The defence’s attempt to quash the Hong Kong government’s case against a shipmaster and shipping firm accused of illegally importing nine Singaporean military vehicles into Hong Kong last year was rebuffed by prosecutors on Monday, at a preliminary hearing.
Defence counsel Joseph Tse Wah-yuen SC had earlier asked the District Court to offer a correct interpretation of a stipulation in the city’s Import and Export Ordinance, that the Department of Justice accused his clients of contravening.
Tse said the stipulation should not apply to carriers like his clients, mainland ship captain Pan Xuejun and shipping company APL, who were charged earlier this year for importing strategic commodities without the necessary licence from the city’s director general of trade and industry.
The legal action against Pan and APL stemmed from the impounding of nine Terrex armoured troop carriers, which were intercepted last year in the city on November 23.
The vehicles were en route to Singapore from the Taiwanese port of Kaohsiung after a military training exercise but were held in Hong Kong for about two months.
Concerns raised by the defence prompted the District Court to schedule a preliminary hearing before prosecutors took pleas and set the case for trial.
On Monday, prosecutor Gerard McCoy SC responded to Tse’s request by arguing that the court had no authority to determine the appropriateness of the charge brought by the city’s justice minister against the defendants.
This is because Article 63 of Hong Kong’s mini-constitution, the Basic Law, gives the secretary of justice executive power in deciding what charges to press, McCoy said.
Tse had also questioned the court on the prosecution’s move to try Pan and APL together – when they had initially been charged separately – as the prosecution should then prove that both defendants had an agreement to do what they had been accused of.
McCoy argued that the court had no jurisdiction to do what the defence requested. The defence should first enter a plea to the charge and then raise questions about it, he insisted.
Prove defendants had agreement to import Singapore military vehicles without licence, defence demands in Terrex case
“If [the court] has jurisdiction in this case, this will be a new floodgate for Hong Kong,” McCoy argued.
“Everyone will be entitled to come and ask for pre-plea rulings … in relation to the appropriateness of charge, whatever that means. Then you can come along and say: ‘I’ve been unfairly charged with this. I would prefer to be charged with something else.’ This will just immediately bring the District Court to a halt, because this will never end.”
But Tse retorted that he had merely asked the court to interpret the ordinance, instead of asking the court to decide whether the charge was appropriate.
Tse cited previous cases where judges agreed on the need to interpret laws so the defence could decide on a plea, with the prosecutors able to assess if the charge was appropriate after the interpretation.
Tse said if the question was raised during a trial after hearing all the evidence, and the judge agreed that the ordinance would not apply in this case, then all the time spent hearing the evidence would be wasted.
Judge Sham Siu-man said he give his ruling on Wednesday.
The nine Terrex vehicles were seized by Hong Kong’s customs officers in the largest seizure of “strategic commodities” in two decades.
The grey and blue tarpaulin-covered vehicles had not been “specifically” declared in the cargo ship’s manifest when the ship was intercepted at the city’s Kwai Chung container terminal. The shipment had first transited through Xiamen before the pit stop in Hong Kong.
The seizure was seen as a warning from Beijing over military ties between Singapore and Taiwan, which China considers a renegade province, although Hong Kong’s customs chief maintained the decision was based on Hong Kong law.
While Beijing made the same comment, it also added that it hoped Singapore would respect the one-China policy.
In January, Singapore Defence Minister Ng Eng Hen said the Lion City’s military had learned a lesson from the saga.
After the city’s customs department completed a probe into the incident and found the Singapore government could not be held responsible as it was only the consignee of the military vehicles, the vehicles were released and returned on January 27.