Case Detail

HCMA 556/2019

[2020] HKCFI 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 556 OF 2019

(ON APPEAL FROM TUEN MUN MAGISTRACY

CASE NO TMCC 2979 OF 2018)

________________________

BETWEEN

	HKSAR	Respondent
and
	TANG KWAI WA	Appellant

________________________

Before:

Deputy High Court Judge Yiu in Court

Date of Hearing:	4 March 2020
Date of Judgment:	18 June 2020

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JUDGMENT

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1. The Appellant was convicted after trial by the Deputy Magistrate (Magistrate) for the offence of “importing unmanifested cargo”, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60. The Magistrate sentenced the Appellant to 18 months’ imprisonment, the Appellant now appeals against conviction and sentence.

2. The particulars of the charge were that, on the 6^th of December 2017 at the Customs Private Car Arrival Kiosk No 7 of Shenzhen Bay Control Point, New Territories, Hong Kong the Appellant imported unmanifested cargo, namely, 35.00125 kilogram of gold slabs.

The Prosecution Case

3. As briefly summarized by the Respondent, the evidence for the prosecution at trial came mainly from SCO 9054 (“PW2”), CO 98258 (“PW4”) and the Admitted Facts P42.

4. PW2 was on duty at the Customs private car arrival kiosk no 7 at the material time when the private car driven by the Appellant (“the Vehicle”) approached the said kiosk after immigration clearance. The Appellant was the only person and the driver of the Vehicle.

5. The Appellant was directed to drive the Vehicle to undergo examination at the inbound private vehicle examination centre, where PW4 and CO 1759 examined the Vehicle. Nothing suspicious was found on the Vehicle or on the Appellant upon inspection.

6. An x-ray examination was subsequently conducted on the Vehicle which led to a further search of the Vehicle by PW4. On this occasion, PW4 found a bag which contained 35 kilogrammes of gold slabs in the rear compartment of the Vehicle. PW4 declared arrest and administered caution on the Appellant. In response to PW4’s enquiry under caution, the Appellant said that the “bag of stuff” found in the trunk of the Vehicle belonged to him, that they were gold bullion and he did not remember who put the gold bullion there. When asked what the batch of gold bullion was for, the Appellant claimed that the gold was to be taken back home and placed it there. When asked whether he had made any declaration verbally or in any document to the Hong Kong Customs and Excise Department for importing the bag of gold bullion, the Appellant said “no”.

7. The enquiry made by PW4 and the Appellant’s response under caution were subsequently recorded in PW4’s notebook. At the end of the record, the Appellant copied down a declaration and signed to confirm the truthfulness and correctness of the entry (“the post-record”). At trial, the Defence challenged the admissibility of both the verbal admissions made by the Appellant to PW4 and the post-record. Alternative procedure was adopted to address the issue of admissibility. At the end, the learned Deputy Magistrate ruled that both the verbal admission and the post-record to be admissible.

The Defence Case

8. The Appellant elected not to testify on the Special Issue and the General Issue. No Defence witness was called.

Magistrate’s findings

9. The Magistrate summarized the argument by defence counsel at trial as follows: -

(a) Based on PW4’s evidence, the Appellant was arrested because of the large quantity of gold. Defence counsel emphasizes repeatedly Hong Kong is a free port for gold trading, there are no restrictions on the amount of gold a private person can bring into HK, and gold is not a dutiable commodity. Hence, bringing gold into Hong Kong needs not be declared;
(b) Defence counsel mentioned in his written final submission that “there is no evidence there are signs at the control point or banners or warning signs at the Customs entry point, not permitting or restricting private individuals to bring gold into HK.” He made similar comments in his no case submission that no warning signs or the like can be seen anywhere at Shenzhen Bay control point during the site visit. That was what defence counsel submitted at bar table, not evidence. Even so, by section 18(1)(a) any person who imports any unmanifested cargo shall be guilty of an offence, ignorance of law is no defence.
(c) Defence counsel submitted that the word “cargo” in its true sense means goods carried on a large cargo vehicle, vessel or plane, and the word “import” denotes the goods in question are for sale. Whereas in the present case, there are no evidence to suggest that the Appellant was an importer but a private individual.

10. The Magistrate stated that while he accepted Hong Kong is a free port for gold trading and gold is not a dutiable commodity, the court is bound to consider the legislative intent. Section 18(1)(a) of the Import and Export Ordinance stated “Any person who import any unmanifested cargo shall be guilty of an offence.” Section 2 of the Ordinance provided interpretation of the following:

“un-manifested cargo” means any cargo which is not recorded in a manifest.
“import” means to bring or cause to be brought into HK any articles.
“cargo” means any article which is imported or exported other than the exceptions (a)-(f) as set out.
(a) the necessary equipment, stores or fuel of the vessel, aircraft or vehicle in or on which the article is imported or exported;
(b) food and other provisions reasonably required for consumption by the crew or passengers of such vessel, aircraft or vehicle;
(c) items of personal property reasonably required for the personal use of the crew or passengers of such vessel, aircraft or vehicle;
(d) any document relating to –
(i) the carriage of cargo in or on such vessel, aircraft or vehicle; or
(ii) the inter-office business transactions of the owner of such vessel, aircraft or vehicle;
(e) articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him; and
(f) any article in transit unless such article is a prohibited article not falling under paragraphs (a) to (e).

11. The interpretation of “import” does not include the words “for trading purposes” or “business related” nor the interpretation of “cargo” include the word “for trading purpose” or “business related purpose”. The Magistrate’s understanding is, if the legislature had intended to confine “cargo” to goods for trading purpose(s), it would not have used the words “any articles” but would have for clarity included the words to the effect that “cargo” means any article intended for sale or trading purposes.

12. Further, the Magistrate stated that the defence counsel sought to rely on the Appellant’s admission and that is the Appellant admitted the gold slabs belonged to himself and it follows the gold slabs are his personal belongings, and his intention to take them home and put there means the gold slabs were for his personal use. The Magistrate further considered all the listed exceptions for “cargo” as set out above and was satisfied none of those exception is applicable to the present case. The Magistrate found that the gold slabs found inside the Appellant’s private car must be taken to be cargo.

13. The Magistrate also stated that it is not in dispute that the large quantity of gold slabs the Appellant was bringing into Hong Kong were unmanifested. The Magistrate accepted PW2’s evidence that the Appellant told him he has nothing to declare. It is also not in dispute how the gold slabs were found on the private car driven by the Appellant. It is immaterial whether the bag of gold slabs was hidden or not. It is also immaterial whether the gold slabs were the Appellant’s personal property when the Appellant’s case does not fall within one or more of the exceptions of the definition of “Cargo”.

14. Based on the above findings, the Magistrate was satisfied the Appellant did import unmanisfested cargo contrary to section 18(1)(a) of the Import and Export Ordinance and the charge against the Appellant was proved beyond all reasonable doubt.

Magistrate’s Sentence

15. The Magistrate noted that the Appellant is not a first offender. He had 2 conviction records dated back to 2002 and 2003, none similar to the present offence. This is his first offence of this nature.

16. The Magistrate stated that the quantity of gold involved in the present case is huge, there were 35 pieces of gold slabs and, the total value estimated was over HK$10 million. The Magistrate took a very serious view of the nature of the offence in the present case, and reckoned the sentence to be imposed should reflect the gravity of the offence and has to have deterrent effect on the Appellant and offenders to be.

17. The Magistrate further stated that there is no tariff or guideline for sentence. He referred to a District Court case HKSAR v Wu Hongmei, DCCC 1011/2017 where 36 months was adopted as starting point for the same offence and similar facts as the present case. In that case, there was 76 gold slabs found and the value was $24,213,600 but that defendant was a first offender. The Magistrate said that after due consideration, the 18 months was adopted as starting point and the Appellant was sentenced to 18 months’ imprisonment.

Grounds of Appeal

18. Mr William Allan acting for the Appellant adopts the following grounds of appeal and written submission as settled by Mr Andrew Bruce SC,

(1) There was a material irregularity and, by reason thereof, the Appellant had an unfair trial and, accordingly, the conviction was unsafe and unsatisfactory in that the learned Deputy Magistrate permitted the prosecutor to make a closing speech by way of 2 written submissions and, in the alternative, if it was a proper exercise of his discretion to permit the prosecutor to make such a closing speech, the speech could not be considered of becoming brevity.
(2) (Alternative to Ground 1) There was a material irregularity and, by reason of that, the conviction was unsafe and unsatisfactory in that the learned Deputy Magistrate took account of the closing submissions of the prosecution which did not comply with the requirement that they be of becoming brevity.
(3) The Statement of Findings was in real and substantial disconformity and of substantially greater length than the reasons for conviction given by the learned Magistrate at the time of convicting the Appellant.
(4) The learned Deputy Magistrate erred in failing to take into account the exculpatory component of the admissions against interest tendered by the prosecution and admitted into evidence by the learned Deputy Magistrate.
(5) There was an error of law in that the learned Deputy Magistrate erred in holding that the material the subject of the allegation of being a manifested cargo was not, in law cargo within the meaning of the Import and Export Ordinance, Cap 60 in section 2 in that the exception in the definition of “cargo” in that section that the section does not cover “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him”. The fact that the Appellant was the driver of the vehicle in which he was found does not exclude him from coverage of the exception to the definition.
(6) (Alternative to Ground 5) If it be held that on a proper construction of section 2 of the Import and Export Ordinance, Cap 60 that “driver” cannot in law be construed to include passenger as is contended in Ground 5 (above), then it is contended that section 2 of the Ordinance creates an unconstitutional discrimination by reason of Article 25 of the Basic Law.

Grounds 1 & 2

19. It was submitted that as in HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298, where the accused is represented and the accused has not testified and has not called witnesses, the right of the prosecutor to make a closing submission should be used sparingly and if such a submission is made it should be made with becoming brevity.

20. However, in the present case, the submissions made by prosecuting counsel were wide-ranging both as to law and as to fact and credibility. The submissions were lengthy and on no account could they be said to be of becoming brevity.

Ground 3

21. It was submitted that the Statement of Findings was in real and substantial disconformity and of substantially greater length than the reasons for conviction given by the learned Magistrate at the time of convicting the Appellant. A comparison of the “brief” reasons for verdict with the Statement of Findings clearly demonstrates that disconformity.

Ground 4

22. It is submitted that the exculpatory component provided a basis for an acquittal. As in HKSAR v Chan Tam Fu [2016] 3 HKC 250, the Court of Appeal held that it would be appropriate in relation to exculpatory components of a statement made by an accused that a Liberato direction should be given, which asserts that in relation to the evaluation by the jury of evidence in favour of the accused, they should take it into account if they think it may or might be true. Manifestly, it was submitted that did not occur and the exculpatory components of the statement of the Appellant deserved further and better consideration.

Grounds 5 & 6

23. It was submitted that the Magistrate erred in holding that the material the subject of the allegation of being a manifested cargo was not, in law cargo within the meaning of the Import and Export Ordinance, Cap 60 in section 2 in that the exception in the definition of “cargo” in that section that the section does not cover “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him”. The fact that the Appellant was the driver of the vehicle in which he was found does not exclude him from coverage of the exception to the definition. A problem might arise by reason of the fact that there is an issue of law as to whether a driver could be a “passenger”. It would be an unacceptable distinction to make between a driver who might be travelling by himself and the idea that such a person would have a different liability in relation to the exception in the definition of “cargo” to a passenger would be an unacceptable discrimination.

24. It is further submitted that under the Basic Law that such a distinction, if it was held to exist, was not a distinction which was consistent with the anti-discrimination clause which is reflected in the proposition in Article 25 that all persons are equal before the law.

25. The Appellant also stated that it may be that in some situations it would be appropriate for the driver to submit a manifest. However, the manner in which the discrimination operates in this case there is no distinction in the obligation of a driver. Some will be simply driving from, say, Guandong County back to Hong Kong after a social visit. Some will be driving a large truck carrying a substantial quantity of cargo. What both carry across the border given the definition of cargo which is, in effect, anything that can be carried, they are all liable to submit a manifest even in situations where a passenger would be carrying what would equally be cargo but is not required to submit a manifest. This is particularly harsh it is submitted when the material which is the “cargo” the subject of the proceeding may be carried perfectly lawfully across the border. There is no restriction on the cargo in the instant case which would justify any other view.

Discussion

26. A magistracy appeal is an appeal by way of rehearing, as in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383. An appellate court will not depart from a magistrate’s findings unless it is satisfied that the finding is “plainly wrong”.

27. The appellate court should also appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript. Whether a witness is credible or reliable is a matter entirely for the magistrate to decide. However, if the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in his reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe. (see Chou Shih Bin v HKSAR FACC 11/2004, Raymond Chen v HKSAR FACC 1/2010)

Grounds 1 & 2

28. Firstly, the Court of Final Appeal case of Brandon Leung essentially concerned the rule of practice where the defendant was unrepresented, but unlike the present case the Appellant was represented throughout the trial, besides, as in HKSARv ZhuoYaying [2016] 3 HKLRD 925, the Court emphasizing, however, the prosecuting counsel was nonetheless entitled to address the judge as to law in reply.

29. In fact, when reading through the Statement of Findings, it is noted that it was only in the circumstances where the defence had not expressed clearly whether the exception as provided by the law for the definition of cargo was relied on, then the Magistrate went on to ask for assistance from both parties to address this matter concerning the question of law, therefore I do not see any procedural irregularity raised, even if I were wrong, the irregularity was clearly not a serious one which affected the fairness of the process as a whole, therefore grounds 1 & 2 must fail.

Ground 3

30. When comparing with the Statement of Findings and the oral verdict delivered by the Magistrate, no doubt they just respectively covered the very same issue with the same reasoning and analysis, bearing in mind the Magistracy’s heavy load of work, it is also understandably a brief reason was only given for oral verdict. Even if there were slight variance, it could not be said as real and disconformity, therefore, this ground must also fail.

Ground 4

31. It was also submitted that the Magistrate did not take into account the exculpatory part of admission by the Appellant, namely that the Appellant alleged that the gold slabs belonged to him which would be placed at home (ie for his personal use). However, the Magistrate not only mentioned that the court is entitled not to attach any weight to the self-serving statement, but also the Magistrate had expressly found that the gold slabs, did not fall into any exception as listed in the statute as cargo. As one of the exception provided is personal use, so by necessary implication, the Magistrate had clearly rejected the Appellant’s exculpatory claim as aforesaid.

32. Further, it is also noted that the Appellant though claiming the substantial gold slabs were to be placed at home, he said he did not even remember who put it inside his vehicle, in the circumstances, for re-hearing consideration, such allegation would be rejected in any event, therefore this ground also fails.

Grounds 5 & 6

33. It is further submitted that the exception should come into play given that the gold slabs should be regarded as articles imported by a passenger as personal baggage carried by him, and that even if the Appellant was just the driver it should not preclude him as “passenger” or an unacceptable discrimination may arise contrary to Article 25 of the Basic Law where all Hong Kong residents shall be equal before the law.

34. However, when taking a closer look to the statute, it would only be so much imaginative to take that “passenger” should also cover “driver” or “driver” also be taken as “passenger”, as the wording is so clear that it only exclude (c) the items of personal property reasonably required for the personal use of passengers or (e) articles imported by a passenger in his personal baggage or carried by him, it thus leaves no room for further interpretation to take passenger also covering driver or the legislation would undoubtedly set out as such.

35. Further, as also stated by the Respondent, the guarantee of equality before the law does not invariably requiring exact equality, see Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 and the differential treatment would be justified if it pursue a legitimate aim; rationally connected to that aim, no more than necessary and has a reasonable balance between the societal benefit and the interference with the individual’s equality right, see Leung v Secretary for Justice [2006] 4 HKLRD 211.

36. Respondent also referred to the amendment bill which sought to deal with passenger bringing in goods not for personal use and the Administration also intended to protect the economic interest of Hong Kong to safeguard the shipping and airline companies. It was only in such circumstances the amendment intended to exclude the definition of cargo by passenger carrying as personal baggage and to remove the need for such manifest by numerous passengers. Moreover, the role of driver is clearly different from the passenger when the former do take full control of the transport vehicle and should be held responsibly of what carried and a manifest is thus necessary.

37. Hence the differential treatment between driver and passenger is fully justified and it could not be said as interfering any individual’s equality rights. Therefore, grounds 5 & 6 also fail.

38. To conclude, I do not find the Magistrate’s findings in any way illogical or unreasonable. After re-hearing to consider all the evidence, I am also convinced that the verdict is safe and satisfactory. As all the above appeal grounds also fail, this appeal is dismissed accordingly.

Appeal on sentence

39. The Magistrate had duly considered the background of the Appellant, the quantity and value of gold slabs imported (estimated over 10 million), I also agree that a serious view should be taken and the sentence of 15 months’ imprisonment is neither wrong on principle nor manifestly excessive. Therefore, the appeal against sentence is also dismissed accordingly.

	( F Yiu )
	Deputy High Court Judge

Ms Margaret Yu ADPP and Mr Oscar Tan PP, of the Department of Justice, for the respondent

Mr William Allan, instructed by Tang, Wong & Cheung, for the appellant

HCMA 556/2019

[2020] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 556 OF 2019

(ON APPEAL FROM TMCC NO 2979 OF 2018)

______________

BETWEEN
	HKSAR	Respondent
and
	TANG KWAI WA (鄧桂華)	Appellant (Applicant)

______________

Before: Deputy High Court Judge Martin Hui SC in Chambers

Date of Hearing: 4 December 2019

Date of Decision: 4 December 2019

_______________________________________

REASONS FOR DECISION

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Introduction

1. On 15 August 2019, the Applicant was convicted after an 18-day trial before Deputy Magistrate Mr Peter Hui in the Tuen Mun Magistrates’’ Court of one count of importing unmanifested cargo[1], contrary to section 18(1)(a) of the Import and Export Ordinance, Cap 60 (“IEO”) (Charge 1) and was sentenced to a term of 18 months’ imprisonment. He was also convicted on his own plea of a separate count of possession of goods to which Dutiable Commodities Ordinance applies, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap 109 (Charge 2)[2].

2. On 9 September 2019, the Applicant lodged an appeal against conviction in respect of Charge 1 only. He applied for bail pending appeal. On 4 December 2019, having heard submissions from leading counsel Mr Andrew Bruce SC (with him Mr William Allan[3]) for the Applicant and Mr Oscar Tan, Public Prosecutor for the Respondent, I refused the application and said I would hand down the reasons for my decision. These are those reasons.

The case at trial

3. In a nutshell, it was the prosecution case at trial that the Applicant had smuggled into Hong Kong 35 pieces of gold slabs (worth HK$10.76 million in total) which were hidden inside the rear compartment of the private vehicle driven by the Applicant when he was attempting to cross the Shenzhen Bay Control Point. Apart from facts admitted under section 65C of the Criminal Procedure Ordinance, Cap 221, the prosecution called a total of 7 witnesses to testify at trial. As summarized by the learned Magistrate, the crux of the prosecution witnesses’ evidence is as follows:

“ 6. PW2 is senior customs officer 9054. At the material time, he was on duty at the customs private car arrival kiosk no. 7 when a private car registration no. SN312 approached his kiosk after immigration clearance. There was only the driver in the car. He asked the driver if he has anything to declare. The driver answered him “No”. Nonetheless, he directed this vehicle to undergo examination.
7. PW1 is senior customs officer 98239. He was on duty and in charge at the inbound private vehicle examination centre at the time. According to his evidence, examination of the [Applicant]’s vehicle was carried out by his subordinate customs officer 98285 (PW4) and customs officer 1759 (PW5). After initial examination, nothing suspicious was found inside the car and nothing suspicious was found either on the [Applicant] after the body searched (sic). Nevertheless, PW1 decided to conduct a more thorough examination on the car by means of X-ray examination. By X-ray he detected something suspicious at the rear of the car. A bag of gold slabs was eventually found by PW4 at the rear compartment of the car.
8. PW4 is customs officer 98285. It was he who found the bag of gold slabs at the rear compartment of the [Applicant]’s lift-back car (as depict[ed] by P37 photo no. 4). According to his evidence, that bag was hidden in a hollow space at the right side of the trunk and that space was covered up. There were miscellaneous items kept at the rear compartment. He needed to lift a board up, removed a toolbox and a rubber mat before the bag came to his sight, as depicted by P37 photos 5-9. With this finding, he declared arrest on the [Applicant] there and then for being suspected to have contravened the Import and Export Ordinance, for importing unmanifested cargo and cautioned him. After cautioned, he carried out investigation from the [Applicant]. He asked a total of 5 questions and the [Applicant] answered each and every one as follows: -
Q1. This bag of stuff that was found here just now, to whom does it belong?
A: Me.
Q2. What is (in) this bag?
A: Gold bullion.
Q3. Who put (it) inside?
A: Don’t remember.
Q4. What is this batch of gold bullion for?
A: Take (it) back to my home and put (it) there.
Q5. Have you made any declaration verbally or in (any) document to the Hong Kong Customs & Excise Department for importing this batch of gold bullion?
A: No.
Later on the same day, in the presence of the [Applicant], he made a post entry of the arrest in his official notebook P40. At the end of the post entry, at his request, the [Applicant] copied down a declaration and signed to confirm the post entry to be true and correct.
9. PW5 is customs officer 1759. He gave similar evidence as PW1 and PW4 about the examination of the [Applicant]’s car and the eventual finding of the bag of gold slabs. The rest of his evidence concerns his subsequent guarding of the [Applicant] and events happened during that period.”

4. The Applicant did not give evidence or call any witness in his defence on both special and general issues. He challenged the admissibility of the verbal admission allegedly made by him at the scene and the post-recorded notebook entry (Exhibit P40) taken by PW4 from him under caution[4]. Upon hearing evidence on the special issue, the Magistrate ruled the impugned cautioned statements admissible, rejecting a submission of no case by the Applicant’s counsel Mr Allan, as well as a subsequent application by him for leave to review the ruling on special issue after a site visit to the scene in the middle of the trial.

5. On general issue, Mr Allan again submitted no case to answer but this time on a basis contrary to the stance he adopted on special issue, arguing that the Magistrate should place full weight on the Applicant’s admission instead. That submission was also rejected and the Magistrate proceeded to hear closing submissions by counsel, the Applicant having elected not to give evidence or call any witness on general issue.

6. In his closing submission, Mr Allan contended inter alia that no declaration is required for bringing gold into Hong Kong as Hong Kong is a free port for gold trading and there are no restrictions on the amount of gold a private individual can carry. He further submitted that the word “cargo” means goods carried on a large cargo vehicle, vessel or plane and that the word “import” connotes goods that are for sale. Relying on the Applicant’s cautioned admission that the gold slabs belonged to himself and that he intended to take them home and put them there, it was said that they were his “personal belongings” for his “personal use” and therefore not “cargo” as defined in section 2 of the IEO.

7. Noting that the definition of “cargo” contains various exceptions and that Mr Allan had not made it clear whether he would be relying on any of those exceptions, the Magistrate raised this with counsel at an adjourned hearing before delivery of verdict and invited further submissions from both parties on the issue. In response to the Magistrate’s query, Mr Allan initially indicated that he would be relying on two of the exceptions (i.e., (c) and (e)) in the definition of cargo, but he later retracted from that position at the resumed hearing. Instead, he sought a ruling of trial de novo on the ground that there had been a material irregularity in that the prosecutor should not have been allowed to make any closing submission, the Applicant having neither testified nor called any evidence. He prayed in aid section 56 of the Criminal Procedure Ordinance and the case of R v Bryant & Oxley [1978] 2 WLR 589.

8. The Magistrate rejected that contention of Mr Allan’s and went on to find that the prosecution had proven Charge 1 against the Applicant beyond all reasonable doubt. In particular, the Magistrate considered the meaning of “cargo” under section 2 of the IEO and held that it is not a requisite for a cargo to be related to sale, trade or business purpose. He also took note of the exceptions under the definition of “cargo” and concluded that none of them applied to the gold slabs in question. He found that the large quantity of gold slabs seized from the Applicant’s car could not be for “personal use” in the circumstances of this case and accordingly convicted the Applicant as charged.

Grounds of appeal against conviction

9. The grounds of appeal raised by the Applicant can be broadly categorized into the following four topics.

(1)  There was a material irregularity at trial which rendered the conviction unsafe and unsatisfactory in that the prosecutor was wrongly allowed to make a closing speech by way of two written submissions, notwithstanding that the Applicant had not testified or called any witnesses. In any event, the closing submissions did not comply with the requirement that they be of becoming brevity. (Grounds 1 & 2)
(2)  The Statement of Findings was in real and substantial disconformity and of substantially greater length than the oral reasons for verdict delivered by the Magistrate at the time of conviction, suggesting impermissible ex post facto reasoning. (Ground 3)
(3)  The Magistrate erred in failing to take into account the exculpatory component of the Applicant’s admission against interest. (Ground 4)
(4)  The Magistrate erred in holding that the gold slabs in question constituted “cargo” within the meaning of the IEO. The gold slabs should in fact be excluded from the definition of cargo being “articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him” – one of the exceptions in the definition. (Ground 5)

Principles on bail pending appeal

10. It is trite that a person convicted and sentenced to a term of imprisonment does not have a right to bail pending appeal. In respect of magistracy appeals, the Court has a discretion to admit an appellant to bail pending appeal under section 122(2) of the Magistrates Ordinance, Cap 227, which provides that “a judge may, on the application of an appellant who is in custody, admit the appellant to bail pending the determination of his appeal or any proceedingtherein”. Such discretion, however, would only be exercised in exceptional circumstances. The general rule is that bail pending appeal is normally only granted where prima facie the appeal is likely to be successful or where there is a risk that the sentence or a substantial part of it would have been served by the time the appeal is heard.[5]

11. As summarised by Chu JA in HKSAR v Sheung Kit Fung and Another, CACC 149/2013, unreported, 15 August 2013:

“5. ...Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful (‘merits’ ground), or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard (‘time’ ground): HKSAR v Lau Man Kin [2010] 1 HKLRD 336. Where the ‘time’ ground is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.”

12. In respect of the “merits” ground, the threshold has been expressed in various ways, but generally speaking, the appellant must be able to demonstrate that he/she has a strong likelihood of succeeding on appeal with a consequence that he/she will be at liberty.[6]

13. In relation to the “time” ground, it has been held that the appeal must still be shown to be at least “reasonably arguable” or “promising”.[7] In other words, even if the sentence is such that the whole or a substantial part of it would have been served by the time of the appeal is determined, the appellant must still demonstrate that the appeal has merit before bail may be granted.[8]

14. Given that the present application arose from a magistracy appeal, it is also pertinent to bear in mind what Zervos J (as his Lordship then was) said in HKSAR v Mohomed Rahoof Mohomed Sajahan, HCMA 270/2014, unreported, 4 July 2014, at §3:

“3. It should be understood that a magistracy appeal is a rehearing on the papers and the court on an application for bail pending an appeal against conviction will address the preliminary questions of the strength of the appeal and the time served by asking itself as to the former whether there is a strong likelihood that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal, and as to the latter whether there is a risk that the sentence imposed on the applicant or a substantial part of it would have been served by the time the appeal is heard and the appeal is reasonably arguable in the sense that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal.”

Evaluation

15. Applying the above principles, I turn to consider the strength of the individual grounds of appeal on the basis of the 4 topics as categorized above. At the hearing of this application, Mr Bruce focused mainly on topics 1, 2 and 4.

Topic 1

16. Topic 1 concerns the right of the prosecution to make closing submissions. The relevant principles are set out by the Court of Final Appeal in HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298. In support of his argument, Mr Bruce referred to §31 of Brandon Leung where Stock NPJ, having reviewed the English practice, observed that “[i]t is common ground that ... where a defendant is represented by counsel and does not give evidence and does not call witnesses, the prosecutor still has a right to make a closing speech but it is a right which should be exercised sparingly and, when exercised, the speech should be brief: R v Bryant”. It was submitted that the Magistrate should not have done what he did even if he considered that he needed assistance from counsel. Mr Bruce described the closing submissions made by prosecuting counsel at trial as “wide-ranging both as to law and as to fact and credibility”, “lengthy” and on no account “of becoming brevity”.

17. In reply, Mr Tan for the Respondent submitted that a judge or magistrate is entitled to require counsel representing either side to assist the court at any stage of the trial regarding question of law and this was what happened in this case. He prayed in aid what the Court of Appeal said at §45 of HKSAR v Zhuo Yaying [2016] 3 HKLRD 925 – a case mentioned by Stock NPJ in§43 of Brandon Leung when his Lordship was reviewing the relevant authorities on the Hong Kong practice, thus:

“45. ...But we take the view that the above principle is only applicable to closing submission that concern facts. A District Judge is entitled to require counsel representing either side to assist the court at any stage of the trial regarding questions of law. Even where the defendant is not represented and has called no witness, if at any stage of the trial the Trial Judge finds the need to ask the prosecution to assist the court on certain questions of law, the prosecution has the right and the obligation to address the court on these points of law to assist the court....”

18. It is to be noted that in Brandon Leung the Court of Final Appeal held that while the appellant had succeeded in demonstrating an error by the magistrate and the intermediate appeal judge in holding that the prosecutor enjoyed a right of reply, he had not succeeded in establishing that the procedural error in the magistrates’ court “infected the fairness of the process as a whole”. It was especially relevant that on appeal to the Court of First Instance, which was by way of rehearing, the appellant was represented by counsel.[9]

19. In the present case, I had the benefit of the written submissions presented by the prosecutor to the Magistrate at trial. Suffice it to say that the thrust of the submissions was on matters of law and statutory interpretation concerning the definition of “cargo” and the exceptions thereto. In the circumstances of this case, especially given how the relevant issues arose in the course of the hearing, I could well understand why the Magistrate felt the need to seek clarifications and submissions from both parties on the legal issues he identified. In any event, I do not think what had happened here had infected the fairness of the trial at all or to any extent as to require the quashing of the conviction. I was not convinced that these two grounds have a reasonable prospect of success.

Topic 2

20. Ground 3 concerns the alleged discrepancies between the oral reasons for verdict and the subsequent Statement of Findings. As revealed in the transcript of the oral verdict, the Magistrate made it clear at the outset that those were his “brief” reasons for verdict. A comparison of the oral verdict with the Statement of Findings shows that they essentially covered the same issues[10] and followed the same analysis and line of reasoning. Read as a whole and in context, I did not detect any material inconsistency between the two. To the extent that they are at variance, the difference did not appear to me to justify the quashing of the conviction, especially bearing in mind the nature of a magistracy appeal being a rehearing on the papers. Accordingly, I was also not convinced that this ground is likely to succeed.

Topic 3

21. Although Mr Bruce did not place much emphasis on Ground 4 (which attacks the Magistrate’s treatment of the exculpatory component of the Applicant’s cautioned admission), I should mention that I was not persuaded that this ground would likely succeed. It is trite that a magistrate is entitled to give no or less weight to the exculpatory part of a cautioned statement, and the Magistrate was clearly alive to this legal principle. Further, as pointed out by the Respondent, if the gold slabs indeed belonged to the Applicant and he intended to keep them at home (as he asserted in those undisputed answers under caution), it would be implausible for him to forget who put such substantial quantity of gold slabs in the vehicle in the first place. This ground did not appear to me to have any merit.

Topic 4

22. Ground 5 turns on the meaning of the word “cargo” in the context of IEO and the proper construction of the various exceptions provided under that definition, more particularly exception (e).

23. “Cargo” is defined under section 2 as follows:

“ ‘cargo’ (貨物) means any article which is imported or exported other than −
(a) the necessary equipment, stores or fuel of the vessel, aircraft or vehicle in or on which the article is imported or exported;
(b) food and other provisions reasonably required for consumption by the crew or passengers of such vessel, aircraft or vehicle;
(c) items of personal property reasonably required for the personal use of the crew or passengers of such vessel, aircraft or vehicle;
(d) any document relating to −
(i) the carriage of cargo in or on such vessel, aircraft or vehicle; or
(ii) the inter-office business transactions of the owner of such vessel, aircraft or vehicle;
(e) articles imported or exported by a passenger of such vessel, aircraft or vehicle, in his personal baggage or carried by him; and
(f) any article in transit unless such article is a prohibited article not falling under paragraphs (a) to (e).”

24. Mr Bruce contended that the gold slabs in question fall within exception (e) being articles imported by the Applicant as a “passenger” of the vehicle (despite that he was the one driving the car at the time and there was no one else on board). It was said that the gold slabs should be regarded as the Applicant’s personal belongings and the fact that the Applicant was the driver of the vehicle in which he was found should not exclude him from coverage of the exception. Mr Bruce added that it would be discriminatory and unacceptable to draw a distinction between a “driver who might be travelling by himself” and a passenger in its literal sense. He made the further point that such a distinction may even infringe article 25 of the Basic Law which guarantees equality before the law.

25. It would appear to me to be straining the language of the statute if one adopts the construction given by Mr Bruce to the relevant exception in the definition of cargo. The Applicant being the driver and person in charge of the vehicle at the time did not qualify as a “passenger” in the sense envisaged in the particular exception. Furthermore, such an interpretation did not seem to me to sit well with the legislative intent and purpose of the relevant provisions in the context of the IEO. With respect to Mr Bruce, notwithstanding the ingenuity of the argument, I was not convinced that this ground has a realistic likelihood of success.

Conclusion

26. In the premises, I was not satisfied that there is a reasonable prospect of success on the grounds against conviction as advanced by the Applicant. The Applicant did not satisfy the “merits” limb.

27. Turning to the “time” factor, the Applicant was sentenced to 18 month’s imprisonment on 15 August 2019 and will therefore be eligible for discharge from prison in around August 2020 the earliest, taking into account the one-third remission for good behavior in prison. As it transpired, the Applicant’s appeal was scheduled to be heard in early March 2020, by which time he would only have served slightly more than half of the sentence after remission. Accordingly, the Applicant did not satisfy the time served limb either.

28. It was for the above reasons that I refused the application for bail pending appeal.

	(Martin Hui SC)
	Deputy High Court Judge

Mr Oscar Tan, Public Prosecutor of the Department of Justice, for the respondent

Mr Andrew Bruce SC, leading Mr William Allan, instructed by Tang, Wong & Cheung, for the applicant

[1] namely, 35.00125 kg of gold slabs

[2] Charge 2 concerns 52 sticks of cigarettes seized from the Applicant. He was fined $1,000 for that. The present application does not concern this charge.

[3] Mr Allan was also the counsel appearing for the Applicant’s at trial

[4] The Applicant did not dispute at trial the first 4 sets of question and answer, but specifically challenged the last (5^th) set.

[5]HKSAR v Chan Chi Chiu Louis, CACC 249/2012, unreported, 17 August 2012, (per Tang VP at §2)

[6] See HKSAR v Huynh Bat Muoi [2001] 4 HKC 643; HKSAR v. Li Defan and Another, CACC 520/2000, 18 July 2001; HKSAR v Au Yeung Chun Yee, CACC 438/2014, unreported, 25 April 2016; HKSAR v Fong King Choi [2019] HKCA 487

[7]HKSAR v Fong King Choi[2019] HKCA 487 (per Zervos JA at §6)

[8]HKSAR v Wong Hon Ching, San Stephen, CACC 547/2003, unreported, 7 January 2004

[9] §§77-80 of Brandon Leung

[10] Except that in the Statement of Findings, the Magistrate did elaborate further at paras 23-30 on the site visit made after his ruling of a case to answer on the special issue and the reasons for maintaining his decision on such issue despite the defence’s request to review his earlier ruling. These additional paragraphs should be read in that context.

HKSAR v. TANG KWAI WA

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