IN THE COURT OF APPEAL

Mag. App. Nos.
457 & 458/92

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BETWEEN

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J U D G M E N T

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Penlington J.A.:

1. These are appeals from convictions in the Magistrate’s Court which, because they seemed to raise important matters of law, were transferred to this Court by order of Sears J. Because the issues raised in each case are very similar, with the consent of the appellants and the Crown, we have heard them together.

2. In each case the appellant was charged contrary to Regulation 3 of the Import and Export (Carriage of Articles) Regulations Cap. 60. Sub-clause(2) of that regulation provides that the owner of a vessel within Hong Kong waters shall not permit a prescribed article to be placed on board the vessel without lawful excuse. Sub-clause 4(f) also provides that it shall be such a lawful excuse if the prescribed article is “for the personal use of a crew member or a passenger while he is on board the vessel”.

3. It is not in dispute in either case that the appellant is the owner of the respective vessel and that the television sets found on it are prescribed articles as defined in the schedule to the regulations.

4. In Mag. App. No. 457/92 (Wong Tam Tai) there was no evidence called because the statement of facts prepared by the Customs and Excise Department was agreed and was relied on by the Crown as proving its case beyond reasonable doubt. The appellant elected not to give evidence. The statement of facts reads as follows:

“ About 1630 hours on 26.8.1991, during an anti-smuggling operation conducted at the seaside of Chai Wan Typhoon Shelter, subject vessel (M62207A) was stopped and searched by the Police Officers. As a result, the exhibits were found respectively in the crew cabins, front cabin and wheelhouse on board the vessel. The master of the subject vessel (later known as the defendant) failed to produce any carriage licence and he was thus arrested and later brought back to Chai Wan Police Station with the exhibits and other arrested males.

2. A cautioned statement obtained from the defendant revealed that he bought the exhibits for one week and he could not produce the invoice because he had dropped it.

3. Afterwards, the defendant was formally charged at Chai Wan Police Station and the exhibits were seized by the Customs Officers.”

5. The cautioned statement, which was produced by the Crown, sets out the background to this incident. The questions and answers read as follows:

Q(1): Are you (Wong Tam-tai) willing to answer the questions from officers of Customs & Excise Department?

A(1): Yes.

Q(2): Are you (Wong Tam-tai) the master of HK fishing vessel M62207A?

A(2): Yes.

Q(3): Who is the owner of 6 nos. of television sets found hidden on board M62207A?

A(3)  Me.

Q(4): How did you get the television sets?

A(4): I bought them myself.

Q(5): Where did you buy the television sets?

A(5): Two of them were bought from an electrical shop at Tai On Estate, two were bought from an electrical shop at Tai Koo Plaza, for the other two, I have forgotten.

Q(6): When did you buy the television sets?

A(6): I bought them 1 week ago, I forgot the exact date.

Q(7): For what purpose did you buy the television sets?

A(7): For my own use.

Q(8): Why you use so many television sets?

A(8): For my son when he is on board the vessel, and also for my employees. They wish to have 1 set for each crew.

Q(9): How many people are usually on board M62207A?

A(9): Usually, about 5 to 6 (deleted) people will be on board the vessel.

Q(10): Concerning your admission to PC 1507 that you possessed the 6 nos. of television sets for smuggling, do you have anything to say?

A(10): Not for smuggling. For personal use.

6. It was submitted to the magistrate on behalf of the appellant that there was no burden on the defendant to prove a lawful excuse but it was for the prosecution to disprove it. There was evidence in the defendant’s cautioned statement that the television sets for the use of the vessel’s crew and the prosecution had not called evidence to rebut that.

7. In Mag. App. No. 458/1992, Wong Shiu Hay, again the Crown’s case consisted entirely of an agreed statement of facts. Some of those related to television sets being delivered to other vessels in the Chai Wan typhoon shelter on the 26th of August 1981 and were not relied on. Those which were relevant were that on that day a check was made by Customs Officers of a vessel owned by the appellant and in the crew cabins, front cabins and wheelhouse six new Hitachi television sets were found and seized as the appellant could not produce a carriage licence. The appellant made a statement in which he said he had bought the sets some 10 days before but could not remember where. He had lost the invoice.

8. The appellant elected to give evidence and said that the television sets were for the use of his crew who were recruited for each trip from the PRC. They insisted on one set in each cabin. The sets were all plugged into a power supply and a T.V. aerial when they were seized. When asked about the purchase of the six new sets the appellant said they were to replace three old ones but he could not remember which shop he bought them from “as he was illiterate”. He just walked past the shop and bought them. Although the evidence that the sets were connected up was not challenged, the general tenor of the appellants’ evidence was put in issue by the Crown in cross-examination.

9. In each case the magistrate, Mr Peter Line, referred to Section 94A of the Criminal Procedure Ordinance which provides that where the doing of, or omission to do, an act shall be an offence unless there is lawful excuse, the onus of proving such lawful excuse shall be on the defendant. There is no dispute that such onus is however only on a balance of probabilities. The magistrate indicated each appellant had failed to discharge that onus.

10. In each case however the magistrate said that without recourse to Section 94A he reached the conclusion that the offence had been proved to his satisfaction beyond reasonable doubt. In Appeal No. 457/92 he said that the assertion contained in the appellant’s cautioned statement, which was not supported by evidence, was “unrealistic and unworthy of belief”. He reminded himself of the danger of becoming over cynical but considered that a lay justice or a juror would readily share his reaction of frank disbelief at the equipping of a fishing boat with six new television sets for the purpose of entertaining a crew of 5 to 6 persons.

11. In Appeal No. 458 the magistrate considered the evidence given by the appellant that he was refurbishing his boats decided to replace the television sets with new ones and bought six sets for about $13,500 but could not remember from which shop. He said he simply did not believe that evidence. He also took into account the fact that each set was plugged into a power supply and a T.V. aerial. That he considered was simply a sham and done in order to evade the regulations.

12. In both cases the magistrate, without relying on Section 94A of the Criminal Procedure Ordinance, was satisfied beyond reasonable doubt, using his common sense, that the appellants did not have the television sets on board for the use of crew members and accordingly he convicted both appellants of the offences.

13. Before us Mr Peter Wan has sought to argue that the magistrate was not entitled, on the evidence, to come to the conclusion he did. It was for the Crown to prove as part of its case that the television sets were not for crew members and there had been no evidence that such crew members recruited from the PRC did not demand a separate set each. Evidence could have been called from an expert, possibly from the Marine Department, to say whether or not that was possible. No such evidence was called. It was not for the defence to show, even on a balance of probabilities, that the television sets were for the use of the crew, it was for the Crown to disprove it. That it had not done and the magistrate was wrong to come to the conclusion, based on his own assumption that crew members of a fishing vessel recruited in the PRC would not demand the use of 9 television set each.

14. Mr Wan was also prepared to argue that, although the magistrate specifically said he did not rely on Section 94A of the Criminal Procedure Ordinance, it was in any event not available to the Crown. When an enactment provides that the doing of an act shall be an offence unless done with lawful excuse the onus is on the Crown to negative the existence of that excuse. That is provided for in Section 8, Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.

15. Interesting though the argument on the Bill of Rights point may have been we are satisfied it is not relevant. Here the magistrate was satisfied that the six new television sets on each of the appellants’ vessels were not for the use of the crew and the connecting of them to powerplugs and aerials was a sham. We have no doubt whatever that he was perfectly entitled to come to that conclusion. The image of each member of the crew of such a vessel sitting in front of his own television set while at sea and refusing employment unless it was provided is, as the magistrate has said, beyond belief.

16. We have no doubt that these sets were supplied by other persons to be smuggled into China and the fact that they were not packed in boxes but were apparently ready for use was simply an attempt to evade the regulation in the event of a search of the vessels, which is what occurred.

17. The appeal against conviction is refused in each case.

Mr Grossman Q.C. & Ms Hartstein, A.G. Chambers, for respondent

Mr Peter Wan (S.C. Chan & Co.) for both appellants