Attorney-General v Yeung Sun-shun
| Jurisdiction | Hong Kong |
| Date | 22 May 1987 |
| Court | Court of Appeal (Hong Kong) |
(Roberts CJ; Hunter and Power JJA)
Jurisdiction Territorial Conspiracy Agreement concluded outside territorial jurisdiction Continuation of agreement within territory Acts within territory in furtherance of conspiracy Acts of innocent agent Conspiracy aimed at State asserting jurisdiction Whether sufficient to confer jurisdiction even where no acts take place within the territory of that State The law of Hong Kong
Summary: The facts:The respondents were charged with conspiring in Macau to import ivory tusks into Hong Kong. The tusks were loaded on to a vessel in Macau for shipment to Hong Kong. The master of the vessel had not known of the conspiracy. The tusks were seized by officials when the vessel berthed in Hong Kong and the respondents were charged with conspiracy to import unmanifested cargo and conspiracy to import scheduled species without a licence contrary to the Animals and Plants (Protection of Endangered Species) Ordinance. The District Judge acquitted the respondents on the basis that the Court lacked jurisdiction, because no act had been performed within Hong Kong to further the conspiracy. The District Judge found that the last act performed in pursuance of the conspiracy by the respondents had been the loading of the tusks on to the vessel. The Attorney-General appealed.
Held:The appeal was allowed. The respondents were found guilty on both charges.
(1) A conspiracy was deemed to continue as long as the parties to the agreement intended to carry out their plans. In this instance the conspiracy continued until the seizure of the tusks by the authorities in Hong Kong. In addition, the Court could exercise jurisdiction where a conspirator had arrived within its territorial jurisdiction after the completion of the conspiracy (pp. 446).
(2) An alternative basis for jurisdiction was found in the performance of an act in furtherance of the conspiracy within the territorial jurisdiction of the Hong Kong courts. Once the cargo had entered Hong Kong territorial waters, acts were performed in furtherance of the conspiracy within the jurisdiction of the Hong Kong courts, albeit that those acts were performed by an innocent agent (pp. 4750).
(3) Jurisdiction could exist even though no act had been committed within the territorial boundaries of Hong Kong, where the conspiracy had been aimed at Hong Kong and was intended to bring about a breach of the peace in that colony. As the conspiracy was not directed against the country in which it had been formulated, the courts in that country could not raise any objections to the exercise of jurisdiction by the Hong Kong courts (p. 50).
The following is the text of the judgment of the Court, delivered by Roberts CJ:
This is a case-stated, at the instance of the Attorney-General, under Section 84 of the District Court Ordinance (Cap. 336) against a verdict of acquittal entered by a district judge against the two respondents, who faced the following charges (see [1986] DCLR 39):
At the conclusion of the hearing on 28th August 1986, at which neither respondent gave evidence, the district judge dismissed both charges, finding that there were no acts done by the respondents or any alleged co-conspirators, in furtherance of either the conspiracy to import unmanifested cargo or the conspiracy to import scheduled species without a licence and therefore neither offence was committed in Hong Kong.
The judge found the following facts to be proved:
(a) On 12th December 1985 the vessel Hang On No. 2 was intercepted by customs officers in Hong Kong waters. It had sailed directly from Macau to Hong Kong.
(b) On board the vessel was found (inter alia), 619 ivory tusks. They were sealed inside 37 gunny bags in the cargo hold. The ivory tusks were unmanifested being described as Bone material. A description which after hearing evidence, I was satisfied that was not a mistaken description but one that was used in order to deceive.
(c) The ivory tusks I found to be a scheduled species under the Animals and Plants (Protection of Endangered Species) Ordinance (Cap. 187).
(d) The first respondent Yeung Sun-shun is known as Yeung Shun to fellow traders. He is an ivory engraver who works from his home. He has been in the business for twenty years and employs two assistants. He has friends and fellow traders in Macau. He buys up to $200,000.00 worth of ivory in Hong Kong at a time. He stores the ivory purchased in his home. He was in Macau on 4th5th, 7th and 11th December 1985. In December 1985 he admitted that he knew the second respondent as a fellow trader and friend for a year. When questioned by customs officers on arrest he was carrying the second respondent's business card.
(e) The second respondent Lee Ming-sun, is an ivory merchant who lives in Macau, but his business is conducted in Hong Kong. He was in Macau from 4th9th, 10th12th and 13th17th December 1985. In December 1985 he admitted that he had known the first respondent for three to four months. He knew the first respondent's telephone number. He admitted that he had met the first respondent on 21 st December and also between 17th-21st December and met him accidentally, in Macau about 23rd November 1985.
(f) The second respondent admitted he had known (PW4) Kwok Sek-tim for about one and a half years. Kwok worked in Macau in the shipping company which owns the vessel Hang On No. 2. In the past Kwok had arranged the shipping of some machines for the second respondent from Macau to Hong Kong.
(g) Kwok Sek-tim, the shipping clerk admitted he has known the second respondent for three to four years. Towards the end of 1985, the second respondent asked Kwok to handle some exporting documents for bone material or ivory to go from Macau to Hong Kong. Kwok agreed. The second respondent told Kwok an address to which the ivory was to be sent. The telephone number was that of the first respondent.
(h) Kwok telephoned to the first respondent some days before the ivory was loaded on board the Hang On No. 2 and the person who answered agreed to his preparing export papers. The first respondent received a telephone call on 9th December 1985. The party on the line said: Hi, Yeung Shun. The goods samples are very nice. Do you want to place any orders?
(i) On the day the ivory was loaded on the Hang On No. 2, the second respondent handed the ivory over to Kwok. The second respondent also made a payment to Kwok as a personal incentive.
(j) No one came to collect the ivory when the vessel berthed in Hong Kong. Kwok was informed of this by the Hong Kong representative of his company. Kwok telephoned the telephone number of the first respondent and told the person who answered to go to the Tai Cheong Shipping Company's pier to collect the goods.
(k) I am left in no doubt that the first respondent, second respondent and Kwok did agree to have sent from Macau to Hong Kong the elephant tusks seized by the officers of the Customs and Excise Service.
(l) The seized tusks were unmanifested under the...
To continue reading
Request your trial