R. v. CHENG WAI FUNG

1997, No. MA 2

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant appeals his conviction on 4^th December 1996 from importing textiles without a licence, contrary to s.6C(1) and (2) of the Import and Export Ordinance, Cap.60. The facts were not in dispute.

2. On 24^th March 1996, a consignment of 153,709 sq.m. of polyester woven fabrics in a container arrived from Indonesia into Hong Kong by vessel and were unloaded at Tseung Kwan O. They were consigned to a company called Wing Shing Company. It is common ground that the appellant, after the arrival of the vessel, took steps for the release of the consignment and arranged for it to be collected and stored.

3. Wing Shing Company were exempted from the requirement of obtaining a textile import licence because they were registered as textile traders pursuant to the Textile Trading Scheme set out in Regulation 5A of the Import and Export General Regulations made pursuant to the Import and Export Ordinance. Subsequent inquiries by the Trade Department indicated that the application by Wing Shing was false inasmuch as the telephone number and the address given by that company in its application for Textile Registration were false.

4. The learned magistrate in his consideration of the evidence clearly found that the association of the appellant with Wing Shing and the steps he took to release the goods from where they had been stored upon unloading were such that the irresistible inference was that he imported the goods into Hong Kong and he said :

"There are very strong and irresistible inferences to be drawn from the evidence that the textiles in question were imported into Hong Kong by the Appellant."

It is clear also from the reasons given orally in court by the magistrate that he believed that during the acts committed by the appellant with regard to this shipment, he possessed not only the invoices, bill of lading and import notification but also the business registration of Wing Shing and their registration as a textile trader. Possession of these last two documents would have inferred a much greater and closer connection between the appellant and Wing Shing Company than an absence of those documents in his possession would infer. Regrettably the magistrate was wrong in his finding that those documents were in the possession of the appellant. There is no evidence to that effect and it is an assumption which had been drawn by the magistrate not borne out by the evidence.

5. That being so, Mr Macrae argues that on the face of the findings of the magistrate and of that error, he may have inferred a greater and closer connection between the appellant and Wing Shing Company than was warranted and had he had in mind the true situation, he may not have drawn the inferences that he did that the appellant was the importer of the goods.

6. I must agree it is an unfortunate error of fact which could have been crucial to the thought processes of the magistrate in drawing the inferences that he did. The appeal against conviction must be allowed and the sentence set aside.