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HCMA001571/1990
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 1571 OF 1990
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BETWEEN
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THE QUEEN
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Respondent |
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AND
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CO BELO |
Appellant |
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Coram: Hon. Hooper, J. in Court
Date of hearing: 20 December 1990
Date of delivery of judgment: 8 January 1991
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JUDGMENT
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1. On the 1st October 1990, the appellant was convicted in the Magistrates Court at North Kowloon of importing goods to which a false trade description was applied, contrary to secton 12(1), Cap. 362, Laws of Hong Kong, and fined $17,000.
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The particulars of the charge were as follows: -
"Co Belo (...), you are charged that on the 23rd day of April 1990 at Hunghom Cargo Yard, Kowloon-Canton Railway Station in Hong Kong, you had imported 54960 measuring tapes to which a false trade description 'JAPAN' was applied."
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2. On the 11th October 1990, the appellant served Notice of Appeal Against Conviction on the grounds:-
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"(1) |
That the learned Magistrate erred in law in finding on the evidence that the defendantimported the goods as based on the authority of Tse Hung Lit v. R. (Crim. App. No. 136/85CA) his actions could not amount to importing;
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(2)
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Such other grounds as may he formulated upon reading the statement of findings." |
On the 22nd October 1990, the Magistrate signed a Statement of findings which, to a large extent, dealt with the first point in the grounds of appeal namely: whether there was evidence of the importation of the goods by the appellant.
3. It is no longer necessary for me to consider that aspect of the case because on the 12th December 1990, the appellant filed perfected grounds of appeal in substitution for his original grounds.
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These perfected grounds of appeal are as follows:-
"In his Statement of Findings the Learned Magistrate characterised and evaluated the appellant as dishonest and unreliable based upon his finding that a clause in defence exhibit "DE-1" (page 61) was set up as a smoke-screen to enable the appellant to pretend he did not know that the subject-matter of the Charge (the goods) bore a false trade description. In his findings the Learned Magistrate said the evidence of the appellant occasioned him no doubt that the appellant had full knowledge that the goods bore a false trade description : see page 29;
The aforesaid conclusion was :-
1. Contrary to the weight of the evidence as the only evidence upon the appellant's knowledge (or lack of it) arose from the appellants' own evidence and his cautioned statement (see pages 15-18 and 48-56) and both the said evidence and cautioned statement were unchallenged and uncontradicted during the trial (upon the issue of knowledge) and which categorically denied knowledge by the appellant of the false trade description: see Ma Kwai-chong v. R, CA 590 of 1968, HKLR 654, (and see below),
AND in his statement of findings:
2. The learned Trial Magistrate advanced for the first time during the proceedings (and after all the evidence and submissions) the theory that a clause in exhibit "DE-1" was set-up as a smoke-screen - a proposition which the defence had no opportunity to refute or contradict and which had never been part of the prosecution case or raised as a specific issue during the trial : see :- R v. Isaacs, Times Newspaper 22 Dec 1964 (and see below);
AND in any event the Learned Trial Magistrate :
3. Failed to consider or evaluate sufficiently, adequately, properly or at all a cardinal line of defence raised under section 12(2)(a) of Cap. 362 and ignored and/or failed to correlate properly or at all that defence with the undisputed evidence of the case;
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See :- |
R v. Badjam (1966) 50 Cr. App R pages 141;
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R v. Suen Yan, v. App No. 1165 of 1978;
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R v. Hart (1932) 23 Cr. App R 202;
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R v. McCarthy (1980) 71 Cr. App R 142;
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and Cap. 362, S12(2)(a). |
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4. In all the circumstances the conviction was unsafe and unsatisfactory."
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4. It is convenient for me at this stage to set out section 12 of the Trade Descriptions Ordinance which is as follows:-
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"12. (1) Subject to section 13, no person shall import or export any goods to which a false trade description or forged trade mark ... is applied.
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(2) Any person who imports or exports any goods contrary to subsection (1) commits an offence unless he proves that -
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(a) |
he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or
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(b) |
the goods are not intended for trade or business.
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(3) |
......." |
5. There was clear evidence in this case and the Magistrate was justifiably satisfied that the appellant had imported the goods into Hong Kong and that they all bore a false trade description namely the word "Japan". The only defence, therefore, available to the appellant at the trial was under section 12(2). The burden was on the appellant to establish these matters on a balance of probabilities.
6. In dealing with the subject of the appellant's knowledge, the Magistrate had this to say:-
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"
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3. |
(1) |
The appellant alleged that he was shown samples of the tapes and its specifications in 1989 before he made the agreement with Genstar to tranship the tapes. The specifications were not shown to the Court. He alleged that he did not know that the word 'Japan' was printed on the tapes and that Genstar had not informed him of that. He admitted that he had not inspected the second batch of tapes prior to it being imported into Hong Kong nor would he go to Mainland China to check it as Genstar placed the order for the tapes, he need not be responsible for it.
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He alleged that he had not made arrangements to import the tapes into Hong Kong and that he had nothing to do with the importation of those tapes into Hong Kong. Despite that, he admitted that he knew he had to make an import declaration as importer of the tapes after the tapes had been imported into Hong Kong and that he had made import declarations that he was the importer of the first and second batch of measuring tapes.
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(2) |
The appellant produced 3 samples of measuring tapes (exhibits DE2, DE3 and DE4), which were not marked with the word 'Japan', which he alleged were supplied to him by Genstar after 24.4.1990 and which were allegedly samples of the first batch of measuring tapes. In his cautioned statement (Exhibit P6), he admitted that he had not opened the boxes containing the first batch of measuring tapes to check its contents nor had he asked anyone to do so.It is clear that if this admission was true, he does not have personal knowledge as to whether those samples forms a part of the first batch of tapes. In Exhibit P6, the appellant stated that in fact, he didn't know what was the real nature of the second batch of goods and that he only found out that they were roll up steel measuring tapes from 'invoices'.
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(3) |
It is clear from the aforesaid that the appellant had admitted that he was reckless. The appellant was unreliable. It is clear that he had not inspected the 2nd batch of measuring tapes nor caused it to be checked before importing it into Hong Kong because he already knew that the second batch of tapes were measuring tapes with the word 'Japan' printed on them and therefore, it was unnecessary to check it.
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(4) |
In the letter of Confirmation dated 17.7.1989 (Exhibit DE1), clause 2 thereof, the appellant stated that since Genstar ordered the goods directly from the supplier, the appellant would not be responsible for the correctness of the goods and its quality. That the cargo would be re-exported to Genstar in its original packing as received by the appellant and that the appellant would not be responsible to carry out an inspection of the goods upon its arrival in Hong Kong.
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This clause was clearly inserted therein as a smoke-screen in case the goods were inspected by officers of the Customs and Excise Department and the offence is discovered. It is clear that the appellant set up a smoke-screen so that he can pretend that he didn't know that the tapes were marked with the word 'Japan.' |
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I had considered the demeanour and the contents of the testimony of the four prosecution witnesses and of the appellant. The appellant had not been convicted of any criminal offence prior to his present conviction. I considered P.W.1, P.W.2, P.W.3 and P.W.4 to be honest and reliable witnesses and I accepted their respective testimony. The appellant was dishonest and unreliable. I did not consider the appellant to be a witness of veracity and his evidence occasioned no doubt to my mind that he had imported the said 54960 measuring tapes into Hong Kong with full knowledge that a false trade description 'Japan' was applied to it.
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I find the following proven :-
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1. |
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Prior to 17th July, 1989, the appellant obtained a letter of credit from the Kwangtung provincial Bank in the sum of US$77, 050 in favour of Chengdu I/E Corp of Sichuan Province, Machinery, Metals & Minerals Co., Chengdu, Sichuan, Mainland China (the consignor) with a material Condition written thereon which states that the consignor should send 13,000 dozens of roll up steel measuring tapes to Goodrich Trading Company (Goodrich) in Hong Kong before 31.5.1990 in three batches. This condition was written thereon according to the instructions of the appellant, the sole proprietor of Goodrich. The letter of credit was sent to the. consignor by the appellant relating to an order for roll up steel measuring tapes placed by Genstar with the consignor.
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2. |
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In compliance with the appellant's instructions, a telex was sent to the appellant on 17.4.1990 by the consignorinforming him that they have sent to Hong Kong a batch of roll up steel measuring tapes consisting of 458 boxes (4,580 dozens) of such tapes. The tapes had been loaded onto train wagon No. 642509 which had left Chengdu, Sichuan for Hong Kong on 15.4.1990. This was the 2nd batch of tapes, subject matter of the charge.
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In the meantime, the appellant was informed by a staff of the China Travel Service (Cargo) Hong Kong Ltd. (the cargo company)of the expected date of arrival of the 2nd batch of tapes. The appellant received two delivery orders from the cargo company and he handed them to Mr. LAM Shui-chun of Ming Fung Transport Company, who was accompanied by P.W.4 at the time, to collect the 2nd batch of tapes on his behalf and to bring it to the appellant's store.
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The 2nd batch of tapes arrived in Hong Kong from Sichuan on 23.4.1990. On 24.4.1990,P.w.4 drove his lorry to the Hunghom Cargo Yard, taking with him the 2 delivery orders, to take delivery of the 2nd batch of tapes.
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5. |
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At about 10.30 a.m. on 24.4.1990, during a cargo examination to the 2nd batch of tapes at gauge 4, Hunghom Cargo Yard, P.W.2 saw those goods on the said wagon No. 642509 and he discovered the word 'Japan' on the tapes. At the time, P.W.2 received the 2 delivery orders (Exhibits P2 and P3) and an inward manifest (Exhibit P4) relating to the 2nd batch of tapes. P.W.2 took a sample of the tapes to show his inspector. When P.W.2 returned with his inspector, he saw some of those goods had been unloaded and placed on the ground and on a lorry. It was P.W.4 who was in the course of loading those goods on his lorry. At about 2.30 p.m. the same day, those tapes were handed over to P.W.1 for further investigation.
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The 2nd batch of tapes comprised 458 cartons containing 4,960 rolls of steel measuring tapes with the word 'Japan'printed on them on the space between the 5 inch and 6 inch marks which indicated that the tapes were made in Japan. These tapes were in fact manufactured in Sichuan,Mainland China.
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It is clear that the 2nd batch of tapes were caused to be brought into Hong Kong by the appellant. The act of bringing it into Hong Kong was done on the express authority of the appellant and he wanted it to be brought into Hong Kong. The appellant had failed to prove on a balance of probability that he did not know, had no reason to suspect and could not with reasonable diligence have found out that the 2nd batch of tapes are goods to which a false trade description 'Japan' was applied and that the goods are not intended for trade or business. The appellant had on 23rd April 1990 imported into Hong Kong 54,960 measuring tapes to which a false trade description 'JAPAN' was applied. |
I considered the aforesaid Charge to have been established against the appellant beyond reasonable doubt and I accordingly convicted the appellant as charged."
7. It will be seen from the above that the Magistrate did not characterize and evaluate the defendant as dishonest and unreliable only upon his finding that a clause in the defence exhibit was setup as a smoke-screen etc. It is clear from that part of the judgment, which I have set out above, that the Magistrate considered the demeanour of not only the prosecution witnesses but also the appellant. He reached the conclusion that the appellant was dishonest and unreliable and did not consider him to be a witness of veracity and that his evidence occasioned no doubt in his mind that the appellant had imported the measuring tapes into Hong Kong with full knowledge that a false trade description "Japan" was applied to it. Once he had rejected the appellant's evidence, that was a finding which was open to him. Ma Kwai-chong is authority for the proposition that where a Magistrate comes to a conclusion, which is contrary to what on the record appears to be the weight of the evidence and does not give reasons which commend themselves to the appellate court, that court may well conclude that the finding of fact is unsafe and quash the conviction. The credibility of the appellant was all important in this case, I did not see the appellant testify and am not in a position to hold that the Magistrate reached the wrong conclusion on his credibility. All I can say is that the appellant was contending at the trial that he was not the importer, a fact which was manifestly incorrect. Failure to cross-examine a witness would not amount to an admission of his evidence. See Chan Chi Kong v. R. [1964] HKLR 782. That decision was followed and confirmed in Cheung Kam Yin v. R. Crim. App. No. 652 of 1967 (unreported) a decision of the full Court. furthermore, there is no law that a jury or judge of fact must accept a witness' evidence merely because it was unchallenged. See O'Connell v. Adams [1973] Crim. L.R. 113 at 114.
8. So far as the second ground of appeal is concerned, the contractual obligations which the appellant owed to his associate under the terms of the contract, would not affect his criminal liability under the statute. There would be no need for such a clause if the appellant, intended at all material times, to use the diligence required of him by the statute. It suggests the appellant was attempting to evade his statutory obligations by showing that he had contracted out of them.
9. The Magistrate may have used rather strong words, but in the light of the evidence as a whole, I do not consider that they would justify interfering with his decision.
10. So far as the third ground of appeal is concerned, the appellant did not say at the trial that he had no reason to suspect and could not, with reasonable diligence, have found out that the goods were goods to which a false trade description had been applied. Furthermore the magistrate's finding on the appellant's credibility would have rendered this a virtually impossible task.
11. In these circumstances, I am not prepared to hold that the conviction is unsafe and unsatisfactory. The appeal is dimissed and the Conviction affirmed.
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(N.B. Hooper)
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Judge of the High Court
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Representation:
Mr Robert Buchaman (M/s Chung & Kwan) for Appellant.
Mr Kwok Wing Lung, C.C., for Crown.
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