HKSAR v. WONG YAN CHIU AND OTHERS

HCMA 1344/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1344 OF 2001

(ON APPEAL FROM ESCC 1203/2001)

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J U D G M E N T

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1. The prosecution fairly and correctly in this matter accepts that the convictions cannot stand.

2. The fundamental problem is that the English version of the charge refers to an offence that the Accused "knowingly dealt with the cargo ... with intent to assist another person to export the cargo without a manifest". That is correctly said to be an offence contrary to Section 18A(1)(c) of the Import and Export Ordinance.

3. That is the charge of which the Magistrate at the conclusion of the trial convicted the Accused.

4. Although the Chinese version of the charge sheet refers to the same sub-section, the charge that was actually preferred against the Accused is that they "knowingly dealt with cargo ... with intent to export the cargo without a manifest". That in fact is an offence contrary to Section 18 of the Import and Export Ordinance.

5. That aside, it is glaringly apparent that there is a total difference in the two charges.

6. The Accused were asked to and did plead to a charge that they handled the cargo with intent to export it, whilst the Magistrate understandably dealt with the matter on the basis that they were dealing with the cargo with the intention of assisting others to export it. This is a fundamental error which has occurred unfortunately at the level of the drawing of the charge sheet, the Magistrate working from the English version and the court interpreter understandably working from the Chinese version.

7. The appeal against the conviction is allowed and the conviction is set aside and the sentence is quashed. There is no application by the prosecution for a re-trial and there is no application by the Accused for any order as to costs.