THE QUEEN v. LIU JIN TIAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.188 OF 1995

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JUDGMENT

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1. The Appellant was convicted in the Magistrate's Court after trial on one charge of attempting to export unmanifested cargo contrary to Section 18 (1) (b) of the Import and Export Ord. Cap 60 on the 1st day of February 1994. He was sentenced to 11 months imprisonment.

2. The facts are unimportant to this appeal. The principal ground upon which Mr. Plowman relied and the ground upon which I allowed the appeal was that at the trial the prosecution, the defence and the Learned Magistrate believed that the statutory defence provided for in Section 18 (2) of the Import and Export Ordinance Cap. 60 was available to the Appellant whereas in fact the that sub-Section did not come into effect until the 4th day of March 1994 being a date after the commission by the Appellant of the offence and was not a statutory defence which applied to the Appellant.

3. On the 1st of February 1994 Section 18 (2) provided a statutory defence to an offence under Section 18(1) of the Ordinance in these terms:

4. By the amendment that came into effect on the 4th of March 1994 the statutory defence was extended to the defendant to a charge under Section 18 and was not limited to an owner of a vessel aircraft or vehicle.

5. I am satisfied having considered the tests set out by Lord Scarman in Gammon (Hong Kong) Ltd v. Attorney General [1983] AC 1 and recently affirmed and adopted by Bokhary J. in The Attorney General v. Fong Chi-yue Crim App 989 of 1993, and having considered the decision of the Court of Appeal in The Queen and Lui Tak-hoi Magistracy Appeal 1 of 1993, that an offence contrary to Section 18 of the Ordinance is one of strict liability. In The Attorney General v. Fong Chi-yue Bokhary J. held in respect of an offence of strict liability:

" So the prosecution does not have to prove that the accused knew that duty on the goods was outstanding. But it is a defence for the accused to prove on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of the DCO relating to the goods had been complied with, which compliance of course includes duty having been paid".

6. Mr. Plowman argues that in the case before the Learned Magistrate, and in the absence of the amendment to Section 18, it was not for the prosecution to prove that the Appellant knew the cargo was unmanifested but for the Appellant to prove on a balance that he did not know, not arbitrarily but upon good and sufficient reasons, that the cargo was unmanifested. After the amendment to the Section he argues that the prosecution still did not need to prove that the Appellant knew the cargo was unmanifested but that it was for the Appellant to prove on a balance of probabilities that he did not know " and could not with reasonable diligence have known " that the cargo was unmanifested. He maintains that by the amendment a burden not imposed by the common law was added; that of showing that he used reasonable diligence.

7. In The Queen v. Lui Tak-hoi Magistracy Appeal 1 Of 1993 (heard by the Court of Appeal) an appeal from a conviction pursuant to Section 18 (1) of the Import and Export Ord. the Magistrate had said in his findings:

" Considering these matters I concluded that the efforts of the Appellant fell well short of the diligence required by the subsection (2). I accordingly convicted him of the charge."

8. The Court of Appeal quoted that passage and therefore had it in mind. The appeal was argued on the basis of whether the offence was one of strict liability as the Magistrate had held and the appeal was dismissed.

9. I accept the law, as set out by Duffy J. in R. v. Lam Chau-on Magistracy Appeal 925 of 1991, to be:

" Procedural changes to the law (semble if the operate to the general advantage of all litigants) must be given effect immediately upon their introduction, whether they amount to an amendment of the legislation or to its repeal."

10. Two matters must therefore be taken into consideration. Firstly is the change to the law procedural and secondly does the change operate to the general advantage of all litigants. I do not need to consider whether the change is procedural. If the change fails either limb of the test then it cannot operate upon offences alleged to have been committed prior to the date the change becomes effective.

11. I accept the argument of Mr. Plowman that the effect of the amendment to Section 18(2) did not operate to the advantage of all litigants in that it imposed a duty on the Appellant to prove that he could not with reasonable diligence have known that the cargo was unmanifested and that added duty was not to his advantage. The appeal against conviction must be allowed.

I was asked to order a retrial. In all the circumstances I was not prepared to do so.

The appeal against conviction is allowed. The conviction is quashed.