IN THE HIGH COURT

1993, No. 324
Magistracy Appeal

Headnote

S.18A(2) Import and Export Ordinance Cap. 60 - statutory presumption of guilt “in the absence of evidence to the contrary” - Court considered whether evidential burden can be discharged without evidence being adduced by the defence. Held: Circumstances must be looked at as a whole and, following Wong Hiu-chor MA No. 227/92 (4 Dec 92, unreported), evidence arising from the prosecution case sufficed to displace the statutory presumption.

IN THE HIGH COURT

1993, No. 324
Magistracy Appeal

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BETWEEN

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J U D G M E N T

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Litton, J.A.:

1. The two appellants were convicted on 2 April 1993 by Mr. Line at the Eastern Magistracy of offences contrary to s.18A(1)(b) of the Import and Export Ordinance. In relation to the first appellant So Kwok-wing the charge was that he had knowingly conveyed cargo with intent to assist another person to export the same without a manifest. In relation to the second appellant the charge was that he had knowingly removed the cargo with the same intent. In relation to the first appellant he was sentenced to four months’ imprisonment and in relation to the second appellant to three months’ imprisonment.

2. The primary facts were not in dispute. (1) On 29 July 1992 fishing vessels were tied up at a sea wall adjoining a construction site at Hunghom close to the Hoi Sum Temple. (2) At about 7.30 p.m. a light goods lorry owned and driven by the first appellant, with the second appellant and another man on board, arrived at the construction site. The lorry was carrying a large number of cartons which on examination later, had electronic equipment of various kinds inside. These consisted of 1,700 cameras, 425 video cassette players, 700 cassette recorders and 44 compact disc players. This constituted the subject-matter of the charges. (3) The lorry was parked about 40 to 50 feet from the water’s edge, the rear end of the lorry facing in the direction of the sea. (4) The cartons were unloaded onto the ground, the first appellant staying inside the lorry and the second appellant outside. (5) Some men came and carried the cartons from the vicinity of the lorry to the fishing vessels. By the time this took place it was dark. (6) When detained by the police the first appellant, the driver, said that at about 4.00p.m. that afternoon at Chai Wan a man had approached him and asked him to convey a batch of goods to Hoi Sum Temple in Kowloon for $550. The second appellant was his assistant. After loading the lorry the man went with them in the lorry and directed them to the building site where the goods were unloaded. The second appellant made a statement to the police to similar effect and added that he did not know where the goods were to be taken to after having been unloaded at the construction site from the lorry. (7) When the fishing vessels were searched some of the cartons were found on board. No manifests were produced for the cargo.

3. There can be no doubt that on the totality of the facts, objectively viewed, the appellants had assisted in the carriage and removal of unmanifested cargo. The only issue is whether they had done so knowingly. There is no suggestion by the Crown that the appellants were members of the gang involved in the smuggling. Nothing suggests that the story told by the appellant to the police was untrue, namely that the first appellant had simply agreed for a modest fee to transport about half a lorry load of cartons from Chai Wan to Kowloon. The proposed destination, Ho Sum Temple, is a neutral fact. According to the defendants’ statements, the man accompanying them in the lorry directed them to the destination. It would have been unlikely that the owner of the goods told the appellants that the goods were to be loaded on the board fishing vessels to be “smuggled” out of Hong Kong. Accordingly if the appellants had formed the intent to assist in the export of unmanifested cargo as the prosecution alleges then their intent must have been formed some time after the lorry left Chai Wan. What was alleged by the Crown and accepted by the magistrate was this: the circumstances gave rise to a reasonable suspicion that there was such intent, there being absence of evidence to the contrary the ingredient of specific intent was established as a result of the statutory presumption in s18A(2) of the Import and Export Ordinance.

4. The way the magistrate put the matter was this.

“I now turn to the specific intent which the prosecution had to prove in each case, and the presumption in section 18(A)(2).

(a) The first question was whether their proven assistance was in circumstances that gave rise to a reasonable suspicion that there was an intent on the part of each of them to assist another person to export the cargo without a manifest. I was sure that the circumstances did support such a suspicion as I found the following facts:

(i) Goods were being unloaded from a lorry onto chinese fishing vessels.

(ii) The goods were in fact cameras and electrical equipment.

(iii) It was being done in the dark at a building site.

(iv) The lorry parked itself some forty feet or so from the water’s edge with its rear end facing the sea wall.

(v) The defendants were in the transport business and it is reasonable to suppose from their knowledge of Hong Kong and sense of direction that they knew they were by the sea, even if they failed to see the masts of the fishing vessels and the like.

(vi) The boxes unloaded were not the type of materials usually delivered to a building site at the stage of its development as seen in the agreed photographs.

(vii) Chinese fishing vessels loaded with such cargos are very likely to export them and are very unlikely to do so with a proper manifest.

(viii)  There was no evidence of a manifest, or any other paperwork in relation to the goods, being found.”

5. I have difficulty in accepting the evidential weight of some of these paragraphs. As to (i), it begs the question. Obviously if the defendants knew that the cargo was to be loaded onto fishing vessels the necessary intent would easily be inferred. As to (ii), the nature of the goods, there was no evidence which could pinpoint knowledge on the part of the defendants of the contents of the cartons. As to (iv), the position of the lorry, the photographs show that the lorry was parked in the vicinity of the site office of the construction site and unless the defendants were familiar with the locality they would not have known that the sea was nearby; nor would they have known that the rear of the lorry was facing the sea wall. As to (v), this was conjecture. There was no evidence that the defendants were based in Kowloon or were familiar with Hunghom and its environ. They told the police that they were looking for business at Chai Wan on the Hong Kong side and nothing suggests that they were so familiar with the geography of Kowloon as to have known when they entered the building site that they were within about 40 or 50 feet from a sea-wall.

6. One of the matters which led the magistrate to conclude that there was not sufficient evidence to contradict the presumption of intent was this: He said that the defendants “got as close as they could to the sea-wall and were facing the right direction.” This was page 3 of his Reasons for Verdict. This seems to me to be a crucial finding because if that is what the defendants knowingly did then the suspicion that they intended to assist in exporting unmanifested cargo would have been very strong indeed. In my view this finding was simply unsupported by the evidence. No plan of the construction site was produced at trial, but from the photographs it simply cannot be inferred that a person parked near the site office must necessarily have known that he was about 40 feet or so from the sea. Accordingly the direction in which the rear of the lorry faced became wholly irrelevant. It must be borne in mind that the statutory presumption under s.18A(2) does not arise upon a mere conjecture. To stand the acid test of Article 11(1) of the Bill of Rights there must be a fully rational and realistic connection between the proved facts and the facts to be presumed. See Wong Hiu Chor MA No. 227 of 1992 (4 December unreported at p.16). Here the facts to be proved is that each of the defendants knew that he was assisting in the export of unmanifested cargo and intended to do so.

7. Assuming if it be possible that the defendants did not know precisely where they were, beyond the fact that they were at a building site somewhere in Hunghom, then how could it be said that by bringing the goods there and helping to unload the cartons onto the ground they knew they were assisting in smuggling and intended to do so? The words “in the absence of evidence to the contrary” sits awkwardly in s.18A(2). In the absence of authorities the section could be construed operate in this way: Once the prosecution has adduced some evidence which tips the scales ever so slightly in its favour, then the defendant is in peril of conviction if he does not go into the witness-box to explain his intent. But the Court of Appeal has in WongHiu Chor ruled out the possibility of such an interpretation. The circumstances must be viewed, the court said, as a whole and there must be absence of evidence to the contrary before the presumption avails the prosecution. See Fuad V.-P. at p.16, and in particular Mortimer J. at p.21 when he said in relation to    words “in the absence of evidence to the contrary” the following:

“ .....such evidence need not emanate from the accused or be called as part of his case. It is sufficient if it arises in the course of theprosecution case.”

8. Reverting to the magistrate’s finding that the defendants got as close to the sea-wall as they could and manoeuvred the lorry so that its rear end faced the sea-wall. Once it becomes clear that this finding cannot stand then it seems to me that the “evidence to the contrary” was very strong and the evidential presumption of knowledge on the part of the defendants cannot arise under s.18A(2).

9. The magistrate has set out clearly in his Reasons for Verdict his evaluation of the evidence. This has considerably eased my task on this appeal. This is not the sort of case where the trial judge has had the advantage of seeing and hearing witnesses which is denied to an appellate court. The credibility of the police witnesses was never in issue. Whilst I would hesitate to differ from an experienced magistrate on a finding of fact, I am driven to the conclusion that the magistrate has erred in this case. The inferences to be drawn at the end of the day point in both directions, in favour of the prosecution and of the defence. It was in my judgment insufficient to tips the scales under s.18A(2). I would accordingly allow the appeals, order that the convictions and sentences be quashed.