THE QUEEN v. WONG YIN CHUNG AND ANOTHER

MA No. 235 of 1993

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HEADNOTE

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Smuggling - presumption of intent - evidence to contrary must be credible - last minute mens rea - sentences suspended.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 235 OF 1993

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J U D G M E N T

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1. The appellants were convicted of smuggling offences, contrary to 35A(1)(c) of the Import and Export Ordinance, Cap.60, and were each sentenced by Mr Yung on 24th February in Eastern Magistrate’s Court to two months’ imprisonment.

2. 1st appellant, who owned a goods lorry was engaged by a man named Ah Wah to transport used TV sets from Sau Mau Ping to Cheung Sha Wan. He engaged 2nd appellant as a labourer. A third man was hired by Ah Wah and was also on board the lorry when it arrived at the Cheung Sha Wan waterfront at a place known as Water Boat Dock.

3. Here police officers were waiting in ambush. At about the same time as the lorry reversed towards the water’s edge, a fishing vessel berthed at the dock. Men from the vessel and the lorry began to load goods onto the vessel. Soon afterwards the five police officers left their hiding places nearby and arrested the men loading the goods. None of these men was actually in the lorry. Some were near the rear of the lorry and the others were on board the vessel. Both the appellants and D3 tried to flee but were soon caught and arrested. Five mainlanders on the vessel were also arrested. 19 TV sets and videorecorders were found on the vessel and 123 in the lorry. All were secondhand.

4. The appellants and D3 gave evidence. D1 said he was paged by Ah Wah at 8 pm that evening. Ah Wah wanted him to transport some TV sets, a job he had done for him a month earlier. Ah Wah agreed to pay the higher night time charge of $700 and asked 1st appellant to get someone to help him. He was to bring the lorry to a place in Sau Mau Ping, to which he had delivered the previous consignment.

5. 1st appellant engaged 2nd appellant and at 8.35 pm drove to the meeting place, where he met Ah Wah and some men who were moving TV sets. These were loaded onto the lorry and Ah Wah told him to take them to a junction in Lai Chi Kok Road, which he pointed out on a map. The side road had no name but Ah Wah said he would be waiting there.

6. When the lorry arrived at this junction, there was no sign of Ah Wah, so 1st appellant circled around nearby Mei Foo Estate and returned to the junction. This time Ah Wah was waiting and directed him to drive down the side road until he reached a gate. There people would be waiting. He was to turn his vehicle when he reached the end of the road so that he faced the opposite direction.

7. 1st appellant drove for 60 metres until he reached the gate. Five or six persons directed him to enter. He turned the lorry, reversed and stopped. He then alighted and asked the men if they were to unload the goods for Ah Wah. They said yes and work began.

8. According to 1st appellant, it was only when the unloading of the TV sets began that he became aware that they were being put on board a vessel. He and 2nd appellant had climbed into the rear of the lorry. After some of the sets had been unloaded, 2nd appellant told him about the vessel. It seems incredible that 1st appellant had not himself noticed what was happening. It was at this moment that 1st appellant realised that they might be breaking the law. Before he had time to think about the matter, the police broke cover and rushed to the rear of the lorry. He and 2nd appellant alighted from the lorry and were arrested.

9. In cross-examination 1st appellant said he did not know he was heading for the seafront when he turned out of Lai Chi Kok Road. That is hard to believe. The unnamed road leading to the dock is very close to Mei Foo, which is near the sea, and is only 300 odd yards in length. 1st appellant said he did not know he was near the seafront until he had stopped the vehicle and went to the rear. This was a lie. He admitted in chief that he had turned around and reversed (emphasis supplied). He could also not have failed to notice that the road ran alongside Water Boat Dock and must have been close to the sea. When he was asked where he thought he was making delivery, he replied – “To a certain spot where they were unloaded and placed”. He did not think about it.

10. 2nd appellant said in evidence that he was engaged by 1st appellant for the normal fee of $300. He also did not know the destination of the goods, nor did he ask 1st appellant. He also was not aware that they were near the waterfront until the goods were being untied and loaded onto the vessel. At that point he asked 1st appellant if they might be in trouble. 2nd appellant also said that he was on the lorry with 1st appellant when the police broke cover and that he did not try to run away. Nor did he see anyone else running away.

11. It is common ground on appeal that the cases of the appellants stand or fall together and that it is immaterial that the TV sets and recorders were secondhand.

12. The magistrate found that the police witnesses were telling the truth. Indeed they had no reason to lie. He accepted that Ah Wah was a real person and that the appellants were not aware, when they were engaged by Ah Wah, that they were to take part in a smuggling operation.

13. However the magistrate did not accept 1st appellant’s evidence that he had no suspicions until 2nd appellant told him about the fishing vessel. As I have indicated, that is not surprising. 1st appellant must have known, as he manoeuvred his lorry at the dockside, that - as the magistrate found – “the purpose was to facilitate the loading of the goods on to a vessel behind there”.

14. Likewise with the other two defendants. The magistrate said with regard to them :

“           I found that by the time they were approaching the sea front and at the latest when the lorry was parked at such a position by the sea front, they knew that the goods were going to be loaded on to a vessel berthed neaby.”

15. The magistrate then correctly directed himself that disbelief as to the defendants’ state of mind at the critical time did not necessarily mean that they had the specific intent averred in the charges.

16. He found that he could not be sure, in the confusion of the arrests, whether the appellants had attempted to run away. If they ran, it was only a few steps, which might have been an instinctive reaction in the circumstances.

17. The magistrate concluded :

“However other circumstances were suspicious, and I found the presumption arose against each and every of the 3 defendants. Accordingly I found each of them guilty as charged.”

18. Section 35A(2)(c) provides :

“(2) Any person who -

(c)        assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the carriage of which is restricted under regulations made 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 prohibiton or to assist another person to evade a restriction or prohibiton, the first  mentioned person will be presumed to have such intent in the absence of evidence to the contrary.”

19. The effect of this subsection is explained in R v. Wong Hiu Chor MA227 of 1992. At p.8 Fuad V-P said :-

“Thus the presumption imposes a rebuttable evidential (as opposed to a legal or persuasive) burden upon the accused. He does not have to prove that he did not have the necessary intent beyond reasonable doubt or even on the balance of probabilities. All that he is required to do is to introduce evidence (or point to evidence led by the prosecution) which, if believed, might create a reasonable doubt on the issue. When this happens the burden is again on the prosecution to satisfy the court or the jury on the evidence as a whole beyond reasonable doubt that the accused had the intent required by section 35A(1).”

20. Thus, if the appellants can point to a reasonable doubt that they had the specific intention averred - in effect to ‘smuggle’ - the Crown must prove that intention beyond a reasonable doubt.

21. Mr Wu, for the appellants, concedes that, if they knew that the goods were to be loaded onto the vessel before the lorry reached the dock, the offences are proved. His submission is that the defence evidence raises a reasonable doubt about their intentions by virtue of their testimony that their realisation of possible wrongdoing came at such a late stage that it was not possible to extricate themselves before their arrest. This, he submits, is “evidence to the contrary”.

22. But it must be believed. Mr Coghlan, who appears for the Crown, rightly points out that, although the magistrate accepted the appellant’s evidence as to the original bona fides of their employment, he did not accept their evidence as to their state of mind as the lorry approached the dock. His reaons for that finding are entirely justified. That being so, he was correct in his conclusion that the presumption applied and that the required intent was proved.

23. The appeals against conviction of both appellants are therefore dismissed.

24. The magistrate accepted that this was an exceptional case, in that the appellants were not part of the smuggling syndicate and had come into the operation innocently. They were not expecting any reward over and above their usual wages. They had no previous convictions. For these reasons he reduced the sentences from the usual 12-15 months to two months in each case.

25. It is necessary to impose deterrent sentences on persons convicted of smuggling goods to China but where, as here, the mens rea comes into existence at the last minute, justice will be done, in the case of first offenders, if suspended sentences are imposed. The appeals against sentence are allowed and the sentences are suspended for two years.