HKSAR v. SZE MEI MUN AND OTHERS

CACC 60/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 60 OF 2013

(ON APPEAL FROM DCCC 3 OF 2011)

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D E C I S I O N

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Hon Lunn JA (giving the Decision of the Court) :

1. On 14 May 2014, we handed down our judgment dismissing the appeals against conviction after trial by District Court Judge Geiser of the applicants and the then 5^th applicant in respect of those of Charges 1 to 5 which they faced respectively. We quashed the convictions of the 1^st and 2^nd applicants on Charge 6 and the 3^rd applicant on Charge 7.

2. By an application filed with the Court on 23 May 2014, the applicants invite the Court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that a point of law of great and general importance is involved in our judgment.  In an affirmation filed on the same date Mr Wong Kelvin Kar Wan, the solicitor of the applicants, explained that the application was filed out of time by two days because of some delay arising from the fact that, on the instructions of their clients, advice had been sought from leading counsel in Hong Kong and England.

3. At the suggestion of the Court, and with the consent of the parties, we deal with the applications on the papers without an oral hearing.

4. Charge 1 alleged that the applicants were parties to a conspiracy to export unmanifested cargo, namely marked oil, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 (“I & E Ordinance”) and section 159A of the Crimes Ordinance, Cap. 200.  The other charges related to their respective dealings with property, namely stipulated amounts of money in various periods of time in the overall period 31 May 2009 to 3 May 2010, knowing or believing those monies to represent the proceeds of an indictable offence.

Charge 1

5. The Particulars of Offence of Charge 1 averred that between 31 and May 2009 and 1 February 2010 the applicants, with the 5^th applicant, had conspired together with Cheng Kam Shui, Feng Jiu, Chen Ruihong, Huang Shunping and Shi Rubin to export unmanifested cargo, namely marked oil.  The latter four stipulated names were Masters (“the four Masters”) of four fishing vessels on to which it was alleged that marked oil was loaded and then smuggled out of Hong Kong and into the Mainland.

6. The four Masters had been detained by the Mainland authorities on 31 January 2010. In April 2010, on their pleas of guilty, they were convicted of offences in relation to the import of the diesel oil into the Mainland and sentenced variously to 12 or 13 years’ imprisonment.  Beginning in May 2012, pursuant to a Letter of Request issued by the High Court of Hong Kong and on the direction of the Supreme Court of the People’s Republic of China, the four Masters gave evidence in the Shenzhen Intermediate People’s Court before Judge Zeng and District Court Judge Geiser, sitting as a Commissioner.  In due course, the transcript of their evidence, and the exhibits that they produced, was remitted to the Registrar of the High Court in Hong Kong and, in the face of objections to its admissibility made on behalf of the applicants and the 5^th applicant, admitted into evidence by the judge in the trial of the applicants in Hong Kong.

7. Although the defence had been provided with the statements of the four Masters made to the Mainland authorities on 25 February and to the Hong Kong authorities on 25 March 2010, there was no dispute that the parties, and the Court itself, had not been provided with all of the disclosable unused material relating to the four Masters.  It was accepted that they had made many other statements before and after those dates.  Similarly, there was no dispute that the request of the prosecution of the Mainland authorities and Judiciary to be provided with all that material had been unsuccessful.  It was submitted on behalf of the applicants to District Court Judge Geiser, and to this Court as one of the grounds of appeal arising from those facts, that as a result, the defence was deprived of the full opportunity of demonstrating the unreliability and incredibility of those witnesses.  In consequence, it was submitted that the judge had erred in determining, pursuant to section 77F(1)(d)(iii) of the Evidence Ordinance, Cap. 8, that “no unfairness was likely to occur in those proceedings” consequent upon the evidence taken in the Mainland being admitted into evidence in the proceedings in Hong Kong.

The question of law

8. The question of law which Mr Bruce SC invites the Court to certify is of great and general importance is:

“  Under s 77F(1) Evidence Ord Cap 8, can the evidence of accomplices be admitted in a Hong Kong Court, in compliance with the terms of the threshold requirement that “no unfairness is likely to occur”, when it is not possible, by the relevant law of the external jurisdiction, to cross examine those accomplices in relation to their several earlier statements to the authorities of the external jurisdiction?”

9. As was noted in the judgment of this Court, in ruling the evidence admissible the judge adverted to the provisions ofsection 77F(1)(d) of the Evidence Ordinance, which provides that the Court be satisfied, having regard to the following matters :[1]

“ (i) whether it is reasonably practicable to secure the attendance of the deponent, taking into account for that purpose his bodily or mental condition or the delay or expense likely to be caused in securing his attendance;

(ii) whether the deponent was cross-examined before such court or tribunal; and

(iii) any other matter which, in the circumstances, appears to the court to be relevant,

no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any document (if any) exhibited or annexed thereto being admitted in evidence under this section.”

10. The judge ruled the evidence admissible on the penultimate day of the prosecution case [2], so that “he was very well placed to address the requirements of section 77F(1)(d) in the context of the evidence in the proceedings.” [3]  Of the ambit of their evidence, it was observed that, if accepted, it “established a conspiracy between Cheng Kam Shui and the individual Masters to smuggle marked oil into the Mainland and, more contentiously, a conspiracy to export unmanifested marked oil from Hong Kong.” [4]  Further, that none of the four Masters had any contact with the applicants. [5]

11. This Court accepted that was the context in which the judge had considered the application of the section to the admissibility of the testimony of the four Masters.  Factors relevant to those considerations included: the evidence of the four Masters of the number of other statements which they had made, the nature and ambit of the cross-examination conducted on behalf of the applicants, the judge’s acknowledgement that he was dealing with “scoundrels” and co-conspirators who took part in the smuggling of marked oil [6], his findings that two of the four Masters “admitted that they had lied” and two others “displayed some reluctance to divulge information to the authorities in the earlier stage of the investigation”.[7]

12. Clearly, the judge’s ruling that the evidence of the four Masters was admissible in the trial was a result of his application of the test stipulated in the section to the particular factual circumstances obtaining in the trial.  The determination was fact sensitive.

Conclusion

13. We are satisfied that no point of law of great and general importance as posed in the question, in respect of which certification is sought, is involved in the judgment.  Accordingly, the application is dismissed.

[1]   Judgment; page 46 F-O, paragraph 102.

[2]   Judgment; page 45 J-L, paragraph 101.

[3]   Judgment; pages 60 T - 61 D, paragraph 132.

[4]   Judgment; page 62 F-I, paragraph 135.

[5]   Judgment; page O-P, paragraph 136.

[6]   Judgment; page 59 I-J, paragraph 128.

[7]   Judgment; page 61 K-N, paragraph 133.