HONG KONG SPECIAL ADMINISTRATIVE REGION v. WONG TIN CHUK

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 285 OF 1997

(On appeal from WSC 10215/96)

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J U D G M E N T

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1. The appellant, WONG Ting-chuk, was convicted after trial on a charge of attempting to export unmanifested cargo and a charge of attempting to export prohibited articles without a licence. He was sentenced to two years' imprisonment for each of the two charges to run concurrently. He now appeals against the conviction only.

2. The facts of this case can be summarised as follows: on 6ecember 1995, an outgoing vessel from Hong Kong was intercepted off West Lamma Channel. The vessel was found to be carrying 38 containers. Nine of the containers were declared to be chemical products. In fact, when they were opened for examination in the presence of the shipping agent and the vessel master, a total of 32 left-hand drive vehicles were found inside. There was no export licence for those vehicles as prohibited articles. The cargoes were destined for Xiamen in China. The consignors were Kin Tai Trading Company and Tung Hing Industrial Company. Kin Tai was responsible for three of the containers and Tung Hing was responsible for the remaining six. The bills of lading in respect of the containers described the contents as chemical products.

3. The shipping agent for this vessel in question was Fleet Trans International Company Limited. According to the shipping clerk of this Fleet Trans International Company Limited, Mr YIP Hon-ming, who was the eighth prosecution witness, the preparation of the bills of lading and the cargo manifest in question were made on the instructions of the appellant representing the Kin Tai Trading Company.

4. Mr YIP said he first met the appellant at the end of 1994 in the appellant office when he went there to deliver a calendar to him and he was also given a name card of the appellant. Since then, he said he had dealings with the appellant on the telephone on 20-odd occasions when the appellant placed orders. Mr YIP said the consignment in question was also made on the instruction of the appellant, except the appellant specified the consignor name should be recorded as Tung Hing Industrial Company and Kin Tai Trading Company.

5. According to Mr YIP, the appellant also requested that the cargo in question was to be described in the pre-made form as ATER" and P" meaning material and plastic material respectively. Based on the instructions of the appellant, MrIP prepared the bills of lading and the cargo manifest in question. Mr YIP also said that he asked the appellant to fax him the information regarding the consignment in question. As a result, certain information was obtained and incorporated in the shipping documents in question.

6. Mr YIP, under cross-examination, said he recognised the appellant as he met him face to face for some 15 to 20 minutes in December of 1994 when he went to the appellant office to deliver a calendar. He also said the appellant would call him almost every week to make or to place orders. He said on those occasions he could recognise the appellant even though the appellant had not announced his name.

7. The evidence also suggested that Kin Tai Trading Company was in fact registered in the name of a Mr KONG Yu-ngai, prosecution witness number 13. According to Mr KONG, originally he was working as a messenger in Kin Tai and he was asked by the appellant to register himself as the proprietor of Kin Tai. Mr KONG further said that after the present offences were discovered, he had a meeting with the appellant in a hotel restaurant in North Point where he was told by the appellant that as he had been registered as the proprietor of Kin Tai, he was worried that the Customs and Excise Department would interview him. The appellant then told Mr KONG to say that he did not - that is, Mr KONG - did not know the appellant or else both of them would have problems.

8. The appellant, in his evidence, agreed that he was responsible for buying 29 of the 32 vehicles in question. He said he did so for a client whose name is CHAN Wai-wah. He said he left the rest of the transaction to an employee of his. In his evidence, he denied all knowledge of Kin Tai. He denied any contact with Mr YIP. He said he, in fact, had no recollection of seeing Mr YIP or talking to him over the telephone.

9. But the trial Magistrate rejected the evidence of the appellant. He found it as a fact that Mr YIP had correctly identified the appellant as the person who placed the orders for the nine containers in question. The learned Magistrate concluded that the appellant sought to distance himself from the transaction by saying that he had no direct dealings with Mr YIP. The learned Magistrate further found that the act on the part of the appellant to order the containers, describing the cargo and obtaining the bills of lading in question were immediately connected with the act of exporting the cargo and intended and constituted part of the act of export. In his statement of findings, he correctly set out the principle of law as set out in the case of AG v TSE Hong-lit (1986) 1 Appeal Cases at page 885.

10. As the appellant had organised the exportation of the vehicles in question, the learned Magistrate found the two charges against the appellant proved to the required standard. No point was taken on that issue of law. In this particular application, Mr Plowman advanced one simple argument basically. The suggestion, if I understand it correctly, was that the only evidence connecting the appellant to the exporting of the vehicles in question came from Mr YIP Hon-ming who based his identification of the appellant by way of voice recognition. It was suggested that a conviction based on such voice identification would be unsafe and unsatisfactory when he recognised the voice of the Mr WONG who placed the order in question as the Mr WONG who had placed 20-odd orders in 1994 to 1995, and that the Mr WONG who had placed the 20-odd orders was the appellant whom he had only met once in the month of December of 1994.

11. Mr YIP evidence on this aspect was specific. He said after meeting the appellant in December of 1994, the appellant would call him almost every week. He said he would recognise the appellant even though the appellant did not announce his name or his identity. When we talk about recognising someone by his voice, it does not necessarily mean that it just the voice itself as such. The Court must bear in mind that very often recognition of a voice will also depend on the transactions between the parties having the conversation, the content of the conversation - these are all factors attributable to the recognition of the voice. Bearing in mind the frequent contact between the appellant and Mr YIP and the conversations between them related to placing orders, and according to Mr YIP, it was the appellant who specified that the consignors of the cargoes in question should be Tung Hing and Kin Tai, and that the cargo should be described as ATER" and P", in my view, the learned Magistrate was entitled to find, as he did, that Mr YIP had in fact correctly identified the appellant as the one who placed the relevant orders in question. In addition to the evidence of Mr YIP, there was of course the further evidence from Mr KONG - that is PW13, Mr KONG Yu-ngai - that it was the appellant who asked him to be registered as the proprietor of Kin Tai, and that after the cargoes in question were intercepted by the Customs and Excise Officers, the appellant instructed Mr KONG not to link him to Kin Tai. While this aspect might not directly link the appellant to the two offences in question, it was clearly a matter that the Magistrate was entitled to take into consideration and that he did take those matters into consideration as demonstrated in his Statement of Findings.

12. One further complaint was made on the absence on the part of the learned Magistrate to warn himself of the danger or the special need for caution to convict someone when the conviction depends wholly or substantially upon the correctness or otherwise of the identification of an accused by his voice. The learned Magistrate, both in his oral Reason for Decision as well as his written Statement of Findings, said that he had given himself the appropriate warnings.

13. In my view, he had, by saying that, adopted sufficient indication that he had in mind the risk involved when the case depends on the correctness or otherwise of the voice identification. Quite clearly, he had in fact been referred by prosecuting counsel in his written submissions to the relevant law in question. After all, he is a professional magistrate. He needed not, in every Statement of Findings, set out precisely and word for word, the relevant law in question. That would be imposing an impossible task on a busy Magistrate.

14. On the evidence as a whole, the learned Magistrate was entitled to find the charges against the appellant proved beyond reasonable doubt. In my view, there is nothing unsafe and unsatisfactory about the convictions in question. The appeal is therefore dismissed.