HKSAR v. HA YIN

HCMA 122/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 122 OF 2001

(ON APPEAL FROM FLC 2340/2000)

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J U D G M E N T

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1. The Appellant in this case was convicted after trial of one charge of attempting to export unmanifested cargo, contrary to Section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and Section 159G of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. After her conviction she was fined and sentenced to 6 months' imprisonment suspended for 18 months. The Appellant now appeals against her conviction.

2. The prosecution's case was that the Appellant had driven up to the Lok Ma Chau Control Point and she was stopped. There was some confusion at that time when the Appellant was at Lok Ma Chau Control Point even between the Customs officer as to what was actually asked of her, whether she was asked for the manifest or list, and the Chinese words for manifest and list are different. Ultimately the learned magistrate believed the evidence of the 3rd prosecution witness. The 3rd prosecution witness had initially given evidence about the fact that the Appellant had been asked for manifest but upon cross-examination, she subsequently agreed after referring to the record that she had made that the Appellant had been asked if she had "cargo list".

3. The Appellant elected to give evidence at the trial and said that she is not fluent in the Punti dialect and at the material time when she drove to the Control Point she was confused about what was being asked of her. It was her first time driving her goods through the Control Point because normally the goods went through professional transportation company but because it was an emergency that day she had driven the goods through. But before she did so, she had asked her office to prepare a customs declaration form and that was produced as Exh. D3. And she said that she had that customs declaration or rather what is called the export cargo declaration form in her handbag at the time and she did not produce it because she did not know what she was being asked for and so it remained in her handbag.

4. The learned magistrate after looking at D3 said that if indeed the Appellant had D3 in her handbag she would have accepted that as a manifest but the learned magistrate found that she did not believe that the Appellant had D3 in her handbag at the time when she drove up to the Lok Ma Chau Control Point and therefore she was guilty of the offence as charged.

5. But what concerns me is that after the conviction in sentencing the Appellant, the learned magistrate said this: "Having gone through the evidence adduced at the hearing, I accepted that the Defendant did not hide the truth from or cheat the customs authorities intentionally". If that is the case, if she did not intend to cheat the customs authorities intentionally then she must have the necessary document with her because the evidence of the Appellant was that she knew she had to produce the cargo declaration form and if that is the case, she would not have driven up to the Control Point without the necessary document if she did not intend to cheat the customs authorities. And my concern is compounded by the fact that the learned magistrate failed to specifically make a finding of fact that the Appellant knew that what was being asked of her was the export manifest or cargo declaration form.

6. In these circumstances, I am left with a lurking doubt as to the propriety of the conviction. I therefore have to allow the appeal against conviction, and the Appellant's conviction is quashed.