Peter Klauser And Another v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 74 OF 1968

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JUDGMENT

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1. The appellants were separately charged with similar offences, namely importing gold into the Colony without a permit from the Director of Commerce and Industry, contrary to regulation 3 of the Importation of Gold (Prohibition) Regulations made under section 3 of the Importation and Exportation Ordinance, (Cap.50), and the particulars of the offences were to the effect that each of them had imported into the Colony 35 bars of gold at Kai Tak Airport, Kowloon, on the 19th December, 1967, without such a permit. They were tried together in the Magistrate's Court and each was convicted of the offence with which he was charged, and was fined therefor the sum of $25,000 or 6 months imprisonment in default, and the fines were duly paid. They both appeal against conviction and sentence.

2. Neither of the appellants gave evidence or made a statement at the conclusion of the case for the prosecution, but they called two witnesses, namely the Deputy Director of the Commerce and Industry Department, whose evidence was not material, and the Chief Inspector of Immigration to whose evidence we make reference below.

3. The facts of the case are not in dispute and are shortly as follows. The two appellants arrived by air at Kai Tak Airport from Beirut at 4.40 p.m. on the 19th December, 1967, on Pan American flight No.2, which flight after an hour's stop at Kai Tak Airport was to go on to Tokyo and San Francisco. It is not entirely clear whether there was to be an intermediate stop at Taiwan (Formosa). When the Pan American aircraft arrived at Kai Tak Airport the two appellants were observed by officers attached to the airport to go to the transit lounge where they sat down on a sofa. They were then approached by a Senior Revenue Inspector who asked them where they had come from, and each appellant replied to the effect that he was continuing his journey from Beirut to Taipei, in Taiwan, by China Airlines flight No.806. The appellants were asked if they had anything to declare including gold, and each replied 'no'. They were then searched, and each was found to be wearing a specially made vest with pockets under his shirt and jacket, and each vest had in its pockets 35 bars of metal, later found by analysis to be gold, totalling 35 kilogrammes in weight. When the vests were found on the appellants and they were asked what they contained they answered that it was gold; and each appellant admitted that he had no permit to import the gold. Both were in fact booked to fly on the China Airlines flight No.806 to Taipei, which flight was due to leave Kai Tak Airport for Taipei some time after 6.00 p.m. the same evening, the 19th December, 1967, and each appellant was in possession of a ticket for this flight to Taipei.

4. Exhibits P8 and P9 were the 1st appellant's and the 2nd appellant's passports respectively, which were not available to this court having been returned to the appellants prior to their leaving the Colony. The record of the trial on the matter is rather scanty, but it would appear from the evidence of the Chief Inspector of Immigration that the 1st appellant's passport was endorsed with authority for the 1st appellant to stay in Hong Kong up to the 12th January, 1968, whilst the passport of the 2nd appellant was endorsed with authority for the 2nd appellant to stay in Hong Kong up to the 14th January, 1968.

5. Mr. Lee, counsel who appeared for the appellants both at the trial and on the hearing of the appeals, confined his arguments on the appeals against conviction to the one combined ground of appeal namely that the conviction could not be supported by the evidence, and that the learned magistrate in the court below had misdirected himself on a point of law in holding that the appellants were guilty of the offence when they were only in transit in Hong Kong. Mr. Lee's point was that the evidence showed that the appellants were only in transit in Hong Kong, which was not disputed by the Crown, and that that being so the gold could not be held to have been imported into the Colony. The Crown opposed this contention and maintained that passengers in transit in Hong Kong in possession of gold must be held to have imported it into the Colony.

6. The issue for the court to determine on the appeals against conviction depends upon the construction to be placed on the relevant Ordinance and Regulations.

7. Regulation 3 of the Importation of Gold (Prohibition) Regulations provides:-

" No person shall except under an import permit granted by the Director of Commerce and Industry, import gold into the Colony."

The definition of the word "import" contained in section 2 of the Importation and Exportation Ordinance is:-

"'import' means to bring or cause to be brought into the Colony by land, air or water;"

By virtue of section 31 of the Interpretation and General Clauses Ordinance (Cap.1) this definition applies to the Regulations.

8. Mr. Lee at the outset of his arguments conceded that there were a number of Hong Kong cases which were completely against his contentions, namely the cases of Cathay Pacific Airways Ltd. v. The Crown⁽¹⁾, Pan American World Airways Incorporated v. The Queen⁽²⁾, Ho Shing v. The Queen⁽³⁾, and the recent case of A.M. Bertschy v. The Queen⁽⁴⁾, but submitted that they could be distinguished.

9. He pointed out that it had never been suggested by the Crown that the appellants were not transit passengers, or denied that they would have left Hong Kong again in about an hour's time for Taipei if they had not been arrested. He submitted that the suspicious way in which the appellants carried the gold was irrelevant. We accept that it was not proved that the appellants intended to enter the Colony, in the sense of leaving the airport.

10. Counsel for the appellants went on to point out that the definitions of "import" and "export" in section 2 of the Importation and Exportation Ordinance were not in directly contrasting or antithetical terms, the definition of the word "export" being:-

"'export' means to take or cause to be taken out of the Colony by land, air or water, and includes the export of anything taken or sent from any country and brought into the Colony by land, air or water (whether or not landed or transhipped in the Colony) for the sole purpose of being carried to another country either by the same or another conveyance."

Thus, whereas in the definition of "export" the words "(whether or not landed or transhipped in the Colony)" were used, indicating that the word "export" included goods in transit, the definition of the word "import" in the same section did not do so, thereby implying, as counsel argued, that the word "import" did not include goods in transit, and that if it had been intended that the word "import" should include goods in transit the words "(whether or not landed or transhipped in the Colony)" or some expression indicating an intention to cover goods in transit would also have been included in the definition of the word "import", but that that had not been cone. He contended further that whenever the Legislature in Hong Kong intended to refer to goods in transit it did so in precise terms. Thus the Dangerous Drugs Ordinance, Cap.134, in section 2, contained an express definition of the phrase "in transit", which was as follows:-

"'in transit' means taken or sent from any country and brought into the Colony by land, air or water (whether or not landed or transhipped in the Colony) for the sole purpose of being carried to another country either by the same or another conveyance;"

It was to be noted also that the definition of the word "export" in the relevant Ordinance (Cap.50) contained similar expressions to those used in the definition of the phrase "in transit" appearing in the Dangerous Drugs Ordinance. All this, counsel contended, went to show that in the relevant Ordinance (Cap.50) the intention was to exclude goods in transit from the meaning of the word "import". Mr. Lee also drew attention to the fact that in the Dangerous Drugs Ordinance, although there was a section prohibiting the import or export of dangerous drags, namely section 10, there was also another section, section 6(1), which prohibited a person bringing dangerous drugs into the Colony in transit, thereby showing that the words "import" and "export", unless otherwise stated, did not include goods in transit.

11. Mr. Lee also submitted that the Full Court in the Bertschy case⁽⁴⁾, in taking the view that the liability of an importer of gold, was an absolute one, had not adverted to section 18 of the Ordinance (Cap.50) which enables regulations to be made imposing an absolute liability; in fact the Regulations male did not purport to exercise that power. Accordingly, he argued, the question whether or not the legislation prohibited the importation of gold was a matter of ordinary, and not strict construction. In our view, we are not concerned with the matter of mens rea. In the present case there is no question, such as there was in the Cathay Pacific case⁽¹⁾, and the Pan American case⁽²⁾, whether the importers had knowledge of what was being carried; the appellants brought in the gold in the knowledge that it was gold, and of their own volition. The question before us is: did they "import" the gold.

12. Counsel's next argument was in regard to the mischief which the relevant legislation sets out to prevent, and he referred to Ho Shing's case⁽...