HKSAR v. CHUNG KIN WING

HCMA1098/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1098 OF 1999

(ON APPEAL FROM TMCC No.2226/1999)

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J U D G M E N T

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1. The appellant was convicted on 21 October 1999 of dealing with goods to which the Dutiable Commodities Ordinance applied, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap.109 ("the Ordinance"). He was sentenced on the same day to a fine of $1,000. He now appeals that conviction.

2. There are a number of grounds of appeal, but there is only one with which I need to deal.

3. The facts before the court were that at about 1640 hours on 20 May 1999, the appellant was the driver of a car Registration No.HZ7306 which was parked next to a discarded container in an area near Tuen Mun. A man was found standing next to the vehicle unscrewing the fuel intake of the vehicle. The intake cover had already been opened. Beside the man there was a jerry can containing 25 litres of motor spirit upon which duty had not been paid. Nearby there was a green garbage bin with a funnel and hose attached to it.

4. The appellant, on being questioned at the scene, told the Customs Officer that he went there to refuel one bucket of petrol and that the cost of one bucket of petrol was $180. It is common knowledge that at the cost of petrol in Hong Kong, the sum of $180 would buy him in the vicinity of 18 litres of petrol from a legitimate source. The magistrate drew the conclusion that he was there to purchase the 25 litres contained in the jerry can.

5. The law is such that upon the case of R. v. Fong Chin Yue [1995] 1 HKC 21, once the prosecution has proved beyond reasonable doubt that the appellant knew that the goods with which he was said to be dealing were goods to which the Ordinance applied, the burden of proof shifted to the appellant to prove, on the balance of probabilities, that he believed for good and sufficient reason that the provisions of the Ordinance had been complied with - in this case that the duty had been paid.

6. Having considered that the burden shifted to the appellant, the magistrate said this :

"The defendant elected not to give evidence and called no witnesses, and there is no defence evidence regarding the defendant's belief. Therefore, I find that the shifted burden of proof was not discharged and the prosecution case can proved beyond all reasonable doubt that the defendant knew that the motor spirit was dutiable."

The law as it stands requires a magistrate, where a burden shifts in this manner to a defendant, to look both at the evidence of the defence and at the evidence for the prosecution to see if, on the totality of the evidence, there is any evidence which could discharge the burden placed upon the defendant. From the face of the findings of the magistrate, it is clear that she was of the belief that all the evidence to rebut the presumption must come from the defence, and in the absence of the defence giving any evidence, the burden of proof could not be discharged. This is a fundamental error of law and the appeal must be allowed.

7. The appeal against conviction is allowed and the sentence set aside.