THE QUEEN v. LAM YUNG HOI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 342 OF 1991

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BETWEEN

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JUDGMENT

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1. On the 20th February 1991, the appellant was convicted after trial of attempting to export unmanifested cargo, contrary to section 18(1) (b) of the Import and Export Ordinance, Cap. 60 as read with section 81(1) of the Interpretation and General Clauses Ordinance, Cap. 1. He was fined $3,500. Against that conviction he now appeals.

2. The grounds of appeal are:-

3. The facts of the case are set out in the magistrate's Statement of Findings as follows:-

"2.     The prosecution evidence was not contested by the Defendant. This was that the Defendant was on the 19th December 1990 the master of a local fishing boat. At 4.35 p.m. that boat was intercepted by a Customs launch in Hong Kong territorial waters off Chai wan heading towards Joss House Bay. On board the customs officers found 850 cartons of frozen ribbon fish stored in two hatches.

 

          The Defendant was interviewed under caution. That interview was recorded contemporaneously in writing and produced as Ex. P2.  The Defendant admitted that the interview was voluntarily given by him.

 

3.      The material parts of that interview were as follows:-

(i)	That he was illiterate;
(ii)	That he was the master of the vessel;
(iii)	That he had loaded 850 boxes of frozen ribbon fish from an ice-store at Tuen Mun, N.T.;
(iv)	That the cargo belonged to the vessel's owner, a man called Kwok Yung-tai;
(v)	That he intended to transport the 850 boxes to Ping Hai in China;
(vi)	That he had no export manifest for the cargo; and
(vii)	That the consignee of the cargo was the Ping Hai Marine Products Company in Ping Hai.

4.          Ex. P3 is a map which shows the location of Ping Hai and the location of the Defendant's interception. It is clear that the route he was taking was a convenient one for Ping Hai, although it is right to say that from there he could have easily changed course for Tai Po. The significance of that will emerge in a moment."

4. In dealing with the matters covered by the grounds of appeal, the learned magistrate set out his Statement of Findings as follows:-

"5.     Mr. Lee for the Defendant submitted that there was no case to answer at the close of the prosecution case. He urged me to hold that there was no evidence to suggest that his client intended to leave territorial waters without a manifest and he drew attention to the absence of any question of the accused as to whether he would have completed a manifest. Further, he drew my attention to the case of Haughton vs. Smith and more particularly to the passage in paragraph 2302 in the 42nd edition of Archbold. I was against him on his submission. There was ample evidence from which the notional reasonable jury properly directed might have convicted the accused.

 

6.     The accused gave evidence. He said that he was bound for Tai Po when he was intercepted. He would have arrived there at 6 p.m. or 7 p.m. that evening. The smaller ribbon fish was to be unloaded at Tai Po. The larger fish which was separately packed was to be taken by him to China the next day. This case was that once at Tai Po he would have slept on board until the next day. He said that at Tai Po he was expecting instructions from his boss but he did not know what those instructions were going to be. He agreed that his final destination was Ping Hai.

 

His counsel then asked him this :

 

'Q.	Why was there no manifest when you were intercepted?
A.	Well, I just let them (the customs officers) inspect the cabins. I had no manifest.  Nobody mentioned a manifest to me before I set sail.'

Immediately after that he gave this evidence:

 

'On reflection my boss told me to go to Tai Po to wait for some papers to report to customs. He told me this at Tuen Mun on the boat. He telephoned me on the boat.'

7.     It will readily be observed that his. evidence before me differed materially from his interview with the customs officer to whom he made absolutely no mention of going to Tai Po first, off-loading half the cargo of fish, spending the night there, and waiting for some customs pagers. His explanation to me for failing to mention these matters has because it never came to his mind.

 

8.     I observed the Defendant to be relatively speaking a slow witted man who was illiterate. I made every allowance for that, but in the final analysis I simple could not credit his evidence before me about going to Tai Po. I could not imagine that had that been true that this would not have come to his mind to mention it to his interviewer. I disbelieved him entirely. I found to a certainty that the account he gave in the course of the interview under caution was the true version. He was set on a direct course for Ping Hai without a manifest for this cargo.

 

9.          Counsel adopted his submission at the close of the prosecution case and additionally be contended that georgraphically, and in these circumstances legally the point of interception off Chai Wan was not proximate enough to China to constitute an attempt to export.

 

10.         What the prosecution had to prove beyond reasonable doubt was that the cargo of fish on board the vessel was bound for china, that a manifest was required, that none existed and that at the moment of interception the Defendant was seeking to take it to China. I had absolutely no doubt that all these elements were present and so I convicted the Defendant.  Notwithstanding that the Defendant was comfortably inside Hong Kong's territorial waters the plain fact of the matter was that he was directly bound for China on my finding, and but for the interception, that is where he would have got to. The submission based on lack of proximity failed."

5. Mr Lee Wing-kin, for the appellant, has argued that the crux of the cautioned statement was that it showed that the appellant intended to sail to China. It did not, however, show that the cargo should be exported without a manifest. There was no evidence that the appellant harboured such an intention, he says. As I understand his submission, it is that there was no evidence before the court upon which a reasonable tribunal properly directed could reach a conclusion that the appellant had the requisite mens rea for the offence.

6. Mr Halley, for the Crown, contends that if the appellant had not intended to export cargo without the manifest, he had ample opportunity to say so in the cautioned statement.

7. In my judgment, the magistrate was quite right to reject the defence submission. There was ample evidence upon which a reasonable tribunal properly directed might have convicted the accused.

8. So far as the second ground of appeal is concerned, Mr Lee has referred me to s.15 of Cap. 60, which places a duty on a master or agent of a vessel to provide particulars of all cargo on entering or leaving Hong Kong. He argues that the important words so far as this case are concerned are the words "on leaving Hong Kong". As the appellant was some 23 km. away from the boundary at the time of the interception, it could not be said that his act was sufficiently proximate to the completed offence.

9. Mr Halley pointed out that the magistrate relied on the cautioned statement as he was entitled to do. So far as the appellant's evidence was concerned, he found him unreliable.

10. In my judgment, the magistrate was, on the evidence before him, perfectly entitled to reach a conclusion that the appellant was set on a direct course for Ping Hai without a manifest for this cargo. The magistrate was saying that the appellant had done an act with the intention of committing the crime charged and that that act formed part of a series of acts which would have constituted its actual commission if it were not interrupted.

11. That is a classic statement on the law of attempt.

12. In my judgment, the magistrate cannot be faulted at all in his judgment on this matter. He was entitled reach the conclusions he did on the facts, and his conclusions on fact were sufficient for him to hold that the appellant had attempted to commit the offence in question.

13. The appeal is, therefore, dismissed and the conviction affirmed.