HKSAR v. LAM CHI SHING

HCMA 762/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 762 OF 2012

(ON APPEAL FROM TMCC 2180 OF 2012)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trail of one charge of dealing with goods to which Dutiable Commodities Ordinance applies, contrary to section 17(1) and section 46(3) of the Dutiable Commodities Ordinance, Cap 109, namely, 400 sticks of cigarettes. He was acquitted of the charge (2) which charged him with possession of goods to which Dutiable Commodities Ordinance applies, namely, 25,800 sticks of cigarettes inside C, Block F, 2/F, Wah Shing Mansion, No8 Tai Pei Tau Path, Yuen Long, New Territories.

Evidence for the prosecution

2.  On the day of the offence the Appellant was stopped by customs officers when he left Block F, 2/F, Wah Shing Mansion, No 8 Tai Pei Tau Path, carrying a white nylon bag inside the which were found two cartons of cigarettes, totalling 400 sticks of cigarettes.  Under caution, the Appellant said that the cigarettes belonged to his father and that he was taking the cigarettes to his father for his father’s consumption.

3.  Keys were found on the Appellant and the keys opened the gate and main door of the subject premises and inside Room C of the premises were found the 25,800 sticks of cigarettes which were the subject matter of the possession charge.  Under caution, the Appellant said that those cigarettes belonged to his father.  Subsequently, the customs officers found from the Appellant’s father’s keys to the subject premises.

Defence case

4.  The Appellant elected to give evidence and maintained that he did not know that the cigarettes he was carrying were illicit cigarettes and he also called his father as defence witness.  The Appellant’s father gave evidence that he rented Room C in early 2012 as accommodation for the Appellant and his wife who was residing in Hong Kong from Mainland China, but the Appellant’s wife did not visit Hong Kong since 2011 so the room was used to store things which was sold in the Appellant’s father shop nearby.  The Appellant lived with his parents in the cockloft above the shop.

5.  The defence evidence is that the Appellant had only been to Room C on two occasions.  The first time was when his father brought him there to show him the room he was renting and the second time was on the day of the offence when the Appellant’s father was told the Appellant to go to Room C to fetch a rice bag containing cigarettes.  That was the rice bag in which were found the illicit cigarettes.  The Appellant’s father maintained that the cigarettes belonged to him and that the Appellant did not know the content of the rice bag were illicit cigarettes.

Magistrate’s Findings

6.  The Learned Magistrate at paragraph 16 of his Statement of Findings observed the following :

“ I have carefully observed the witness giving evidence, their demeanors and contents of their testimonies, I found that PW1 and PW2 were honest and reliable witnesses. I was not sure if the Appellant and DW were telling the truth. If there was any discrepancy between the testimonies of the Appellant, DW and the prosecution witnesses, I accepted the evidence of the prosecution witnesses, and not that of the Appellant and DW.”

7.  Then the Learned Magistrate went on to say there was not much dispute by the defence with the evidence of the prosecution witnesses.  In fact, the defence was not that the prosecution witnesses were not telling the truth, the defence was that the Appellant did not know the cigarettes he was carrying in the rice bag were illicit cigarettes.  So it is very mysterious and of concern to me what exactly the Learned Magistrate meant by the paragraph I have just cited.  In that paragraph, the Learned Magistrate seemed to be think that he was “not” sure the Appellant and his witness was telling the truth but if their evidence diverged from that of prosecution witnesses he preferred the version given by the prosecution witnesses.  This is of grave concern to me because in assessing evidence of both witnesses for the prosecution and the defence, the witnesses should be assessed individually and not whether the Learned Magistrate preferred one witness’s evidence over the other by comparison.  The evidence of the defence witnesses should be considered independently and if the Learned Magistrate comes to a conclusion that they are not to be believed, then the Learned Magistrate should demonstrate why he did not believe the defence witnesses.

8.  If, after analysis of the defence evidence, the Learned Magistrate is not sure whether the defence witnesses were telling the truth, then if he thinks that what the defence witnesses say may be true, then the Appellant will have to be acquitted.  It is never a matter of comparing the prosecution’s version and the defence’s version and saying that he preferred the version given by the prosecution witnesses.

9.  The only issue in this case is whether the Appellant knew the cigarettes were illicit.

10.  Despite the fact that Counsel for the defence failed to submit on the statutory defence available to the Appellant under section 17(11) of the Ordinance, the Learned Magistrate did properly consider both the common law defence and the statutory defence in his Findings.  The defence submitted that in the Queen v Wang Shih Hung HCMA 989 of 1993, it was held that :

“ … it is a defence for the accused to show on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of … DutiableCommodities Ordinance had been complied with …”.

11.  Section 17(11) says –

“It is a defence … for the defendant to show that the offence was committed without his consent or connivance and that he took all reasonable steps to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions.”

12.  As Ms Yu pointed out, under the common law defence, the defence has to show on a balance of probabilities that he believed for good and sufficient reason that, although erroneously, that the provision of the Ordinance had been complied with.  In this case, the cigarettes, which was produced as Exhibit P1, were described in the Admitted Facts (Exhibit P17) as being “two cartons of cigarettes without any health warnings and HKDNP labels”. The rice bag was not sealed, the Appellant had been working for his father for over 10 years, and so Ms Yu submitted that the defence had therefore failed to make out a balance of probabilities that the accused had an honest belief, based on good and sufficient reason.  Further, Ms Yu submitted that the Appellant is not entitled to pray in aid the statutory defence because that defence is applicable only to employers or directors of companies who did not deal directly with the goods.  I do not to agree because the section says “the offence was committed without his consent or connivance” and I can think of numerous examples where people who were not employers or directors of  companies would be able to make use of the statutory defence.  However, in this case, it is for the defence to show on a balance of probabilities under the statute that he took all reasonable steps “to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions”. Therefore, in the circumstances, the Learned Magistrate had to ask himself the question whether the Appellant had taken all reasonable steps, bearing in mind that he had been working for his father’s shop for a long period of time and the rice bag he was carrying was not sealed and he could easily had seen from the appearance of the cartons of cigarettes that no duty had been paid.  It was the Appellant’s evidence said he did not do so.

13.  Although the Learned Magistrate had committed an error by appearing to have compared the evidence of the prosecution witnesses and the defence witnesses as this is a magistracy appeal which is treated as re‑hearing on the facts as found by the Learned Magistrate, I am of the view that the defence had failed to prove on a balance of probabilities that he believed for good and sufficient reason that the Ordinance had been complied with, nor has it been made out on a balance of probabilities that the Appellant took “all reasonable steps to prevent the commission of the offence”.

14.  I found, therefore, that the offence had been proved beyond the reasonable doubt and that neither the statutory defence nor the common law defence have been made out.  The appeal is therefore dismissed.