The Queen v. Au Yeung Kai-wah

CACC001471/1983

Criminal law and procedure - hawking offences - forfeiture under s.86A(1)(a) of the Public Health and Urban Services Ordinance, Cap. 132 - procedure on application for forfeiture - how the informant to inform court of seizure made under section 86(1) thereof.

Appeal by way of case stated brought by the Attorney General against the decision of a Magistrate refusing to order forfeiture under section 86A (1) (a) in respect of equipment or commodity seized from a person convicted of a hawker offence under by-law 5(1) of the Hawker By-laws made under section 83A of the Public and Urban Services Ordinance, Cap. 132.

The questions submitted for decision were stated to be the following -

No order remitting the case to the Magistrate with directions to make an order of forfeiture was made as the crown was not seeking such an order.

Cases cited in arguments and mentioned in the judgment:-

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Deputy Judge Souyave in Court

Date: 20th December, 1983

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JUDGMENT

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1. This is an appeal by way of a case stated by a Magistrate under section 105 of the Magistrates Ordinance, cap. 227. It has arisen in the circumstances stated hereafter. The respondent, though duly served with the notice of the hearing of this appeal, failed to appear either in person or by legal representation at the hearing thereof. The appellant was represented by Mr. A. Duckett and Mr. F. Wong.

2. The respondent was charged before the Magistrate's court with two offences, namely, (1) causing obstruction on the 29th October 1983 in a public place at Market Street near Nathan Road, contrary to section 4A of the Summary Offence Ordinance, cap. 228, and (2) Hawking without a licence on the 29th October 1983 at Market Street near Nathan Road, contrary to by-law 5(1) of the Hawker By-laws made under section 83A of the Public Health and Urban Services Ordinance, cap. 132. The respondent pleaded guilty to the two charges. The Magistrate convicted him thereon and sentenced him to pay a fine of $100 on each of them.

3. Upon his conviction for the offence of hawking without a licence under by-law 5(1) of the Hawker By-laws, an application was made by the prosecutor under section 86A(1) of the Public Health and Urban Services Ordinance for an order of forfeiture of the equipment or commodity seized under section 86(1) thereof by PC 13079 in connection with the said offence, the prosecutor referring to a document, namely, annexure "A", which was attached to the charge sheet before the court. Annexure "A" has as heading "Application for Forfeiture Order under Section 86A(1) of the Public Health and Urban Services Ordinance, cap. 132" and immediately thereunder there appear the title and the number of the case, namely, "R. v. C/M AU-YEUNG Kai-wah - Case No. 21817 of 1983". Then follows a statement reading "In compliance with the requirement of Section 86A(1) of the Public Health and Urban Services Ordinance, Cap. 132, I hereby inform the Court that the equipment or commodities seized under Section 86(1) by PC 13079 of NS/Y ..... Police Officer, in connection with the above mentioned case were as follows:'. That is followed by a list of items of the Commodity/Equipment and quantity thereof seized, ending with the purported signature of PC 13079 of NS/Y, describing himself as the informant, and the date 29/10/1983.

4. The learned Magistrate refused to make the order of forfeiture applied for by the prosecutor on the following grounds:-

5. Resulting therefrom, the questions of law for the consideration and decision of this Court in this appeal are the following, as set out in paragraph 7 thereof prepared and signed by the learned Magistrate, namely:

6. For the purpose of answering these questions, I think I should, firstly, set out the relevant provisions of the law with which we are concerned in this case. They are:

7. In Attorney-General v. LUI Fuk-yuen and Attorney-General v. LAM Mok, Criminal Appeal Nos. 300 and 301 of 1975, [1975] H.K.L.R. 475, the Full Court held (inter alia) that the language of sections 86 and 86A of the Public Health and Urban Services Ordinance makes the intention of the legislature clear that all property seized under section 86 must be forfeited if the person charged with a designated hawking offence is convicted, and that it is beyond question that no discretion appears in section 86A (1) (a). There is no doubt whatever that under by-law 58 the offence with which the respondent in this appeal was charged before the Magistrate's Court, which was an offence under by-law 5(1), and was convicted, is specially designated for the purposes of the application of section 86A (1) (a) of the Ordinance.

8. In Au Shing v. the Queen, Criminal Appeal No. 1044 of 1982, O'Connor, J. referred to Attorney-General v. Fuk Yuen (cited above) and said that where the offence falls within section 86A(1) (a) there is no discretion not to order forfeiture, providing there has been compliance with the other terms of the section, stating that the Magistrate must be informed of the seizure (i.e. the seizure under section 86(1)) as a pre-condition to forfeiture.

9. The same opinion was expressed in The Queen v. CHAN Ning, Criminal Appeal No. 230 of 1983 by Macdougall, J. who, after citing section 86(1) said:

"There was nothing in the Magistrate's record to indicate that the goods had been seized under section 86(1). Nor did the record indicate that the informant had informed the court of such a seizure .... Unless therefore a court is completely satisfied that there had been full compliance with the requirements of section 86A(1) it should not make an order for forfeiture."

10. In The Queen v. YEUNG Sing-kuen, Criminal Appeal No. 358 of 1983, Addison, J. held that section 86A(1) must be strictly complied with, and insofar as the informant in that case had not informed the court of the seizure of the goods the order of forfeiture was set aside.

11. In The Queen v. LEUNG Kam-tin, Criminal Appeal No. 999 of 1983, although the main issue was whether the order of forfeiture was valid, the question which arose was whether the recitation within the document, which had been submitted to the Magistrate's Court and annexed to that court record, that the goods were seized under section 86(1) was sufficient to prove that the officer seizing them was either (1) a police officer, or (2) a public officer who was authorized in writing by the Authority for the purposes of section 86(l) to seize the equipment or commodity. It is observed that the annexed document referred was headed "Application for forfeiture of commodity and equipment seized under section 86(l) of the Public Health and Urban Services Ordinance, Cap. 132" followed by the name of the defendant, the U.S.D. Serial No., the charges and a statement reading "Application is hereby made under section 86A(1) of the Public Health and Urban Services Ordinance, Cap. 132, of a handcart, 450 T-shirts and ½ kg of plastic bags." On the facts of the case the Magistrate was made aware that it was not a police officer who had made the seizure but it was a foreman of the General Duties Team of the U.S.D. but there was no specific mention in the document that that public officer had been authorized in writing. As a result, the question which the learned Judge said arose was, to use his own words "In other words must there be a specific recitation in the document handed up to the court that the public officer effecting the seizure was actually authorized in writing for the court to order forfeiture or was it sufficient merely to state the seizure was made under section 86(1)?" After considering Campbell v. Wallsend Slipway and Engineering Co. Ltd. [1977] Cr. L. R. 351 and Attorney-General v. CHAN Chit-yin [1971] H.K.L.R. 404, the learned Judge held (1) for the seizure to be sufficient to support an application for an order of mandatory forfeiture it had to be made by a public officer authorized in writing; (2) a court is entitled to presume the necessary written authority had been conferred upon the public officer effecting seizure, the document making it clear that there was a seizure under section 86(1); (3) there was no reason to assume in the absence of any evidence to the contrary that the seizure was not one validly executed under section 86(1) and sufficient to give rise to forfeiture under section 86A (1) (a) by virtue of the Magistrate utilising the presumption of omnia praesumuntur rite esse acta; (4) that the presumption is one of law, and the person acting in the office must be taken to have been appointed to it until some evidence is given to the contrary; and (5) that in the circumstances of the case, the order of forfeiture was valid.

12. In other words, the learned Judge held that the document annexed to the court record was sufficient to support the application for a mandatory forfeiture order under section 86A(1), and that it was so, although there was no specific mention therein that the public officer who had made the seizure was one authorized in writing by the Authority for the purposes of section 86, for applying the presumption of omnia praesumuntur rite esse acta it should be presumed, in the absence of evidence to the contrary, that the public officer had the necessary written authority as the document made it clear that the seizure by him was made under section 86(1).

13. In the instant case, annexure "A", to which I have referred earlier, is in form not altogether similar to the document annexed to the Magistrate's Court record in The Queen v. LEUNG Kam-tin, but in substance they are similar in that they each contain an application for a forfeiture order under section 86A(1) in respect of commodity or equipment seized under section 86(1) in connection with the case concerned, and state the items of commodity or equipment seized. Annexure "A" is in fact more complete in that there are further stated therein the status of the person that effected the seizure under section 86(1), that is that he was a police officer, and his service number as a police officer.

14. In The Queen v. LEUNG Kam-tin, just referred, the learned Judge also stated the following in relation to the document annexed to the Magistrate's court record: "There is no doubt that a court receiving this document will be notified by the informant of the seizure under section 86(1) and the court will also be alerted to the prosecutor's application for a mandatory forfeiture order.". Having said so, he went on to consider the real question involved in the appeal and held as I have mentioned above on the facts and on the application of the presumption of omnia praesumuntur rite esse acta. I respectfully agree with the decision of the learned Judge in that case.

15. In the instant case, we are not concerned, as in The Queen v. LEUNG Kam-tin, with a seizure by a public officer authorized in writing by the Authority for the purposes of section 86 to seize the equipment or commodity as stated in section 86(1), but with a seizure by a police officer under section 86(1) whose status as such and service number are specifically mentioned in annexure "A". Section 86(1) does not provide that the police officer concerned need be authorized in writing by anyone to seize the equipment or commodity in respect of which he has reason to believe a hawker offence has been committed. Unlike "a public officer", "a police officer" may in the circumstances mentioned in section 18(l) effect the seizure by virtue of his status as such.

16. Section 86A(1) does not provide how "the informant shall inform the court of the seizure" made under section 86(l) and there appears to be no legal provision stating how this is to be done. Accordingly, I am of the opinion that there is no legal obligation on the informant to inform the court of the seizure by evidence on oath or affirmation. I should, perhaps, add here that there is nothing in the cases I have referred earlier which appears to indicate that such information need be on oath or affirmation. I am also of the opinion that such information may be notified to the court by the informant through the prosecutor or the person entitled to appear on behalf of the informant either verbally or in writing, for example, by a document handed up to the court or already annexed to the court record, to which reference may be made by the prosecutor or that person. Whether such information is notified verbally or in writing, it must contain all the particulars showing that the seizure was made in accordance with section 86(1). In my view, annexure "A" contained all the necessary particulars in the case, as it was, of a seizure effected by a police officer. Where the seizure was made by a public officer, as in The Queen v. LEUNG Kam-tin, it would be more appropriate (and it seems to me it was indicated by the learned Judge in that case) if the information should also contain a specific mention of the fact that the public officer was so authorized in writing by the Authority for the purposes of section 86 as it is mentioned in section 86(1).

17. I agree with Mr. Duckett that the procedure which has for some time been adopted by the use of an annexure, such as annexure "A", is a proper procedure of convenience. With that procedure, the Magistrate is spared the trouble of having to record all the material particulars of the information and of the application for the forfeiture order including the precise items of equipment or commodity seized the subject-matter thereof.

18. In my opinion, the information of the fact of the seizure in accordance with section 86(1) notified to the court in the manner I have stated is sufficient to give rise to forfeiture under section 86A (1) (a). However, I am also of the opinion that when such information or any material part thereof is challenged by the defendant, the court has first to enquire into the truth of it before deciding upon the application to make the forfeiture order, and in such a situation it may be necessary to hear evidence on oath or affirmation.

19. In the result, I am of the opinion that the answers to the 4 questions posed should be -

20. Question (c) is not precise. If the word "officer" therein means "a police officer", the answer is that no authority whatever is required by him from anyone to seize the goods. If it means "a public officer'", such an officer requires, as stated in section 86(1), an authority in writing from the Authority for the purposes of section 86. In both cases, the informant need only inform the court verbally or in writing of the fact of the seizure and of the relevant particulars showing that the seizure was made in conformity with section 86(1). When such information or any part thereof is challenged by the defendant, an inquiry into the truth of the information should be made by the Magistrate before deciding upon the application for a forfeiture order, and it may then be necessary for him to hear evidence on oath or affirmation.

21. As to question (D), the answer is that the effects of the two decisions mentioned therein on the questions submitted appear sufficiently in the present judgment.

22. I was informed by Mr. Duckett that the appellant was not seeking an order of forfeiture of the equipment or commodity concerned in this case. Accordingly, no order remitting the case to the learned Magistrate with direction to make an order of forfeiture in respect of such goods seized is hereby made.

Representation:

Mr. A.P. Duckett & Mr. F. Wong, Crown counsel for the Attorney General Respondent AU YEUNG Kai-wah absent