Xie v Regina [2008] SBHC 39; HCSI-CRC 92 of 2008 (20 August 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 92 of 2008

REGINALD XIE

V

REGINA

High Court of Solomon Islands
(Palmer CJ.)

Criminal Case Number 92 of 2008

Date of Hearing: 28th May 2008
Date of Judgment: 20th August 2008

P. Watts for the Appellant
H. Kausimae for the Respondent.

Palmer CJ.

Reginald Xie was charged and convicted by the Magistrates Court for knowingly keeping uncustomed goods being, forty two (42) boxes of counterfeit Winfield brand cigarettes on 10th March 2007 under section 213 (c) of the Customs and Excise Act (cap. 121).

He appeals against conviction under five grounds. I will deal with each ground separately.

In his opening submissions however, Mr. Watts sought to argue that the element of knowledge ought to have been proved beyond reasonable doubt, which was not done in the court below. He says that prosecution ought to have proven the fact that his client knowingly kept uncustomed goods.

I fail to see how this argument can be sustained before this court when the evidence led by prosecution throughout was that the element of knowledge was implicit in the facts which they sought to prove. Prosecution’s case was that Xie knowingly kept boxes of counterfeit cigarettes and had them dumped at Tenaru on the night of 10th March 2006. There was no suggestion whatsoever by defence that Xie did not know what was going on at the time of the offence. The evidence led by prosecution was that Xie was in the forefront and knew exactly what was going on. It is significant that the element of lack of knowledge was never raised as an alternative argument by defence. What was raised rather was that Xie was never in the vicinity of the incident that night. Their defence was that he and a co-accused, Szetu were in a restaurant that evening before heading home for the rest of the night. The learned Magistrate however did not accept their evidence and relied instead on prosecution’s direct and circumstantial evidence as proving that Xie was directly involved in the dumping of cigarettes at Tenaru on the night of the 10th March 2006. It is not open therefore to the appellant to say on one hand that he was not present at the scene of the crime in the court below and then to come to this court now on appeal and say that prosecution failed to prove that he did not have the requisite knowledge of what was going on. If that had been his defence, he would have had to admit that he was present on the night of the 10th March but that he did not know what was going on. It is like trying to have a second bite at the cherries. This argument on knowledge therefore must be dismissed

The second argument raised by Mr. Watts in his opening submissions if I understand him correctly is that the investigation done by the police, in this instance, Detective Buin was unlawful in that he was never mandated by the Comptroller to carry out such task. I fail also to see the basis for this argument because while the Customs and Excise Act empowers the Comptroller of Customs to administer the Act and enforce its provisions, the Police have general powers which enable them to investigate any crime or offence committed against the laws of the nation. Section 15 of the Criminal Procedure Act [cap. 7], however makes express provision for the police to attend to offences against customs laws[1]. This argument must also be dismissed.

I now turn to the grounds of appeal.

Ground 1.

Under this ground it is alleged that the presiding magistrate erred in law in holding that there had been cumulative circumstantial evidence proving beyond reasonable doubt to prove that the appellant was guilty. Mr. Watts submits there were too many inconsistencies regarding the issue of identity of the appellant and the vehicle used, that they raised more than one conclusion as to the identity of the appellant and vehicle used and hence fell short of the standard of proof beyond reasonable doubt.

Circumstantial evidence is evidence of a basic fact or facts which had been inferred from other facts[2]. It is usually the sum total of evidence from a set of facts on which an inference is drawn of the existence of a crucial fact. In criminal cases it is accepted as proof beyond reasonable doubt only where all other reasonable hypothesis are ruled out[3].

In his findings, the learned Magistrate only made reference to circumstantial evidence in so far as it related to the alleged use of Szetu’s truck. The learned Magistrate however was in doubt about the fact that the truck used that night was a 3 tonner with a silver tray. He states:

"It is highly probable, on the further evidence of Tau, that it was seen to have a yellow cab but the issue of the registration number must be in some doubt. ...Given the entire evidence however, including my view that Xie’s presence on a truck generally fitting the description of that belonging to Szetu is proved, the business relationship and the friendship between the two men, and the evidence of Tau as to recognizing the truck in the following weeks, I accept that the matter, if not proved beyond reasonable doubt, is highly likely."

It is important to bear in mind as well that the learned Magistrate described Mr. Szetu as a witness of doubtful integrity and his conclusion on his evidence in relation to the truck remaining at Perillo’s workshop as probably not honest. Prosecution’s case was that the 3 tonner used belonged to Szetu.

On his observations of Perillo who was called as an alibi witness for Szetu, the evidence adduced did not rule out the possibility that the vehicle was used on the night of the incident. In the least the learned Magistrate concluded that his evidence could not be of any assistance to Szetu and would not take the matter any further.

The learned Magistrate also commented on a photograph which was shown to Tau, one of the key prosecution witnesses, in which he was shown the photograph of Szetu’s truck. The photograph had been produced in an attempt to discredit the evidence of Tau that the vehicle he saw that night could not have been Szetu’s truck because the vehicle shown on the photograph had number plates at the front and rear. Tau had stated in evidence that the vehicle he saw that night only had one number plate at the front and nothing at the rear. The learned Magistrate however noted that while Tau did identify the same truck, he still insisted that the plate was missing from the rear that night. The Magistrate also noted that the photo provided was taken in November 2007 and concluded that it was not in any way corroborative of the condition of the truck on the night in question. He then went on to make some observations:

"...my own observation was that the photos depict what appears to be a pristine and apparently new number plate on the front of the truck and a very pock marked, and apparently very old plate on the rear. The markings on the rear plate are entirely consistent with pock markings on the front bumper bar whilst the rear bars, which are a little proud of the plate, are apparently unscarred. On that evidence one cannot of course draw any conclusion but the appearance of the rear plate is consistent with its having been on the front of a vehicle for a long time while the appearance of the plate now on the front is consistent with its being brand new and very recently fitted. In so far then as the photos are indicative of anything, they do not appear, in themselves to be inconsistent with the evidence of Tau."

Another witness called by the defence was George Nemea who sought to provide explanations regarding the damage to the rear number plate. The comment of the learned Magistrate on his evidence is also relevant.

"The explanation, offered by the witness who was sitting in court for a greater part of the proceedings, appears however to be unlikely in the extreme. To be true it would require that each collision to the rear of the truck had caused damage exclusively to the number plate, and/or the tail lights (which occupy a relatively small target area), whilst totally missing the entire rear panel. I have no doubt but the evidence is concocted."

Other factors which the learned Magistrate took into account included the business relationship and friendship between Xie and Szetu and the evidence of Tau, whom he found to be a credible witness regarding his recognition of the truck in the following weeks after the incident.

The clear finding made by the learned Magistrate was that at that time, a truck generally fitting the description of Szetu’s vehicle was proven beyond reasonable doubt to be at Tenaru at that time.

I am not satisfied any error of law had occurred in the findings of the learned Magistrate in so far as it related to the identity of the truck that was used on the night of the incident and in so far as the relevant evidence relied on was based on circumstantial evidence.

As to the question about the identity of the appellant, the evidence before the learned Magistrate was direct evidence, in the form of eye witness accounts of the appellant. These included the time he was seen, which was at night time but with background lighting provided by the moon. The visibility had been described by witnesses as clear and good.

The appellant was also identified by his description as " a thin man wearing glasses who was not very tall". The learned Magistrate also accepted that:

" ...the identification described was made in good light, included observation over a reasonable period of time, included conversation and was a man sworn to have been well known to the witness."

The evidence of identification was overwhelming. It wasn’t the case where the appellant was a stranger and seen for the first time that night by Tau. Tau had given unchallenged evidence that he knew the appellant from past business dealings he had with him when selling green coconuts at a fast food outlet known as "JB Leong" shop. He not only recognised Xie but said that he spoke with him that night. Not only that, but on the Monday next he went to see Xie at his place of business at "Perfect Shop" and demanded compensation for the dumping of the cigarettes.

In his assessment of Tau as a witness, the learned Magistrate found him to be a witness of truth. The learned Magistrate also accepted the evidence of another eye witness, Buruotu whose description was consistent with the identity of the appellant.

I am not satisfied any error of law can be identified in the learned Magistrate’s finding in so far as it related to the identify of the appellant.

Ground 2.

The appellant alleges that the learned Magistrate committed an error of law by totally disregarding the evidences of Francisco Perillo and Sefanaea Teuru whose combined evidences if considered would have exculpated Xie from the Tenaru incident. A number of reasons were given in support which I will deal with separately.

The first reason given relates to the evidence of Perillo regarding the state of the vehicle at the material time. His evidence was that Szetu’s vehicle merely had a tray but no sidings and was still garaged. This is to be contrasted with the evidence of Tau and Buruotu who stated that the vehicle seen was shored up by sideboards (plywood) and had a canvas cover on top of the cartons.

In his statement to police he states that the vehicle during the month of March had been used now and then by the appellant but that he had not put up the sidings and painting. In his findings, the learned Magistrate held that Perillo’s evidence was internally inconsistent and inherently unlikely. He ruled that it deserved little or no weight. This finding is relevant to his reasons for rejecting Perillo’s evidence and when contrasted on the other hand with the evidence adduced by prosecution as to Tau and Buruotu’s eye witness account of what they witnessed that night. I am not satisfied any error of law has been shown regarding the rejection or refusal by the learned Magistrate to disregard Perillo’s evidence.

The second reason given relates to the evidence of Teuru who in court could not recognise the appellant. In his evidence he confirmed that although he was involved in selling coconuts to the Chinese between 1999 and 2003 much of his role was confined to bagging coconuts and so would have had minimum contact with the Chinese and therefore was consistent with the fact he could not identify the appellant on the dock. Apart from that the defence had submitted two statements, one handwritten and the other typed. The typed statement contained a clause which suggested that Teuru recognised the appellant. He however denied giving this statement and denied that he could identify the appellant. This was sought to be picked upon by the defence as suggesting that it was a deliberate manufacturing of evidence. The learned Magistrate however found that if anything the statements which had been prepared by the police reflected more on the manner of investigation and how the statement was prepared. This crucial information however was never put to Buin, the police officer who recorded the statement and therefore takes the matter no further in so far as it relates to the appellant’s case.

I find nothing in this to support any submission that any error of law had been committed by the learned Magistrate in his findings on the matter.

The third reason given is in two parts. The first relates to the fact that the name of Reginald Xie was not mentioned in the first signed statement of Fred Tau. His name was only mentioned in the second unsigned statement to Police. I do not fully understand the purpose of raising this but if it is to try and cast doubt on the veracity of the evidence of Tau, it is must be dismissed as having no basis for the decision and the reasons of the learned Magistrate make clear he was satisfied beyond reasonable doubt Tau was able to identify Xie to police.

The second part seeks to suggest that the learned Magistrate should have entertained doubt about the identification of Xie because Teuru who was with Tau and Buruotu that night could not make any positive identification of Xie despite the evidence of good lighting etc. What should be borne in mind however is that the learned Magistrate did balance Teuru’s evidence with that of Tau and Buruotu and accepted that their evidence can be relied upon and capable of supporting a finding that Xie was present at Tenaru as alleged. I am not satisfied any error of law had been committed by the learned Magistrate in relation to this matter.

Ground 3.

Under ground 3 it is submitted that the learned Magistrate erred in law in admitting the evidence of Dr. Willie Kwan and his mother, Mrs. Fong on the ground that it is unsupported by any real evidence (ie physical packets of the counterfeit cigarettes) in court.

The appellant submits that the learned Magistrate committed an error of law in admitting the evidences of Dr. Willie Kwan and his mother Mrs Fong in that there is no real evidence to support it. I presume what was meant was that no physical packets of counterfeit cigarettes were ever produced in the court below.

In his findings however the learned Magistrate made clear that the cigarettes sold by Xie in 2002 to Mrs. Fong may or may not have been counterfeit cigarettes. Prosecution had sought to suggest that that they were also counterfeit cigarettes as there were complaints about them at that time and also because of a conversation between Dr. Kwan and Szetu about the selling of counterfeit cigarettes. The learned Magistrate however attached little weight to that anyway. There is no basis therefore for the assertions set out under ground 3.

As to the admissions of their evidence, these were relevant to the facts in issue, that is, whether Xie was involved in the business of selling cheap counterfeit cigarettes or not. I find no error of law on this matter and this ground must be dismissed.

Ground 4.

Under ground 4 the appellant attacks the admission of the evidence of Detective Buin as corroborative evidence of Tau and Buruoutu’s evidence on the grounds that his investigative procedure is unprocedural, protracted and breaches the best evidence rule. The appellant submits that in the initial signed statement of Tau there was no mention of Xie’s name. In a later unsigned statement however, prepared for him by Buin his name was raised. Appellant submits that this meant Tau could not have identified Xie in the first place and that the later statement was a frame up by Buin to make up for the omission and could not be relied on to convict Xie.

It is however rather simplistic in this case to suggest that because Xie’s name was not mentioned in the first statement that it meant he could not have been identified in the first place for the finding of the learned Magistrate on the evidence before him was very clear and straightforward. He accepted the evidence of Tau as a witness of truth. In so far as the identification of Xie on the night of the 10th March 2006 was concerned, he was satisfied beyond reasonable doubt that a positive identification had been made and that Tau later identified Xie to Buin. The learned Magistrate also found that the entries in the police diary which had been actually submitted to court by the defence were entirely consistent with and supported the evidence of Tau on the issue of the identification of Xie. The learned Magistrate accepted that while there may have been omissions in some parts of the statement in the recording of the statement by Buin, the inescapable conclusion was very clear in so far as the issue of identification was concerned. This ground must also be dismissed as having no basis.

Ground 5.

Under ground 5 it is submitted that the learned Magistrate misdirected his mind in convicting Xie alone of the 42 cartons of cigarettes. The appellant says that the penalties to be imposed would be harsh and excessive on the appellant.

As to the first part I fail to see how the learned Magistrate could have misdirected his mind in convicting Xie. There was ample material before him to make such finding and I find no error committed by him in that process.

As to the second part of ground 5 that is more a mitigation than an appeal ground. Ground 5 therefore must be dismissed as well.

Orders of the Court:

1. Dismiss appeal.
2. Uphold decision and orders of the Court below.
   

The Court.

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^[1] See definition of customs laws in section 2 of the Criminal Procedure Code and section 2 of the Customs and Excise Act.
^[2] Shepherd v. The Queen (1990) 170 CLR 573
^[3] see Hodge’s Case (1838) 2 Lewin 227; 168 ER 1136; Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 at 634, 651 – 652.