R. v. WONG KWONG-HEI

IN THE COURT OF APPEAL

1993, No. 16
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Judge Caird in the District Court on one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap. 210, and on six charges of exporting unmanifested cargo, contrary to section 18 of the Import and Export Ordinance, Cap. 60.

2. The particulars of each of the six exporting unmanifested cargo charges were that the applicant on a certain day "together with other persons unknown, exported unmanifested cargo" namely a particular make of private car or cars.

3. He now applies for leave to appeal against his convictions on the exporting unmanifested cargo charges. There is also an application for extension of time within which to apply for leave to appeal against the sentences of 4 1/2 years' imprisonment on the handling charge and of 18 months' imprisonment on each of the exporting manifested argo charges, all of which were ordered to be served consecutively, thereby resulting in an overall sentence of 4 1/2 years.

4. The evidence for the prosecution was that on the evening of 24 February 1992 the police conducted a surveillance operation over an area of the waterfront in Causeway Bay.

5. At 8.40 p.m. a large crane truck entered the open space adjacent to the waterfront. Two high powered speed boats, each equipped with four outboard motors and commonly known as tai fei, were observed stationed alongside a cargo ship berthed at a pier near the open area.

6. Two ambush teams of police officers were immediately deployed. Several minutes later, the crane truck moved forward to the sea wall and a white Toyota Crown saloon drew up next to the crane truck. The applicant, who was the driver of the crane truck, and two Chinese males, who were holding cellular telephones, then alighted from the truck. They passed a canvas belt through the open front windows of the Toyota. The applicant then operated the crane to lift the Toyota into one of the tai fei, which in the meantime had come alongside the sea wall. The two other Chinese males assisted him by manually manoeuvring the Toyota into position. The loading operation having successfully been completed, the tai fei departed and the crane truck returned to the place at which it had initially been waiting.

7. A short while later, a blue Toyota Crown saloon arrived and parked next to the crane truck which had again moved forward to the sea wall. At the same time the second tai fei came alongside, and the applicant and his two companions began the same operation as before. On this occasion, however, the ambush teams sprang into action while the Toyota was suspended from the crane over the tai fei.

8. The alarm having been raised, the tai fei sped off without its intended cargo. The applicant's two accomplices managed to leap aboard the departing tai fei but the applicant himself was left stranded. He fled along the waterfront and attempted to leap aboard a lighter but fell into the harbour and was quickly apprehended.

9. On lowering the blue Toyota to the ground, the police found that it had a damaged ignition lock. Enquiries revealed that it had been stolen from the basement car park of the Convention and Exhibition Centre in Harbour Road, Wanchai at 8.48 p.m. on the same evening. This was the vehicle that was the subject of the handling stolen goods charge.

10. The applicant admitted under caution that he had been asked by one Ah Shui to load stolen motor vehicles onto speedboats so that they could be smuggled into China. He further admitted that he had begun carrying out this type of operation for Ah Shiu on 2 February of that year, that he had loaded vehicles into tai fei on five other occasions prior to his arrest and had received $7000 for each Mercedes Benz, BMW or Toyota Crown and, on one occasion, $8000 for a Lexus.

11. In carrying out these operations he had been assisted by two Chinese males, one of whom he knew as Fu Chai and another whose name he did not know. After further questioning, the applicant pointed to various entries in his bak pass book which revealed the sums that he had been paid by Ah Shui after each operation and the dates on which he had received them. He also admitted that he knew that customs documentation was required for the exportation of vehicles to China, that all the vehicles concerned had been stolen and that therefore no application for export could have been made. It was in relation to the earlier operations and to the loading of the white Toyota Crown that the six exporting unmanifested cargo charges were brought. The applicant declined to give evidence at the trial.

12. Mr. Egan, who appeared for the applicant in this court but not in the court below, submitted that on the authority of the decision of the Privy Council in Attorney General v. Tse Hung-lit and another [1988]1 HKLR 25 the convictions for exporting unmanifested cargo could not stand. The facts in that case were that, pursuant to an agreement with one Ah Fai, the respondents took 34 video cassette recorders by speedboat to an agreed location within Hong Kong waters where they intended to meet a fishing boat and to transfer the recorders to it so that they could then be taken to China. However, when the fishing boat failed to appear, the respondents left. On their return journey they were intercepted by a police launch and charged with attempting to export unmanifested cargo and attempting to export articles without the required export licence. The Privy Council upheld the majority decision of another division of this Court that the respondents could not be convicted of an attempt to export the recorders because, if the fishing vessel had arrived and taken the goods to China, the respondents would not have been guilty as principals of the relevant offences.

13. In arriving at that conclusion, Lord Bridge, who delivered the judgment of their Lordships, said this (at page 27):

"It is common ground that the respondents could properly have been convicted of conspiracy to commit the relevant offences. On the other hand, the prosecution do not seek to support the convictions on the ground that, if the goods had been exported by the crew of the fishing boat, the respondents could have been convicted of aiding and abetting or of counselling and procuring the offences. For the purpose of both the offences which the respondents were accused of attempting to commit, the prohibited activity was to 'export' and this is defined in s.2 of the Import and Export Ordinance (Cap. 60) as meaning 'to take, or cause to be taken, out of Hong Kong any article other than an article in transit'. Nothing turns on the degree of proximity of what the respondents did to the completion of the offences. If the video cassette recorders had been transferred to the fishing boat within Hong Kong waters and taken out of Hong Kong aboard that boat, it was only faintly suggested for the appellant that the respondents could have been convicted on the basis that they themselves had taken the goods out of Hong Kong. Their Lordships are satisfied they could not. The real issue in the appeal is whether, in those circumstances, the respondents, on the true construction of the definition of 'export' as applied to the two offences, could properly be said to have 'caused to be taken out of Hong Kong' the unlicenced and unmanifested cargo."

14. We are unable to understand why the prosecution did not seek to support the convictions on the ground that, if the goods had been exported by the crew of the fishing boat, the respondents could have been convicted as secondary parties. We can only assume that it was thought that it was not necessary to rely on that argument.

15. As appears from the above passage in Tse Hung-lit, their Lordships focussed on the words "caused to be taken out of Hong Kong" in the definition of "export". They referred with approval to the decision of the High Court of Australia in O'Sullivan v. Truth and Sportsman Ltd. (1957) 69 CLR 220 in which the court in considering the situation where a statute makes it an offence for a person to cause the doing of a prohibited act by another person, said this at page 228:

"It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue."

16. The High Court made it plain, however, that this primary, narrow interpretation could be displaced by a sufficient indication in the relevant legislation of a different intention.

17. Having accepted this to be a correct statement of the law. Lord Bridge went on (at page 30):

".... the plain purpose of including among those absolutely liable for the export of goods without the appropriate licence persons who cause such goods to be taken out of Hong Kong as well as those who take them out is to apply the same criminal sanction to the consignor and his forwarding agent, who arrange and organise the illicit exportation, as to the owner of the ship, aircraft or vehicle which effects the exportation by actually taking he goods out of Hong Kong. Persons in these or similar categories would properly be held, on the narrow construction of the words 'cause to be taken out of Hong Kong' to be exporting. The goods are taken out of Hong Kong by others acting on their express or implied authority. It seems entirely appropriate that those responsible for arranging the exportation of goods, as well as those who directly perform the act of exportation, should be responsible for ensuring that any appropriate licence has been obtained and should be held criminally liable in the absence of such a licence. But what of others who merely play a physical part in the sequence of events which leads to exportation? The road haulage contractor who brings goods from the warehouse to the dockside and the stevedoring firm which loads the goods on board the ship know full well that the goods are to be exported, but are in no position to give and do not purport to give any authority to the shipowner to effect the exportation. Yet, if the appellant's construction of the language of the legislation is adopted, they too must be held to have caused the goods to be taken out of Hong Kong and will act at their peril unless they ensure in every case that the appropriate export licence has been obtained. Their Lordships fully appreciate the necessity in such a community as Hong Kong for the authorities to exercise strict control over imports and exports, but can discern no good reason why it should be necessary, in order to make such control effective that the criminal net should be cast as widely as it would be if the construction urged by the appellant were accepted."

18. This court is, of course, bound by the ratio of their Lordship's judgment. However, as their Lordships were at pains to point out, no argument was addressed to them on the basis that, had the goods been exported by the crew of the fishing vessel, the respondents could have been convicted as secondary parties. Nor indeed, were they invited to consider the implications of section 51(2) of the Criminal Procedure Ordinance Cap. 221, which corresponds in all relevant respects with section 6(3) of the Criminal Law Act 1967. Section 51(2) provides:

"If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

19. Mr. Cross, who appeared for the Crown, submitted that the convictions should be upheld on the basis that the evidence clearly disclosed that the appellant was a party to a conspiracy to export the unmanifested vehicles. He referred us to the first passage which we quoted from Tse Hung-lit in which it was accepted that the respondents in that case could properly have been convicted of conspiracy to commit the relevant offence.

20. He sought to rely on section 51(2) of the Criminal Procedure Ordinance Cap. 221.

21. Mr. Egan frankly conceded that had the appellant been charged with conspiracy to export unmanifested cargo in respect of each incident he would, on the evidence which the judge accepted, inevitably have been convicted of those offences. He contended, however, that since no conspiracy charges had been preferred the appellant could not properly have been convicted of them.

22. Mr. Cross submitted, and we accept, that the allegations in each of the charges included by implication an allegation of conspiracy to export unmanifested cargo. It seems to us, however, that section 51(2) is designed to cater for those cases in which the prosecution fails to prove the charge on which the accused stands trial but succeeds in proving that he is guilty of another offence which falls within the scope of the allegations in that charge.

23. But in the present case the Crown contends that the exportation of the unmanifested vehicles occurred in every instance and that the appellant was a party to the commission of these substantive offences. In the light of that contention we are unable to see how section 51(2) could apply, since the precondition for its operation, namely that "it is proved that the accused is not guilty" of the offence charged, did not exist. Had it not been proved that the substantive offences been committed, sec. 51(2) would have become operative and the applicant would then have properly been convicted of conspiracy to commit the offences charged.

24. Nevertheless, in our view, the convictions can be upheld on the basis that the appellant was a secondary party to the commission of each offense. Section 89 of the Criminal Procedure Ordinance provides:

"89 Any person who aids, abets, counsels or procures the commission by another person of any offence shall be guilty of the like offence."

25. The applicant procured the commission of the completed offences by conspiring with Ah Shui and the others to export the unmanifested vehicles. The following passage from para 18-19 of the 1992 edition of Archbold is relevant:

"[The procurement] may also be direct, by hire, counsel, command or conspiracy; or indirect, by evincing an express liking, approbation, or assent to another's criminal design of committing an offence: 2 Hawk, C29, s.16." (our emphasis).

26. It is plain from the evidence which the judge accepted that the appellant was not only a party to a conspiracy to export the unmanifested vehicles but had physically participated in the act of loading them into tai fei which he knew would then transport them to China. The rendering of such assistance also made him a secondary party to the commission of the offences charged - see R. v. Bainbridge (1959)43 Cr. App. R.194 and Maxwell v. DPP for Northern Ireland (1979)68 Cr. App. R.128 H.L.

27. But that is not the end of the matter, for Mr. Egan, while frankly conceding that the vehicles were unmanifested cargo, submitted that the evidence before the judge was incapable of leading to the irresistible conclusion that the vehicles had been taken out of Hong Kong, and that therefore the convictions could not stand. He contended that it was reasonably possible that the vehicles had been taken across the harbour to the New Territories and stripped for spare parts in a "backyard garage". Their movement by boat rather than by road was reasonably explicable on the basis that the conspirators had taken the precaution of not being apprehended at a police road block and check point.

28. In this connection Mr. Egan referred us to the following passage from the judgment of the Privy Council delivered by Lord Diplock in Kwan Ping-bong v. R. [1979] HKLR 1 (at page 5):

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged -

and the proof must be 'beyond all reasonable doubt', which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

29. We accept at once that exporting is an essential element of the offences charged and that it was therefore incumbent on the prosecution to prove that the vehicles had been taken out of Hong Kong. But it was not necessary for there to have been proof that they were actually seen leaving Hong Kong. If on all the evidence the only reasonable inference that can have been drawn was that they had been taken out of Hong Kong, then the fact of exportation has been proved to the required standard of beyond reasonable doubt.

30. Mr. Egan further submitted that the admission by the applicant that Ah Shui had told him that the vehicles were to be taken to China was merely an admission of knowledge by hearsay and was therefore not admissible to prove that they had been exported. In support of that proposition he cited Suruipaul v. R. (1958)42 Cr. App. R.266 and Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC 367.

31. Leaving aside the applicant's admission that he had been told that the vehicles were to be taken to China, we are driven to the conclusion that the vehicles had been taken out of Hong Kong. It was not necessary to find, as the judge did, that the vehicles went to China. It is possible that they were transferred from the tai fei to a vessel at sea and taken to some other destination in Asia. But the judge's finding necessarily included the narrower finding that, whatever their ultimate destination might have been, the vehicles had been taken out of Hong Kong.

32. Notwithstanding Mr. Egan's ingenious argument we think that it is fanciful to suggest that anyone who simply wished to move a vehicle from Hong Kong Island to the New Territories would use a tai fei for that purpose.

33. A thief who intends taking a stolen vehicle from one part of Hong Kong to a final destination elsewhere in Hong Kong, but fears that he might be apprehended at a police road block, needs only to resort to the simple expedient of arranging with an accomplice, equipped with a portable telephone and driving a suitable distance ahead of him on the prearranged route, to contact and warn him of the existence of any road block so that he can take evasive action. Even if such a stratagem were not adopted, the thief, on seeing a road block ahead, would have no difficulty in avoiding being caught by simply pulling over to the side of the road before reaching it, abandoning the stolen vehicle and later stealing another one.

34. On the other hand, the removal of a stolen vehicle by tai fei to a final destination elsewhere in Hong Kong not only requires additional manpower consisting of those who load the vehicle into the tai fei, the accomplices on board the tai fei and the accomplices who unload the vehicle from the tai fei elsewhere in Hong Kong - all of whom would presumably expect to be paid for their services - but involves the obvious risk of detection both when the vehicle is loaded into and unloaded from the tai fei at suitable landing sites by means of a crane truck. None of these problems arises when a stolen vehicle is driven to its destination by road.

35. We are satisfied that on the evidence before him the judge was entitled to conclude that the only reasonable conclusion was that the vehicle in each case was taken out of Hong Kong.

36. If, however, contrary to the view we have just expressed, it could be reasonably be said that the vehicles might not have been taken out of Hong Kong and that the judge should therefore have found the applicant not guilty of the six alleged offences, we have no doubt that, on the findings which he made and which have not been challenged in this court, it would have been open to him to invoke the provisions of section 51(2) and to have convicted the appellant of conspiracy to commit those offences. By virtue of section 90 of the Criminal Procedure Ordinance the appellant was liable to the same maximum penalty for conspiracy as for the substantive offences.

37. We think we should draw attention to the curious phraseology used in the opening words of section 51(2), "If ..... it is proved that the accused is not guilty of that offence ......". In our opinion this must be interpreted to mean, "If .... it is not proved that the accused is guilty of that offence.....". However, Mr. Egan did not seek to draw any comfort from this point. We simply mention it in passing.

38. For the reasons we have given we dismiss the appeal against the convictions.

IN THE COURT OF APPEAL

1993, No. 16
(Criminal)

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Coram: Hon Yang, CJ, and Power, VP

Date of hearing: 26 August 1993

Date of judgment: 21 October 1993

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J U D G M E N T

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Hon Yang, CJ:

On Sentence

39. Nothing that has been said on behalf of the applicant leads us to the conclusion that a ground has been made out for time to be extended. He was sentenced on 22 December 1992 and made the application for extension of time on 6 August 1993.

40. As to the sentence of four and a half years as a totality, the sentence for one charge of handling stolen goods, namely, a car destined for some place out of Hong Kong probably China, and six other charges of exporting unmanifested cargo, also cars, is not in our view at all unreasonable. In saying so, we have in mind the case of The Queen v. CHIU Ko-wai (1992) 2 HKLR 219, where the appellant pleaded guilty and was convicted of only one charge of handling stolen property, also a car.

41. Leave refused.

Representation:

Mr I G Cross QC and Mr Dominic Lai for Crown Prosecutor

Mr Kevin Egan instructed by M/S So & Co for Applicant