Yau Man Chung v. The Queen

CACC000207/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 207 OF 1969

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Coram: Huggins, J.

Date of Judgment: 28 April 1969

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JUDGMENT

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Huggins,J:

1. This is an appeal against an order of forfeiture of a motor vehicle made by a learned magistrate under s.48(2) of the Dutiable Commodities Ordinance.

2. A criminal charge was laid against three persons, of whom the claimant was not one, that they had in their custody dutiable goods upon which duty had not been paid and in the particulars of offence it was alleged that the dutiable goods were on board vehicle Registration No. AJ 9875.

3. The first point with which I must deal is that the present application is in relation to a motor vehicle No. AJ9857. With respect to the solicitor for the claimant I think that the answer to this lies in the exact form in which the learned magistrate has made his note. The record of proceedings in the criminal trial, which of course has been admitted as evidence in accordance with the Ordinance for the purposes of the present claim, says: "Charge read and understood" and then (in parenthesis) "vehicle number amended to AJ 9857". It is argued that the charge which was read and understood was the charge as it originally appeared in the charge sheet, that is to say without the amendment. I do not so read the record. If there were no brackets round these words then I think the Crown might be in some difficulty because it would then appear, on the face of it, that the amendment was made after the reading of the charge. But as I read this record the purpose of putting these words in parenthesis was to indicate that what was read and understood was the charge as amended, and therefore the charge to which the accused pleaded was the amended charge. Once that is understood then, of course, the point which is taken falls to the ground.

4. The substantial point which is taken in the appeal is that the learned magistrate misdirected himself when he came to the conclusion that the appellant had no proprietary interest in the vehicle. There was evidence before him that the appellant was the hirer of this motor vehicle under a hire purchase agreement. The learned magistrate in his findings appears to have equated the words "proprietary interest" with legal ownership for he says:

"On the evidence as shown above the claimant had failed to satisfy me that he had a proprietary interest in the said vehicle, in that at the material time the said vehicle was the subject of a Hire Purchase Agreement with Messrs. Gilman and Company Limited, so that although the claimant was then the registered owner of the said vehicle yet it was Messrs. Gilman Co. Ltd, who were the legal owners of the vehicle"

It will be seen that in s.48(3) the Legislature referred to the "owner of the vehicle. Under subsection (9) upon the hearing of an application for forfeiture the claimant must first satisfy the magistrate that at the time of the seizure he had a "proprietary interest" in the thing seized and he is not required to prove that he is the owner. If the Legislature had intended that he should prove that he was the legal owner then I can see no reason why they should have used the words "proprietary interest". It is a well-known canon of instruction that where the Legislature changes the words which it uses it intends to convey a different meaning and I think that as generally understood the words "proprietary interest" are far wider than the word "owner". The question then is Does a hirer under a hire-purchase agreement have a proprietary interest? It is argued that he is very much in the same position as the charterer of a ship or a lessee of land: he is the person who to all and intents and purposes is the owner and, indeed, he is in the case of a motor car probably "the registered owner" of the vehicle. It is pointed out, and I think with some force, that in Hong Kong a Crown lessee, who undoubtedly is nothing more than a tenant, is commonly called "the owner" of the land. This is merely indicative of the approach which the ordinary person would take to the matter. But not only does the hirer under a hire-purchase agreement have the right to use and enjoy the vehicle in the same way as the tenant of land has the right to possession and enjoyment of the land but he has something more, namely an option to purchase, and it seems to me that also is in itself a proprietary interest: it is a present right to enjoy something in futuro upon fulfilment of a condition and it is a right which, subject to any contractual agreement between the parties, can be disposed of. Therefore in my view the learned magistrate was wrong when he said that this appellant had no proprietary interest.

5. But that, of course, is not sufficient by itself to enable the appellant to succeed. It is then said that there was no evidence or no sufficient evidence to justify the order of forfeiture which was made. The only evidence was the evidence of the criminal proceedings. In subsection 9(b) we find the following:

"In any application to a magistrate as aforesaid a certified true copy of the record of evidence and proceedings, including the decision of the court in any criminal trial relating to such goods or thing, shall be admissible in evidence."

This is an unhappily phrased provision and I have come to the conclusion that the punctuation has come out of place. As it stands the words "in any criminal trial relating to such goods or thing" are in apposition only to "the decision of the court" and do not refer also to "the record of evidence and proceedings", but so to construe it would make nonsense and I must assume that the Legislature did not intend to make nonsense of the provision. The comma has been misplaced from its correct position following the word "court" to the position following the word "thing". Nevertheless it is argued that this was not "a record of evidence and proceedings, including the decision of the court, in a criminal trial relating to" the motor car. Now it is true that the reference to the motor car in the charge was coincidental and in fact was mere surplusage. The charge related to the custody of the goods and it did not matter for the purposes of the charge whether they were in custody in one motor vehicle or in another motor vehicle or in no motor vehicle at all. That of course is true but if it was intended that the criminal proceedings must relate to the subject matter of the claim in the sense that the subject matter must be part of the ingredients of the offence then s.48(2) would be unnecessary. It seems to me that what the Legislature intended was that if a vehicle was used for the purposes of an offence under the Ordinance then it should be liable to forfeiture and to that extent I think these criminal proceedings did "relate to" the motor vehicle. That being so I think this further ground of appeal fails, and that means in the result that the appeal as a whole will fail - although it does now mean that the appellant is in a position to make a petition to His Excellency the Governor in Council for release upon moral grounds.

28th April, 1969.