HKSAR v. LAU HUNG PO

HCMA343/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 343 OF 2008

(ON APPEAL FROM KTCC 7076 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Gary Lam, sitting at Kwun Tong Magistrates’ court on 29 February 2008 on a charge of conspiracy to export unmanifested cargo.  The conspiracy is alleged to have taken place “on or about 14 September 2007” and to have been “with persons unknown”.

2. The essence of what is alleged by the prosecution is that at dusk on that day, the appellant drove a lorry to the waters edge at Sai Wan Tsui in the Sai Kung Country Park from which goods were transferred onto one or more of four speedboats which had arrived and berthed there shortly before.  After the goods were loaded, the speedboats departed into Mainland waters after a high-speed chase by a marine police vessel.  It is alleged that the only reasonable inference is that the appellant was party to a conspiracy to export unmanifested cargo. 

3. The oral evidence for the prosecution came from two marine police officers. 

4. PC50509 (PW1) gave evidence of setting up an observation post on the rooftop of the building at Yuen Ng Fan from which he could look down on Sai Wan Tsui and the adjacent waters. 

5. At the relevant time, it was getting dark, so although he used binoculars from time to time, he was largely dependant in his observation on a night-vision scope set on a tripod which he said showed black and white images against a mainly green background.  At about 7 p.m., he saw four speedboats arrive and berth.  Shortly afterwards, although it was by then dark, a lorry not showing any headlights drove along the dam of High Island Reservoir and then turned right down the small road or path to the waters edge where it parked with its rear facing, and about one to two metres from, the speedboats.

6. From his observation point about 300 to 400 metres away, he saw a person emerge from the driver’s door of the lorry and go to the rear of the lorry.  The tailboard of the lorry was lowered.  For the next five minutes or so he saw more than four to five people transfer boxes of goods from the lorry onto a boat or boats.  PW1 had informed his colleagues on a marine patrol vessel of what was going on.

7. Suddenly the people transferring goods quickly returned to the speedboats.  The four speedboats then departed.  It is an admitted fact that this was at 19.28 hours (7.28 p.m.).

8. In the meantime, PW1 said that the lorry headlights were turned on and it started to move up the path or small road to the High Island Reservoir where it was intercepted by a marine police vehicle.  He had not lost sight of a lorry from the time he first saw it until it was intercepted.

9. It was admitted that a lorry driven by the appellant was intercepted on this road at 7.25 p.m. by the marine police.  Inside the goods compartment of the lorry the police found 137 boxes containing animal fur.  The boxes were wrapped with yellow plastic sheets and green plastic sheets and there was a weight loading trolley.

10. The appellant produced to the police two invoices (Exh. P1(1) and P1(2)) relating to the 137 boxes of fur.  It was admitted that the appellant told the police that he had borrowed the vehicle from friends and that it had been loaded in Kowloon Bay.  He said that he had come for fishing.

11. It was also an admitted fact that PW2 (PC34818), the coxswain of the police vessel spotted the four speedboats and signaled to them to stop.  They ignored the signal.  The police vessel gave chase but eventually the speedboats escaped into Mainland waters.  However at one point, when travelling at between 45-47 knots, the police vessel was able to get as close as about 10 metres from one of the speedboats and PW2 noticed that it was loaded with 10 odd boxes of goods.  He described them as being the size of apple boxes and being in green bags.  Initially he referred to them as being “rectangular boxes”.  Later he said that he “saw bags of boxes in square shape and they were in green bags.”

12. The appellant elected not to give evidence.

13. The magistrate stated that in assessing the evidence, he bore in mind the criticisms made by the defence counsel of the reliability of the prosecution witnesses observations and also of the fact that PW1 could only see images of objects through his night vision scope.  He nonetheless accepted the evidence of PW1 and PW2 and said that he was satisfied that boxes were transferred by more than four or five people from the lorry driven by the defendant onto at least one speedboat.  He was satisfied that the four speedboats observed by PW1 and PW2 were the same.  From all the circumstances, he found that there was no doubt that the goods on board the speedboat were exported illegally out of Hong Kong.  He found that at least by the time people began transferring boxes from his lorry onto the speedboat, the appellant must have been party to the conspiracy alleged in the charge.

14. The appellant was represented today, as he was at trial, by Mr David Khosa.  He put forward three grounds of appeal.

15. He alleges that the learned magistrate erred in finding that PC50509 was a reliable witness without properly considering or reconciling the “discrepancies” which undermined this credibility.

16. These included the fact that PW1 had made no mention of seeing the yellow trolley which could be seen in the photographs of the lorry after it was intercepted, that the appellant produced to the police the invoice or delivery note for 137 cartons of fur when there were still 137 cartons in the lorry of the time of its interception and that there was no explanation as to why men from the speedboats suddenly stopped loading and returned to the speedboats without loading the 137 cartons. The magistrate was also criticized for failure to deal with the fact that the description of the boxes given by PW1 and PW2 and those found in the lorry were different.  In particular neither PW1 or PW2 had mentioned seeing yellow straps. 

17. It is also said the magistrate should have attached very little weight to the evidence of PW1’s observations in view of the lighting condition and the fact that his observations were only made with the assistance of a night vision scope.

18. As I have said the magistrate made clear that he took into account the fact that PW1’s observations were made through a night vision scope.  There is nothing in observations through a night vision scope that make them per se unreliable.  PW1 was frank as to the limitations of the scope when it came to see colour and detail at that distance.  There was nothing in his evidence as to what he saw that was inconsistent with the limitation of the night vision scope.

19. Insofar as the other criticisms made by Mr Khosa are concerned, the magistrate not only said he had borne then in mind but went on specifically to refer to them.

20. He did not specifically set out his reasons for rejecting the criticisms but said this :

“10.        In my view, I need not be concerned with or speculate on the reason(s) why the defendant drove away with a truckload of goods with matching invoices or why only one speedboat was loaded with boxes.  Rather, my focus is on the goods loaded on the speedboat which were eventually shipped out of Hong Kong.  The evidence before me includes speedboats, a dark location which was not meant for berthing boats or loading goods, and people moving boxes nearby the lorry and the speedboats.  As a member of the jury, I accept PW1’s and PW2’s evidence without reservation.  Based on PW1’s evidence, I draw the irresistible inference that at the material time, boxes were transferred by more than 4 to 5 persons from the defendant’s lorry to at least one speedboat.  I am also satisfied beyond reasonable doubt that the 4 speedboats observed by PWs1 and 2 were the same.  There is undisputed evidence that all 4 speedboats ignored the various stop signals sent by PV32 and travelled into mainland waters (see paragraph 1 of the Admitted Facts, Exhibit P4).  Under such circumstances, there is no doubt in my mind that the goods on board of the speedboat were exported out of Hong Kong illegally.”

21. It is clear that where there are discrepancies, in the sense of inconsistencies, in the evidence as to material issues, the magistrate is bound to explain how he resolved them.

22. This does not mean that the magistrate is obliged expressly to refer to and deal with every submission made by defence counsel.  The matters which Mr Khosa has referred to as “discrepancies” are not inconsistencies but matter upon which he addressed the magistrate in his submissions and which the magistrate referred to in his Statement of Findings.

23. None of the matters was inconsistent with the evidence of PW1 that boxes were loaded onto at least one speedboat and the evidence of PW2 that boxes were conveyed out of Hong Kong waters by speedboat after a high-speed chase.  It does not follow that just because 137 cartons were found in the lorry, that the boxes loaded onto the speedboat or speedboats were identical to them or even contained the same goods, or that the men operating the speedboats necessarily intended to take the remaining 137 cartons.

24. In any case the fact that PW1 and PW2 did not refer to the yellow straps when they described the boxes they saw does not mean that there were not yellow straps on the boxes loaded on the boat.  This was a minor detail bearing in mind the circumstances in which they made observations.  Neither witness had denied the existence of such straps.  It has to be borne in mind that PW1 would not have been able to observe their colouring bear in mind that his observations were made through the night vision scope.  Furthermore, it is apparent from the photographs of the back of the lorry that many of the boxes remaining did not have yellow straps.

25. Nor does it follow that just because the trolley was not used that boxes was not unloaded from the lorry.  The evidence was that the lorry was backed one to two metres from the waters edge where the speedboats were moored.  This is nothing to suggest that the trolleys would have been useful in such circumstances.

26. There was no evidence to suggest that it would have been necessary to unload the trolley before taking out the boxes that were transferred to the speedboat or speedboats.  Even if the trolley had been taken out, PW1 would not necessarily have seen it as he accepted that there was an area behind the lorry that was not within his line of vision.  These therefore were not matters that the magistrate needed expressly to deal with.  They did not contradict the evidence of the two prosecution witnesses. 

27. I am satisfied that the magistrate was perfectly entitled to deal with the matters in the way he did. 

28. As there was nothing to contradict the evidence of PW1, he did not have to elaborate on his reasons for accepting it.

29. The second ground of appeal is that the magistrate erred in drawing the inferences that :

(a)      four to five persons transferred boxes from the appellant’s lorry to at least one speedboat; and

(b)     that the four speedboats observed by PW1 and PW2 were the same speedboats.

Mr Khosa abandoned the second limb of this ground.  It is clear that that matter was to subject of admitted facts.

30. Insofar as the first limb is concerned, it is implicit from the evidence that the boxes were unloaded onto at least one speedboat.  The evidence was that the lorry had been backed to within one or two metres of the moored speedboats and that men had first transferred the goods and later returned to the speedboats.  At one point prosecuting counsel asked PW1 : “How long did those persons transfer the goods from the lorry to the boat?” to which PW1 answered : “several minutes”.  There is nothing therefore in this ground.

Ground 3

31. The third ground and final ground of appeal is that the learned magistrate erred in finding that the appellant was party to the conspiracy.

32. I find that there is also nothing in this ground and that the magistrate’s reasons for inferring a conspiracy in the absence of evidence to the contrary cannot be criticized. 

33. He said this :

“12.        In my view, the defendant could not have been a mere innocent delivery boy as suggested by defence counsel.  Even if he had at the outset innocently accepted a delivery order, the situation must have been crystal clear to him when he drove the lorry up to the coast where speedboats were standing by and when people began transferring boxes from his lorry to the speedboat.  Any reasonable person in Hong Kong in the same situation would immediately realize that smuggling activities were taking place or about to take place, and so would the defendant.  It may well be possible that the defendant was not acquainted with the people moving boxes or those on the speedboats or that he did not have any prior agreement with them in respect of any smuggling activities; however, by not immediately and overtly withdrawing himself from the predicament, he was knowingly made himself a part of the smuggling scheme.”

34. Mr Khosa has suggested that the reason the appellant drove his lorry away before all the contents of the lorry were fully unloaded might have been because he had wanted to be no part of the smuggling operation once he realized what was planned.

35. In my view this submission ignores the evidence that the unloading of the lorry had been proceeding for approximately five minutes.  I am satisfied that the magistrate was correct that any reasonable person in the same situation would immediately have realized what was going on.  Moreover, I am satisfied that on the evidence the appellant must have been aware even before he stopped the lorry as to the enterprise in which he was involved.  It was dark and yet he drove his lorry down to the waters edge without lights.  Furthermore he backed his lorry to within one to two metres of where speedboats were waiting in a remote spot in the New Territories where was no pier.

36. I therefore dismiss the appeal against conviction.

37. I order that the appellant pay the prosecution costs of the appeal, to be taxed if not agreed.