WONG HIU CHOR AND ANOTHER v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 227 OF 1992

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J U D G M E N T

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1. The appellants, who were respectively D1 and D2 at the trial, appeared before a magistrate and were convicted of the offence of assisting with the depositing of restricted articles with intent to assist another person to evade restriction contrary to section 35A(1)(c) of the Import and Export Ordinance, Cap. 60. The particulars read as follows:-

“Wong Hiu-chor and Wong Hiu-fai, you are jointly charged that on the 9th day of August, 1991, at the cargo handling area near Shell oil depot, Cha Kwo Ling Road in Hong Kong, you knowingly assisted with the depositing of articles, namely, 2 numbers of ‘Nissan’ private car, the carriage of which is restricted under the Import and Export (carriage of article) regulation, Import and Export Ordinance, Cap. 60 with intent to assist another person to evade the restriction.”

A third man, Lam Kwin, who was D3 faced a separate charge of dealing with restricted article with intent to assist another person to evade restriction contrary to section 35A(1)(e). He was acquitted by the same magistrate at the same trial.

2. The appeal of D1 and D2 came before the Chief Justice on 23 July 1992 who, on the application of counsel for both sides, reserved the appeal to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap.227. The Court of Appeal having on 4 December 1992 resolved the question that section 35A of the Import and Export Ordinance, Cap. 60 was compatible with and therefore did not violate Article 11 of the Hong Kong Bill or Rights, remitted the outstanding issues to this court for determination.

3. The Court of Appeal also decided that the presumption under section 35A only imposes a rebuttable evidential burden on the defendant. At p.8 and p.9 of the unreported judgment in Magistracy Appeals No.227 of 1992, No. 484 of 1992 and No.718 of 1992, Fuad V.P. said this:

“Thus the presumption imposes a rebuttable evidential (as opposed to a legal or persuasive) burden upon the accused. He does not have to prove that he did not have the necessary intent beyond reasonable doubt or even on the balance of probabilities. All that he is required to do is to introduce evidence (or point to evidence led by the prosecution) which, if believed, might create a reasonable doubt on the issue. When this happens the burden is again on the prosecution to satisfy the court or the jury on the evidence as a whole beyond reasonable doubt that the accused had the intent required by section 35A(1).”

4. The arguments advanced by Mr. McNamara on behalf of the appellants before this court were twofold. Firstly, although the learned magistrate devoted considerable time and space on arguments under the Hong Kong Bill of Rights, she did not indicate in her judgment or anywhere in the notes of proceedings whether she relied on the presumption and if she did what standard of proof she had applied. All the appellants had to do was to raise a reasonable doubt from the evidence before the court and they did not have to rebut the presumption on a balance of probabilities. It was submitted that the learned magistrate must have relied on the presumption having regard to the importance that she placed upon arguments on the Bill of Rights. Secondly, it was submitted by Mr. McNamara that the acquittal by the learned magistrate of D3 on the strength of his witness statement, exhibit P6 strongly suggested that the learned magistrate accepted that D3 was carrying out a legitimate transaction. On the basis of this evidence, there must be at least a reasonable doubt that what Dl and D2 did was also lawful, being part and parcel of the same legitimate transaction. In her Statement of Findings, the learned magistrate said that she could not rule out the possibility that the appellants were acting on a frolic of their own having transported the motor vehicles to the depot. But she was not sure that they were in fact acting on a frolic of their own.

5. There is force in the submission and, in my judgment, the conviction cannot be regarded as safe and satisfactory. The appellants were each sentenced to 4 months imprisonment but they only appeal against conviction. Accordingly, I allow the appeal, quash their convictions and set aside the sentences thereon.