R. v. LAI FOR-SHUN and Another

IN THE COURT OF APPEAL

1995, No.102
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. Both applicants, who were tried with a number of defendants, were found guilty of a charge of assisting with the carrying of restricted articles with intent to assist another person to evade restriction contrary to s.35A(1)(c) of the Import and Export Ordinance. The 2nd applicant was found guilty of a further charge of being the owner of a vessel permitting prescribed articles to be placed on board contrary to s.6 and 7 of that Ordinance.

2. The prosecution relied upon s.35A(2) which reads:

"Any person who assists with the carrying of any article the carriage of which is restricted under this Ordinance in circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to evade a restriction or prohibition, or to assist another person to evade a restriction or prohibition, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary."

3. The facts revealed that in very suspicious circumstances a lighter loaded with vehicles was seen in the Eastern approaches to Hong Kong harbour. Two police officers saw that vehicles were being transhipped from the lighter to a Chinese cargo vessel and that there was at this time a third vessel which was referred to as a tug boat (the 2nd applicant, who was the owner thereof, says that it should, more properly, be referred to as a pleasure boat) was at some distance away. When a police vessel approached the scene, the Chinese vessel fled. It was chased and stopped and four cars were found thereon. The two officers on shore said that they saw the tug boat approach the lighter after the Chinese vessel had fled and that a number of men boarded the tug boat. However, there was evidence from a Marine Police Sergeant in which he said that this could not have occurred as his radar, did not, as it must have done had the approach occurred, show any such manoeuvre. Given this conflict of evidence the trial judge gave the other defendants and the two applicants the benefit of the doubt as to whether there had been any such manoeuvre.

4. When the tug boat was stopped nine men were found on board, one was the 2nd applicant who it was discovered was the owner not only of the tug boat but also of the lighter. When the police boarded the lighter the 1st applicant was found in the cabin. There were no shipping documents, export licences or carriage licences found on the lighter or produced by any person involved in the transaction. As I have indicated the Crown relied upon the presumption contained in s.35A(2).

5. The trial judge when he came to consider the matter had, to bring the presumption into play, to be satisfied that the facts gave rise to a reasonable suspicion that there was an intent on the part of the persons charged to evade a restriction. Given the circumstances, not surprisingly, he was so satisfied. He said in delivering his judgment:

"I find that the presumption is triggered in this case. He(sic) was a transfer of restricted articles in an isolated spot off the shipping lanes at the dead of night and where those vessels that could try to leave the scene did so when the police arrived or shortly afterwards and before the transfer of the whole of the restricted items was completed. There were no shipping documents produced by anyone. The whole exercise was redolent of the smell of smuggling and certainly gives rise to the requisite suspicion of intent to evade a restriction."

We can find no fault whatsoever with that finding and those observations.

6. Both of the applicants gave evidence to rebut the resumption. The 1st applicant said that he had hired the lighter on the instruction of his friend Lam Wah Kan. He said that Lam had indicated to him that he would hire a tug and that the vessels were to be used to tranship cars to a mainland vessel. He said that he hired the lighter through the 2nd applicant, not realizing that the 2nd applicant was in fact the owner of the lighter, and that he then picked up the lighter using a tug which had been hired by Lam. He said the cars were then loaded from a transporter onto the lighter which was later taken to the point where it was observed by the police. He told a convoluted story as to the rendezvous with the Chinese vessel. It is of some significance, and the trial judge rightly so thought, that Lam was not called to give evidence. Given the nature of the evidence of the 1st applicant, we find it not surprising that the trial judge rejected that evidence. He said:

"I found D1 to be an untruthful witness. I found his story wholly artificial and contrived. I am quite satisfied, on the whole of the evidence, that D1 could have had no reasonable belief whatever that there were any shipping documents for these vehicles and has not rebutted the evidential burden placed on him. I am sure that it was his intention to assist another person to evade the restriction in respect of these cars. I find him guilty on Count 1."

The 2nd applicant when he came to give evidence said that the tug boat was in fact a pleasure boat and that his presence in the vicinity on that night came about because he was searching for the lighter whose return was overdue as another person was seeking to rent it from him. As to this evidence the trial judge said:

"D2's version is even more outlandish than that of D1. It is almost an insult to one's intelligence. I have no hesitation in rejecting it totally as a pack of lies. I am quite satisfied that the only possible and overwhelming inference to be drawn is that D2 used his tug to tow his lighter to Clearwater Bay knowing full well that restricted items i.e. the cars were on board and were to be transferred to the Chinese vessel. There is clear evidence of his intention to evade the restriction or, at the very least, to assist another to do so."

Having made those findings the trial judge convicted both applicants of the first charge and the 2nd applicant of the second charge.

7. The 1st applicant complains in his Grounds of Appeal that the onus was on the Crown and that it was none of his responsibility to have been concerned with or to have carried any documents. In this ground he is really challenging the presumption and it cannot succeed. The presumption was rightly invoked and the trial judge rejected the evidence whereby the applicant attempted to displace it.

8. He secondly complains that these were not illegal goods. It is not altogether clear what he means by that. It is true they were not stolen goods but they were restricted goods and that was sufficient to ground the charge.

9. He thirdly complains that the trial judge failed to consider evidence favourable to him. The evidence he refers to in this regard is evidence that he was not the owner and the evidence that he ran a lawful business. We are satisfied that the trial judge did not lose sight of either of those facts. Indeed neither was of any real cogency in the prosecution.

10. In Grounds 4 and 5 he says that the trial judge intuitively ruled that the case was one of the nature of smuggling. The trial judge did not make any such ruling, intuitively or otherwise. He was satisfied and stated in so many words that the exercise was "redolent of the smell of smuggling", as indeed it was. We are satisfied that the trial judge nowhere lost sight of the nature of the offence charged.

11. He raises no other ground of any significance.

12. The 2nd applicant has not really raised any grounds of appeal at all. He has simply repeated the evidence which he gave at the trial which was rejected by the trial judge.

13. Neither applicant has in the matters raised today occasioned us any doubt as to the propriety of the conviction. We are satisfied that the trial judge was entitled to reject the evidence of the applicants seeking to displace the presumption and that the convictions are both safe and satisfactory.

14. The applications are refused.

15. The 1st applicant has also sought leave to appeal against his sentence of two years and six months. This was imposed after the trial judge had considered a sentence of three years but made a reduction of six months because the applicant was "essentially of previous good character". This was, we are satisfied, a proper sentence and we see no grounds for interfering therewith. We appreciate that circumstances of sadness flow from the conviction of the 1st applicant but they are not such as can be allowed to occasion us any doubt as to the propriety of the sentence.

16. The application for leave to appeal against sentence is also refused.