ATTORNEY GENERAL v. SNEN BAO CHARNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1029 OF 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal by the Crown by way of case stated from a decision of Mr. G. Watson, a Magistrate sitting at Fanling on the 4th and 6th of April 1985 when he dismissed an information laid against the Respondent. It reads as follows:

"Statement of Offence : Contrary to Common Law and Regulation 4(1) of the Import and Export (General) Regulations, Chapter 60.

 

Particulars of Offence : SNEN Bao-charng, TSAY Jin-guey, CHOM Shm-fuu, YEH Shin-yik, GUO Shoei-sheng, together with Ah Wai, Ah Chu and others also not in custody, between the 1st day of January 1985 and the 28th day of February 1985, conspired to export from Hong Kong prohibited articles, namely, 1,369 sets of Sony Video Decks, otherwise than in accordance with the provisions of the Import and Export Ordinance, Chapter 60."

The Evidence

2. Evidence was given by a Marine Police Sergeant who said that on the 28th of February 1985 he was in charge of a police launch off Kai Kung Tan, within Hong Kong waters. At 2:30 p.m. he intercepted a Taiwanese fishing vessel and found on board the Respondent and four other men, all Taiwanese. The Respondent was the captain of the vessel and the others his crew. Also on board were found 1369 Sony video tape recorders ("videos") in sealed plastic bags.

3. The Respondent said he was going to Taiwan and he produced a manifest and an invoice for the videos.

4. The Respondent was asked if he had an export licence for the videos but could not produce one.

5. The Respondent's vessel was taken to Tai Po Kau Marine Police Station and a Customs Officer recorded a cautioned statement from the Respondent which was not challenged. In it the Respondent said he was master of the vessel and that 1370 videos were found on it by the Police officers which had been delivered from another vessel by a man called Ah Wai. The location of the transfer was outside Hong Kong waters. The videos were to be taken to a man called Ah Chu in Taiwan who would pay the Respondent and his crew 530,000 Taiwan dollars. There was no export licence for the videos.

6. It was admitted that the videos were a prohibited export from Hong Kong unless licensed.

7. The invoice which was produced by the Respondent comes from the Cheng Kai Company in Queen's Road, Hong Kong, and is addressed to "Brother Hip Wing, Taiwan Province, Kaohsiung City". The videos have circuiting suitable for use in Taiwan and the U.S.A.

8. The Respondent did not give evidence nor did the crew members and the Magistrate ruled that the crew members had no case to answer (indeed one wonders why they were ever charged).

Findings

9. The Magistrate dismissed the charge against the Respondent. In the case he has stated he found that the Respondent was the master of the vessel and the videos were found on it in Hong Kong waters. They were to be taken to Ah Chu in Taiwan and did not have an export licence, thus being a prohibited export. He also found that there was a relevant manifest showing that the videos were placed on board the vessel for a voyage to Taiwan and had been shipped by Cheng Kai Company of Queen's Road, Hong Kong.

10. He found that he could use the Respondent's own statement as evidence that the videos were placed on board the vessel outside Hong Kong waters. That was the only evidence but he relied on Chong Chiu v. R (1980) HKLR 50. The magistrate's most important finding of fact was however as follows :

"7.    I was of the opinion and found that there was evidence from which it could be inferred that the Respondent entered into an agreement with Ah Chu in Taiwan to collect from Ah Wai the videos and convey them to Taiwan. The intention of that agreement was either in breach of the laws of Hong Kong or Taiwan. The Respondent was a mere participant in a proposed offence and acting under the direction of Ah Chu for gain. Looking at the evidence as a whole it was not possible for me to infer that there was an agreement between the Respondent and others that could constitute a conspiracy. I therefore gave the Respondent the benefit of the doubt and acquitted him."

Ruling

11. The magistrate found he could accept the Respondent's statement as evidence that the videos had been put on board outside Hong Kong. However he was not apparently referred to Leung Kam-kwok v. R. (1985) 83 C.A.R. 83 at 91 where the Privy Council, per Lord Roskill, declined to follow Cheng Chiu v. R. and preferred dicta of James, L.J. in Donaldson and ors. (1977) 64 C.A.R. 59 at 65. This was to the effect that where an admission is made any other part of the statement which contain qualifications or explanations favourable to the defendant are also admissible. "I shot him. I was provoked" must be taken in its entirety or not at all. If the accused does not give evidence the jury must be told that the explanation has not been tested in cross-examination but it is for them to consider. That decision has now been referred to in R. v. Peter Liu and anr. Criminal Appeal 520/84.

12. Here the statement that the videos had been placed on the vessel outside Hong Kong waters was made in answer to a separate question asked by the interviewing officer and was not given by the appellant as an explanation or excuse. If the appellant had said "I was taking the videos to Taiwan but I loaded them outside Hong Kong waters" the position may have been different but he did not say that. However, in any event, the Respondent, when intercepted, was in Hong Kong and was taking the videos out without a licence and I do not think it mattered if they had been placed on the boat outside Hong Kong and brought back in. They were in Hong Kong at the time of the interception and on their way to Taiwan.

13. From the findings of fact here it seems clear that the videos were placed on the vessel for the purpose of export to Taiwan and that there was no export licence for them. Section 34(b)(iv) of the Import and Export Ordinance, Cap. 60 provides that :

                "34.       In any proceedings under this Ordinance the onus of proving -

    (b) that an article -

(iv)	has been lawfully  placed in or on any vessel, aircraft or vehicle for the purpose of exporting the article

 

shall lie on the defendant in any criminal proceedings or on the claimant in any forfeiture proceedings."

Here there was no such evidence called by the Respondent. It was argued that the charge here was conspiracy to export prohibited articles and the presumption did not therefore apply. That point was considered by the Court of Appeal in Lee Sik-cheung and ors. v. R. (1965) HKLR 765. Hogan, C.J. said -

"......the case in the court below was conducted by all concerned on the basis adopted by the Judge in his summing-up, that is to say, that section 15 of the Ordinance did not apply to this charge of conspiracy (to deal with dangerous drugs). When, however, we put the point to counsel on appeal, counsel for the Crown indicated that on further consideration he was satisfied that the presumption applied equally to this charge as well as to the charge of possession. Counsel for the appellant was inclined at first to question this approach but on further consideration indicated that he did not feel that he could argue against it. It is not a matter on which, without an opportunity for full consideration and possibly further argument by counsel, we should feel disposed to express any final conclusion, but, as at present advised, we see no reason why the presumption should not apply on both charges."

The doubt, so far as prosecutions under the Dangerous Drugs Ordinance was cured by the incorporation in the 1969 Ordinance, Cap. 134 of Section 39 -

"...... any special rules of evidence which apply to the proof of that offence under this Ordinance shall apply in like manner to the proof of conspiracy to commit such offence".

14. It could be argued that lack of such a provision in the Import and Export Ordinance indicates a contrary intention of the legislature. I do not think that is so and I agree with the dicta of Hogan, C.J. in Lee Sik-cheung but would add that consideration should be given to the removal of doubt in all charges of conspiracy where there are evidential provisions in the relevant Ordinance.

15. The Magistrate found that there was evidence from which it could be inferred that the Respondent entered into an agreement with Ah Chu in Taiwan to collect from Ah Wai the videos and convey them to Taiwan. I am satisfied from the uncontested evidence that there was no other possible conclusion. He goes on to say that the Respondent "was a mere participant in a proposed offence and acted under the direction of Ah Chu for gain". That seems a clear finding that there was an offence and the Respondent was a participant in it but he goes on to say that he could not be satisfied that there was an agreement between the Respondent and others which was a conspiracy. I take it from that that he found that while there was an agreement he was not satisfied it was to do an unlawful act and therefore it was not a criminal conspiracy which does seem to conflict with his previous finding that the Respondent was a participant in a proposed offence.

16. The Crown relies, as concerns agreement with Ah Chu in Taiwan, on DPP and Doot (1973) 57 Cr. App. R. 600 and in particular dicta of Lord Pearson at 619 that if that agreement was a conspiracy, as the magistrate seems to have found, it is triable in Hong Kong if it was partly performed in Hong Kong. Lord Pearson said :

"         On principle, apart from authority, I think (and it would seem the Court of Appeal also thought) a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England. In such a case the conspiracy has been carried on in England with the consent and authority of all the conspirators. It is not necessary that they should all be present in England. One of them, acting on his own behalf and as agent for the others has been performing their agreement, with their consent and authority, in England. In such a case the conspiracy has been committed by all of them in England. Be it granted that "All crime is local" and "the jurisdiction over the crime belongs to the country where the crime was committed" per Lord Halsbury in MACLEOD v. ATTORNEY-GENERAL FOR NEW SOUTH WALES [1891] A. C. 455 at p. 458. The crime of conspiracy in the present case was committed in England, personally or through an agent or agents, by all the conspirators."

That decision was followed in New Zealand in R. v. Sanders (1984) 1 NZLR 636.

17. Mr. Mullick relied on The Attorney General 's Reference No. 1 of 1983 (1983) 77 Cr. App. R.9, where it was held that a conspiracy entered into in England to defraud persons abroad was not triable in England even if it might cause economic loss there as that was not its object. I do not consider that is relevant here. Clearly if there was a conspiracy either in Hong Kong or Taiwan it was to do an unlawful act in Hong Kong.

18. Mr. Mullick also relied on R. v. Churchill (1967)2.AC 224 which relates to the question of whether mens rea was necessary where the offence itself was one of absolute liability, which is the case here. (see R. v. TSE Hung-lit Crim. App. 520 of 1984). In R. v. Churchill the appellant had been acquitted of conspiracy to defraud the revenue but convicted of joining an agreement to do an unlawful act, i.e. to use fuel in vehicles which had not been taxed, albeit without his knowledge. At 237 Viscount Dilhorne said "In answer to the question posed, by the Court of Criminal Appeal in this case, I would say that mens rea is only an essential ingredient in conspiracy in so far as there must be an intention to be a party to an agreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial and that knowledge of the facts is only material in so far as such knowledge throws a light on what was agreed. He goes on to say "The question is what did they agree to do? If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them what they agreed to do was lawful they are not rendered artifically guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed on."

19. Clearly here the respondent, on the facts found, agreed with Ah Chu in Taiwan to do an act in Hong Kong. There is no evidence that they realised then it would be unlawful - Ah Wai may well have had a permit. When the goods were placed on board the vessel for export and no permit was produced it became unlawful and by continuing with the agreement the Respondent must then be conspiring with Ah Chu. This, it seems to me, must be so even if Ah Chu could not also be convicted, on the basis of the dicta in Churchill. This is by reason of Section 66A of the Criminal Procedure Ordinance, which reads as follows:

"66A.     A person shall not be entitled to be acquitted of the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted."

20. I am therefore satisfied that on the Magistrate's findings of fact when the videos were placed on board his vessel without an export permit the Respondent by then agreeing to export them conspired with Ah Chu, as alleged. He probably also conspired with Ah Wei but there was no evidence that Ah Wai did any more than bring the videos on board.

21. My answer to the questions put by the Magistrate are therefore as follows :

 

a.	Was I correct in law in applying the decision in Cheng Chiu v. R. 1980 HKLR 50 in the circumstances disclosed?
	No.
b.	On the evidence adduced was I correct in law in ruling that there was insufficient evidence to prove the conspiracy charges against the Respondent?
	No.

22. The Respondent will therefore be convicted as charged.

23. I understand he has now returned to Taiwan and no sentence need be passed, though no doubt there are other consequences.

24. I would just finally add that if the Respondent had been simply charged with attempting to export the videos it seems to me he could have no defence. I am told by Senior Crown Counsel that the reasons for charging him with conspiracy was to overcome a recent Hong Kong decision which is being taken to the Privy Council. I only hope the problem, whatever it is, is solved and the Crown does not have to resort to bringing conspiracy charges with all the legal complications which so often follow.