Pak Kok, Lamma Island (JCMP Box 237C), in the waters of Hong Kong, you attempted to export unmanifested cargo, namely, one no. of Used Private Car (Mercedes Benz) and one no. of Used Light Goods Vehicle (Nissan)."

3. TSUI and CHOW were the masters of the barge and the tug-boat respectively and they were on board the vessels at the time of interception. The Appellant was the registered owner of the barge and it was common ground that he was not on board the vessels at the time. The case against TSUI and CHOW had been dealt with separately.

4. At his trial the Appellant elected to give evidence and his testimony was that he received instructions over the telephone from one Mr MAN to transport the two vehicles in question to Little Spider Island in Mainland China. He had dealt with Mr MAN for several years. His usual practice was that upon receiving transportation orders from Mr MAN he would in turn instruct his staff to arrange for the shipment and they would also be responsible for preparing the necessary papers including the cargo manifest. As far as he knew, a manifest covering the two vehicles had been prepared by his clerical staff but somehow Mr CHOW, the master of the barge, set sail in a haste and left without the document.

5. The learned magistrate rejected the Appellant's account of the events and concluded that he was not telling he truth about the existence of the manifest. This was the findings he made at page 7:

" The fact remained that Mr CHOW did sail without the required manifest. I concluded he did so because he received instructions to do so. On the evidence before me, I concluded it was the Defendant who gave such instructions. ..... I concluded the required manifest was not even in existence at the time the tug-boat and barge were intercepted."

6. The learned magistrate clearly had in his mind the Court of Appeal decision in R. v. LEI Sou Wa in which the Court affirmed that the offence of Attempting to Export Unmanifested Goods is an offence of strict liability. The learned magistrate concluded that the statutory defence under s.18(2) had not been made out on a balance of probabilities and went on to convict the Appellant of the offence as charged.

7. There are a total of five grounds of appeal but in my view this case needs only to be decided on grounds 1(b) and 2(a) on the basis that the particulars as stated in the charge was not supported by the evidence at the trial.

8. I find it to be suprising, as indeed was the trial magistrate, the fact that at the time of the interception the Appellant was nowhere near the vessels had somehow escaped the attention of Mr Ho who had also appeared for the Appellant in the court below. The point was not taken at the conclusion of the prosecutions case. It was, however, raised for the first time in Mr Ho's final submission and the learned magistrate dealt with it in this manner at page 2 of his findings:

" There was no submission of no case to answer. This turned out to be rather surprising because in his final submission Defence counsel made a point which, if successful, would have led to a ruling of no case unless the Particulars of Offence were amended. The point made was that the Particulars alleged the Defendant '...on board a barge ... attempted to export unmanifested cargo...' Defence counsel submitted the evidence clearly showed the Defendant was not on board the tug-boat or the barge. I saw no merit in the point. The Defence knew all along the Crown's allegations. There was not the remotest allegation that the Defendant was on board the tug-boat or the barge. One might say the Particulars of Offence (at least against the Defendant) were unhappily worded. The Defence could not, however, say they were deceived as to the case they had to meet. I would have thought reference in the Particulars to '...on board a barge ...' merely indicated the using of the barge (and tug-boat) in the circumstances constituted the attempt to export. I ruled a case to answer."

9. With respect to the learned magistrate I am of the view that his approach to the issue was flawed. The particulars of the charge stated that the attempt was committed by the Appellant on board the barge and this was the case the Appellant had to meet at the trial. In drafting the particulars as it did, the prosecution alleged that the Appellant's overt act or acts which formed a series of acts leading to the actual commission of the offence was committed on board the barge. If the Appellant was not even on board the barge at the time of the interception, it would be inconceivable that he could have committed the act as alleged. The learned magistrate, in so far as the case against the Appellant is concerned, could have exercised his powers under s.27 of the Magistrates Ordinance and amended the particulars of the charge by deleting the words "on board the barge 'Fu Ho 22448Y' which was towed by a tug boat 'Ming Wai 2744', off Pak Kok Lama Island (JMCP Box 273C), in the waters of Hong Kong". His failure to amend was however not fatal to the prosecution case.

10. I am of course mindful of the definition of "export" in s.2 of the Ordinance which includes "to take, or cause to be taken, out of Hong Kong" the vehicles in question.

11. The Appellant's evidence was that he did nothing to follow up his instructions as he considered such activities to be routine matters and he was confident that his staff would prepare the necessary documents. This testimony, even if accepted, would not have been sufficient for the Appellant to avail himself of the statutory defence under s.18(2) as there was nothing in his evidence to suggest that the Appellant had exercised reasonable diligence to ensure that the manifest was prepared. Having rejected the evidence of the Appellant it was nevertheless opened to the learned magistrate to consider whether in law the act of instructing his staff could have amounted to an overt act of the attempt. But this, however, was not the course adopted by the trial magistrate. The learned magistrate, on rejecting the Appellant's evidence, went on to find that:

"it was the Defendant who gave such instructions."

It is therefore clear that the basis upon which the Appellant was convicted was that he was found to have given specific instructions to Mr CHOW to export the cars without a manifest.

12. I think it is at this stage of his reasoning that the trial magistrate fell into error. Instead of concentrating in determining whether instructions to his staff constituted an overt act in the attempt, the learned magistrate made the positive finding as stated above. There was, however, nothing in the record of proceedings by way of evidence which can support his finding. On the other hand, if it was a case where the Appellant had told a pack of lies to the court in order to escape the legal consequences of his criminal activities, then the learned magistrate had failed to direct himself on the effect of lies by the Appellant.

13. There was no proper basis for the learned magistrate to make the findings as he did and that being the case, I am of the view that the conviction was unsafe and unsatisfactory.

14. The appeal is allowed and the sentence is set aside.