HKSAR v. CHAN CHUNG YAN PAUL

CACC 141/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 141 OF 1999

(ON APPEAL FROM DCCC 649/1998)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. The applicant was convicted on the 10 February 1999 in the District Court before H H Judge Poon of two charges of conspiracy to pervert the course of public justice and one charge of conspiracy to defraud.

"1st Charge
Statement of Offence

2nd Charge
Statement of Offence

Particulars of Offence

3rd Charge
Statement of Offence

Particulars of Offence

2. The applicant now applies for leave to appeal against conviction. In Hong Kong a person who imports or exports dutiable commodities such as cigarettes is required to have a licence issued by the Customs and Excise Department. A licence holder must also apply for a permit before he can deal with dutiable commodities and for goods in transit, an export permit is required. The prosecution case was that on 24 July 1997 a container of cigarettes arrived in Hong Kong in transit to Vietnam. Customs and Excise officers found the cigarettes to be counterfeit "Marlboro" cigarettes and they seized the cigarettes. The application for the export permit in respect of the cigarettes was prepared by HSU Kam-wing, PW2, a clerical assistant in the Permit and Licensing Division of the Customs and Excise Department, using the licence of a Far East Asia Shipping Ltd. Anna LO, the shipping clerk and CHAN Sik-man, the manager of the Far East Asia Shipping Ltd and three cigarettes traders OR Kwok-wai, YEUNG Kam-fai and Chow Kim-pan were all involved in the preparation of the application for the permit but none of them had any interest in the Far East Asia Shipping Ltd.

3. On 24 July 1997, after the seizure, PW2 met up with the applicant, CHAN Sik-man, OR Kwok-wai and Anna LO. They went to the office of Far East Asia Shipping Ltd and removed the chop, and all the documents relating to the export permit in respect of the counterfeit cigarettes which had been seized. The applicant subsequently took these documents back to his home for destruction. PW2 also removed the data connected with the application for export permit from the desktop computer and from his own laptop computer.

4. They then agreed that the applicant should pose as one CHAN Kam-ming to phone the Customs & Excise Department to claim ownership of the seized cigarettes. The applicant duly made that call claiming himself to be CHAN Kam-ming and the owner of the cigarettes. The applicant also pretended he was calling from the Mainland. Customs & Excise Inspector CHUNG Kai-shing confirmed that he had received such a call on 28 July 1997.

5. Subsequently, YEUNG Kam-fai instructed PW2 not to use the licence of Far East Asia Shipping Ltd to apply for export permit and on 26 July 1997, PW2 went to the Mainland and instructed their counterpart there to use the brand name of "Double Happiness" for future counterfeit cigarettes instead of the "Marlboro" brand in order not to arouse suspicion by the Customs and Excise Department and that the cigarettes should be shipped to Singapore via Hong Kong instead of to Vietnam via Hong Kong. This proposal was approved by YEUNG Kam-fai.

6. On 28 July 1997, PW2 used the licence of one Wellingtat Industrial Company Ltd ("Wellingtat") to apply for the export permit in respect of the next shipment of counterfeit cigarettes coming from the Mainland. The applicant was instructed to go to Kanvic to make a booking for the shipment. PW2 then prepared the application for export permit in the name of Wellingtat and the name of "CHAN Kam-ming" was used as the manager of Wellingtat and a phone number of the applicant's mobile phone was put on the application. The applicant signed the application as CHAN K M. All these were done in the presence of the applicant and OR Kwok-wai. The goods on the application were declared as "Double Happiness" brand cigarettes.

7. The applicant also signed a covering letter in the name of CHAN K M, manager of the licencee. Together with a shipping order of Kanvic and a bill of lading from Modern Shipping Company Ltd, the applicant submitted the application to the Customs & Excise Department. The applicant then went to Macau with PW2 that night. The permit was issued on 30 July 1997.

8. On 31 July 1997 a container of cigarettes arrived from Zhuhai and it left Hong Kong on 8 August 1997 to Singapore and arrived at Vietnam on 16 August 1997. The export permit in respect of that consignment was the permit issued by the Customs & Excise Department on 30 July 1997. That permit was collected by the applicant on 31 July 1997.

9. On 3 September 1997 on a search of the applicant's premises, ICAC officers found two Kanvic invoices in the applicant's handbag.

10. The applicant's case was that on 24 July 1997, he met OR Kwok-wai, Anna LO and PW2 and they asked him what could be done with the container that had been seized by the Customs & Excise Department but he told them that apart from telling the owner to contact the department, nothing else could be done. The applicant said that he then had dinner with his friends CHAN Chi-man and KWOK Chi-wah. He called them to give alibi evidence for him.

11. As to what happened on 28 July 1997, the applicant said he was asked by OR Kwok-wai to make a shipment booking for him and he was given $7,000 and a brown envelope containing the necessary documents for him to make such booking. He did not take any mobile phone from OR Kwok-wai and the next day, he went to Kanvic to make the booking. Afterwards he gave the documents back to PW2 except two Kanvic invoices which he forgot to return to PW2. These two Kanvic invoices were those found in his handbag. His alibi witness CHAN Chi-man could only recall that on one occasion in mid-1997 he had a dinner with KWOK Chi-wah, but he could not recall if the applicant was there.

12. The first ground of appeal is that the judge had in relation to charge 3 made a factual error which caused her to discredit the applicant in total. The second ground is that in the circumstances the convictions in the first and second charges are unsafe and unsatisfactory.

13. The judge found the applicant had lied about going to Kanvic once because the invoices found in his handbag were dated 29 July 1997 and 30 July 1997. The invoice dated 30 July 1997 was an amended invoice which could only be issued after the vessel had set sail on 30 July 1997. The judge found that the applicant had gone to Kanvic twice and he was the person who went to the licensing office twice to deal with the permit for the shipment of the "Double Happiness" cigarettes.

14. Mr Callaghan, counsel for the applicant submits that the immigration records show that the applicant left Hong Kong on 29 July 1997 and did not return until 31 July 1997. The records show that the applicant had told the truth about collecting the invoices on the same day. The judge was incorrect to conclude that the applicant was not a credible witness and to reject his evidence in total. As this is material to the credibility of the applicant, this relates to the case against the applicant as a whole including the first and second charges. The convictions, he submitted, are therefore unsafe and unsatisfactory.

15. Mr. McWalters, for the prosecution submits that the erroneous finding of the judge would not undermine the validity of the judge's conclusion that there was a second occasion when the applicant was involved with the invoices and that his denial of a second involvement was a deliberate lie. It is submitted that this erroneous finding was insignificant in the overall assessment of the applicant's credibility by the judge.

16. The judge's finding that the applicant had gone to Kanvic specifically on 29 and 30 July 1997 might not be consistent with the Immigration records. However, she had found there were other areas in the applicant's evidence which demonstrated that he was not to be believed including his claim that he had dinner with DW5 on 24 July 1997 at a time when DW5 was still across the border. The judge rejected the applicant's evidence because she found his evidence was unreasonable, illogical and inconsistent as well as the applicant was tailoring his evidence as he went along. The fact that the applicant was found in possession of both the 29 and 30 July 1997 invoices and that he did not deny that he had collected the permit on 31 July 1997 which incorporated the amended particulars in the later invoice, would still have justified the judge's conclusion that the applicant had lied that he only went to Kanvic once on 29 July 1997. We found that the judge's conclusion that he also went to Kanvic on 30 July 1997, albeit the erroneous is insignificant in the circumstances.

17. Assessment of the credibility of a witness is for the judge and we do not think that the judge was in any way not justified in rejecting the evidence of the applicant despite that erroneous finding.

18. The judge had approached the evidence of PW2 with care and was fully aware that he gave evidence under immunity and had warned herself of the danger of relying on his evidence. Nevertheless, the judge accepted the evidence of PW2. Once the evidence of PW2 is accepted, the evidence against the applicant is overwhelming and on that evidence in the circumstances of the case, the judge was entitled to conclude that the applicant was part of all the conspiracies alleged in the three charges.

19. The convictions are therefore not unsafe and unsatisfactory. The application for leave to appeal against conviction is dismissed.