Case Detail

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 570
(Criminal)

- Headnote -

Section 18A of the Import and Export Ordinance Cap. 60. Not necessary to identify the person or persons who are being assisted when there is a contravention of the section.

Requirements of a District Judge giving Reasons for Verdict. Not necessary for the judge to state that he or she has directed themselves on lies.

Circumstances when a court can more readily draw adverse inferences against a defendant.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 570
(Criminal)

BETWEEN
	HKSAR	Respondent
	AND
	CHOI GIN NGON	1st Applicant/D1
	CHOI YAN NGOR	2nd Applicant/D3
	CO CHONG YING	3rd Applicant/D4

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Coram: Hon. Mayo, Stuart-Moore JJ.A and Gall, J. in Court

Date of hearing: 21 January 1998

Date of delivery of judgment: 18 February 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The three Applicants together with another person were charged with "dealing with cargo with intent to assist another person to export the cargo without a manifest", contrary to section 18A(1)(c) of the Import and Export Ordinance, Cap. 60.

2. The section reads:

"18A. Assisting, etc., in export of unmanifested cargo
(1) Any person who knowingly -
(a) has possession of any cargo;
(b) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any cargo; or
(c) otherwise deals with any cargo,
with intent to export the cargo without a manifest or with intent to assist another person to export the cargo without a manifest is guilty of an offence and liable -
(i) on summary conviction to a fine of $500,000 and to imprisonment for 2 years;
(ii) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 7 years. (Amended 1 of 1994 s. 9)
(2) Any person who -
(a) has possession of any cargo;
(b) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any cargo; or
(c) otherwise deals with any cargo,
in circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to export the cargo without a manifest or to assist another person to export the cargo without a manifest, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary. (Added 22 of 1991 s. 8)"

3. Particulars of the offence were that the Applicants between 5th August and 10th August 1995 in Hong Kong knowingly dealt with cargo namely seventeen brand new left-hand drive vehicles with intent to assist another person or persons to export the cargo without a manifest.

4. The Applicants who we will refer to according to the description in the court below were tried in the District Court before H.H. Judge Chua and convicted of the offence. The other defendant was acquitted. The Applicantsseek leave to appeal against their convictions. At the commencement of the hearing Mr. Lunn, S.C. who represents D1 and D3 sought leave to withdraw the application for leave to appeal against conviction of D1 and we agreed to this. Consequently that application is dismissed.

5. D1 does however wish to pursue his application for leave to appeal against the sentence of 20 months' imprisonment which was imposed upon him.

6. On 10th August 1995 customs officers boarded the motor vessel 'Lucky Hover' and after inspecting shipping documents produced to them ordered that one of the containers on board be opened for inspection. This was done. According to the shipping documents, the containers should have contained 'decoration boards'. In fact five left-hand drive Volkswagen 'Golf' motor cars were in the container. Instructions were then given for the other containers to be taken back to the Cha Kwo Ling unloading area and these were found to contain the other left-hand drive motor vehicles referred to in the charge.

7.Investigations were undertaken by the Customs & Excise Office. A search was conducted at the offices of C. Y. Shipping Company who had prepared the Bill of Lading and forwarded the goods for shipping. This led to further enquiries being made at the two separate premises of a company trading as Hopewell Trading Company. There is also another company associated with this company trading as Hopewell Motor Trading Company.

8. A number of papers and documents were seized. In this connection reference was made to some of the documents in the agreed facts. In general terms, the documentation supported the prosecution case that the shipping documents indicated that 'decoration boards' were being shipped to China.

9. There was however a further element which has to be considered. Documents were also found which indicated that Hopewell which has facilities for dismantling vehicles had notified the Customs and Excise Department that nine of the vehicles in question had been dismantled. The significance of this being that a much lower duty is payable for importing motor parts than is payable for complete cars. One of the matters which had to be weighed by the judge was why Hopewell had made these notifications concerning the vehicles.

10. D1 was described as the Director of Finance of both Hopewell Companies. D3, who is the elder brother of D1, admitted that he was in charge of the day to day operation of Hopewell. There was further evidence that both D1 and D3 were answerable to Madam Tsai Chao Wing who was the sole proprietor of the companies. In addition to this, she is registered as the sole proprietor of Win Wah Shipping which was according to the documents the shipper of the goods. She is the elder sister of D1 and D3 and is married to D4. To complete the picture D2 in the proceedings below, who was acquitted, was an employee of Hopewell and had responsibility for the accounts.

11. All the defendants were taken back to the Customs and Excise Headquarters where they made lengthy cautioned statements. The admissibility of the statements was contested at the trial and for the reasons given by the judge she held that the statements made by the Applicants were voluntary statements and that the statement made by D2 was inadmissible. In very general terms each of the defendants claimed to have no knowledge that left-hand drive vehicles had been shipped in the containers. More specific matters will be addressed later.

12. Mr. Yeung of C. Y. Shipping gave evidence of receiving an enquiry from D1 concerning cargo ships going to north China. It appeared that the enquiry was being made by D1 on D4's behalf. Mr. Yeung informed D1 that the 'Lucky Hover' was going to China on 10th August 1995. This appeared to suit the convenience of Hopewell.

13. On 9th August 1995 Mr. Yeung endeavoured to obtain sufficient information to enable him to complete the Bill of Lading. D1 referred him to D3 who in turn furnished him with the particulars which were exhibited at the trial as P29. These indicated that the goods being shipped were 'decoration boards'. Another witness Mr. Mack prepared the Export Cargo manifest P28 from the particulars. Indeed P29 has been described as being the genesis of the ship's manifest and the Bill of Lading.

14. As to the loading of the vehicles into the containers, this was undertaken by Hoi Fat Motor Development Trading Company. Ms Leung of that firm said that she had been responsible for this. She had received instructions from either D1 or D2. She was however adamant that both these people had been present when the loading had taken place. She also rejected the suggestion put to her that her company had received instructions to dismantle vehicles.

15. D3 gave evidence. He agreed that he dealt with notifications for the dismantling of vehicles and that he had prepared four notifications relating to nine of these left-hand drive vehicles. He could not remember who he received instructions from concerning the notices in question save that the instructions had emanated from the Kam Tin office and that he had been at the Kowloon Bay office when he had received the information.

16. So far as the present shipping instructions were concerned he said that there had been a misunderstanding. On 9th August 1995 he claimed to have been pressed by Mr. Yeung for the shipping details. He had been told by D4 that he had wanted to help a friend transport five containers of 'decoration boards' to China. He had given similar assistance in the past.

17. In his confusion he had mistakenly assumed that the details applicable to the previous transaction had been the details of the present transaction. He had obtained particulars of containers and seals from D2. He had also made a mistake as to the name of the shipper of the cargo. He claimed to have no knowledge of the seventeen left-hand drive vehicles that had been loaded into the containers.

18. For the reasons given in her Reasons for Verdict the judge rejected the possibility that there had been any genuine mistake concerning the shipment.

19. She also rejected the submission that the notices of dismantlement were genuine or that instructions had been given to Hoi Fat to dismantle any of the vehicles.

20. The judge summarised the evidence against each of the defendants and the following matters emerge:

21. D4: The judge accepted the evidence in his cautioned statement that he made arrangements for cars to be transported in containers to north China. However, she rejected the statements to the effect that a Mr. Wong Keung had instructed him to arrange for the cars to be dismantled or that he did not know of the existence of Win Wah Enterprises or that he did not request anyone to follow up Mr. Wong Kin Keung's instructions regarding the consignor, consignee and in relation to the goods.

22. D3: The judge accepted the evidence that D3 had signed P29. She rejected the evidence in a subsequent unchallengedstatement that he had only prepared the documents at D4's behest.

23. She also rejected the evidence that when he had issued dismantlement notifications these had been genuine.

24. In particular the judge had borne in mind the evidence given by D3 that he was a manager and in charge of the Kowloon Bay office of Hopewell.

25. She also noted as a matter of detail that D3 had not used his usual signature when he signed P29 and that this was indicative of an attempt to distance himself from the document.

D3's appeal.

26. Mr. Lunn submitted that there were essentially two questions which were relevant in determining whether D3 was guilty as charged.

1. Did D3 know that P29 contained false information when he faxed it to Mr. Yeung.

2. Did he know that vehicles would not be dismantled when he submitted the notices of dismantlement.

27. The judge gave the reasons for replying to these questions in the affirmative. One of the reasons for this reply to the first question was at p.27 of the bundle:

"A further consideration is D2's careful personality which she displayed both during her interview and when she gave evidence. If D3 rang her for the container numbers and seals and there had been two lots for shipment, she would, I expect, have asked to which he referred. A mistake on her part seems unlikely."

28. Mr. Lunn submitted that the Judge erred in placing reliance upon this testimony as it was not admissible.

29. As stated earlier D2's cautioned statement was ruled inadmissible. She had only given evidence in the voir dire germane to the issue of the admissibility of her cautioned statement.

30. Mr. Reading for the prosecution conceded that the judge had indeed been in error.

31. What has to be considered in this connection is whether the other reasons advanced by the judge were sufficient of themselves to justify the conclusion she reached. For this it is necessary to consider the evidence as a whole.

32. D3 held a position of responsibility. He was certainly more than just a clerk. He described himself as being a manager. When the customs officers presented themselves at the Kowloon Bay office of Hopewell he said that he was the person in charge.

33. It also needs to be borne in mind that he was not only the author of P29 but he also prepared and submitted the dismantlement notifications.

34. The reasons he gave for the mistake when he prepared P29 do not stand up to any serious scrutiny. No feasible explanation was given for naming Win Wah Enterprise Company as the shipper of the goods.

35. In addition to this no plausible explanation was forthcoming for the absence of documentation concerning the alleged 'decoration boards'.

36. All of this has to be considered in conjunction with the fact that after D3 submitted the notices of dismantlement no action appears to have been taken to dismantle the vehicles referred to in the notices which were in fact some of the very vehicles which were in the containers in question. The judge accepted the testimony of Ms Leung that no instructions had been received by her company to dismantle any of the cars and that the company had only been instructed to stuff the containers.

37. There was ample evidence before the judge even without the inadmissible evidence referred to for her to conclude that the prosecution had proved at the appropriate level that the two questions posed should be answered in the affirmative.

38. This ground of appeal cannot succeed.

39. The 2nd ground complains that the judge was in error when she stated at p.20 of her Reasons for Verdict that D3 was "the person who did the documentation for D4's businesses, for Hopewell and other than Hopewell".

40. This is not correct. According to the transcript D3 gave this evidence at p.305:

"Q. So you were kept aware of the business transactions which were being conducted through the Kam Tin office?
A. Well, he would disclose this if they are relevant to my duties.
Q. You have described your duties dealing with the paperwork and documentation of the company. Presumably all business transactions conducted by your company in some respect is reflected in the paperwork?
A. Yes.
Q. So the sale of 17 left-hand drive vehicles would be reflected in paperwork?
A. Yes."

41. The 3rd ground is that the judge erred in drawing an unfavourable inference concerning P29 from the fact that the signature appended to the form was not D3's normal signature.

42. Mr. Reading conceded that this was not an inference which could properly be drawn in the circumstances.

43. Again it is necessary to have regard to the evidence as a whole. It would appear from a perusal of the Reasons for Verdict as a whole that this evidence was peripheral to the main issues which had to be considered and formed only a small part of the reasoning of the judge. It is clear that she would have come to the same conclusion she did even if she had not attached any weight to this evidence. This ground also cannot succeed.

44. D4's appeal. The first amendedground of appeal is:

"1. (i) That the prosecution failed to establish either on a prima facie basis or beyond reasonable doubt two of the ingredients of the offence charged contrary to Section 18A(l)(c) of the Import and Export Ordinance Cap.60, namely, that the applicant:
(a) knowingly dealt with cargo, namely 17 LHD vehicles, and
(b) with intent to assist another person or persons to export 17 LHD vehicles without a manifest.
(ii) In her Reasons for Verdict the learned trial Judge failed to make any findings in relation to ingredient (b) above as to who it was that the applicant assisted in the exportation of the 17 LHD vehicles.
(iii) In her Reasons for Verdict (page 29 D-H of bundle) the learned trial Judge drew inferences against the applicantconsistent with a finding that he was himself the exporter rather than an assistant."

45. We do not consider there to be any merit in this complaint.

46. There is nothing in the section which indicates a requirement that the person who is assisted should be identified. Clearly in a majority of cases it will not be feasible to identify the person.

47. On the facts of the case it was very obvious that if this smuggling exercise had been successful a substantial benefit would have accrued to the party in China receiving the cars.

48. There can be no doubt that the defendants who were convicted would have been assisting the party in China in exporting the cars from Hong Kong.

49. So far as the question of knowledge is concerned this is more conveniently dealt with when considering the available evidence against each defendant. It is implicit in the findings made in respect of each defendant that they must have had knowledge of dealing with the cars in the manner contemplated by the section.

50. The 2nd ground is as follows:-

"2. That the learned trial Judge erred in law by relying upon what she described as four lies within exhibit P.67 (Reasons for Verdict pages 28 - 29 of bundle), in order to convict the applicant. In particular the learned trial Judge erred in the following respects:
(i) by making the findings she did the learned trial Judge was in effect advancing a new theory which had not been canvassed during the course of argument.
(ii) there was no or insufficient evidence to prove beyond reasonable doubt that the four matters identified by the learned trial Judge as lies, were in fact lies. The bare assertion by the trial Judge was not established by the evidence.
(iii) she failed to appreciate that out of court lies, if told through a realisation of guilt, can only support other evidence. The learned trial Judge's approach was to use the so called lies to make out the prosecution case, which she was not entitled to do.
(iv) she failed to warn herself that the mere fact that a defendant has lied, does not necessarily amount to evidence of guilt and a defendant may lie for innocent reasons."

51. In order to deal with this ground in a satisfactory manner it is necessary to consider first the extent to which the position of a District Judge can be equated with that of a judge summing up to a jury and secondly the way the judge should approach lies where he is satisfied that a defendant has been telling lies.

52. We are satisfied that the duties of a District Judge have been accurately portrayed at p.113 of the judgment of Roberts C.J. in R. v. Chan King-man and others [1980] HKLR 105:

      "The court in LAM Tin-chung v. R. was concerned to decide what matters of law needed to be mentioned in reasons for verdict and with nothing else. In the course of his judgment Mills-Owens, J. pointed out that a judge, in his reasons for verdict, need not expressly mention such obvious matters as the onus and standard of proof, although they would necessarily appear in a summing-up.
      The duty of a District Judge was fully dealt with by the Full Court in R. v. R. E. Low (quoted in R. v. Godber), the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation set out his mental processes in full. At page 82, Blair-Kerr, J. deals with the question as follows:
'It was contended by Mr. How that a District Judge's statement of his reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.
Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a juryverdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and fact which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable.'
      We consider that the passage quoted from the judgment of Blair-Kerr, J. sets out correctly the general duty of a District Judge."

53. There is nothing in this extract to suggest that there is any necessity for a judge to state in his Reasons for Verdict that he directed himself on the subject of lies. We do not consider it to be desirable or necessary for a professionally qualified judge to state in his Reasons for Verdict that he has dealt with all of the matters which he would direct a jury on when dealing with lies. It can safely be assumed that the judge will have correctly approached the subject unless there is some clear indication to the contrary.

54. So far as it is necessary for the judge to direct himself on the subject of lies the law is conveniently encapsulated in the headnote of R. v. Chong Chak On [1995] 2 HKCLR 226.

"Held:
1. R. v. Goodway (1994) 98 Cr App R 11 concerns the use of lies told during police interviews to support identification evidence. It is not authority for the proposition that where a court is dealing with a lie which it is suggested supports evidence of guilt, all four of the requirements in Lucas apply. In such a case the court need consider only the first three requirements. What has to be said to the jury will depend on each case, the choice of words being the responsibility of the trial judge. R. v. Ho Che-chung [1994] 2 HKCLR 250, R. v. Wong Kim-wah [1994] 2 HKCLR 185, Broadhurst v. The Queen [1964] AC 441, R. v. Lucas [1981] 1 QB 721 and R. v. Turnbull [1977] 1 QB 225 considered. (See p.231, lines 1-37; p.232, lines 30-46; p.233, lines 1-16 and p.234, lines 21-28.)
2. The jury was not told that the lies must be deliberate. Juries will no doubt treat a statement as a lie only if they are satisfied it is a deliberate untruth. It is enough, in the normal case, to direct the jury that they must be satisfied what was said was a lie. A specific direction that the lie must be deliberate is not needed. (See p.234, lines 33-38.)
3. Whilst the jury was not told they must be satisfied that the lies went to material issues, such a direction is not needed where the lies clearly go to material issues. Where, as in this case, the defendant's lies, if the jury is satisfied they are lies, are told in an attempt to establish that his involvement was innocent, they are clearly lies as to a material issue and a specific direction to the jury in that regard is not needed. (See p.234, lines 39-46.)
4. The words of Lord Lane in Lucas that "the motive for the lie must be a realization of guilt and a fear of the truth." were not used in the direction to the jury. The phrase, in terms, is likely to confuse a jury as to assist it. The directions given had illustrated what was meant by the phrase. This was sufficient direction to the jury that they must consider possible innocentmotives for the lie. (see p.235, lines 1-15.)
5 Where the Crown seeks to use lies to support evidence of guilt, the jury should be told that, if they are satisfied the accused lied, they should, when considering the use which they will make of the lies, remember that people sometimes lie for reasons unconnected with guilt, for example, in an attempt to bolster up a just case, or out of shame, or out of a wish to conceal disgraceful behaviour and the lie cannot be used by itself to prove guilt but can be used only to strengthen other evidence going to guilt. R. v. Man Bing-chou [1993] 2 HKCLR 71 considered. (See p.235, lines 16-45 and p.236, lines 1-7.)"

55. Although she was not required to state in her reasons how she directed herself on the subject of lies the judge did do so to some extent.

56. She stated at p.17 of her reasons for verdict:

      "I think it is important in this case to bear in mind that Hopewell is essentially a family-run business and the persons in the chain of command. D4 admits in answer 41, P67, that 'After the cars were sold, WONG Keung instructed me to deliver the left-hand drive cars to a company named Hoi Fat near Fairwood Park for vehicle dismantlement. I then arranged for placing an order for containers and cargo space on vessel which transported them to northern China on his instructions.' Then in answer 50, he said, 'During the period from 6 August to 7 August, WONG Keung gave me the information about consignor, consignee and goods carried through a long-distance call. He then sent the information by fax.'
      I accept the incriminating parts of these two answers as true. I reject as lies that:
1.    WONG Keung instructed him to dismantle the vehicles (answer 41);
2.    he knew nothing about Win Wah Enterprises Company (answer 13);
3.    he did not remember the exact quantity of cars sold to WONG Keung, that he only knew of the Subarus and its notice of dismantlement (answers 29 and 30);
4.    he did not notify anyone to follow up WONG Keung's instructions regarding the consignor, consignee and goods (answer 50).
      I am satisfied these lies were deliberate and material, and motivated by a realisation of guilt (R. v. Lucas 1981 QB 720).
      I infer from the evidence the false dismantlement notifications, the loading of the vehicles by D1 and the false information D3 gave on P29 were done on D4's instructions. The prosecution, having proved the ingredients of the charge against D4, he is convicted of the charge. I did not have to rely on the presumption which does arise against him on the evidence."

57. It is now necessary to consider the complaints which are made in the amendedperfected grounds of appeal:

(i) It is complained that the judge was in effect advancing a new theory which had not been canvassed during the course of the trial.

The contention for this was that the prosecution had never attempted to use D4's alleged lies as a basis for establishing his guilt. The judge by placing some reliance upon this was acting on her own and a consequence of this was that D4 and his legal advisers were afforded no opportunity to deal with this. Mr. Plowman, S.C. for D4 placed reliance upon R. v. Raymond Lau [1980] HKLR 351 & R. v. Lunn [1985] Crim. L. R. 797.

We do not think that there is any merit in this contention. The judge was considering the evidence as a whole. She was perfectly entitled to draw the conclusion she did. There was no necessity for her to raise the issue with counsel. Indeed even if she had done so it is not easy to see how counsel could convince the judge that she should not treat the lies in the way she did.

(ii) The complaint here is that there was insufficient evidence to enable the judge to be satisfied at the appropriate level that the lies referred to were indeed lies.

For this it is necessary to have regard to all of the admissible evidence. This included the contents of D4's statement, the viva voce evidence of D3 and the general background evidence including the agreed facts.

The judge had quite a lot of material to draw upon. D4 had obtained the containers. He had been in communication with Wong Keung who had asked him to buy left-hand drive vehicles including some of the cars which were found in the containers by the Customs Officers. He had received a substantial payment in respect of left-hand drive cars. He had been the one to receive instructions for the dismantlement of the cars and for arranging for the cars to be transported to north China.

In addition to this there was D3's evidence that D4 had been the person to instruct him concerning the shipping of the 'decoration boards'.

In our view there was ample evidence for the judge to conclude that D4 had been telling the lies she referred to.

(iii) If the judge's reasons are carefully considered, she did not use the lies to make out the prosecution case.

(iv) As indicated earlier there was no necessity for the judge to include this in her reasons.

The 3rd ground is:

"3. That the learned trial Judge erred in fact and in law by drawing the inference that the following things were done on the applicant's instructions (Reasons for Verdict page 18 D - G), namely:
(i) the issue of the false dismantlement notifications, and
(ii) the loading of the vehicles by D1, and
(iii) the providing of the false information D3 gave on Exhibit P.29.
In particular the learned trial Judge erred in the following respects:
(a) drawing adverse inferences against the applicant in circumstances where the evidence did not entitle her to do so, and
(b) failing to warn herself that she was only entitled to draw such inferences where they were compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

58. To an extent it is necessary to consider this ground together with the previous one as for both it is necessary to have regard to the evidence as a whole against D4. As already indicated the case against D4 was a compelling one. It is also true to state that D4 did not condescend to go into the witness box and furnish an explanation for his involvement. Of course he was perfectly entitled to adopt the stance he did. However, one consequence of this was that in the absence of any explanation from him it was very much more likely that the judge would be prepared to draw adverse inferences from his involvement where this was appropriate.

59. This approach was adopted by Fuad, JA in Lam Tsz-wah [1984] HKLR 54 where he placed reliance upon R. v. Sung Shui-sing [1962] HKLR 587 and R. v. Sharmpal Singh [1962] AC 188.

60. We are satisfied that there was sufficient material before the judge to enable her to draw the inferences she did.

61. In all the circumstances D3 and D4's convictions are not in any way unsafe or unsatisfactory and these applications are dismissed.

62. D1's application for leave to appeal against sentence.

63. The main ground advanced by Mr. Lunn on D1's behalf was what he considered to be the disproportionately heavy sentence imposed on D1 having regard to the comparatively light sentence imposed on D4. He emphasised the fact that D4 could properly be regarded as being a ringleader whereas D1 had for the most part been acting upon his instructions.

64. We do not think that this submission is well founded. On the facts of the case D1's involvement as found by the judge was not inconsiderable. D1 had made the initial enquiries of Mr. Yeung for the shipping of the cars. He had also been physically present when the containers were stuffed.

65. A sentence of 20 months' imprisonment for this serious offence cannot be regarded as either wrong in principle or manifestly excessive. This application is also dismissed.

(Simon Mayo)	(M. Stuart-Moore)	(T.M. Gall)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr. John Reading, S.A.D.P.P. & Mr. Jackson Poon, S.G.C. for Respondent

Mr. Michael Lunn, S.C. & Mr. Peter Wong Ting-kwong for 1st and 2nd Applicants (D1 and D3)

Mr. Gary Plowman, S.C. & Mr. Peter Wong Ting-kwong for 3rd Applicant (D4)

HKSAR v. CHOI GIN NGON AND OTHERS

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