Leung Nin v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 759 OF 1968

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JUDGMENT

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1. The appellant appeals against his conviction in the magistrate's court of the following offence:-

2. The Regulations read as follows:-

3. The Regulations have effect under section 5 of the Ordinance, which provides:-

"5. (1) It shall be lawful for the Governor in Council to make regulations for the following purposes -

(2) In this section, 'unmanifested cargo' means cargo not entered on the manifest of the ship or aircraft."

4. The statement of findings furnished by the magistrate pursuant to section 114(b) of the Magistrates Ordinance contains little of the facts of the case, and this has led to no little difficulty on the hearing of the appeal, but it is sufficiently clear that the offence was alleged to arise in the following circumstances: the appellant was a member of the crew of a merchant ship which was on a voyage termed "Voyage No.9", being a round trip Hong Kong - Saigon - Pnom Penh - Hong Kong; on arrival at Hong Kong the ship was searched by Revenue officers and the silver and banknotes were found concealed in a part of the mast of the ship which runs down through a paint room; it is not disputed that it was the appellant who so concealed these goods; it was part of the case for the prosecution that the appellant told one of the Revenue officers that he had been paid to carry the goods - this remained uncontradicted in the appellant's unsworn statement; the ship's manifest for that part of Voyage No.9 from Pnom Penh to Hong Kong was produced in evidence by the prosecution; the appellant was represented by counsel and no question was put on his behalf to suggest that there might be some other manifest in respect of goods in transit at Hong Kong, in particular goods loaded at Pnom Penh for carriage via Hong Kong (on Voyage No.9) and then (on the next contemplated round trip) to Saigon, for delivery there; when the appellant came to make his unsworn statement, immediately after a finding by the magistrate of a case to answer, he confined himself practically entirely to the statements that he was "carrying the goods from Pnom Penh to Saigon, via Hong Kong", and that "the goods were not destined for Hong Kong"; the magistrate said that he accepted this latter statement of the appellant as being likely to be the truth. The silver was contained in a number of small sacks. The banknotes consisted of 6 small wads, each approximately 6 inches by 4 inches by 5 inches. It is conceded by the Crown that the silver and the banknotes are not articles prohibited from importation under the Ordinance. As will have been seen, the Regulations make express provision with regard to passengers' luggage but no provision with regard to the personal or other effects of the master or members of the crew. There was no evidence of the purpose of the taking of the goods from Pnom Penh to Saigon.

5. The appeal is argued on two main points - (1) that the goods are not "cargo" within the meaning of the Regulations and of section 5 of the Ordinance; (2) that the prosecution failed for lack of production of a manifest covering goods loaded at Pnom Penh for carriage to Saigon and thus being in transit at Hong Kong at the end of Voyage No.9.

6. Dealing with the second point first, the inference appears to me to be overwhelming that no manifest was in existence upon which the goods were entered; obviously wherever and whenever they were brought on board they were brought clandestinely and never intended to undergo the usual documentation as cargo. The Crown further relies on section 11(d) of the Ordinance but there is no need for me to consider its application in the circumstances of the case.

7. The first point is one which has been directly considered in two Hong Kong cases namely Ho Shing v. R.⁽¹⁾ and R. v. Shun Tak Kan & Others, a case in the March 1966 Criminal Sessions of which there is no report apart from the extract reproduced in the Ho Shing⁽¹⁾ case. The point has been left open in two Hong Kong cases; thus in Cathay Pacific Airways Ltd. v. R.⁽²⁾ Gould J. said, at p.40:-

"To this construction, one or two objections of a general nature were taken in argument. The first is that, particularly in the case of a ship, it would be impossible to prevent articles being concealed on board. I am not sure that all such articles must necessarily be within the term 'cargo'. That point was not taken before me (no doubt quite rightly in the present case) and in the absence of argument, I express no concluded opinion on...