THE QUEEN v. CHIU TAI-HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No.630 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was found guilty of two offences: one of importing unmanifested cargo contrary to section 18(1)(a) of the Import & Export Ordinance, and the other of possession of a poison in Part I of the Poisons List contrary to section 23(1) of the Pharmacy and Poisons Ordinance.

2. The charges arose as the result of the Appellant's being the consignee of a crate and contents shipped from Singapore to Hong Kong on board the "Regina Maersk" in January 1985. After the ship's arrival in Hong Kong the Appellant sent an agent to the container terminal to collect the crate and provided him with an invoice which had been sent to the Appellant by the consignor. In that invoice the contents of the crate were described as --

"15,600 pcs Clock Movements 313 doz Chinese Medicine".

The bill of lading and the ship's manifest described the contents as --

" Clock Movement".

3. The crate was opened and the contents examined by Customs Officers before delivery to the agent was effected. That examination revealed that the crate contained a number of packages of two distinct types. One type, described by the witness who examined the contents as "a postal package", contained packets of pills labelled "Tung Shueh Pills". The other type of package, described as "carton boxes", contained clock movements. The package containing the pills bore a "postal declaration issued by the Hong Kong Post Office" and a Hong Kong Post Office date stamp impression showing a date about a month earlier than the date the ship sailed from Singapore. When the witness asked the Appellant's agent about the contents he produced the invoice supplied to him earlier by the Appellant. Analysis by a Government Chemist revealed that the pills contained a poison the name of which appears in Part I of the Poisons List.

4. Subsequently the Appellant lodged a document with the Customs and Excise Department in which he declared that he was the importer of the goods.

5. The Appellant's evidence was that although he was in the import and export business his company did not deal in pharmaceutical products, that he had no knowledge of them, had never heard of the chemical name for the contents of the pills and that he did not know what the pills were. He said that he came to know that they had been consigned in the crate only after the ship had left Singapore and that knowledge came to him on receiving the invoice. On learning of the contents of the crate he telephoned his uncle in Jakarta, who was responsible for the shipment from Singapore to Jakarta via Hong Kong, and asked his uncle to rectify the inaccurate description of the contents of the crate which appeared on the bill of lading.

6. The learned magistrate did not accept the Appellant's denial of knowledge of the nature of the pills and convicted him.

7. In respect of the conviction on the charge of importing unmanifested cargo Mr. Mullick submitted that the offence is not absolute and that a person can be convicted only if he is shown to have "caused" the cargo to be unmanifested. In support of that proposition he relied on R. v. Tse Hung-lit, (Magistracy Appeal No.136 of 1985). In that case the defendants had been charged with attempting to export unmanifested cargo. They had unmanifested cargo on board a speedboat and their intention was to rendezvous with a fishing junk just within Hong Kong waters and there hand over the cargo to the crew of a junk who, they knew, would take the cargo further on its journey beyond the boundary of Hong Kong. When the junk did not appear as arranged they decided to return to Tsing Yi Island. On their return they were intercepted by the Marine Police. The Prosecution case was not that the defendants were attempting themselves to take the cargo out of Hong Kong but that they were attempting to cause that to be done. By section 2 of the Import & Export Ordinance "export" is defined as ---

"to take, or cause to be taken, out of Hong Kong any article other than an article in transit. "

On appeal against conviction the Court of Appeal, by a majority, decided that a person caused the doing of a prohibited act by another where the act was done on the authority express or implied of the party said to have caused it or in consequence of his exerting some capacity which he possessed in fact or law to control or influence the acts of the other and the alleged "causer" contemplated or desired that the prohibited act would ensue. It was held that, although it may have been inevitable that the crew of the junk would have proceeded out of Hong Kogn with the cargo, nevertheless that act would have followed a free decision by them. It was not an act they were bound to do through subservience to the will of the defendants. They had not, therefore, attempted to cause the cargo to be taken out of Hong Kong.

8. In the present case the Appellant did cause the cargo to be imported within the concept of "cause'' recognised in Tse Hung-lit. The act of bringing the cargo into Hong Kong was done on his express authority. Mr. Mullick, however, sought to argue that, as the prohibited act was the importation of unmanifested cargo, Tse Hung-lit required proof that he had authorised the omission from the manifest.

9. Whilst it is true that the prohibited act is the importation of unmanifested cargo, proof that that act has been done does not require proof that the cargo is not shown on the manifest. Section 34 of the Import and Export Ordinance provides:-

"34.  (1) In any proceedings under this Ordinance the onus of proving --

(a)    ............

 

(b)    that an article --

 

        .............

 

        (2) For the purposes of this section the provisions of Part IV of the Evidence Ordinance (which relates to hearsay evidence in civil proceedings) shall apply as if proceedings under this Ordinance were civil proceedings. "

 

10. The Ordinance therefore provides that proof of the prohibited act can be accomplished without offering any proof showing omission of the cargo from the manifest. The decision in Tse Hung-lit does not affect that legislative provision. There is therefore no merit in the submission.

11. On the conviction for possession of the poison it was argued that the conviction could not stand because the learned magistrate could not have been satisfied beyond a reasonable doubt that the Appellant knew the nature of the pills as disclosed by the Government Chemist. The learned magistrate not only rejected the Appellant's evidence, but went on to say --

"I was satisfied beyond any doubt whatsoever that he knew all the time that the pills contained Part 1 Poison. "

Having rejected the Appellant's explanation the magistrate was quite entitled to infer, as he did, from the circumstances surrounding the importation that the Appellant knew the real nature of the pills. This ground of appeal also fails.

12. The appeal is dismissed.