HKSAR v. LIN ZHENLIE AND OTHERS

DCCC 815/2018

[2019] HKDC 660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 815 OF 2018

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Reasons for Verdict

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1.  The defendants each jointly face two charges. Firstly, attempting to export a manifested cargo. Secondly, attempting to export specimens of Appendix II species without a licence. They are charged with these offences arising out of what is said to be a smuggling operation out of Cheung Chau Typhoon Shelter.

2.  Police observed cargo being loaded from what was a moored cargo boat into a speed boat by the 3rd defendant at the 1st defendant’s direction.  The 2nd defendant was also present, allegedly, I believe, to operate the speedboat.  After police raided, the cargo on the cargo boat, the speedboat, and on the nearby dock, were found to contain endangered species, electronic goods and other items that were neither manifested nor licensed for export.

3.  All defendants deny the charges.  They say the prosecution case cannot prove the charges against them to a criminal standard and that is the issue to be determined.

4.  The defendants all have clear records.  Most of the evidence was agreed, including the arrest and caution of the defendants, the seizure of the goods and the vessels concerned, the photographs and expert reports on the species seized.  The species seized are included in Appendix II of Cap 586.

5.  The bulk of the eyewitness evidence of the prosecution case is from the first prosecution witness.  He conducted surveillance at Cheung Chau Typhoon Shelter in the afternoon and evening of 28 June 2018.  He arrived at 1730 hours and outside 5G Praya Road, which is the Kitto store.  He saw five pallets of goods on the road wrapped in black plastic.

6.  One pallet of goods was also on the cargo vessel, which is described as vessel 1, which is moored between Kit Ho and Man Po Store.  At 1745 hours, PW1 went to the rooftop of Cheung Wing House to an observation post, the “OP”, located there on top of the staircase.

7.  He said he could see three vessels.  There was vessel 1, already described, vessel 2 and vessel 3, called V1, V2, V3.  V1 was the main vessel.  That is the cargo boat.   V2 and V3 were speedboats moored onto V1 on its port and starboard sides respectively.  The bows of V2 and V3 pointed out into the typhoon shelter and to sea.  V1 was moored by its prow to land and raft it to adjoining vessels.

8.  PW1 saw two men and goods wrapped in black plastic on the speedboat, vessel 3.  Between 2111 and 2113, PW1 said that he saw the 3rd defendant operate the crane on vessel 1 to lift two pallets from the shore onto the front of V1. 

9.  At 2352, PW1 saw D2 come out of the cabin of V1, vessel 1, and go to vessel 2, the speedboat.  D3 operated the crane and D1 guided him to lift a pallet of goods from vessel 1 to vessel 2.  D2 then returned to vessel 1. 

10.  At 2353, PW1 sent out a “Go, go, go” signal to other elements of the operation for the operation to go overt and police officers went onto vessel 1.  At that time, vessel 3, V3, left the scene at high speed.  Still on board were the two men and the goods in black plastic. Vessel 3 was later tracked by a police launch.  Vessel 3 moved at high speed without navigation lights and headed directly for Chinese territorial waters. The police launch despite hailing the vessel to stop, was unable to intercept and the vessel entered Chinese territorial waters. 

11.  PW1 later pointed out D1, D2 and D3.  He had only been able to identify them by way of their clothing prior to that.  All three defendants were intercepted on vessel 1, although, the 2nd defendant was seen to go to vessel 2 first. 

12.  The defendants were intercepted, arrested and cautioned.  The 1st defendant after caution said that, “Mr Chong told me to keep an eye on the shipment which will be transported to the mainland later.” The 2nd defendant under caution said, “The batch of goods are not mine.  I came for travel.  I’m living on my godfather’s boat.”  He said he could not provide a manifest of the goods which were to be exported to Guangdong. 

13.  The 3rd defendant under caution said, “A person named Lam told me to go help him lift the cargo for him.”  Later, D3 said he could not see what goods there were, that Lam asked him to assist to lift the goods to the shore and put them into the warehouse.  

14.  Totally six pallets of goods were found at the scene.  D1, D2 and D3, did not give or call evidence.  They are all of clear record.  The prosecution brings the charges.  The burden remains on them at all time.  They must prove the charges beyond all reasonable doubt.

15.  The offences created, certainly, by section 18 to Cap 60 of exporting unmanifested cargo, is an offence of strict liability, as will be the offence of attempting to export specimens without a licence.

16.  Apart from showing that the cargo is not declared in a manifest, the prosecution is required to prove the defendants intended to and did export the cargo.  Here, an attempt to commit the two offences is charged.  It is necessary for the prosecution to show that the defendant had done acts which are not only preparatory but also immediately connected with the act of exporting the cargo and that were intended to and did constitute part of the act of export. 

17.  To prove an attempt to export, the prosecution must, of course, rely on an inference to be drawn in this case.  Naturally the drawing of an inference is the same as drawing of any other fact and must be proved beyond all reasonable doubt.  It must be the only reasonable and irresistible inference that can be drawn from the approved facts.

18.  The charges and the defendants’ cases are to be considered separately.  Each defendant’s clear record is a relevant consideration, their propensity to commit an offence of this nature and the evaluation of any explanation given, namely the credibility of any explanation. 

19.  As far as the issues are concerned, the first one primarily arises out of PW1’s evidence.  The reliability of PW1’s evidence is challenged.  His evidence implicates all the defendants.  All the defendants submit that PW1’s evidence is highly unsatisfactory.  It is submitted that PW1 could not have seen what was happening on Praya Road or the bow of V1 from his observation post.  That if PW1 could only describe the defendants’ clothing, that would be unsatisfactory, it is said, to identify a defendant.  His observation of their clothing could not be relied on because his observation was conducted from a distance and at night.

20.  It is also argued that the evidence taken at its highest does not support the charge of attempting to export in either charge.  It is said that inference cannot be drawn on the facts proved.  It cannot be proved the goods were to be exported as opposed to be moving for further storage.  It is argued that whatever happened to vessel 3 provides no evidence that vessel 2 would take the same course and head for the marine border which was about 4½ kilometres away.

21.  My resolution of the issues is as follows.  I note the matters referred to in criticism of PW1’s evidence.  It was said his view was obscured and that he changed the location of the vessels on the sketch.  However, photographs were produced that showed a view was possible. 

22.  PW1 conceded that the near bow of the vessel may have been shielded by the houses on Praya Road or the shops on Praya Road, but that from his post, he could see the operation of the crane on vessel 1 and the relative destinations of the pallets of goods that were moved.  Nevertheless, his credibility needed to be established in order to effect that evidence.

23.  I also did note that each defendant effectively admitted their presence on the boat and D3 did say he had operated the crane. Taking the evidence overall, I saw no basis on which to doubt the credibility of PW1’s observations of the activities he saw on the boat that evening.

24.  Secondly, he was quite clear that his identification was initially based on the clothing.  This is realistic given that PW1 was observing from a distance at night and using at times a telescope.  From that observation, he was able to confirm which person wore what clothing on arrival at the boat and identifying the particular defendants.

25.  I am prepared to accept that PW1 was accurate when he identified the respective defendants that evening and described their roles in what had occurred that evening. 

26.  The next question is whether these observations taken together with the defendants’ presence on the cargo boat is in itself capable of proving these charges.  This is the only evidence the prosecution really have to establish an attempt to export as set out in the two charges.

27.  The defendants did say certain things under caution, but they were of necessity somewhat vague.  The Cheung Chau Typhoon Shelter is less than five nautical miles from the marine border of Hong Kong. It must, therefore, be one of the closest loading points for vessels trying to cross that border. 

28.  Naturally, were one going to do that with a cargo that one did not wish the authorities to know about, one would decrease the odds of interception by loading the goods onto a small fast boat and departing during the hours of darkness.  That is what was happening here.

29.  I will observe that no part of what PW1 observed that evening appeared to be the operation of a legitimate shipping operation. PW1 saw that the goods were covered in black plastic.  They were loaded onto a speedboat before midnight.  The goods were of a kind that could be legitimately shipped inside Hong Kong by any shipper, should they wish and could be put on a ferry during daylight.

30.  The only reason I can find to load this vessel in this way, that is the speedboat, is to avoid interception by law enforcement on either side of the marine boundary.  The goods, we know, were not manifested or licensed for export.  I do find that they were intended for export.  I have no hesitation in inferring as the irresistible and only reasonable inference that what was in motion here was an operation to export the black wrapped pallets out of Hong Kong by way of speedboat from Cheung Chau Harbour that night.

31.  If not interrupted, all the pallets would have eventually been despatched.  I can see no other rational explanation for their presence.  There can be no doubt that these goods were intended for export that evening.  The storing and loading of these goods as seen is an act that was more than merely preparatory for the export of the goods.  That is clear.

32.  PW1 places both D1 and D3 as being involved in the loading of goods onto the speedboat, V2.  D3 moving the goods from the shore to V1 and later from V1 to V2 at D1’s direction.  D2 only seemed to access V2 and leave it while the loading occurs.  He also goes to V2 after the raid commences.

33.  One witness said he heard the sound of the ignition of an engine.  However, D2 was not found to have the keys to vessel 2’s ignition, nor were they recovered.  So, it cannot be said for certain that D2 was to drive the boat away or trying to drive the boat away at that stage.

34.  Now, as far as my resolution of the verdicts are concerned on the respective defendants, they are as follows.  The 1st defendant is seen to direct the loading of the speedboat, V2.  He had said he was keeping an eye on the shipment which would be transported later.  However, it is clear to me that transportation was imminent and the defendants’ actions as seen by PW1 are sufficient to evidence that he was involved in the commission of both the offences of attempting to export.

35.  As I said, I noted defendant 1’s explanations, but they do not produce any doubt in mind as to the 1st defendant’s guilt.  The offences are proved against him to beyond reasonable doubt.  You are convicted on both charges.

36.  As far as the 2nd defendant is concerned, what can be said about him is that he is present and he moves between the boats, but that is all that can be said about it.  He denied the goods were his and he said he was living on a boat, on his godfather’s boat.  I find that his mere presence clearly places him under suspicion, but on the basis of this case is insufficient to draw the necessary inferences against him.  The charges against him are dismissed.

37.  As far as the 3rd defendant is concerned, he is seen to load the goods firstly onto the first, vessel 1, and then onto the speedboat, vessel 2.  He said he could not see what the goods were, that he was lifting the goods to the shore for warehousing.  PW1’s observations, of course, show this to be inaccurate because he admits he is loading the vessel to the speedboat.  He clearly is seen to load the vessel 2 and after moving the goods onto vessel 1.  I find he is clearly involved in the carrying out of the two offences.  The case is sufficient, the evidence is sufficient to prove that.

38.  I note there is a statutory defence under, I believe it was, section 18 of Cap 60.  This is not a case where it would be available to any defendant because reasonable diligence could easily have ascertained the nature of the goods and the lack of a manifest.  Accordingly, my finding in this case is the 1st and 3rd defendants will be convicted on both charges with charges being proved beyond reasonable doubt in respect of that.

39.  The 2nd defendant is discharged.