HKSAR v. BU HUA LAI AND OTHERS

[English Translation – 英譯本]

CACC 380/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 380 OF 2006

(ON APPEAL FROM DCCC NO. 158 OF 2006)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the judgment of the Court): 

Background

1. The three Applicants were all charged with one count of “theft” and one alternative count of “handling stolen goods”.  The 1^st Applicant was also charged with one count of “assisting the passage within Hong Kong of an unauthorized entrant” (hereinafter “the immigration charge”).  The 1^st Applicant pleaded guilty to “handling stolen goods” and the immigration charge, while the 2^nd and 3^rd Applicants denied all the charges.  After trial, Deputy District Judge Sham convicted the 2^nd and 3^rd Applicants of “handling stolen goods” and sentenced the three Applicants as follows:

(1) The 1^st Applicant was sentenced to 32 months’ imprisonment for “handling stolen goods” and 32 months’ imprisonment for the immigration charge.  Eighteen months of the two sentences were to be served concurrently, making a total of 50 months’ imprisonment;

(2) The 2^nd and 3^rd Applicants were sentenced to 48½ months’ imprisonment for “handling stolen goods”.

The 1^st Applicant

2. Initially the 1^st Applicant only applied for leave to appeal against sentence.  However, at the hearing of the appeal, he claimed that he had mistakenly pleaded guilty at the outset and applied to the court for leave to appeal against conviction.  As this application involved allegations against his former Counsel, we adjourned the application so that he could prepare a written submission setting out his grounds of appeal against conviction and so that his former Counsel could respond to those allegations.

The 2^nd and 3^rd Applicants

3. The 2^nd and 3^rd Applicants applied for leave to appeal against conviction and sentence.  Mr Fu of Counsel represented the 2^nd and 3^rd Applicants in their applications for leave to appeal against conviction.  Mr Fu also represented the 3^rd Applicant in his application for leave to appeal against sentence.  The 2^nd Applicant applied in person for leave to appeal against sentence.

Prosecution case

4. The prosecution case was that, at around 11.30 p.m. on 14 January 2006, a marine launch was hiding in the seas off Yan Tsz Ngan near Tai Long Wan in the waters of New Territories West, Hong Kong.  The police noticed an unlit sampan travelling at 20 nautical miles per hour in an easterly direction towards the Mainland.  The marine launch lit a light bomb and chased that sampan.  In the end, the marine intercepted that sampan and the three Applicants were found inside the sampan together with 54 Buddha pine trees with roots.  The 1^st Applicant was the pilot.  None of the three Applicants was able to produce an identity card.  Eventually the police officers arrested them for theft of Buddha pine trees and unauthorized entry into Hong Kong.  At the police station, videotaped interviews were conducted with the 2^nd and 3^rd Applicants.  The records of interviews were adduced at trial as prosecution evidence.

Defence case

5. The 2^nd Applicant elected not to give evidence and did not call any witness.  He merely relied on the contents of the videotaped interview to deny the offence.  At the interview, the 2^nd Applicant claimed that on 14 January 2006 he was delivering goods from Nan Ao in Mainland China to Erzhou Island of the Dangan Islands in Mainland China.  Upon arrival in Erzhou Island, he stayed on the boat while the others moved the trees to the sampan.  He stayed on the boat and helped cut the vines, and on its way back to Nan Ao, the sampan was intercepted by the marine police.  He claimed that he received wages of $60 per day for delivering the goods.

6. The 3^rd Applicant elected to give evidence.  He denied having any relation with the Buddha pine trees on the sampan.  He claimed that on 12 January 2006 someone hired him to go from Nan Ao to Erzhou Island to dig Buddha pine trees at a daily wage of $60, but when he arrived in Erzhou Island he found that digging up Buddha pine trees was a very tough job and gave up.  Having stayed in Erzhou Island for two nights, on 14 January 2006 he took the sampan back to Nan Ao, and the sampan was intercepted by the marine police on the way.  He claimed that he was merely a passenger on the sampan who took the journey free of charge.

Expert witness

7. On 15 January 2006, the prosecution’s expert witness Dr Yip Kwok Leung examined the 54 Buddha pine trees that had been seized.  He confirmed that they belonged to a wild type in Hong Kong and were mainly grown along the hills in Yan Tsz Ngan.  There were also signs of Buddha pine trees being uprooted in that area.

Ruling of Judge Sham

8. Judge Sham did not accept the defence of the two Applicants.   He ruled that the subject Buddha pine trees were stolen from near Yan Tsz Ngan, and the two Applicants, knowing or believing them to be stolen goods, secretly delivered them back to the Mainland.

Appeal against conviction

Grounds of appeal

9. Mr Fu raised the following grounds of appeal against conviction:

(1) Judge Sham misconstrued the prosecution case and ruled that the subject Buddha pine trees came from the area around Yan Tsz Ngan;

(2)  Judge Sham was not sure whether the subject Buddha pine trees were uprooted from the hillside of Yan Tsz Ngan;

(3) Judge Sham erred in ruling that the two Applicants knew or believed these Buddha pine trees to be stolen goods;

(4) Judge Sham erred in rejecting the 3^rd Applicant’s evidence; and

(5) Judge Sham failed to analyze in detail the route of the subject sampan.

1.  The origin of the Buddha pine trees

10. The thrust of Mr Fu’s first ground of appeal was based on the evidence of the expert witness Dr Yip that the trees in the Yan Tsz Ngan area were estimated to be at least 30 years of age, and the diameter of the trunk was 10 cm or above.  Mr Fu submitted that the Buddha pine trees seized in the present case had a diameter of only half an inch, therefore the subject plant did not come from Yan Tsz Ngan.  In our view, the relevant evidence does not indicate that most of the seized Buddha pine trees on the sampan had a diameter of only half an inch.  According to the photos submitted by the prosecution, the trunks of the Buddha pine trees were very thick, and this was different from Mr Fu’s claim that only two of them were thick.  Mr Fu submitted during cross-examination that he had examined the subject Buddha pine trees together with the expert witness, but that was 6 months after the incident.

11. In any event, even if most of the Buddha pine trees had a diameter of only half an inch, this does not mean that they were not uprooted from the Yan Tsz Ngan area.  The evidence in the present case is that the marine launch was hiding in the Yan Tsz Ngan area, and the sampan was travelling from west to east, which supported the argument that the sampan’s route was from Yan Tsz Ngan to the Mainland.  Erzhou Island is located in the seas off the southern tip of Hong Kong Island.  If at the time of the incident the sampan was travelling from Erzhou Island to the Mainland, its route should be from south to north and not from west to east.  As Judge Sham accepted the evidence of the prosecution witness in relation to the route of the sampan, this negated the argument that the sampan came from Erzhou Island.  Therefore, even if Erzhou Island also had Buddha pine trees, this did not mean that the prosecution had failed to prove the Buddha pine trees in question came from Yan Tsz Ngan.  Besides, even if the Buddha pine trees in Yan Tsz Nga were 30 years old, that does not mean that no younger trees or species with a thinner trunk could also be found there.  In our judgment, therefore, the first ground cannot be sustained.

2. Whether Judge Sham’s ruling was self-contradictory

12. Mr Fu submitted that Judge Sham ruled that the subject Buddha pine trees were cut from the hillside at Yan Tsz Ngan but went on to say that it was not important to whom the Buddha pine trees belonged.  This is what Judge Sham said:

‘If it were grown in the wild, of course it belonged to the Government of the Hong Kong Special Administration Region.  If it was taken from private land, it belonged to the landowner.  The charge stated that it was Buddha pine trees belonging to another.  Whether it belonged to the Government of the Hong Kong Special Administration Region or an owner of private land, the conclusion is that it was Buddha pine trees belonging to another.  For the above reasons, the only conclusion I can come to is that ‘these 54 Buddha pine trees were stolen goods.’

13. We do not agree with Mr Fu’s argument.  Judge Sham had already ruled that the subject Buddha pine trees were cut from the hillside at Yan Tsz Ngan.  What he then said about the ownership of the Buddha pine trees could not have affected the relevant ruling.

14. Whether the relevant Buddha pine trees were stolen goods has to be determined from objective evidence.  The Buddha pine trees in question were discovered in late hours on an unlit sampan, and the place where the sampan was intercepted was near the hillside where Buddha pine trees were grown.  If these Buddha pine trees were normal goods, we fail to understand why it had to be delivered in this way.  In these objective circumstances, Judge Sham’s ruling that the trees were stolen goods was correct.

3. Whether the two Applicants believed or knew the Buddha pine trees to be stolen goods

15. Mr Fu criticized Judge Sham’s use of common sense in inferring that no boatman would carry a group of irrelevant people under such circumstances.  We do not consider it improper for Judge Sham to make his judgment based on common sense.  It is widely known that, as there has been a huge demand for Buddha pine trees in Mainland China in recent years, a lot of Mainlanders have illegally come to Hong Kong to cut the Buddha pine trees and then smuggled them back to the Mainland.  Furthermore, it was the evidence of the two Applicants that they were going to Erzhou Island for the purpose of doing something related to Buddha pine trees.  The 1^st Applicant was steering the sampan at the time and he pleaded guilty to “handling stolen goods”.  Although this admitted fact could only be used against him and did not constitute evidence against the 2^nd and 3^rd Applicants, the court could certainly infer from this objective evidence that the 1^st Applicant would not allow two unconnected persons to ride on his sampan back to the Mainland when he was carrying out illegal activities.  In our judgment, the only reasonable inference from the presence of the 2^nd and 3^rd Applicants in the middle of the night on a sampan carrying stolen goods was that the two Applicants were members of the group of people who handled stolen goods, and they believed and knew that the Buddha pine trees were stolen goods.

4.  Did Judge Sham err in rejecting the 3^rd Applicant’s evidence?

16. Judge Sham ruled that the 3^rd Applicant was an unreliable witness.  He considered it unreasonable that the 3^rd Applicant would agree to travel that far from Nan Ao to Erzhou Island to work and then give up upon arrival at the destination because the work was too tough for him.  We consider this finding to be purely one of fact and Judge Sham was entitled to reject the 3^rd Applicant’s evidence.

5. Judge Sham wrongly accepted PW1’s evidence

17. Judge Sham accepted PW1’s evidence regarding the route and direction of the sampan.  Mr Fu criticized that the ruling was not detailed enough.  Mr Fu submitted that the place was very quiet at the time, and when PW1 first saw the sampan, it was already 0.3 nautical miles across the marine launch.  Mr Fu emphasized that if the sampan had come from Yan Tsz Ngan, PW1 should have noticed it much earlier and heard its motor.  We consider that the relevant ruling was also one of fact.  Judge Sham ruled that PW1 was familiar with the waters and geographical environment and directions around that area, and that the marine launch was equipped with maps and instruments for night-viewing and should also possess devices for verifying directions, and hence PW1 could not possibly get the direction wrong.

Juvenile Court

18. Mr Fu criticized Judge Sham for not allowing the 3^rd Applicant’s application to transfer his case to the juvenile court for hearing.  In our view, under normal circumstances, a young offender should be tried in a juvenile court, but in the end, a trial judge has a discretion to make the relevant ruling.  In the present case, as the 3^rd Applicant had already been tried with the two other adults in an adult court, this issue has become academic.  Most importantly, we do not see any impropriety in the proceedings at trial which justifies overturning the conviction.

Dismissal of application for leave to appeal against conviction

19. In our judgment, the conviction is neither unsafe nor unsatisfactory.  The application for leave to appeal against conviction is dismissed.

Appeal against sentence

20. The application for leave to appeal against sentence is allowed and treated as the appeal proper.  In our judgment, 48½ months’ imprisonment is manifestly excessive.  The terms of imprisonment for the 2^nd and 3^rd Applicants are reduced to 36 months and 24 months respectively.

Starting point

21. Judge Sham adopted 3 years as the starting point.  As he considered this type of offence prevalent, he enhanced the term of imprisonment by 35% to a total of 48½ months.

22. In our judgment, the starting point for this type of offence is normally 2 years’ imprisonment: see HKSAR v Wong Chi Kin, CACC 357/2004, HKSAR v Ko King Hung, CACC 410/2004 and HKSAR v Yeung Wui and Others [2005] 1 HKC 646.  The Court of Appeal in the relevant cases agreed that, in view of the prevalence of similar offences, an enhancement of sentence by 35% was appropriate.

23. The above three cases involved 4, 14 and 11 Buddha pine trees respectively.  Although the quantity of stolen goods involved in the present case exceeded those in the above three cases, we do not agree that an enhancement to 3 years’ imprisonment is appropriate and the proper starting point should be 27 months’ imprisonment.  Due to the prevalence of this type of offence, an enhancement of 35% is necessary.

The 2^nd Applicant

24. Accordingly, the sentence for the 2^nd Applicant should be 36 months’ imprisonment.

The 3^rd Applicant

25. The 3^rd Applicant was born on 29 September 1991.  As at the date of conviction on 14 August 2006, he was 14 years and 10½ months old.  He is a very young offender and the offence did not involve the use of violence.  It is very unusual for a court to sentence such a young offender to 48 months’ imprisonment.

“Beijing Rules”

26. Judge Sham commented that as there were other people behind the scene who made use of children to commit offences, it was necessary to impose a heavy sentence on the accomplices.  We do not agree that for this reason a severe sentence should be imposed on juvenile offenders.  Clause 17 of Part I (General Principles) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (hereinafter “the Beijing Rules”) (adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held from 26 August to 6 September 1985, and adopted by the United Nations General Assembly Resolution 40/33 of 29 November 1985) provides as follows:

17.       Guiding principles in adjudication and disposition

17.1     The disposition of the competent authority shall be guided by the following principles:

(a)      The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;

(b)        Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;

(c)        Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;

(d)        The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.

27. As the detention centres and training centres operated by the Correctional Services Department do not accept non-Hong Kong resident young offenders, the only option for Judge Sham was to sentence the 3^rd Applicant to imprisonment.  However, Judge Sham should have borne in mind that the well-being of the juvenile would be the guiding factor in sentencing, and that any restriction on his freedom should be kept to a minimum.  We rule that the appropriate sentence for the 3^rd Applicant should be 24 months’ imprisonment.

28. In our view, as the international community agrees that the well-being of the juvenile should be the guiding factor in sentencing, the relevant authority should review the policy of not admitting juvenile offenders from the Mainland to detention centres or training centres.  We consider that it may be against the spirit of the Beijing Rules if juvenile offenders from the Mainland, especially offenders involved in non-violent crimes, are imprisoned solely because they are not Hong Kong residents.