Commissioner of Customs and Excise v. Cao Xinxi and Others

DCMP 2583/2017

[2018] HKDC 1277

IN THE DICTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2583 OF 2017

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BETWEEN

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D E C I S I O N

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1.This is an application for forfeiture under sections 27 and 28 of the Import and Export Ordinance, Cap 60 (“IEO”), involving 11 items.  They are three vehicles:  Item 1, vehicle TG5750; Item 4, LL8072; and Item 8, JJ2715.  The remaining items are related articles, including keys and licences of those three vehicles.

2.The three vehicles were involved in a criminal case, DCCC 386/2016.  On 24 October 2016, the defendants in that criminal case pleaded guilty to various offences, including attempting and/or conspiracy to export unmanifested cargo, contrary to section 18(1)(b) of IEO.  The three vehicles had been used in the commission of the offences.

3.Upon their seizure, Customs and Excise issued notice under section 27(3) of IEO to relevant persons.  On various dates, the five respondents (R1 – R5), either through their solicitors or by themselves, claimed for the return of the items in question.

4.R1 was the registered owner of vehicle TG5750.  R2 also claimed for TG5750 but it is not clear how R2 was related to that vehicle or R1.

5.R3 was the registered owner of JJ2715.

6.R4 was the registered owner of LL8072.  R5 claimed to be the beneficial owner of LL8072.

7.R1 to R5 were initially represented by solicitors but they later gave no instruction to their lawyers nor had they ever given any notice of abandonment to the authorities.

8.R1 to R5 have not provided any affirmation in support of their claim.

9.R1 and R2 have provided no witness statement in support of their claim.

10.For R3, one Miss Wu Wing-hong gave a statement to C&E on 13 November 2015.  She said R3 and the lessee of JJ2715 would conduct surprise inspection of the vehicle.  The last inspection was made on 20 October 2015.  They found nothing irregular and they had no knowledge of any criminal offence.

11.R4 and R5 appointed one Mr Chan Tak-lung to deal with their claim.  Mr Chan provided a statement to C&E on 16 November 2015.  He said R4 had not caused any structural alteration to the vehicle and had reminded its driver not to accept outside jobs.  R4 would conduct anti-smuggling inspection monthly.  Chan also said R4 and R5 had no knowledge of any criminal offence.

12.R1 to R5 have been duly notified of the current forfeiture proceedings.  They do not appear in court nor is there anyone making claim in court of the 11 items in question.

13.Miss Shum of the Department of Justice appears for prosecution.  She has prepared an 11-page submission pointing out that the 11 items are all liable to forfeiture and should be forfeited to the government.

14.I do not intend to repeat the able submission of Miss Shum in her written submission and her oral expansion in court.  I agree entirely to her submission.

15.There are 11 items:  Items 1 to 3 are of TG5750; Items 4 to 7 are of LL8072; Items 8 to 11 are of JJ2715.  I am satisfied that all the 11 items are liable to forfeiture in the light of the facts revealed in the criminal case of DCCC 386/2016.

16.On the other hand, there is no evidence from any respondent that he or she had done anything or anything sufficient to prevent his or her vehicle from being used in the said criminal activities.

17.There is nothing revealed by admissible evidence that I should exercise my discretion not to forfeit the 11 items but to return them to the respondents.

18.In the circumstance, I order the said 11 items all be forfeited to the government.

19.Prosecution asks for costs.

20.Costs normally follow events.  In this case, there is nothing for me to justify departure from that basic principle.  Although the respondents ceased to instruct their lawyers at some stage, they had never given any notice of abandonment to the authorities.  Prosecution are obliged to proceed with the current forfeiture proceedings.  R1 to R5 all lost their claim.  They should be made to pay for prosecution’s costs.

21.To save time and further costs, I adopt summary assessment of costs.

22.Prosecution have calculated the total costs to be $33,465.  That appears to be reasonable. However, it is for all the three vehicles under claim.  Miss Shum for prosecution says the total costs are equally apportionable to the three vehicles.

23.R1 and R2 claim for one vehicle only; R3 for the second; R4 and R5 claim for the third. 

24.In the circumstances, I find it is reasonable to order:

(a)  R1 and R2 be jointly and severally liable for one-third of the total costs for their failed claim of TG5750 and its related items;

(b)R3 be liable for one-third of the total costs for its failed claim of JJ2715 and its related items;

(c)  R4 and R5 be jointly and severally liable for one-third of the total costs for their failed claim of LL8072 and its related items.

Miss Shum Sin-yu Sanyi, GC of Department of Justice, for the applicant

The 1st to 5th defendants (1st to 5th respondents) were not represented and did not appear