R. v. NG CHI WAI

IN THE COURT OF APPEAL

Magistracy Appeal
1995, No. 352

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J U D G M E N T

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Hon Yang, C.J.:

1. Ng Chi Wai (Ng) was convicted after trial at the Kwun Tong Magistracy on a charge of attempting to export unmanifested cargo.

2. His appeal against conviction was heard before us on an order made by Bokhary JA under s.118(1)(d) of the Magistrates Ordinance.

3. The charge against Ng was brought under s.18(1)(b) of the Import and Export Ordinance, Cap.60 ("the Ordinance"). The particulars of the charge are that on 20 October 1994, at the Kwun Tong Cargo Handling Basin, Hoi Bun Road, Kwun Tong, Ng attempted to export unmanifested cargo, namely, four private cars, to China.

4. Under caution, Ng claimed that Lau Yun Hing (Lau), a man who he did not know well, telephoned him at noon on 20 October and asked him to tow a container to Kwun Tong. At 2:00 pm Lau met Ng at the Kwong Lung Carpark at Lok Ma Chau. He told Ng that the container had to be loaded onto the vessel at 4:00 pm on the same day. He also said that someone would give him a delivery note when he arrived at the cargo handling area. Then Ng should go to the Lee Hing Company to carry out the vessel loading procedure. Ng said he did not know the one who gave him the delivery note. Ng said he was told that the container contained paper products and he had not opened the container to have a look.

5. According to the Brief Facts which Ng admitted, the container was lifted from his trailer and then onto the ship through a barge. He was promised $800 as a reward. The shipping document which Ng received showed that the ship was to head for a port on Mainland China.

6. The trial magistrate was of the view that these facts must have raised a suspicion and should cause Ng to exercise reasonable diligence.

7. By s.18(2) of the Ordinance:

"It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested."

8. Noting that he was here dealing with a strict liability offence, he concluded that Ng had failed in his duty of reasonable diligence required of him.

9. There are four grounds of appeal. In our judgment the first ground is sufficient to dispose of the appeal. We do not propose to deal with the other grounds.

10. The first ground of appeal reads:

"The Learned Magistrate was wrong in law to find that the actions of the Appellant in delivering the unmanifested cargo to the Kwun Tong Cargo Handling Area and leaving it there amounted to an attempt by the Appellant to export the said cargo from the Territory of Hong Kong."

11. On the facts of the case, there could not be an attempt on Ng's part to export the cars. He might have been aiding and abetting some person to export the cars but that was not what he was charged with. The action he took may more appropriately be interpreted as acts of preparation. It does not appear that he had done any act which was one of a series of acts which would, if completed, achieve the purpose of exporting. In any case it would not be his purpose to export; the purpose was someone else's.

12. In The Queen v. Chan Kwong and Another [1987] HKLR 756 (at p.763), an example between a preparatory act and an attempt was given:

"X, intending to commit murder, buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoitres a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. X takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder; but he might have desisted or been interrupted at any one of the stages described. At what point is he immediately and not merely remotely connected with murder to be guilty of an attempt?"

13. In any event the attempt must be an attempt by the accused to complete the crime which he was intending to commit, not a crime which was for some other person to commit.

14. The facts do not support the offence charged. The appeal is allowed.

15. The conviction is quashed and the sentence set aside.