HKSAR v. LEE WAI FUN

HCMA1104/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1104 OF 1999

(ON APPEAL FROM SPK NO.5586 OF 1999)

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J U D G M E N T

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1. The appellant was charged with two offences. The first charge was possession of apparatus for radiocommunication without a licence, contrary to sections 8(1)(b) and 20 of the Telecommunication Ordinance, Cap.106. The particulars of offence stated that the appellant, on 15 February 1999, at the vicinity of Top Good House Restaurant situated at 104-116 Ma Tau Wai Road, Hunghom, Hong Kong, did possess apparatus for radiocommunication, namely, one Yaesu VX-1R dual band FM transceiver with Serial No.8C102529 otherwise than under an appropriate licence granted by the Governor-in-Council or the Telecommunications Authority.

2. The second charge was possession of apparatus for radiocommunication without licence, contrary to sections 8(1)(b) and 20 of the Telecommunication Ordinance, Cap.106. For this charge, the particulars of offence stated that the appellant on or about 15 February 1999 at 3/F, 11 Tsing Chau Street, Hunghom, Hong Kong, did possess apparatus for radiocommunication, namely, three radio transceivers, including one Motorola radius GM300 with Serial No.159TXGH628 and two standard HX260V(KB) VHF FM transceivers with Serial Nos.OXK162584 and OXK164042 otherwise than under an appropriate licence granted by the Governor-in-Council or the Telecommunications Authority.

3. The appellant pleaded not guilty to both charges. After the trial, the appellant was convicted of the first charge but acquitted of the second charge. He was fined $9,000. The appellant originally sought to appeal against both the conviction and sentence, however, at the hearing of the appeal, Mr Macrae, appearing for the appellant, informed the court that the appeal on sentence would not be pursued.

4. A number of arguments were raised in the perfected grounds of appeal. The first point was that the learned magistrate had erred in his rejection of the appellant's evidence. The second point was that the learned magistrate's reasons for rejecting the appellant's account were insufficient. The third point was that in all the circumstances, the learned magistrate could not have made the irresistible inference that the appellant was aware and had knowledge of the presence of Exhibit P1 inside the plastic bag. The fourth point concerned the chain of evidence of P1, but it was not really argued at the hearing.

5. The factual background in this particular case was not in dispute. The main prosecution witness was PW1 who was an assistant investigator of the ICAC. On the eve of the Lunar New Year in 1999, he witnessed the appellant, a Customs Officer, coming out of a restaurant with a man and a woman. The man was Chun Kam Wai ("Chun") and the woman was Kwok Kam Lan ("Kwok"). They were husband and wife. All three of them were carrying bags. The appellant was stopped and searched by PW1 and his colleagues. Inside the plastic bag being held by the appellant, a transceiver was found. That was the subject matter of the first charge. The transceiver was concealed inside a cloth bag, which was placed inside the plastic bag. This plastic bag and the cloth bag were opaque.

6. Also found inside the plastic bag were the following items : a jewelry shop VIP card in the name of Kwok, three cash coupons relating to the same jewelry shop and a paper bag containing HK$105,000 cash. The prosecution had called three other witnesses to testify in relation to various other issues but it appeared that nothing really turned on their evidence.

7. The appellant had elected to give evidence at the trial, but called no witnesses. Basically what he said was that he was having dinner with Chun and Kwok on that occasion. He said that he knew the couple and in fact he had arrested them before in connection with a case of possession of dutiable cigarettes. Subsequently, both of them somehow became his informers. The appellant explained that because Kwok had too many bags to carry so, as a matter of courtesy, he assisted her by carrying one of her bags on the way out of the restaurant. The appellant denied having knowledge about P1.

8. At the end of the trial, the appellant was acquitted by the learned magistrate of the second charge of possession of the three transceivers found at his home which involved transceivers of different brands. However, he was convicted of the first charge.

9. The fundamental element of the charge was possession. The learned magistrate had succinctly and correctly stated that the concept of possession must include the element of knowledge. Mr Macrae argued that there was no direct evidence of knowledge on the part of the appellant, and that there was no presumption that could assist the prosecution, therefore the outcome of the case would very much depend on what inferences were open to the learned magistrate.

10. It was also submitted, inter alia, that, even if the learned magistrate had rightly rejected the evidence of the appellant, however, it would still be necessary for him to consider whether there was sufficient evidential basis to draw the inference that the appellant had knowledge of the transceiver inside the plastic bag.

11. The learned magistrate had made the following analysis regarding the appellant's evidence (at page 21 of the Bundle) :

"... I did not believe that Kwok would have adopted the cavalier attitude to its custody as the appellant testified if the plastic bag and its contents had belonged to her. According to his testimony, she handed it over to him during the dinner. There were several bags on her side and she put this and other bags on his side. He placed it next to his seat which was opposite hers. I did not believe it credible that she would take such a lax approach to the custody and security of a plastic bag containing [the money] in cash. According to his testimony, she allowed him to pick up the plastic bag and take it out of the restaurant.

Further I did not believe that the appellant, who was a Senior Inspector with the Customs and Excise Department which he had joined in 1985, would place in his physical custody and control a bag belonging to an informer, and one whom he was previously instrumental in getting convicted of an offence relating to dutiable cigarettes, without knowing what was inside the bag."

12. Hence, the learned magistrate relied on the presence of the large sum of cash to reject the appellant's account. The implication seemed to be that the plastic bag and its contents could not have originated from Kwok. They should belong to the appellant. The inference was then drawn that the appellant must have knowledge of the items inside the plastic bag, including P1.

13. However, the presence of the VIP card tends to render the circumstances less obvious. Although the learned magistrate did acknowledge that the card actually established a link between the bag and Kwok, he made the finding that :

"The presence of Kwok's V.I.P. card inside the plastic bag was due, I was satisfied, to either accident mistake, or deliberate design to obfuscate the issue of possession in the event of the appellant's apprehension."

14. There appeared to be no clear evidential basis to show that the VIP card was accidentally put inside the plastic bag. On the other hand, if the finding were that the appellant had placed the card in the plastic bag deliberately in order to cause confusion on the issue of possession in the event of his apprehension, then the question regarding the cash would come back. If the appellant was really anticipating the possibility of being caught, and so he placed the card inside the bag, then why should he also leave the cash inside the same bag? The further point to consider was that transceivers of similar brand as P1 were found inside the premises of Kwok.

15. The present case concerned the issue of inferences. There are well-established principles regarding how inferences could be drawn. In the case of HKSAR v. Man Wai Ming, Cri. App. No.254 of 1998, Stuart-Moore JA (as he then was), giving the judgment of the court, had stated the following principle :

" Inferences, if properly drawn, can be powerful evidence of guilt. However, they can only properly be drawn against a defendant if the facts inescapably point towards one conclusion. If the evidence might lead either to one conclusion which is adverse to a defendant or to another conclusion which is not, it would be pure speculation to assume the former and reject the latter."

16. In this regard, I had considered with care both the written and oral submissions made by the respondent. It was argued, inter alia, that the learned magistrate was really exercising his function as a jury and had reached a common sense conclusion. I agreed that the learned magistrate was entitled to find the appellant not a credible witness, having seen him in the witness box and heard his evidence. I was also keenly aware that this court must be cautious before disturbing a finding of fact made by the trial magistrate. However, having considered all the evidence, it would be difficult to conclude that the present circumstances could yield no other possible inference except the inferences of knowledge and guilt.

17. Needless to say, the appellant's conduct was indeed very suspicious. He had arrested Kwok and Chun before and knowing them to be of questionable character, yet he would actually have dinner with them on the eve of the Lunar New Year. Could it really be a mere friendship gathering, as the appellant wanted us to believe? He said that they were his informers yet he never registered their identities with the Customs and Excise Department. Having said that, however, a criminal conviction could not be based on suspicion, however strong it was.

18. For the reasons given, I would allow the appeal and set aside the sentence. There will be no order as to costs.