HKSAR v. TANG KWAI WA

HCMA 556/2019

[2020] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 556 OF 2019

(ON APPEAL FROM TMCC NO 2979 OF 2018)

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REASONS FOR DECISION

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Introduction

1.  On 15 August 2019, the Applicant was convicted after an 18-day trial before Deputy Magistrate Mr Peter Hui in the Tuen Mun Magistrates’’ Court of one count of importing unmanifested cargo[1], contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60 (“IEO”) (Charge 1) and was sentenced to a term of 18 months’ imprisonment. He was also convicted on his own plea of a separate count of possession of goods to which Dutiable Commodities Ordinance applies, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap 109 (Charge 2)[2].   

2.  On 9 September 2019, the Applicant lodged an appeal against conviction in respect of Charge 1 only.  He applied for bail pending appeal. On 4 December 2019, having heard submissions from leading counsel Mr Andrew Bruce SC (with him Mr William Allan[3]) for the Applicant and Mr Oscar Tan, Public Prosecutor for the Respondent, I refused the application and said I would hand down the reasons for my decision. These are those reasons.

The case at trial

3.  In a nutshell, it was the prosecution case at trial that the Applicant had smuggled into Hong Kong 35 pieces of gold slabs (worth HK$10.76 million in total) which were hidden inside the rear compartment of the private vehicle driven by the Applicant when he was attempting to cross the Shenzhen Bay Control Point. Apart from facts admitted under section 65C of the Criminal Procedure Ordinance, Cap 221, the prosecution called a total of 7 witnesses to testify at trial. As summarized by the learned Magistrate, the crux of the prosecution witnesses’ evidence is as follows:

“ 6.  PW2 is senior customs officer 9054. At the material time, he was on duty at the customs private car arrival kiosk no. 7 when a private car registration no. SN312 approached his kiosk after immigration clearance. There was only the driver in the car. He asked the driver if he has anything to declare. The driver answered him “No”. Nonetheless, he directed this vehicle to undergo examination.

7.  PW1 is senior customs officer 98239. He was on duty and in charge at the inbound private vehicle examination centre at the time. According to his evidence, examination of the [Applicant]’s vehicle was carried out by his subordinate customs officer 98285 (PW4) and customs officer 1759 (PW5). After initial examination, nothing suspicious was found inside the car and nothing suspicious was found either on the [Applicant] after the body searched (sic). Nevertheless, PW1 decided to conduct a more thorough examination on the car by means of X-ray examination. By X-ray he detected something suspicious at the rear of the car. A bag of gold slabs was eventually found by PW4 at the rear compartment of the car.

8.  PW4 is customs officer 98285. It was he who found the bag of gold slabs at the rear compartment of the [Applicant]’s lift-back car (as depict[ed] by P37 photo no. 4). According to his evidence, that bag was hidden in a hollow space at the right side of the trunk and that space was covered up. There were miscellaneous items kept at the rear compartment. He needed to lift a board up, removed a toolbox and a rubber mat before the bag came to his sight, as depicted by P37 photos 5-9. With this finding, he declared arrest on the [Applicant] there and then for being suspected to have contravened the Import and Export Ordinance, for importing unmanifested cargo and cautioned him. After cautioned, he carried out investigation from the [Applicant]. He asked a total of 5 questions and the [Applicant] answered each and every one as follows: -

Q1. This bag of stuff that was found here just now, to whom does it belong?

A: Me.

Q2.  What is (in) this bag?

A: Gold bullion.

Q3. Who put (it) inside?

A: Don’t remember.

Q4. What is this batch of gold bullion for?

A: Take (it) back to my home and put (it) there.

Q5. Have you made any declaration verbally or in (any) document to the Hong Kong Customs & Excise Department for importing this batch of gold bullion?

A: No.

Later on the same day, in the presence of the [Applicant], he made a post entry of the arrest in his official notebook P40. At the end of the post entry, at his request, the [Applicant] copied down a declaration and signed to confirm the post entry to be true and correct.

9.      PW5 is customs officer 1759. He gave similar evidence as PW1 and PW4 about the examination of the [Applicant]’s car and the eventual finding of the bag of gold slabs. The rest of his evidence concerns his subsequent guarding of the [Applicant] and events happened during that period.”

4.  The Applicant did not give evidence or call any witness in his defence on both special and general issues. He challenged the admissibility of the verbal admission allegedly made by him at the scene and the post-recorded notebook entry (Exhibit P40) taken by PW4 from him under caution[4]. Upon hearing evidence on the special issue, the Magistrate ruled the impugned cautioned statements admissible, rejecting a submission of no case by the Applicant’s counsel Mr Allan, as well as a subsequent application by him for leave to review the ruling on special issue after a site visit to the scene in the middle of the trial.

5.  On general issue, Mr Allan again submitted no case to answer but this time on a basis contrary to the stance he adopted on special issue, arguing that the Magistrate should place full weight on the Applicant’s admission instead. That submission was also rejected and the Magistrate proceeded to hear closing submissions by counsel, the Applicant having elected not to give evidence or call any witness on general issue.

6.  In his closing submission, Mr Allan contended inter alia that no declaration is required for bringing gold into Hong Kong as Hong Kong is a free port for gold trading and there are no restrictions on the amount of gold a private individual can carry. He further submitted that the word “cargo” means goods carried on a large cargo vehicle, vessel or plane and that the word “import” connotes goods that are for sale. Relying on the Applicant’s cautioned admission that the gold slabs belonged to himself and that he intended to take them home and put them there, it was said that they were his “personal belongings” for his “personal use” and therefore not “cargo” as defined in section 2 of the IEO.

7.  Noting that the definition of “cargo” contains various exceptions and that Mr Allan had not made it clear whether he would be relying on any of those exceptions, the Magistrate raised this with counsel at an adjourned hearing before delivery of verdict and invited further submissions from both parties on the issue.  In response to the Magistrate’s query, Mr Allan initially indicated that he would be relying on two of the exceptions (i.e., (c) and (e)) in the definition of cargo, but he later retracted from that position at the resumed hearing. Instead, he sought a ruling of trial de novo on the ground that there had been a material irregularity in that the prosecutor should not have been allowed to make any closing submission, the Applicant having neither testified nor called any evidence. He prayed in aid section 56 of the Criminal Procedure Ordinance and the case of R v Bryant & Oxley [1978] 2 WLR 589.

8.  The Magistrate rejected that contention of Mr Allan’s and went on to find that the prosecution had proven Charge 1 against the Applicant beyond all reasonable doubt. In particular, the Magistrate considered the meaning of “cargo” under section 2 of the IEO and held that it is not a requisite for a cargo to be related to sale, trade or business purpose. He also took note of the exceptions under the definition of “cargo” and concluded that none of them applied to the gold slabs in question. He found that the large quantity of gold slabs seized from the Applicant’s car could not be for “personal use” in the circumstances of this case and accordingly convicted the Applicant as charged.

Grounds of appeal against conviction

9.  The grounds of appeal raised by the Applicant can be broadly categorized into the following four topics.

(1)  There was a material irregularity at trial which rendered the conviction unsafe and unsatisfactory in that the prosecutor was wrongly allowed to make a closing speech by way of two written submissions, notwithstanding that the Applicant had not testified or called any witnesses. In any event, the closing submissions did not comply with the requirement that they be of becoming brevity. (Grounds 1 & 2)

(2)  The Statement of Findings was in real and substantial disconformity and of substantially greater length than the oral reasons for verdict delivered by the Magistrate at the time of conviction, suggesting impermissible ex post facto reasoning. (Ground 3)

(3)  The Magistrate erred in failing to take into account the exculpatory component of the Applicant’s admission against interest. (Ground 4)

(4)  The Magistrate erred in holding that the gold slabs in question constituted “cargo” within the meaning of the IEO. The gold slabs should in fact be excluded from the definition of cargo being “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him” – one of the exceptions in the definition. (Ground 5)

Principles on bail pending appeal

10.  It is trite that a person convicted and sentenced to a term of imprisonment does not have a right to bail pending appeal. In respect of magistracy appeals, the Court has a discretion to admit an appellant to bail pending appeal under section 122(2) of the Magistrates Ordinance, Cap 227, which provides that “a judge may, on the application of an appellant who is in custody, admit the appellant to bail pending the determination of his appeal or any proceedingtherein”.  Such discretion, however, would only be exercised in exceptional circumstances. The general rule is that bail pending appeal is normally only granted where prima facie the appeal is likely to be successful or where there is a risk that the sentence or a substantial part of it would have been served by the time the appeal is heard.[5]

11.  As summarised by Chu JA in HKSAR v Sheung Kit Fung and Another, CACC 149/2013, unreported, 15 August 2013:

“5. ...Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful (‘merits’ ground), or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard (‘time’ ground): HKSAR v Lau Man Kin [2010] 1 HKLRD 336. Where the ‘time’ ground is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.”

12.  In respect of the “merits” ground, the threshold has been expressed in various ways, but generally speaking, the appellant must be able to demonstrate that he/she has a strong likelihood of succeeding on appeal with a consequence that he/she will be at liberty.[6]

13.  In relation to the “time” ground, it has been held that the appeal must still be shown to be at least “reasonably arguable” or “promising”.[7]  In other words, even if the sentence is such that the whole or a substantial part of it would have been served by the time of the appeal is determined, the appellant must still demonstrate that the appeal has merit before bail may be granted.[8]

14.  Given that the present application arose from a magistracy appeal, it is also pertinent to bear in mind what Zervos J (as his Lordship then was) said in HKSAR v Mohomed Rahoof Mohomed Sajahan, HCMA 270/2014, unreported, 4 July 2014, at §3:

“3.  It should be understood that a magistracy appeal is a rehearing on the papers and the court on an application for bail pending an appeal against conviction will address the preliminary questions of the strength of the appeal and the time served by asking itself as to the former whether there is a strong likelihood that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal, and as to the latter whether there is a risk that the sentence imposed on the applicant or a substantial part of it would have been served by the time the appeal is heard and the appeal is reasonably arguable in the sense that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal.”

Evaluation

15.  Applying the above principles, I turn to consider the strength of the individual grounds of appeal on the basis of the 4 topics as categorized above. At the hearing of this application, Mr Bruce focused mainly on topics 1, 2 and 4.  

Topic 1

16.  Topic 1 concerns the right of the prosecution to make closing submissions. The relevant principles are set out by the Court of Final Appeal in HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298.  In support of his argument, Mr Bruce referred to §31 of Brandon Leung where Stock NPJ, having reviewed the English practice, observed that “[i]t is common ground that ... where a defendant is represented by counsel and does not give evidence and does not call witnesses, the prosecutor still has a right to make a closing speech but it is a right which should be exercised sparingly and, when exercised, the speech should be brief: R v Bryant”. It was submitted that the Magistrate should not have done what he did even if he considered that he needed assistance from counsel. Mr Bruce described the closing submissions made by prosecuting counsel at trial as “wide-ranging both as to law and as to fact and credibility”, “lengthy” and on no account “of becoming brevity”.

17.  In reply, Mr Tan for the Respondent submitted that a judge or magistrate is entitled to require counsel representing either side to assist the court at any stage of the trial regarding question of law and this was what happened in this case. He prayed in aid what the Court of Appeal said at §45 of HKSAR v Zhuo Yaying [2016] 3 HKLRD 925 – a case mentioned by Stock NPJ in§43 of Brandon Leung when his Lordship was reviewing the relevant authorities on the Hong Kong practice, thus:

“45. ...But we take the view that the above principle is only applicable to closing submission that concern facts. A District Judge is entitled to require counsel representing either side to assist the court at any stage of the trial regarding questions of law. Even where the defendant is not represented and has called no witness, if at any stage of the trial the Trial Judge finds the need to ask the prosecution to assist the court on certain questions of law, the prosecution has the right and the obligation to address the court on these points of law to assist the court....”

18.  It is to be noted that in Brandon Leung the Court of Final Appeal held that while the appellant had succeeded in demonstrating an error by the magistrate and the intermediate appeal judge in holding that the prosecutor enjoyed a right of reply, he had not succeeded in establishing that the procedural error in the magistrates’ court “infected the fairness of the process as a whole”. It was especially relevant that on appeal to the Court of First Instance, which was by way of rehearing, the appellant was represented by counsel.[9] 

19.  In the present case, I had the benefit of the written submissions presented by the prosecutor to the Magistrate at trial.  Suffice it to say that the thrust of the submissions was on matters of law and statutory interpretation concerning the definition of “cargo” and the exceptions thereto. In the circumstances of this case, especially given how the relevant issues arose in the course of the hearing, I could well understand why the Magistrate felt the need to seek clarifications and submissions from both parties on the legal issues he identified. In any event, I do not think what had happened here had infected the fairness of the trial at all or to any extent as to require the quashing of the conviction. I was not convinced that these two grounds have a reasonable prospect of success.

Topic 2

20.  Ground 3 concerns the alleged discrepancies between the oral reasons for verdict and the subsequent Statement of Findings. As revealed in the transcript of the oral verdict, the Magistrate made it clear at the outset that those were his “brief” reasons for verdict.  A comparison of the oral verdict with the Statement of Findings shows that they essentially covered the same issues[10] and followed the same analysis and line of reasoning. Read as a whole and in context, I did not detect any material inconsistency between the two. To the extent that they are at variance, the difference did not appear to me to justify the quashing of the conviction, especially bearing in mind the nature of a magistracy appeal being a rehearing on the papers. Accordingly, I was also not convinced that this ground is likely to succeed.

Topic 3

21.  Although Mr Bruce did not place much emphasis on Ground 4 (which attacks the Magistrate’s treatment of the exculpatory component of the Applicant’s cautioned admission), I should mention that I was not persuaded that this ground would likely succeed. It is trite that a magistrate is entitled to give no or less weight to the exculpatory part of a cautioned statement, and the Magistrate was clearly alive to this legal principle.  Further, as pointed out by the Respondent, if the gold slabs indeed belonged to the Applicant and he intended to keep them at home (as he asserted in those undisputed answers under caution), it would be implausible for him to forget who put such substantial quantity of gold slabs in the vehicle in the first place. This ground did not appear to me to have any merit. 

Topic 4

22.  Ground 5 turns on the meaning of the word “cargo” in the context of IEO and the proper construction of the various exceptions provided under that definition, more particularly exception (e).

23.  “Cargo” is defined under section 2 as follows:

“ ‘cargo’ (貨物) means any article which is imported or exported other than −

(a) the necessary equipment, stores or fuel of the vessel, aircraft or vehicle in or on which the article is imported or exported;

(b) food and other provisions reasonably required for consumption by the crew or passengers of such vessel, aircraft or vehicle;

(c) items of personal property reasonably required for the personal use of the crew or passengers of such vessel, aircraft or vehicle;

(d) any document relating to −

(i)  the carriage of cargo in or on such vessel, aircraft or vehicle; or

(ii) the inter-office business transactions of the owner of such vessel, aircraft or vehicle;

(e) articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him; and

(f) any article in transit unless such article is a prohibited article not falling under paragraphs (a) to (e).”

24.  Mr Bruce contended that the gold slabs in question fall within exception (e) being articles imported by the Applicant as a “passenger” of the vehicle (despite that he was the one driving the car at the time and there was no one else on board). It was said that the gold slabs should be regarded as the Applicant’s personal belongings and the fact that the Applicant was the driver of the vehicle in which he was found should not exclude him from coverage of the exception.  Mr Bruce added that it would be discriminatory and unacceptable to draw a distinction between a “driver who might be travelling by himself” and a passenger in its literal sense. He made the further point that such a distinction may even infringe article 25 of the Basic Law which guarantees equality before the law.

25.  It would appear to me to be straining the language of the statute if one adopts the construction given by Mr Bruce to the relevant exception in the definition of cargo. The Applicant being the driver and person in charge of the vehicle at the time did not qualify as a “passenger” in the sense envisaged in the particular exception.  Furthermore, such an interpretation did not seem to me to sit well with the legislative intent and purpose of the relevant provisions in the context of the IEO. With respect to Mr Bruce, notwithstanding the ingenuity of the argument, I was not convinced that this ground has a realistic likelihood of success.

Conclusion

26.  In the premises, I was not satisfied that there is a reasonable prospect of success on the grounds against conviction as advanced by the Applicant.  The Applicant did not satisfy the “merits” limb.

27.  Turning to the “time” factor, the Applicant was sentenced to 18 month’s imprisonment on 15 August 2019 and will therefore be eligible for discharge from prison in around August 2020 the earliest, taking into account the one-third remission for good behavior in prison.  As it transpired, the Applicant’s appeal was scheduled to be heard in early March 2020, by which time he would only have served slightly more than half of the sentence after remission. Accordingly, the Applicant did not satisfy the time served limb either.

28.  It was for the above reasons that I refused the application for bail pending appeal.