HKSAR v. TABOC TABOC CECIL CRUZ

HCMA481/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 481 OF 2014

(ON APPEAL FROM ESCC 1444 OF 2014)

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J U D G M E N T

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1.  The appellant was convicted of ‘Selling liquor without a licence’ by Mr Jason Wan at Eastern Magistrate Courts. The charge alleged that the appellant sold 7 bottles of “blue ice” beer at Leo’s Lounge. The appellant was the sole owner of the Lounge and had no licence for selling liquor. He was fined $20,000. He appeals against the conviction.

2.  There were 3 defendants in the trial.  The other two defendants were acquitted of all charges.[1]

3.  In the evening on 25 October 2013, two undercover police officers (PW1 and PW2) went to Leo’s Lounge in Central[2]. A waitress took order from PW1 who ordered 6 bottles of beer.  There was one complimentary bottle.  The waitress then went to the Store next door and fetched bottles of beer from a refrigerator.  She did not ask anyone at the Store. She did not pay for the beer there either.  She then put the beer inside a bucket and delivered them to the police officers.  She was paid $100.  The banknote was marked.  She handed over the marked money to another waitress who put it in the cashier register of the Lounge. 

4.  The appellant was not in the Lounge at that time.  There were about 40 customers in the Lounge.  Most of them consumed alcoholic drinks.  Later the police raided the Lounge and found no alcoholic drinks in the Lounge.  However, there was a large quantity of alcoholic drinks in the Store. 

5.  According to the admitted facts[3], the appellant sublet the premises to D2 who operated the Store next door to the Lounge. 

6.  The appellant did not give evidence.  There was no defence witness.

7.  The magistrate emphasized that the appellant did not have to prove anything.  The burden was wholly on the prosecution to prove the offence beyond all reasonable doubt.  There was no adverse inference against him for not giving evidence. 

8.  The magistrate found that the evidence of PW1 and PW2 was clear and straight forward.  They were consistent with each other.  They were honest and reliable.

9.  The magistrate pointed out that there was no indication from the waitress that beer would not be served, nor did she mention that the police officers needed to purchase beer from the Store next door.  The waitress just took the order, fetched the bottles of beer from the Store, served the beer and accepted payment.  The magistrate concluded that she was selling beer in the Lounge. 

10.  The magistrate rejected the explanation by the appellant in the video interview.  He disbelieved that customers would take the trouble of purchasing beer from the Store and consume at the Lounge.  He found this explanation against common sense. 

11.  The magistrate further rejected the possibility that the employees would take the initiative to sell alcohol against the appellant’s instruction.  Given that the appellant was the sole proprietor of the Bar, the magistrate concluded that the appellant must have knowledge that liquor was sold in the Lounge.  As there was no licence for selling liquor at the Lounge, the appellant was guilty as charged.

12.  The magistrate acquitted D1 and D2 who were the co-defendants in the same charge.  For D1, the magistrate could not be sure that D1 was the person pointed out by PW2 and subsequently arrested by another police officer.  For D2, the magistrate ruled no case to answer. 

Grounds of appeal

13.  I group the various complaints against the findings of the magistrate according to the written submission by the appellant dated 17 March 2015.

14.  The appellant criticized that there was no evidence from the waitress proving that liquor was sold.  The magistrate could not draw any irresistible inference.

a According to the evidence of PW1 and PW2, there was a waitress taking order from PW1.  She then went over to the Store and fetched the bottles of beer from the refrigerator.  She did not ask anyone nor did she pay for the beer at the Store.  

b She then delivered the beer in a bucket to the police officers who paid $100.  She handed over the money to another waitress at the cashier counter.  The latter put the money in the cashier register of the Lounge. 

c The magistrate relied on the above to conclude that beer was sold at the Lounge.  There is nothing wrong with this reasoning.  I do not accept this ground of appeal. 

15.  The magistrate erred in rejecting the explanation of the appellant in the video interview.  The police found no alcoholic products at the Lounge.  They only found alcoholic products at the Store.  This was consistent with the appellant’s explanation.  The magistrate was wrong in concluding that the bottles of beer were sold by the waitress. 

a The appellant did not give evidence during the trial. The magistrate was not bound to accept the exculpatory part of the video interview.  The reason being that it was not made on oath.  It could not be tested under cross-examination. 

b While alcoholic drinks were only found at the Store, the police officers observed that the waitress did not purchase the beer from the Store.  Instead, she only fetched the beer and delivered them to the police officers.  She did not need to ask anyone at the Store. 

c Besides, payment was made at the Lounge and the money was handed over to another waitress at the cashier counter of the Lounge. 

d This must be assessed in the light of the circumstances of taking order.  The waitress did not ask the police officers to purchase the beer from the Store by themselves nor did she inform the police officers that no liquor would be served.  On the contrary, she served the beer and took the payment as described by the police officers. 

e There was no evidence to counter or rebut the evidence of the police officers.  In my view, the only reasonable inference is that beer was sold as the police officers described. 

16.  The magistrate failed to explain the acquittals of the other joint defendants in the charge.  The magistrate accepted the evidence of PW1 and PW2 as truthful, however, they could not identify D1 and D2.  Nor could they identify the ‘fat’ lady or the ‘thin’ lady who were allegedly present during the offence. 

a The magistrate did not explain the acquittals of D1 and D2 in the statement of findings.  This is understandable as the appeal only concerns the appellant.

b The magistrate however explained the reasons for the acquittals in the oral judgment.[4]  I understand that he was not satisfied that the waitress who took the order from the police officers was D1.  The evidence revealed that PW2 pointed out a waitress to the Sergeant.  The Sergeant ordered another police officer to arrest D1.  The Sergeant did not give evidence.  The magistrate could not be sure that the person pointed out by PW2 to the Sergeant was the same person actually arrested at the scene.  

c As for D2, the magistrate had ruled no case to answer already.  The reason for that ruling was not included in the transcript of the appeal bundle.  However, according to the admitted facts, D2 was the person who operated the Store at the material time.  The Store was unconnected with the Lounge.  That was probably the reason.  

d The video interview of D1 was admitted by agreement during the trial.  D1 mentioned that customers bought liquor from the Store, this had already been rejected by the magistrate.  In any event, nothing in the video interview of D1 could take the defence case any further.  The magistrate should not consider the video interview of D1 who gave no evidence and not tested under cross-examination.

e In my view, the magistrate was not sure about the identity of the waitress who served the police officers and accepted payment at the material time.  This however should not affect the credibility of the police officers.

f I do not accept this ground of appeal.

17.  There was insufficient evidence to infer that the appellant had knowledge of selling liquor at the Lounge. 

a The appellant was the sole proprietor of the Lounge.  He admitted in the video interview that there were 2 employees helping him during his absence.[5]

b In the absence of evidence to the contrary, the magistrate rejected the possibility that it was the two waitresses who took the initiative to sell liquor.  He further inferred that the appellant must have full knowledge of the mode of business at the Lounge.  He concluded that the appellant was fully aware that liquor was sold there. 

c Having rejected the exculpatory part of the appellant’s video interview, the magistrate was right to draw that inference. 

18.  The basis of the prosecution case against the appellant is joint enterprise.  The appellant together with his employees sold beer at the Lounge.  In such a case, all accused must have a common plan to commit the offence although each of them may have a different role.  

19.  The appellant was the sole proprietor, he must be the person directing the mode of the business at the Lounge.  His employees were agents carrying out his direction.  

20.  The evidence of the police officers fully demonstrated that liquor was sold as they described.  This must be the mode of business directed by the appellant.  The magistrate rejected the explanation put forward by the appellant in his video interview.  He also rejected that the employees would sell beer on their own initiative.  

21.  Mr Daryanani, counsel for the respondent, fairly indicated that the summons should be laid under Reg.25A, Cap109B instead of s.17(3B), Cap109. 

22.  Reg.25A of Dutiable Commodities (Liquor) Regulations, Cap109B, prohibit sale of liquor at any premises or place of public entertainment etc for consumption unless with a licence. 

23.  Section 17(3B) of Dutiable Commodities Ord, Cap109, provides that no person shall sell, expose for sale or possess for sale any liquor...except with a licence. 

24.  In my view, the summons is correctly laid under Section 17(3B) which prohibits any person from selling liquor without a licence.  This point raised by the respondent would not affect the outcome of the appeal. 

25.  In my view, the magistrate was correct to convict.  I dismiss the appeal.