THE QUEEN v. SO CHI WING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 263 OF 1993

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J U D G M E N T

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1. This is an appeal by two appellants, So Chi Wing, the 1st appellant, who was D2 at the trial before the magistrate, and So Kwok Fai, the 2nd appellant, who was D3.

2. After hearing evidence from the prosecution and the evidence of D2, the magistrate convicted D2 of the offence of assisting with the carrying of restricted articles with intent to evade restriction contrary to section 35A(1)(c) of the Import and Export Ordinance, Cap.60. No evidence was adduced by D3 who was convicted of dealing with restricted articles with intent to assist another person to evade restriction contrary to section 35A(1)(e) of the Ordinance.

D2 So Chi Wing

3. The evidence against D2 was mainly given by PW1 PC3831 who is complained of having lied on oath about the time when the eight polaroid photographs produced to court as Exhibit P4A to P4H taken by him were taken. It can be inferred from PW1’s evidence in-chief that he got hold of D2 at sometime between 2:20 and before 3 a.m. He said that at the scene after D2 and the video cassette recorders (“the VCRs”) were found, he took the photos which showed the VCRs in the lorry, its parked position and its front. He further said that when he took these photos, the goods vehicle had not been moved from its original position and the VCRs were also in its original position as found by him. In cross-examination, he said the photos were taken by him at between 3 to 4 a.m. and he took the photos before counting the number of the VCRs. When pointed out that the photos were taken in day light, however, he agreed. His explanation given in re-examination, which was accepted by the magistrate, was that the first set of photos taken by him was not clear and the photos porduced to the court were taken once more in day light at sometime after 6 a.m. and the VCRs remained where they were when first found. Mr Dunn for D2 was given another chance to cross-examine, in which PW1 said that for the purpose of counting those VCRs inside the vehicle between 3 to 4 a.m., they had been moved.

4. The magistrate found PW1 to be a truthful witness and accepted the explanation given by him regarding the taking of Exhibit P4. The magistrate went on :

“However, I do not think I should place much weight on these photos. I ignore these photographs, and the contents of these photos showing boxes of video recorders lying on the ground at a path leading from the goods vehicle down to the beach. I believe PW1 was only trying to assist the court. I choose to ignore this part of his evidence as these photos were taken several hours after the first taking and other officers might have tampered with the boxes in the meantime.”

5. The evidence of PW1 on which the magistrate relied to found the conviction of D2 was that PW1 caught D2 sitting at the wheel of the goods vehicle when 8 to 9 others were present on the beach and there was a boat in the water (inferred from the evidence of his hearing sound of motor running). The goods in question were in the vehicle. It was past 2 a.m. Upon PW1’s arrival, the 8 to 9 people fled and the boat left.

6. The magistrate also relied on D2’s own evidence which revealed that he had helped to load the goods onto the goods vehicle, and he had driven the lorry with the goods inside to the scene. He rejected the bulk of D2’s explanation that he did not know the goods were VCRs and that he was told by another man to drive the lorry to the scene and to wait there, not knowing that F  the goods were restricted articles. He was satisfied beyond reasonable doubt that D2 knew what the goods were and that what he was doing that night was to assist others to carry the VCRs, being restricted articles, with intent to evade the restriction under the Ordinance.

7. For the conviction to be upheld, it is necessary that there is acceptable evidence to prove beyond reasonable doubt that D2 knowingly had possession of the goods, being restricted articles, and that he knowingly assisted with the carrying and removing of such restricted articles with intent to evade the restriction or prohibition or to assist another person to evade the restriction or prohibition. There is a presumption given rise by s.35A(2) of the Ordinance. A person who has possession of any restricted article and who assists with the carrying or removing of the restricted article 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 will be presumed to have such intent in the absence of evidence to the contrary. The reasonable suspicion on which the presumption is founded is based on “possession”, “assisting in the carrying” and “circumstances”. In. regard to this appeal, I need only deal with “circumstances”.

8. If PW1’s evidence had been rejected altogether, there would have been no acceptable evidence that there were 8 to 9 persons on the beach the shadows of whom PW1 saw, that there was a boat in the water, and that when PW1 arrived, the 8 to 9 people fled and the boat left.

9. The untruth told by PW1 in-chief regarding the time when the photos were taken is not merely limited to the issue as to the time when they were taken, but also spans over the location of the VCRs as found by him upon the arrest of D2. It is also important to note that the photos, Exh. P4, were taken after D2 had given his cautioned statement denying knowledge and involvement. The proper inference that can be drawn from the goods being scattered around at the scene and on the path leading to the beach, as opposed to inside the vehicle, is that there were others who were removing the goods and who fled upon PW1’s arrival. The location of the goods when first seen by PW1 was an integral part of his story as to what he saw and heard when he arrived at the scene. When the magistrate ignored his evidence as to the location of the goods, there should surely be a doubt as to whether his evidence of his other observations at the scene is reliable. Should all the evidence of PW1 be rejected, then D2’s evidence about his absence of knowledge of the nature of the goods, his denial of the existence of other people at the scene, and his merely waiting there at the behest of another with some goods inside the vehicle must be viewed in a different light, and the magistrate might then feel his evidence more acceptable. In the circumstances, I think there is a lurking doubt whether D2’s explanation should have been rejected altogether, and the benefit of such doubt must ensure to the benefit of D2. I would therefore allow the appeal.

D3 So Kwok Fai

10. The appeal by D3 can be dealt with more briefly.

11. The only evidence against D3 was contained in his cautioned statement taken by PW2 SPC14509, which the magistrate admitted in evidence after holding a voir dire.

12. The magistrate ignored PW2’s evidence concerning what he witnessed prior to the arrest of D3 finding it unreliable and incredible. He also found that PW2 was not helpful and his demeanour at times unpleasant. However, he attached full weight to the admissions made by D3 in his cautioned statement taken by PW2 to found D3’s conviction. It must be noted, moreover, that PW2 was only cross-examined on the voir dire and there was no corss-examination on his evidence concerning what happened before and at D3’s arrest.

13. Although the magistrate only rejected PW2’s evidence, which was unchallenged by cross-examination, of his observations of what had happened prior to his intercepting D3 and his own actions there and then, his view of PW2’s demeanour that he was unpleasant and not helpful must have been derived from the way this witness answered questions in cross-examination on issues concerning the cautioned statement. This is obvious from the notes of proceedings. The magistrate seemed therefore to have based his rejection of PW2’s evidence about the events at the scene both on the improbability or incredibility of such events described by him and also on his demeanour. If he disbelieved the witness partly because of his demeanour when being cross-examined on matters in connection with the cautioned statement, I find it illogical and unreasonable that he should have relied on PW2’s evidence concerning the taking of the cautioned statement, which evidence the prosecution conceded “contained discrepancy”. The unreliability and incredibility of PW2’s evidence of the events at and leading up to the arrest would create doubts as to the reliability of his evidence regarding the taking of the cautioned statement. In the circumstances, I am of the view that it is dangerous to rely on PW2’s evidence as to the circumstances in which the cautioned statement was taken. The conviction purely based on the cautioned statement is unsafe and unsatisfactory. I would therefore also allow D3’s appeal.

14. In the result, the convictions in respect of both appellants are quashed.