Attorney General v. Jose F. Mercado

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 35 OF 1968

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Coram: Huggins, J.

Date of Judgment: 14 December 1968

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JUDGMENT

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Huggins, J:

This purports to be an appeal by way of case stated under s.105 of the Magistrates Ordinance but I regret to say that the document which has been put before me can hardly be said to be "a case setting forth the facts and the grounds on which the ...... determination was granted and the grounds on which the proceeding is questioned". Of necessity the grounds on which the proceeding is questioned must be stated in the first instance by the appellant and he must state such grounds in such a form that the alleged error in point of law is clear. In the present case the three grounds stated by the appellant included one which was admittedly not an error in point of law at all and the learned magistrate should have declined to include it in his case stated. It was then his duty to set out those of his findings of fact which were material to the points of law raised and also the grounds of his determination. All other matters were irrelevant and should not have been included.

2. The material findings of fact are, as I understand it, agreed to be:

1. that the respondent was charged before a magistrate with the importation of unmanifested cargo;

2. that he pleaded not guilty;

3. that evidence was called;

4. that on the facts found (which were not recorded in the magistrate's minute of proceedings) the respondent was acquitted;

5. that subsequently the appellant applied to another magistrate under s.17 of the Importation and Exportation Ordinance for forfeiture of the articles of the alleged unlawful importation of which the respondent had been acquitted:

6. that the respondent satisfied the magistrate that he had a proprietary interest in the said articles;

7. that counsel for the appellant adduced in evidence a certified true copy of the record of proceedings, including the decision of the Court, in the aforesaid criminal trial; and

8. that no other evidence was adduced on behalf of the appellant.

3. The principal ground on which the determination was granted was apparently that there was no evidence of a contravention by the respondent of any provision of the Importation and Exportation Ordinance or of any regulation made thereunder and, in particular, no evidence of an importation by him of any unmaifested cargo. The learned magistrate also stated that he was not sitting as an appellate court to review the decision of the magistrate in the criminal trial, but whether he regarded that as a ground in itself or merely as one reason for holding that the copy of the record of proceedings could not be evidence of such contravention does not appear clearly from the Case. What does appear is that he considered the proceeding before him to be a criminal proceeding and that therefore the copy of the record was not admissible under s.17 (10). Counsel have been unable to suggest before me that any other ground has been set out in the Case.

4. The grounds on which the determination is questioned are stated to be that the magistrate was wrong in saying that the matter was before him by way of appeal to review the decision in the criminal trial and that he was wrong in holding that there was no evidence that the articles were "unmanifested cargo" within the meaning of Regulation 2 of the Unmanifested Cargo Regulations. These are not, however, the precise grounds upon which the matter has been argued before me and, indeed, I could not have answered any question based upon the second ground unless I were told something about the evidence contained in the record of proceedings. The contents of the record are unknown to me save that I know the nature of the charge and that the respondent was acquitted. In all of its eleven pages the Case nowhere states that the record contains no note of evidence which would support a finding of a contravention of the Regulation. I believe the learned magistrate was asked to amend the case stated and to exhibit thereto a copy of the record but no amendment was in fact made, nor can I think that it would have been proper to exhibit the whole or indeed any part of that document: see Wong Hau-yuen v. Tai Fong Tea House Ltd.⁽¹⁾ It has not been contested that the magistrate was wrong in his repeated reference to the question whether there was evidence of a contravention by the respondent: all that s.17 requires to be proved is a contravention, whether by the respondent or by a third party. The short question to which the argument has been directed is whether or not a copy of the record of proceedings in a criminal trial could be evidence of a contravention of Regulation 2, not whether this record was evidence that the articles were "unmanifested cargo". I was in some doubt whether this question could fairly be said to arise upon the case stated in the light of the magistrate's statement -

That passage would seem to indicate that the magistrate did consider the record to be evidence which enabled him to find that there had been a contravention, but the rest of the Case is not consistent with that conclusion: several other passages point irresistibly to the conclusion that he thought it was not open to him to condemn the articles on the strength of the record because, as he said, "although I was not sitting as a court of appeal, I was asked to reverse the learned magistrate's decision in effect". Again, he said that by relying upon this record counsel had made "injudicious use" of it, but it is clear from what he went on to say that he thought the use was not only injudicious but improper and that a record could not constitute the "strict proof" which he considered was necessary in view of the proceeding's having the character of a criminal proceeding.

5. What in effect is sought from me is an interpretation of s.17(10)(b) of the Importation and Exportation Ordinance, which reads:

Counsel for the appellant frankly concedes that he took this paragraph to mean that the copy of the record should be admissible as evidence in the sense that (a) a decision to convict should be evidence of a contravention of a provision of the Ordinance or of a Regulation, and (b) the evidence in the criminal trial as appearing in the record should be deemed to have been adduced a second time in the forfeiture proceedings. Therefore, he said, although the decision in the criminal trial of the present respondent had been one of acquittal so that the decision itself was of no assistance to him, nevertheless if there was evidence upon the record adduced in evidence under this provision that somebody (not necessarily the appellant) had contravened a provision of the Ordinance or of a Regulation made thereunder it was unnecessary for him to adduce that evidence a second time, although he acknowledged that the parol evidence might not be of great weight if the respondent adduced evidence in rebuttal. However, it appears from the case stated that no evidence in rebuttal was given in the present instance but that "final" submissions were made immediately the evidence for the appellant was concluded, presumably after counsel for the respondent had indicated that he would call no evidence.

6. Whether or not that is the right interpretation I say at once that it is an understandable one and I have some sympathy with counsel who took the intention of the Legislature to be to a void the necessity of adducing the same evidence twice. However, counsel for the respondent submits that this interpretation is such a departure from the general principles upon which cases are tried in our courts and, indeed, from the rules of natural justice that it cannot be right. His contention is, therefore, that the sole purpose of the provision is to allow the admission of the record of the criminal trial to prove a conviction, from which it follows that where there was an acquittal the record can prove nothing which is relevant and ought not to be admitted. The argument starts from the well recognized proposition that a penal provision must be construed strictly. Counsel says that if any authority be needed for his contention that s.17 is a penal provision it is to be found in the words of Mr. Justice Gould in Lam Wah v. Reg.⁽²⁾:

"The object of the subsection is to penalize the owners of cargo".

The learned judge was there referring to s.14(3) of the Importation and Exportation Ordinance then in force, which was the forerunner of the present s.17. I agree that s.17 is a penal provision: it gives the magistrate power to punish, by depriving them of their proprietary rights, all persons who may have an interest in the articles in question, and such persons may be made to suffer regardless of whether or not they were at fault in the occurence of a contravention (subject to any relief which may be granted by the Governor in Council under subsection (13)). I do not, however, agree with the view of the learned magistrate that the forfeiture proceeding is a criminal proceeding (see Ho Shing v. Reg.⁽³⁾): it is a civil proceeding and the degree of proof required to establish the appellant's claim is that applicable to civil proceedings. The modern tendency is to construe all statutes alike, "in cases of doubt the courts inclining to mercy" where the statute is of a penal nature: see the passage cited by Baron Bramwell in Foley v. Fletcher⁽⁴⁾. For my part I am content to adopt the passage in Craies on Statute Law (6th ed.) at p.532:

"And while it is probably true that the principles of construction have been somewhat relaxed in formality nowadays, yet at the same time strictness of statement is still valuable, especially in a case where the result may be highly penal".

7. I ask myself What is the intention reasonably to be inferred from the words of this provision? The Legislature must have had some purpose in providing that the record of proceedings in a criminal trial should be admissible and the only reason for admitting evidence is to prove something. It is much to be regretted that they did not indicate clearly what it was that was to be provable in this way but however "strictly" I may construe the provision I must give effect to every word used and endeavour to assign a meaning which is both reasonable and consistent with the general tenor of the statute. If, as counsel for the respondent submits, the only part of the record which is to be looked at is the decision (and that only where the decision is one of conviction) I cannot believe that the Legislature would have added the words "including the decision of the court" in parenthesis, as it did. It is apparent that what was contemplated was a copy of the whole record, the greater part of which would normally be taken up with a note of the evidence. If what was intended was to allow the admission merely of a certified copy of the record of a conviction I must assume that the Legislature would have said so. Once it is found that a note of the evidence is to be included I must inquire what purpose such note of evidence could possibly serve and the only answer that comes to my mind is that for which counsel for the appellant contends, that the magistrate in the forfeiture proceeding should read it as though it were evidence taken on commission. This may be a departure from the normal procedure but it is not contrary to natural justice or so manifestly absurd that the Legislature cannot have meant what it has said.

8. I do not derive much assistance from the decision in Lam Wah v. Reg.⁽²⁾ because the law has been materially altered since (and probably, at least in part, as a result of) that case. There was then no procedure laid down for the establishment of claims to property in respect of which an offence against the Ordinance was alleged to have been committed. Two junk masters having been acquitted of an offence of attempting unlawfully to export goods without a licence, a summons was served on the owner of the goods to show cause why the goods should not be forfeited. It was held that the rules of natural justice did not require the Crown to prove its case all over again but that, it having been conceded that the magistrate had a discretion under the section then in force to grant or refuse forfeiture, the same rules required no more than that any claimant should be given an opportunity of showing cause why the discretion should not be exercised in his favour. Counsel for the appellant before me did, however, at one stage rely upon an obiter dictum of the learned judge at p.100 of his judgment where he said that in showing cause why the discretion should be exercised in his favour the claimant was not entitled to re-open the matter of the merits of any conviction which had been entered. If that was intended to mean that a person was bound by findings of fact in a proceeding to which he was not a party I would have had great difficulty in agreeing, but I do not think that is what was intended. That dictum is certainly no authority for holding that under the new procedure an owner of goods is not entitled to attack the findings of fact and the reasons of law upon which criminal proceedings inter alios were decided. If the attack were successful that would not affect the validity of the conviction although it might afford ground for petitioning for a free pardon.

9. On the other hand I cannot agree with the submission of counsel for the respondent that a decision of acquittal is evidence that no contravention has occurred. All that an acquittal proves per se is that a particular criminal offence has not been established to the satisfaction of the court against the person accused. By adducing the record of proceedings in the criminal trial as evidence in the forfeiture proceedings the appellant has in no way sought "to re-open the acquittal". It is true that he may demonstrate that the acquittal was wrong but a judgment in his favour in the forfeiture proceedings would not necessarily have any such result. Even if the acquittal were shown to have been wrong the plea of autrefois acquit would lie at the instance of the person acquitted.

10. The record of proceedings in the criminal trial is "evidence": it is not "prima facie evidence" and even less is it "conclusive evidence". As I have already said, if any evidence in the record of proceedings in the criminal trial which may tend to prove a contravention is contradicted by other evidence in the record or by evidence given in the forfeiture proceedings the magistrate will have to consider what weight he can properly attached to it, but I am not concerned upon this appeal with any question as to the weight of the evidence. In my opinion a record of proceedings admitted in evidence under s.17(10)(b) may be evidence of a contravention such as would entitle the appellant to a forfeiture and the course pursued by counsel for the appellant in the court below did not require the learned magistrate to "review" the decision in the criminal trial.

11. The case is remitted to the learned magistrate with this expression of the Court's opinion.

14th December, 1968.

Representation:

Mr. Sandor for the Appellant

Mr. Shears for the Respondent

(1) 1963 H.K.L.R. 197, 209.

(2) (1952) 36 H.K.L.R. 91, 98.

(3) 1967 H.K.L.R. 63, 65.

(4) (1958) 3 H. & N. 769, 781.