HKSAR v. TANG WAI CHUNG AND OTHERS

HCMA337/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.337 OF 1998

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J U D G M E N T

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1. The four Defendants were charged jointly with one offence of dealing with goods to which Dutiable Commodities Ordinance applies under s.17(1) of the Dutiable Commodities Ordinance, Cap.109. The particulars of the charge are that on 19th July 1997, inside an unnumbered hut at DD91, Lot No.3324, Lin Tong Mei Village, Sheung Shui in Hong Kong, the four Defendants dealt with goods to which the Dutiable Commodities Ordinance applies, namely, 2,657,000 cigarettes otherwise than in accordance with the provisions of the Ordinance. The 2nd Defendant pleaded guilty to the charge, the 1st, 3rd and 4th Defendants pleaded not guilty and after a seven-day trial before Miss Amanda Woodcock, sitting in Fanling Magistracy, were convicted by her on 19th March 1998 and each was sentenced to six months' imprisonment and fined $10,000. Each of them now appeals against their conviction.

2. In a nutshell, the Prosecution's case was that the Customs & Excise Department ("C&E") had the premises in question under observation. Some sheds in an enclosed yard at the address mentioned above were watched by officers of the C&E. On 19th July 1997 at about 12 noon, a container truck loaded with a container was seen driving through the gates of the yard and into the yard after which the gates were closed behind it. Several males inside the yard were observed to unload boxes from the container and move them into a particular shed. When the gates to the yard were opened again for the container truck to leave, a team of Customs officers entered the premises and apprehended the four Defendants who were seen fleeing from the shed in question. The officers found over two million cigarettes packed in boxes in the shed and six of those boxes, containing cartons of cigarettes, had been opened and cartons of cigarettes could be seen inside the boxes.

3. In order for the Prosecution to succeed on this charge, they had to prove that each of the Defendants knew that some of the cartons in the shed contained cigarettes and that at the time they were dealing with cigarettes on which duty had not been paid. The Prosecution relied, inter alia, on the fact that when the officers entered the shed, six of the boxes were already opened, and because they were opened, it could be clearly seen that they contained cartons of cigarettes. The Prosecution, therefore, asked the Court to infer that these Defendants must have known that they were dealing with cigarettes on which duty had not been paid.

4. The Defence case was quite simply that none of the boxes inside the shed had been opened, and they were all sealed up, therefore the Defendants could not have known that some of those boxes contained cigarettes. The thrust of the cross-examination and challenge of the Prosecution witnesses was therefore that these officers were lying when they testified that some of the boxes had already been opened by the time they entered the shed.

5. After the trial concluded on 12th March 1998, the learned Magistrate adjourned the matter for seven days for her to consider her verdict and on 19th March 1998 she read, in open Court, her judgment which came to 14 pages long. In her judgment, she summarized the evidence given by each of the Prosecution witnesses and also that given by the three Defendants. She then assessed the evidence and considered the points raised by the Defence. She also considered the law and eventually came to the conclusion that she was satisfied beyond a reasonable doubt that the Defendants did have prior knowledge of what was contained in the boxes and she therefore convicted them. The judgment by the learned Magistrate was a carefully considered and carefully written up judgment in which she dealt with every point raised by the Defence, and in which she carefully considered and assessed the evidence given by each witness including the three Defendants. When she, upon receipt of the appeal, wrote her Statement of Findings, she basically adopted what she had said in her judgment delivered in open Court.

6. Mr Grounds and Mr McGuinniety appear for the Appellants and have advanced seven grounds of appeal, culminating in the general ground that the convictions are unsafe and unsatisfactory.

7. The first ground of appeal is that the learned Magistrate erred in law and wrongly failed to consider the case for each Appellant separately. This is said to have arisen because at page 225 of the transcript, whilst delivering judgment, she had said :

"I do not accept the defence evidence that all boxes were sealed and that the Customs themselves opened them, not until they did that, did D1, 3 and 4 know they contained cigarettes. What points to their prior knowledge is that : one, there were open boxes with cigarettes easily visible; two, that they ran from the hut when Customs rushed in; three, the way china and cigarettes were unloaded, china was at two ends of the shed, as if the unloaders knew which were china - which boxes contained china, and which contained cigarettes; four, that the chop in the 1st defendant's bag was that of the company - PW1 was to deliver to. This blows his defence of ignorance out of the water; five, I don't believe the defendants' evidence."

It is said that the matters set out in the quotation indicated that the learned Magistrate rolled the Appellants' cases together and did not properly and separately consider each case. Alternatively, it is said that there is a grave danger that evidence admissible only against one Appellant has been consciously or unconsciously utilized in respect of another.

8. In respect of the ground that the Appellants' cases were rolled together and that the learned Magistrate did not properly and separately consider each case, I do not agree that she had done that. She had, in other parts of the judgment, set out what each of the Appellants had said in their evidence and when she considered each Prosecution witness' evidence, she had assessed the evidence as it related to, or as it implicated each Appellant. When she said in the quotation above that she did not accept the Defence evidence that all the boxes were sealed and that the Customs themselves opened them, and it was only after the Customs officers did that did the three Appellants know they contained cigarettes, that was not in any sense rolling the three Appellants' cases together. Their defence was exactly the same, namely, that all the boxes were sealed and none of them had been opened and that it was the Customs who opened them. The five reasons that the learned Magistrate gave as matters upon which she placed reliance to show that the three Appellants had prior knowledge of what was contained in the cartons were, apart from one matter, all matters which related to all three Appellants. The one matter which did not relate to two of the Appellants was the fourth matter which was that the chop which was found in the 1st Appellant's bag was that of the company that the driver of the container truck was to deliver the consignment to. This ground was peculiar to the 1st Appellant and indeed the learned Magistrate said so when she said, after she mentioned the fourth matter, "This blows his [the 1st Defendant's] defence of ignorance out of the water."

9. In relation to the alternative assertion, I find that the learned Magistrate did not consciously or subconsciously use, against any Appellant, evidence which was not admissible against that Appellant and only admissible against another Appellant.

10. The second ground is peculiar to the 1st Appellant and that is that the evidence concerning the finding of the chop was unsafe and unsatisfactory and/or a lurking doubt exists in relation to it and/or the learned Magistrate erred in law and failed to evaluate this issue in a proper manner.

11. The evidence on this aspect was given by PW3 who testified that after he arrested D1, he asked D1 for his identity. D1 said that he did not have an identity card on him and he told PW3 that the identity card was in one of the black handbags inside the hut. PW3 then took D1 to where he wanted to locate his handbag and D1 said that a handbag belonged to him and then he took out his identity card. Inside the handbag, PW3 found a company chop and a mobile phone and other articles such as tapes. The chop bore the name of Chung Hing Trading Company. The handbag which contained these articles had been placed on a desk in the metal hut. PW3 said that he then asked D1 whether the articles inside the handbag belonged to him and D1 did not say anything. When PW3 was cross-examined, he agreed that there was no reference in his witness statement to his seizing from the 1st Defendant the two exhibits mentioned, and he agreed that there was no reference to the conversation that he had with D1 about those exhibits. PW3 had said that he saw four people come out of the metal hut and D1 was amongst one of those four. He agreed that there was no mention in his statement of how far he had to chase D1 before he caught up with him. PW3 then said that the 1st Defendant was intercepted at the gate when PW3 and his colleagues were running in. He was then cross-examined about the record of interview which he had taken from the 1st Defendant when he had written "Customs officers found a black leather handbag in the iron plated hut at Lot No.3324, DD91, Lin Tong Mei, Sheung Shui." and he was asked why there was no mention in that record of interview of D1 identifying the handbag. He was asked why the record did not reflect the version which PW3 had given in Court and PW3 said that he did not have to ask the Defendant in that way.

12. In my view the evidence concerning the finding of this chop was neither unsafe nor unsatisfactory, nor was there a lurking doubt about that evidence. The learned Magistrate did evaluate this evidence very carefully and in relation to the lack of details in the record of interview of the 1st Defendant, the learned Magistrate did consider this and she said :

"PW3 explained what he meant when examining the language of Questions 5 and 6 and I accepted his explanation and do not agree that it meant his evidence was weak and unreliable."

13. The third ground of appeal was that the learned Magistrate failed to evaluate, consider or follow the evidence properly and impartially and fairly. In support of this ground, one of the matters which was relied upon was whether there was sufficient evidence about the lighting in the shed which was important to show that the Appellants could have seen what was inside the opened boxes. It was also said, in support of this ground, that the learned Magistrate wrongly intervened to interrupt crucial cross-examination concerning lighting in the shed and that this obviously affected Counsel's concentration and cross-examination.

14. This is said to arise because while Mr Grounds was cross-examining PW5, he asked PW5 :

"Q. It was quite dark in the shed, wasn't it?"

The learned Magistrate then said :

"But there were lights there."

Mr Grounds then said :

"There were lights on, were there? I see."

He then continued his cross-examination of PW5. It is true that up to the stage when the learned Magistrate made that comment, there had not been any evidence that there were lights inside the shed. However, if one looks at the set of photographs - Exhibit P5 - in Photograph 9, one can see on the ceiling of the shed one neon light. In any case, I find that given the experience of Mr Grounds, there is no basis whatsoever for saying that because the learned Magistrate made that one comment, that she was wrongly interrupting crucial cross-examination and that Counsel's concentration and cross-examination was thereby affected.

15. In any case, at page 105 of the Bundle, PW5 said that there was light inside the shed and he disagreed that it was quite dark inside. Also at page 109 of the Bundle, PW5 was asked whether it was nice and light in there or was it relatively dark, and he said :

"It was okay. You could see in there."

Also at page 103, PW5 agreed that the inside of the shed was not particularly well-lit. Therefore, it would appear that there were lights inside the shed even though PW5 said that it was not particularly well-lit. Nevertheless, apparently, he said that one could still see inside the shed.

16. The fourth ground was that the learned Magistrate, inter alia, failed to consider properly or at all discrepancies in relation to whether any of the officers who entered the shed had opened the boxes found inside the shed. This is said to arise because of the following bits of evidence :

At page 48 PW2 said that he agreed that the exhibits, namely the cigarettes boxes, should not be moved or interfered with until the completion of the taking of the photographs. But that would be so only if they had not yet discovered that there were cigarettes. He said if that was the case, they would open the boxes in front of the defendant to have a look.

At page 87 PW4 had said :

"Q: But officers went around the boxes and opened various boxes to find out what the contents were, didn't they?

A: They would.

Q: And after they had opened them, then the photographer came along and took photographs.

A: Yes."

At page 130 PW6 was asked :

"Q: You ripped into numerous boxes, left, right and centre, before the photographer turned up.

A: Agreed."

And at page 131 he was asked why if he discovered six boxes already opened, he did not leave the scene as it was for the photographer. He said that he was not sure whether in the boxes were other dangerous articles or dangerous goods before he inspected it. He said that he opened randomly three to four boxes of cigarettes and he had opened them in different positions.

17. The evidence which is quoted above seems to suggest at first blush that some of the officers had admitted to opening some of the boxes which is what the Defence were alleging, namely, that none of the boxes were opened when the officers came in, and it was only after the entry of the officers that some of them opened up some of these boxes. However, in my view, despite this evidence given by some of the officers and which is mentioned above, the fact is that the Prosecution witnesses never resiled from the position that some boxes were already opened when they first entered the shed. This was the evidence of PW3 to PW6 and none of them resiled from that position. The learned Magistrate found as a fact that the Prosecution witnesses did enter the premises, did see four men run out of the shed and then apprehended them. She also found that the abovementioned Prosecution witnesses did see opened boxes in the shed containing cigarettes and did have lawful reasons to arrest the Defendants.

18. The fifth ground of appeal relied upon was that the learned Magistrate entirely failed to consider or evaluate in a proper manner, or at all, why throughout the Prosecution's evidence the Customs officers failed to note in their witness statements and/or give consistent evidence on the crucial or highly relevant matters of evidence, in particular :

a. the number of opened carton boxes;

b. the position of opened boxes; and

c. the placement of cigarette cartons.

19. The fact is in the witness statements of these Prosecution witnesses a lot of details which they mentioned in Court were not contained in them. This is perhaps understandable if at the time they made these witness statements, they were only compiling them by way of a summary of their evidence without including in them every minutia of detail. The learned Magistrate also dealt with this aspect when she said at page 222 of the Bundle :

"I am of the view that when every detail is not recorded in the witness statement, it is not fatal to a prosecution witness credibility, necessarily. It would depend on the nature of the detail and whether it was crucial to prove any element of the offence charged or highly significant. That is always borne in mind."

20. In relation to the alleged inconsistencies in the evidence of the Prosecution witnesses as regards the number of opened carton boxes and their positions, as I said above, the Prosecution witnesses were all in agreement as regards the fact that there were opened carton boxes in the shed. In relation to where these boxes were placed, PW3 said that there were a few boxes and that they were placed at the rear of the metal hut, and that these opened boxes were near to the other boxes. PW4 said that he could not be sure about the actual number of opened cardboard boxes, but said that there were "a few".

21. Ground six, which is peculiar to the 3rd Appellant, is that the learned Magistrate had said, in relation to the 3rd Appellant's evidence, that he had informed the Customs officers about the contact number of Chan Kit, who was the person the 3rd Appellant said had employed him to move cartons of china. The learned Magistrate had said that she found it hard to believe that if the 3rd Appellant did mention this number, the Customs officers did not record it down. The ground of appeal was that there were numerous examples in the evidence of the Customs officers failing to note matters down, and so no reasonable tribunal could, in the circumstances of this case, find the matter referred to above "hard to believe".

22. This was only one matter which the learned Magistrate took into account in assessing the evidence of the 3rd Appellant. She obviously took into account other matters and particularly the whole of the 3rd Appellant's evidence and in the end she rejected his evidence. In my view, there is no ground for saying that she was wrong in rejecting that evidence.

23. The seventh ground is that the learned Magistrate failed to consider properly or at all why in such an apparently simple case the collective evidence from the respective Customs officers was so at variance with their individual witness statements. It was said that in respect of all the discrepancies, inconsistencies and difficulties, the learned Magistrate failed to consider or evaluate the evidence in a proper manner or at all. I do not agree. As I said earlier, the learned Magistrate delivered a very carefully considered and carefully worded 14-page judgment in which she analyzed and assessed all the evidence and in which she considered all the points made by the Defence before rejecting them. She was therefore clearly mindful of what the points were which the Defence was relying upon, and what the attacks were upon the Prosecution's evidence. She must also have been very conscious of the discrepancies which arose in the course of the Prosecution's case when the Prosecution called a total of six witnesses - five Customs officers and one civilian, the driver of the container truck.

24. In respect of discrepancies, or inconsistencies, or contradictions in the Prosecution evidence and what the duties of a trial judge or magistrate sitting alone are, I can do no better than to quote the Court of Appeal in Crim.App.756 of 1981, The Queen v. Sheik Abdul Rahman Bux and Others where Roberts CJ (at p.4) said :

" It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

This would place a wholly unreasonable burden on a trial judge. In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account, he is prepared to believe the various witnesses involved, save to such an extent as he may specify."

In the instant appeal, this was precisely what the learned Magistrate did - she had set out the evidence and the inconsistencies and then she said :

"However when I reread the evidence, I did not find discrepancies so serious that I feel I could give no weight to the evidence."

Further on in her judgment at page 224 she said :

"I do not agree that the prosecution witnesses' evidence was so muddled and contradictory that I cannot believe they are honest and reliable witnesses. Defence counsel tried their best in cross-examination, but I do not see any contradiction so serious, as to make me doubt their credibility."

25. In the trial process under our legal system, the prosecution prefers the charge and has to adduce evidence to satisfy the trial court beyond reasonable doubt that the defendant is guilty of the offence charged. In trying to discharge its burden of proving guilt, the prosecution will call witnesses who are then subjected to cross-examination by the defence. The cross-examination of the prosecution witnesses and any evidence which the defence wishes to adduce before the trial court is intended to either show that the defendant is not guilty of the offence charged, or at least to raise a reasonable doubt about his guilt. If after hearing the evidence of the witnesses, and having the opportunity to observe their demeanour when giving evidence, the trial court is satisfied that :

a) he can accept the evidence of those witnesses as true; and

b) based upon that evidence, he is satisfied beyond reasonable doubt that the defendant is guilty,

then the trial court is entitled to find the defendant guilty of the offence charged. The appellate court does not have the advantage of seeing and hearing the witnesses and can only go on the record of the trial court, therefore, the appellate court should be very slow to interfere with any findings of fact made by the trial court unless such findings of fact cannot be substantiated by the evidence, or if after perusing the record of the trial, the appellate court is left with a lurking doubt about the guilt of the appellant, or if there has been a material irregularity in the trial. Roberts CJ in the case of The Queen v. Sheik Abdul Rahman Bux (supra) quoted from the judgment of Blair-Kerr J in R. v. R.E. Low [1961] HKLR 13 at 82 :

".....if he [a District Judge] chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

26. The Court of Appeal agreed with that dictum and I would also respectfully agree.

27. In the circumstances, in my judgment, the convictions recorded against the Appellants are neither unsafe nor unsatisfactory and the appeals against convictions are therefore dismissed.