WONG CHI HONG v. HKSAR

FACC No. 1 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 812 OF 2009)

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J U D G M E N T

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Chief Justice Ma:

1.  At the conclusion of the hearing, we allowed the appellant’s appeal and quashed his conviction. On his application, which was not opposed, we also ordered the prosecution to pay him $2,000 as reimbursement for his contribution towards legal aid. The reasons for allowing the appeal and quashing the conviction are now set out in the judgment of Mr Justice Chan PJ, with which all members of this Court agree.

Mr Justice Chan PJ:

2.  The appellant (D2 at the trial) was convicted of conspiring with Yu Chau Ming (“D1”) and others to export unmanifested cargo, contrary to s.18(1)(b) of the Import and Export Ordinance, Cap 60. With leave of the Appeal Committee, the appellant now appeals to this Court on the substantial and grave injustice limb.

The smuggling centre

3.  There can be no doubt that the place at Lots 1309 and 1315, Lin Ma Hang Road, New Territories (“Location A”) was a smuggling centre. Upon a raid conducted by Customs Officers on 4 July 2008, the officers found a concealed underground tunnel leading to another location in Shenzhen in the Mainland. A long rope which was controlled by a mechanical hoist passed through the tunnel. Hanging on the rope at different intervals were 53 rectangular sacks made of cloth. These sacks contained folded white paper boxes inside which was a large quantity of mobile phones and component parts. Their estimated value was over $1.5 million. By means of the rope and the mechanical hoist, the mobile phones and component parts could be transmitted through the tunnel from Hong Kong to Shenzhen.

D1’ s involvement in the smuggling activities

4.  From surveillance kept by Customs Officers for a period spanning over two weeks at various locations, it was equally clear that D1 was involved in the smuggling activities using this system. He was a subtenant of Location A. He himself resided in a place at Lei Uk San Tsuen in Fanling (“Location B”) which was also used as a pig farm. He was seen on several occasions driving his own van (“van”) from Location B to Location A. He had the keys for gaining access to Location A and usually stayed there for more than an hour. At Location B were also found ropes, sacks and other items which were similar to those found at Location A.

Evidence against the appellant

5.  The appellant was the owner of a medium goods vehicle (“vehicle”). During the surveillance period, he was seen on three occasions to have driven his vehicle to an industrial building in Hoi Yuen Road, Kwun Tong (“Location C”) where some cartons were moved by men from a unit in the industrial building to his vehicle. He then drove his vehicle to Location B where he stayed for 10 to 30 minutes. There were four other occasions on which he had driven his vehicle to Location B but there was no evidence that he had brought anything there or had taken anything away. On several of these seven occasions, D1 was also seen inside Location B.

6.  On 4 July 2008, the appellant was seen leaving Location B in his vehicle. About half an hour later he was intercepted by Customs Officers. He was then heading towards Kowloon. On his vehicle were found many sealed cartons inside which were a large quantity of mobile phones and component parts to the value of about $4.5 million and a bundle of white paper boards for folding into paper boxes which were similar to those found at Location A.

7.  After his arrest, the appellant made two cautioned statements which were both inculpatory and exculpatory. He said he was a transport driver. On 4 July, he received a phone call from a friend Fei Lo who asked him to deliver some goods to a person in Hoi Yuen Road, Kwun Tong. He did not know what the goods were or who the owner was. He claimed that that was the first time he went to Location B and that he had never delivered anything to Location C. These allegations were clearly untrue since they were not only contradicted by the evidence of the surveillance officers but were also contrary to the Agreed Facts in which he admitted having visited Location B and Location C on a number of occasions. The Magistrate rejected his explanations, apparently because of these lies.

The issue in this case

8.  The above facts were either agreed or not disputed. Neither the appellant nor D1 gave or called any evidence. Their statements made to the Customs Officers after their arrest were adduced in evidence. The appellant’s defence was that there was no sufficient evidence for drawing the irresistible inference that he was involved in the alleged conspiracy. The Magistrate (Mr Wong Yu-wing) concluded that on the evidence, it was “not difficult” to draw such an inference which he did. On appeal, Deputy High Court Judge Andrew Chan agreed with the Magistrate’s conclusion, holding that it was “completely reasonable”.

9.  In this appeal, the appellant submits that the Magistrate and the Judge were wrong and had departed from accepted norms as a result of which he has suffered substantial and grave injustice.

10.  The issue is thus whether the Magistrate and the Judge were correct and that there was sufficient evidence for drawing the irresistible inference that the appellant was a party to the alleged conspiracy to smuggle unmanifested goods out of Hong Kong. 

What must be established against the appellant?

11.  To substantiate the charge of conspiracy, the prosecution must prove that there was an agreement among the conspirators to commit an offence and that at the time of this agreement, they intended to carry their agreement into effect. In the context of this case, it is necessary to show that the appellant knew that there were these smuggling activities and intended to take part (or had taken part) in such activities.

Was there sufficient evidence to draw the irresistible inference of guilt?

12.  With respect, we do not think the prosecution had succeeded in proving that the appellant knew of and intended to take part (or had taken part) in the smuggling activities or that the evidence was sufficient to enable the court to draw the irresistible inference that he was involved in the alleged conspiracy. We also take the view that the reasoning of the Magistrate and the Judge for coming to their conclusions was flawed.

13.  As mentioned earlier, there was no dispute that Location A was a smuggling centre for mobile phones and component parts and that D1 was involved in such activities. What was proved against the appellant amounted to this: he had delivered cartons from Location C to Location B and had contacts with D1 on those occasions; when he was arrested, he had just been to Location B and was driving his vehicle towards Kowloon; inside his vehicle, there were a large quantity of mobile phones, component parts and unfolded white paper boards which were similar to those found at Location A; and when he was cautioned, he lied about having been to Location B before.

14.  There was admittedly no evidence that the appellant had been to Location A; or was aware that such a place existed; or knew what was going on and what was found there. In other words, there was no evidence that he knew or was in any way connected with the smuggling centre or the activities which had taken place inside.

15.  The Magistrate purported to find that the appellant and D1 “not only knew each other but that they were closely connected” (para.32 of the Reasons for Verdict). He did not elaborate what he meant by that. If he was implying that as a result of such connection, the appellant knew about the smuggling activities at Location A, it is not easy to see how he could make that finding (as he did) merely from the appellant’s several visits to Location B and his contacts with D1 on those visits. There was no evidence as to what they talked about or what they had done at Location B apart from making and taking delivery of some cartons. Those visits and contacts could equally be consistent with the appellant simply working as a transportation driver for D1. The same criticism can be made of the Judge’s finding that the appellant was more than a delivery man. It is also not clear what he wanted to imply by that.

16.  Then the Magistrate found that the presence in the appellant’s vehicle at the time of arrest of white paper boxes and mobile phones and component parts which were similar to those found at Location A “could show that he was fully aware that these mobile phones, the components and paperboards were smuggled goods” (para.34 of the Reasons for Verdict). We do not think the Magistrate was entitled to make such a finding. First, the goods found in the appellant’s vehicle could not be described as “smuggled goods” since it is only an offence under the Import and Export Ordinance to smuggle unmanifested cargoes out of Hong Kong and the appellant’s vehicle was then travelling from Fanling in the New Territories towards Kowloon in the opposite direction as the border.  Second, there was no evidence that the appellant knew what was smuggled at Location A or what was contained in the sealed cartons found on his vehicle when he was on his way to Kowloon. In other words, there was simply no evidence to support the Magistrate’s finding. We see no justification for the Judge to say that the Magistrate’s finding was “well-founded and logical” (para.20 of the Reasons for Judgment).

17.  Both the Magistrate and the Judge were apparently conscious of the fact that at the time of the appellant’s arrest, he was heading towards Kowloon and that this might be regarded as being inconsistent with the allegation that the unmanifested goods found on his vehicle were to be smuggled out of Hong Kong. The Magistrate thus went on to find that the packaging process was carried out in Hong Kong and after completion of the process, the products would be sent to Shenzhen through the secret tunnel (para.35 of the Reasons for Verdict). The Judge was also satisfied that the products in the appellant’s vehicle “would be transported to the Mainland in the end” and that “the irresistible inference drawn by the magistrate who had taken the overall evidence into consideration is logical” (para.19 of the Reasons for Judgment). While there was evidence at Location A and Location B to suggest that this might be the case with the goods found in these two locations, it was less certain in respect of the goods found on the appellant’s vehicle. But the more important thing is that there was nothing to show that the appellant knew about this or had taken part in the packaging process.

18.  As to the lies told by the appellant in his statements, it is not disputed that lies in themselves do not and cannot prove guilt although in appropriate circumstances, they might strengthen the prosecution case. Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113. This was not the case here. The Magistrate appeared to have relied on the appellant’s lies merely to reject the explanations contained in his statements. The Judge however was less than clear and seemed to have used such lies to support his conclusion that the appellant was more than a delivery man. No submission was made on how these lies could help the prosecution. In any event, it was not suggested that they could be used to fill any gap in the prosecution case.

19.  Finally, on the basis of D1’s frequent visits to Location A and Location B, the appellant’s frequent visits to Location B and Location C and the seizure of a large quantity of exhibits involved in smuggling from Location B and the appellant’s vehicle at the time when both men were arrested, the Magistrate felt able to conclude that: “the only and irresistible inference that could be drawn was that both defendants were fully aware that they were handling a batch of unmanifested cargoes” (para.35 of the Reasons for Verdict).

20.  He also considered that the seizure of different exhibits in different sites and from different defendants was not a coincidence but showed that: “there was a clear consensus and agreement between the two defendants, in the division of labour to carry out the criminal enterprise. The details built up by the overall evidence and the exhibits together produced cogent evidence. After considering the details of exhibits, time, persons and sites, it is not difficult to draw the inference that both defendants, with full knowledge, carried out the agreement and they were exporting unmanifested cargoes on the day of 4 July.” (para.36 of the Reasons for Verdict).

21.  The Judge relied on the approach adopted in HKSAR v Young Wah-yu and others (HCMA 880 of 2007) and said he was satisfied that “the evidence altogether generate the synergy” and concluded that: “It is completely reasonable that the magistrate was satisfied that there was a division of labour between [the appellant] and [D1] in putting a smuggling agreement into action … ” (para.23 of the Reasons for Judgment).

22.  With respect, we do not think such reasoning can be sustained. Apart from the fact, as mentioned above, that there was no evidence that the appellant knew the existence of Location A or had any connection with the activities there, there was also no evidence that he knew what was contained in the cartons which were moved onto his vehicle at Location C; that he had opened or done anything to these cartons at Location B when they were delivered there; that he knew what was done at Location B, in particular, that it was a packaging centre; that the cartons he delivered to Location B would be delivered from there to Location A; or that he knew what was contained in the sealed cartons found on his vehicle at the time of his arrest. In these circumstances, it is difficult to infer the appellant had the requisite knowledge or intention.

23.  Mr William Tam for the prosecution submitted that the appellant’s conduct must be considered in the appropriate context. In the present case, he argued that what was found in this case was a large syndicate smuggling valuable items from Hong Kong to Shenzhen; it would be most unlikely that such a professional syndicate would entrust expensive goods to ordinary delivery men as this would increase the risk of the whole operation being blown up. While this theory might apply in some cases, especially where the goods involved are readily discoverable as illicit items or articles, we do not think that this argument can help the prosecution in filling the lacunae in the evidence in the present case.

24.  Mr Tam also argued that the appellant must have been tipped off and was found removing the smuggled goods and items away from Location B. Apart from the fact that there was no evidence to support this theory, it was also based on the premise that the appellant was a party to the conspiracy but this was precisely the matter which the prosecution was required to prove beyond reasonable doubt. In a charge of conspiracy, one simply cannot approach the evidence on the assumption that the accused was a conspirator; in that scenario, most of the evidence could be regarded as capable of supporting the charge. Regrettably, the Magistrate and the Judge had apparently fallen into this error.

25.  On the evidence adduced before the court, we do not think any reasonable tribunal could have drawn the irresistible inference that the appellant was a party to the alleged conspiracy. The reasoning of the Magistrate and the Judge was erroneous and their conclusions cannot be supported.

Conclusion

26.  For the reasons set out above, we are of the view that there was a sufficiently serious departure from accepted norms to the prejudice of the appellant. The appeal must therefore be allowed and the conviction quashed.