HKSAR v. TANG KWAI WA

HCMA 556/2019

[2020] HKCFI 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 556 OF 2019

(ON APPEAL FROM TUEN MUN MAGISTRACY

CASE NO TMCC 2979 OF 2018)

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BETWEEN

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JUDGMENT

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1.  The Appellant was convicted after trial by the Deputy Magistrate (Magistrate) for the offence of “importing unmanifested cargo”, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60. The Magistrate sentenced the Appellant to 18 months’ imprisonment, the Appellant now appeals against conviction and sentence.

2.  The particulars of the charge were that, on the 6^th of December 2017 at the Customs Private Car Arrival Kiosk No 7 of Shenzhen Bay Control Point, New Territories, Hong Kong the Appellant imported unmanifested cargo, namely, 35.00125 kilogram of gold slabs.

The Prosecution Case

3.  As briefly summarized by the Respondent, the evidence for the prosecution at trial came mainly from SCO 9054 (“PW2”), CO 98258 (“PW4”) and the Admitted Facts P42. 

4.  PW2 was on duty at the Customs private car arrival kiosk no 7 at the material time when the private car driven by the Appellant (“the Vehicle”) approached the said kiosk after immigration clearance.  The Appellant was the only person and the driver of the Vehicle.

5.  The Appellant was directed to drive the Vehicle to undergo examination at the inbound private vehicle examination centre, where PW4 and CO 1759 examined the Vehicle.  Nothing suspicious was found on the Vehicle or on the Appellant upon inspection.

6.  An x-ray examination was subsequently conducted on the Vehicle which led to a further search of the Vehicle by PW4.  On this occasion, PW4 found a bag which contained 35 kilogrammes of gold slabs in the rear compartment of the Vehicle.  PW4 declared arrest and administered caution on the Appellant.  In response to PW4’s enquiry under caution, the Appellant said that the “bag of stuff” found in the trunk of the Vehicle belonged to him, that they were gold bullion and he did not remember who put the gold bullion there.  When asked what the batch of gold bullion was for, the Appellant claimed that the gold was to be taken back home and placed it there.  When asked whether he had made any declaration verbally or in any document to the Hong Kong Customs and Excise Department for importing the bag of gold bullion, the Appellant said “no”.

7.  The enquiry made by PW4 and the Appellant’s response under caution were subsequently recorded in PW4’s notebook.  At the end of the record, the Appellant copied down a declaration and signed to confirm the truthfulness and correctness of the entry (“the post-record”). At trial, the Defence challenged the admissibility of both the verbal admissions made by the Appellant to PW4 and the post-record. Alternative procedure was adopted to address the issue of admissibility.  At the end, the learned Deputy Magistrate ruled that both the verbal admission and the post-record to be admissible.

The Defence Case

8.  The Appellant elected not to testify on the Special Issue and the General Issue.  No Defence witness was called.

Magistrate’s findings

9.  The Magistrate summarized the argument by defence counsel at trial as follows: -

(a) Based on PW4’s evidence, the Appellant was arrested because of the large quantity of gold.  Defence counsel emphasizes repeatedly Hong Kong is a free port for gold trading, there are no restrictions on the amount of gold a private person can bring into HK, and gold is not a dutiable commodity.  Hence, bringing gold into Hong Kong needs not be declared;

(b) Defence counsel mentioned in his written final submission that “there is no evidence there are signs at the control point or banners or warning signs at the Customs entry point, not permitting or restricting private individuals to bring gold into HK.”  He made similar comments in his no case submission that no warning signs or the like can be seen anywhere at Shenzhen Bay control point during the site visit.  That was what defence counsel submitted at bar table, not evidence.  Even so, by section 18(1)(a) any person who imports any unmanifested cargo shall be guilty of an offence, ignorance of law is no defence.

(c) Defence counsel submitted that the word “cargo” in its true sense means goods carried on a large cargo vehicle, vessel or plane, and the word “import” denotes the goods in question are for sale.  Whereas in the present case, there are no evidence to suggest that the Appellant was an importer but a private individual.

10.  The Magistrate stated that while he accepted Hong Kong is a free port for gold trading and gold is not a dutiable commodity, the court is bound to consider the legislative intent.  Section 18(1)(a) of the Import and Export Ordinance stated “Any person who import any unmanifested cargo shall be guilty of an offence.”  Section 2 of the Ordinance provided interpretation of the following:

“un-manifested cargo” means any cargo which is not recorded in a manifest.

“import” means to bring or cause to be brought into HK any articles.

“cargo” means any article which is imported or exported other than the exceptions (a)-(f) as set out.

(a) the necessary equipment, stores or fuel of the vessel, aircraft or vehicle in or on which the article is imported or exported;

(b) food and other provisions reasonably required for consumption by the crew or passengers of such vessel, aircraft or vehicle;

(c) items of personal property reasonably required for the personal use of the crew or passengers of such vessel, aircraft or vehicle;

(d) any document relating to –

(i) the carriage of cargo in or on such vessel, aircraft or vehicle; or

(ii) the inter-office business transactions of the owner of such vessel, aircraft or vehicle;

(e) articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him; and

(f) any article in transit unless such article is a prohibited article not falling under paragraphs (a) to (e).

11.  The interpretation of “import” does not include the words “for trading purposes” or “business related” nor the interpretation of “cargo” include the word “for trading purpose” or “business related purpose”.  The Magistrate’s understanding is, if the legislature had intended to confine “cargo” to goods for trading purpose(s), it would not have used the words “any articles” but would have for clarity included the words to the effect that “cargo” means any article intended for sale or trading purposes. 

12.  Further, the Magistrate stated that the defence counsel sought to rely on the Appellant’s admission and that is the Appellant admitted the gold slabs belonged to himself and it follows the gold slabs are his personal belongings, and his intention to take them home and put there means the gold slabs were for his personal use.  The Magistrate further considered all the listed exceptions for “cargo” as set out above and was satisfied none of those exception is applicable to the present case.  The Magistrate found that the gold slabs found inside the Appellant’s private car must be taken to be cargo.

13.  The Magistrate also stated that it is not in dispute that the large quantity of gold slabs the Appellant was bringing into Hong Kong were unmanifested.  The Magistrate accepted PW2’s evidence that the Appellant told him he has nothing to declare.  It is also not in dispute how the gold slabs were found on the private car driven by the Appellant.  It is immaterial whether the bag of gold slabs was hidden or not.  It is also immaterial whether the gold slabs were the Appellant’s personal property when the Appellant’s case does not fall within one or more of the exceptions of the definition of “Cargo”. 

14.  Based on the above findings, the Magistrate was satisfied the Appellant did import unmanisfested cargo contrary to section 18(1)(a) of the Import and Export Ordinance and the charge against the Appellant was proved beyond all reasonable doubt.

Magistrate’s Sentence

15.  The Magistrate noted that the Appellant is not a first offender.  He had 2 conviction records dated back to 2002 and 2003, none similar to the present offence.  This is his first offence of this nature. 

16.  The Magistrate stated that the quantity of gold involved in the present case is huge, there were 35 pieces of gold slabs and, the total value estimated was over HK$10 million.  The Magistrate took a very serious view of the nature of the offence in the present case, and reckoned the sentence to be imposed should reflect the gravity of the offence and has to have deterrent effect on the Appellant and offenders to be.

17.  The Magistrate further stated that there is no tariff or guideline for sentence.  He referred to a District Court case HKSAR v Wu Hongmei, DCCC 1011/2017 where 36 months was adopted as starting point for the same offence and similar facts as the present case.  In that case, there was 76 gold slabs found and the value was $24,213,600 but that defendant was a first offender.  The Magistrate said that after due consideration, the 18 months was adopted as starting point and the Appellant was sentenced to 18 months’ imprisonment.

Grounds of Appeal

18.  Mr William Allan acting for the Appellant adopts the following grounds of appeal and written submission as settled by Mr Andrew Bruce SC,

(1) There was a material irregularity and, by reason thereof, the Appellant had an unfair trial and, accordingly, the conviction was unsafe and unsatisfactory in that the learned Deputy Magistrate permitted the prosecutor to make a closing speech by way of 2 written submissions and, in the alternative, if it was a proper exercise of his discretion to permit the prosecutor to make such a closing speech, the speech could not be considered of becoming brevity.

(2) (Alternative to Ground 1) There was a material irregularity and, by reason of that, the conviction was unsafe and unsatisfactory in that the learned Deputy Magistrate took account of the closing submissions of the prosecution which did not comply with the requirement that they be of becoming brevity.

(3) The Statement of Findings was in real and substantial disconformity and of substantially greater length than the reasons for conviction given by the learned Magistrate at the time of convicting the Appellant.

(4) The learned Deputy Magistrate erred in failing to take into account the exculpatory component of the admissions against interest tendered by the prosecution and admitted into evidence by the learned Deputy Magistrate.

(5) There was an error of law in that the learned Deputy Magistrate erred in holding that the material the subject of the allegation of being a manifested cargo was not, in law cargo within the meaning of the Import and Export Ordinance, Cap 60 in section 2 in that the exception in the definition of “cargo” in that section that the section does not cover “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him”.  The fact that the Appellant was the driver of the vehicle in which he was found does not exclude him from coverage of the exception to the definition.

(6) (Alternative to Ground 5) If it be held that on a proper construction of section 2 of the Import and Export Ordinance, Cap 60 that “driver” cannot in law be construed to include passenger as is contended in Ground 5 (above), then it is contended that section 2 of the Ordinance creates an unconstitutional discrimination by reason of Article 25 of the Basic Law.

Grounds 1 & 2

19.  It was submitted that as in HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298, where the accused is represented and the accused has not testified and has not called witnesses, the right of the prosecutor to make a closing submission should be used sparingly and if such a submission is made it should be made with becoming brevity.

20.  However, in the present case, the submissions made by prosecuting counsel were wide-ranging both as to law and as to fact and credibility.  The submissions were lengthy and on no account could they be said to be of becoming brevity.

Ground 3

21.  It was submitted that the Statement of Findings was in real and substantial disconformity and of substantially greater length than the reasons for conviction given by the learned Magistrate at the time of convicting the Appellant. A comparison of the “brief” reasons for verdict with the Statement of Findings clearly demonstrates that disconformity.

Ground 4

22.  It is submitted that the exculpatory component provided a basis for an acquittal.  As in HKSAR v Chan Tam Fu [2016] 3 HKC 250, the Court of Appeal held that it would be appropriate in relation to exculpatory components of a statement made by an accused that a Liberato direction should be given, which asserts that in relation to the evaluation by the jury of evidence in favour of the accused, they should take it into account if they think it may or might be true.  Manifestly, it was submitted that did not occur and the exculpatory components of the statement of the Appellant deserved further and better consideration.

Grounds 5 & 6

23.  It was submitted that the Magistrate erred in holding that the material the subject of the allegation of being a manifested cargo was not, in law cargo within the meaning of the Import and Export Ordinance, Cap 60 in section 2 in that the exception in the definition of “cargo” in that section that the section does not cover “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him”.  The fact that the Appellant was the driver of the vehicle in which he was found does not exclude him from coverage of the exception to the definition.  A problem might arise by reason of the fact that there is an issue of law as to whether a driver could be a “passenger”.  It would be an unacceptable distinction to make between a driver who might be travelling by himself and the idea that such a person would have a different liability in relation to the exception in the definition of “cargo” to a passenger would be an unacceptable discrimination.

24.  It is further submitted that under the Basic Law that such a distinction, if it was held to exist, was not a distinction which was consistent with the anti-discrimination clause which is reflected in the proposition in Article 25 that all persons are equal before the law.

25.  The Appellant also stated that it may be that in some situations it would be appropriate for the driver to submit a manifest.  However, the manner in which the discrimination operates in this case there is no distinction in the obligation of a driver.  Some will be simply driving from, say, Guandong County back to Hong Kong after a social visit.  Some will be driving a large truck carrying a substantial quantity of cargo.  What both carry across the border given the definition of cargo which is, in effect, anything that can be carried, they are all liable to submit a manifest even in situations where a passenger would be carrying what would equally be cargo but is not required to submit a manifest.  This is particularly harsh it is submitted when the material which is the “cargo” the subject of the proceeding may be carried perfectly lawfully across the border.  There is no restriction on the cargo in the instant case which would justify any other view.

Discussion

26.  A magistracy appeal is an appeal by way of rehearing, as in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  An appellate court will not depart from a magistrate’s findings unless it is satisfied that the finding is “plainly wrong”.

27.  The appellate court should also appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript.  Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  However, if the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in his reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe.  (see Chou Shih Bin v HKSAR FACC 11/2004, Raymond Chen v HKSAR FACC 1/2010)

Grounds 1 & 2

28.  Firstly, the Court of Final Appeal case of Brandon Leung essentially concerned the rule of practice where the defendant was unrepresented, but unlike the present case the Appellant was represented throughout the trial, besides, as in HKSAR v Zhuo Yaying [2016] 3 HKLRD 925, the Court emphasizing, however, the prosecuting counsel was nonetheless entitled to address the judge as to law in reply.

29.  In fact, when reading through the Statement of Findings, it is noted that it was only in the circumstances where the defence had not expressed clearly whether the exception as provided by the law for the definition of cargo was relied on, then the Magistrate went on to ask for assistance from both parties to address this matter concerning the question of law, therefore I do not see any procedural irregularity raised, even if I were wrong, the irregularity was clearly not a serious one which affected the fairness of the process as a whole, therefore grounds 1 & 2 must fail.

Ground 3

30.  When comparing with the Statement of Findings and the oral verdict delivered by the Magistrate, no doubt they just respectively covered the very same issue with the same reasoning and analysis, bearing in mind the Magistracy’s heavy load of work, it is also understandably a brief reason was only given for oral verdict.  Even if there were slight variance, it could not be said as real and disconformity, therefore, this ground must also fail.

Ground 4

31.  It was also submitted that the Magistrate did not take into account the exculpatory part of admission by the Appellant, namely that the Appellant alleged that the gold slabs belonged to him which would be placed at home (ie for his personal use).  However, the Magistrate not only mentioned that the court is entitled not to attach any weight to the self-serving statement, but also the Magistrate had expressly found that the gold slabs, did not fall into any exception as listed in the statute as cargo.  As one of the exception provided is personal use, so by necessary implication, the Magistrate had clearly rejected the Appellant’s exculpatory claim as aforesaid.

32.  Further, it is also noted that the Appellant though claiming the substantial gold slabs were to be placed at home, he said he did not even remember who put it inside his vehicle, in the circumstances, for re-hearing consideration, such allegation would be rejected in any event, therefore this ground also fails.

Grounds 5 & 6

33.  It is further submitted that the exception should come into play given that the gold slabs should be regarded as articles imported by a passenger as personal baggage carried by him, and that even if the Appellant was just the driver it should not preclude him as “passenger” or an unacceptable discrimination may arise contrary to Article 25 of the Basic Law where all Hong Kong residents shall be equal before the law.

34.  However, when taking a closer look to the statute, it would only be so much imaginative to take that “passenger” should also cover “driver” or “driver” also be taken as “passenger”, as the wording is so clear that it only exclude (c) the items of personal property reasonably required for the personal use of passengers or (e) articles imported by a passenger in his personal baggage or carried by him, it thus leaves no room for further interpretation to take passenger also covering driver or the legislation would undoubtedly set out as such.

35.  Further, as also stated by the Respondent, the guarantee of equality before the law does not invariably requiring exact equality, see Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 and the differential treatment would be justified if it pursue a legitimate aim; rationally connected to that aim, no more than necessary and has a reasonable balance between the societal benefit and the interference with the individual’s equality right, see Leung v Secretary for Justice [2006] 4 HKLRD 211. 

36.  Respondent also referred to the amendment bill which sought to deal with passenger bringing in goods not for personal use and the Administration also intended to protect the economic interest of Hong Kong to safeguard the shipping and airline companies.  It was only in such circumstances the amendment intended to exclude the definition of cargo by passenger carrying as personal baggage and to remove the need for such manifest by numerous passengers.  Moreover, the role of driver is clearly different from the passenger when the former do take full control of the transport vehicle and should be held responsibly of what carried and a manifest is thus necessary. 

37.  Hence the differential treatment between driver and passenger is fully justified and it could not be said as interfering any individual’s equality rights.  Therefore, grounds 5 & 6 also fail.

38.  To conclude, I do not find the Magistrate’s findings in any way illogical or unreasonable.  After re-hearing to consider all the evidence, I am also convinced that the verdict is safe and satisfactory.  As all the above appeal grounds also fail, this appeal is dismissed accordingly.

Appeal on sentence

39.  The Magistrate had duly considered the background of the Appellant, the quantity and value of gold slabs imported (estimated over 10 million), I also agree that a serious view should be taken and the sentence of 15 months’ imprisonment is neither wrong on principle nor manifestly excessive.  Therefore, the appeal against sentence is also dismissed accordingly.