Ng Kuen v. The Queen

CACC000248/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 248 OF 1969

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Coram: Hogan, C.J., Blair-Kerr, J. and McMullin, J.

Date of Judgment: 25 September 1969

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JUDGMENT

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Hogan, C.J.:

1. This is an appeal by way of case stated from a decision of a magistrate convicting the appellant of an offence against Regulation 2 of the Unmanifested Cargo Regulations, Cap.50, in that he on the 12th October 1968 on the s.s. "Tenos" imported 32 bags of silver coins into Hong Kong as unmanifested cargo.

2. The magistrate set out his findings of fact in the following terms:-

"On the morning of the 12th October 1968 the s.s. 'Tenos' arrived in Hong Kong from Kaoshiung, Taiwan. Prior to its arrival in Hong Kong on the morning of 12th October 1968 as aforesaid the s.s. 'Tenos' had been at the port of Kaoshiung as aforesaid on 11th October 1968. Shortly after noon on 12th October 1968 whilst Revenue Sub-Inspector Ho Kam Tong of the Hong Kong Preventive Service was searching the said vessel he broke open two lockers on the starboard side of the said vessel near the stern and found therein 32 bags of silver Australian coins of various denominations. The said two lockers were the ordinary lockers used by crew members of the said vessel and were located immediately outside the cabin of the Appellant. The said two lockers were one of a row of ordinary lockers used by crew members of the said vessel for their personal belongings. Shortly after the said discovery of the Australian coins the Appellant came forward and told Revenue Sub-Inspector Ho Kam Tong that the said 32 bags of coins belonged to him and that the said two lockers were his. The Appellant thereupon made a written statement which he signed. The said statement was admitted in evidence as Exhibit '1' at the said hearing. Exhibit '1' is attached. I find as a fact that the coins were bought and loaded in Sydney, Australia and they were purchased for $20,000 Australian. Revenue Inspector Ho Kam Tong then went to the Captain's cabin and asked the Captain to produce a set of the vessel's manifest including all the cargoes on board the said vessel. The Captain made no reply but handed to Revenue Inspector Ho Kam Tong 32 documents. The said 32 documents were produced as Exhibit '2' at the said hearing by the Captain. The said two lockers in which the said 32 bags of Australian coins were found were not a place where manifested cargo was normally kept on the vessel. The said 32 documents (Exhibit '2') were such copies of the manifest of the said vessel's cargo as the Captain had at the time but the individual manifest sheets were not made up by the Captain but by the ship's agents as the ship left each port of loading. Prior to the ship's arrival in Hong Kong the ship had loaded at the ports as follows: Melbourne, Port Kemboa, Sydney, Brisbane, Manila, Keelung and Kaoshiung. The manifest of the cargo loaded on board at each of the said ports were prepared by the agent at the respective ports and mailed to the ship from time to time. The Captain did not compile any of the manifest nor was it his duty to lodge the manifest (Exhibit '2') with the Department of Commerce and Industry as is required under Regulation 10(2) of the Importation & Exportation (Registration of Import & Export) Regulations. The 32 sheets comprising Exhibit '2' were not intended to be lodged with the Department of Commerce and Industry. I accepted the Captain's evidence that although he supposed he had received all the manifests from Sydney (since 2 weeks had elapsed and the agents in Australia had time to forward the sheets on) he did not know if any sheets were missing.".

3. At the conclusion of the hearing in the court below the magistrate, at the request of the appellant, made an express finding that the manifest sheets produced by the prosecution had not been shown to be a complete manifest and that consequently the prosecution, by their evidence, failed to prove that the cargo was unmanifested. In nevertheless convicting the accused in these circumstances the magistrate relied on section 11(d) of the Import and Export Ordinance, Cap.50, which reads as follows:-

Regulation 2 of the Unmanifested Cargo Regulations, hereinafter called the Cargo Regulations, reads as follows:-

4. The first of the three questions put to us on the case stated is whether the coins in question were "cargo" within the meaning of this Regulation.

5. Mr. Litton, on behalf of the appellant contends that they were not and puts in the forefront of this argument the contention that the Cargo Regulations are designed and intended to provide a discipline for the carriers, in the person of the ship-owner, the agent or the master, but not to impose obligations on those who do not share the responsibility for presenting a ship's manifest under the provisions of the Importation and Exportation (Registration of Imports and Exports) Regulations, hereinafter called the Registration Regulations, made under section 14 of the Import and Export Ordinance. He says that people like the appellant, who are concerned with bringing or importing goods into the Colony, are subject to the discipline imposed by these latter Regulations, under which the appellant might possibly have been prosecuted but in respect of which no charge has been made, presumably because personal luggage is exempted by Regulation 3(f). He contends that these two separate and distinct sets of Regulations are directed towards providing two separate and distinct disciplines for distinct areas of activity and should not be confused or combined or allowed to overlap so as to make a man like the appellant responsible for the failure on the part of other people, i.e. the shipowner, the compradore or the master to present a manifest. He contends that any other construction would place an impossible and unacceptable burden on the business community which would find itself in the dock for importing goods which, through no fault of the importers, have not been made the subject of a duly completed and furnished manifest. He carries his contention to the point of saying that anyone required to make an import declaration under Regulation 4 of the Registration Regulations must be regarded as free from the obligation imposed by the Cargo Regulations. For restricting the wider language of these Regulations, he claims support from the view of Briggs, J., given when ruling on a submission of no case to answer at the Harch Sessions, 1966, in proceedings against Shun Tak Kan and others⁽¹⁾, and from a later judgment of Mills-Owens, J. on appeal from a magistrate in the case of Leung Nin v. The Queen⁽²⁾.

6. In Shun Tak Kan's case⁽¹⁾ the accused were charged with importin 6 1bs. of raw opium contrary to paragraph 2 of Unmanifested Cargo Order (now called Regulations). In ruling that there was no case to answer, Briggs, J. said:-

7. Counsel for the Crown contends that this ruling with its direct encouragement of dishonesty, is not supported by any valid reason, does violence to the language of the Regulations and springs entirely from the judge's assumption, for which there is no justification, that the Regulations were not intended to deal with smuggling, which led the judge to make the unwarranted deduction that provided the goods were smuggled then the Regulations should be construed so as not to affect them. This involved the further fallacy that, since the Regulations deal with cargo, therefore smuggled goods could not be cargo.

8. It is difficult to find in the Regulations any justification for the conclusions and deductions thus expressed and indeed, in making them, the judge would appear to have taken little account of the relevant decisions both in the United Kingdom and in Hong Kong. In stating that the books have been searched in vain for a suitable definition the judge seems to have overlooked or discounted the cases quoted in Stroud's Judicial Dictionary and the description of that word given in the old case of Sargent v. Reed⁽⁵⁾ which was endorsed in the Hong Kong case of R. v. Pan-American World Airways Incorporated⁽⁴⁾, where the Full Court said:

"'Cargo' has been describea in an old case, Sargent v. Reed⁽⁵⁾ which is mentioned in Stroud's Dictionary as the 'whole load'. Prima facie that would appear to be the normal meaning to attach to the word cargo, and if one is to take anything out of what would be comprised in that meaning of the word, the onus would appear to be on the person seeking the exclusion to show that the context justifies it.".

9. Similar descriptions are to be found in modern works of a more general character such as the "Concise Commercial Dictionary" by Osborn and Grandage and the American Publication "Words and Phrases" which has collected together a very large number of American decisions on the same subject. It is surprising that the considerable body of authority on this subject and the view of a higher court should have been so briefly dismissed, unless, when the judge used the expression "suitable definition he had in mind a definition that would suit the particular view which he took of the Cargo Regulations. He seems to have adopted a purely intuitive assumption as to what these Regulations were intended to cover and then to have modified the plain language of the Regulations so as to fit in with this unsupported assumption. Such an approach is quite contrary to the normal canons of interpretation which require that the language of an enactment should be given its plain meaning (see The Sussex Peerage case⁽⁶⁾). Not only did it involve the judge in ascribing to the word "cargo" a meaning unsupported by authority but it also led him into confining to "shipowners, charterers and the like" the expression "no person" in Regulation 2: a limitation for which there was no justification in the enactment.

10. Whilst there may, as indicated by Blair-Kerr, J. in the case of Hui Shing v. R.⁽⁷⁾, well be justification for excluding from a ship's cargo articles which are on board for the purpose of working the ship, it would seem difficult to find any justification for excluding from this term all goods carried "in places in a ship other than those where the cargo is normally carried". Not only is the proposition opposed to the main stream of authority and unsupported by any previous case quoted to us but it is self-contradictory in its recognition that cargo may occasionally be carried elsewhere. The further argument that a penalty of one year's imprisonment and a fine of $100,000 indicates that the Importation and Exportation Ordinance is not intended to apply to narcotics is in direct conflict with the decisions in the Cathay Pacific⁽³⁾ and Pan American⁽⁴⁾ cases. The existence of particular statutes imposing severe penalties in respect of importation of certain specified goods does not mean that these goods are thereby exempted from "omnibus" provisions which are expressed to apply to all or any goods. The existence of an express prohibition on the importation of firearms without a permit would not, in itself, exclude firearms from an enactment requiring all goods to be declared to the authorities.

11. Nevertheless this decision seems to have found endorsement in a later case: Leung Nin v. The Queen⁽²⁾, also decided by a single judge of the Supreme Court.

12. In that case, a crewman who concealed silver coins and Vietman banknotes in the mast of a ship was convicted of an offence against Regulation 2 of the Cargo Regulations. On Appeal, after quoting at some length from a contrary decision by Blair-Kerr, J. in the Case of Ho Shing v. R.⁽⁸⁾ Mills-Owens, J. said:-

"          First, I feel bound to say that it appears to me to be extremely doubtful that a breach of the Regulations (formerly the Unmanifested Cargo Order) gives rise to an absolute offence. Section 18 of the Ordinance specifically enacts that regulations 'may provide (a) that an offence against the regulations shall be deemed to have been committed, notwithstanding that there has been no guilty intent or knowledge or negligence on the part of the person charged.' The Regulations make no such provision. Section 18 would appear to be an express legislative injunction to frame the regulations in specific terms if it is desired to create absolute offences.".

It is not altogether clear from this paragraph whether Mills-Owens, J. overlooked the contrary decision by the Full Court in the case of R. v. Pan-American World Airways Inc.,⁽⁴⁾ to which he had been referred and of which he made a brief mention earlier in his judgment, or whether he was merely expressing, by way of obiter dictum, a dissent from the view of Blair-Kerr, J. when sitting alone and that of Gould, J. also sitting alone who, in the case of Cathay Pacific Airways Ltd. v. The Crown⁽³⁾, said:-

"          The Unmanifested Cargo Order is obviously designed to assist in the regulation of trade and the prevention of smuggling ...... It throws upon the operators of aircraft and shipping the necessity of adopting such precautions as to ensure, at their peril, that they bring no unmanifested cargo into the Colony ...... It cannot be said that because the company did not know it brought the unmanifested cargo that it did not in fact bring it, and that act as I see it, is prohibited absolutely.".

13. It would seem, however, that the statement of Mills-Owens, J. was made per incuriam as it seems highly unlikely that a judge would thus go out on his way to express a conflicting view in this fashion without even acknowledging the existence of a contrary decision of a higher court.

14. It seems questionable whether the terms in which subsidiary legislation creates an offence should bear a different construction depending on whether the enabling power is explicitly spelt out in the authorising statute or merely implied by the language it uses. Moreover, his observations would seem to disregard the long line of cases recently discussed in the House of Lords in Reg. v. Warner⁽⁹⁾ and Sweet v. Parsley⁽¹⁰⁾ where the Legislature, when creating less serious offences, was held to have imposed on those who carry on certain activities an absolute obligation to ensure that their activities meet certain specified requirements: a position which may be created either by express words in the enactment creating the offence - though this, as Lord Reid emphasised in Sweet's case⁽⁹⁾, is comparatively rare - or by the subject matter with which it deals. See observations of Wright, J. in Sherras v. De Rutzen⁽¹¹⁾ approved in Lim Chin Aik v. The Queen⁽¹²⁾ and elsewhere.

15. There would appear to be no obstacle to placing this legislation in such a category because of the limitations on deduction from the subject material noted in Lim Chin Aik's case⁽¹²⁾, where their Lordships said:-

"It is pertinent also to enquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.".

16. It looks as if Mills-Owens, J. may also have overlooked the fact that the section to which he refers was introduced only in 1952 and was not in the Ordinance when the Unmanifested Cargo Order (now Regulations) was first enacted so that its construction as at that time could not have been affected by the terms of this provision. The subsequent amendment, placing beyond doubt the power of the rule-making authority to prescribe absolute liability which one might expect to see questioned more frequently than it is (see Lord Reid in Warner's case⁽⁹⁾), could hardly be taken to have limited the effect of the subsidiary legislation previously made or to have operated either as a repeal or a limitation of its scope.

17. The subsequent repeal and re-enactment of the whole of the legislation as part of a revision in 1964 would also appear to attract the presumption that when the legislature re-enacts a provision which has been the subject of a considered judicial construction, the re-enactment should, in the absence of any indication to the contrary, be regarded as adopting and reinforcing that construction. As the amendment was introduced within months of the first decision by Gould, J. it would look as if the legislature must have been aware of the existence of this judicial construction. The limitations on the presumption to which attention was drawn in Tse Moon Sak v. Tse Hung and others⁽¹³⁾ would seem to have little relevance in this instance, though I would be disposed, subject to one slight amendment, to adopt the approach adopted by Denning, L.J. in The Royal Court Derby Porcelain Co. Ltd. v. Raymond Russell⁽¹⁴⁾ when he said:-

"I do not believe that whenever Parliament re-enacts a provision of a statute it thereby gives statutory authority to every erroneous interpretation which has been put upon it. The true view is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms. But if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it being overruled.".

18. I doubt if the principle should be restricted to cases which had "long been acted on".

19. But, strictly speaking, neither in Leung Nin's case⁽²⁾ nor in this case does the issue of "absolute offence" arise because in each the accused clearly had knowledge that he was importing the articles in circumstances where he could not reasonably have expected them to be on the manifest.

20. On the real issue Mills-Owens, J. expressed his conclusion in the following terms:-

21. Counsel for the Crown has vigorously attacked these passages. Far, he says, from it being "wrong to speak of a smuggler as importing unmanifested cargo" this may, in appropriate circumstances, be a very apt description of precisely what the smuggler is doing. The Oxford Dictionary defines "Smuggling" as conveying "clandestinely into a country or district in order to avoid payment of regular duties, or in contravention of some enactment". Webster's Dictionary puts it as "bringing into ...... a country secretly under illegal conditions ......".

22. No light, counsel contends, is thrown on the matter by the sentence. "The Regulations, as I see it, relate to goods brought on board qua cargo, and which ought to be but are not entered in the manifest by those whose duty it is to see that they are so entered". Either this is a mere repetition of the Regulation or else it seeks to determine the meaning of the word "cargo" by looking at what ought to be entered in the manifest, which merely reasons in a circle when the relevant Regulation is one requiring the cargo to be entered on the manifest. The suggestion that the judge's view is supported by section 5 depends on what view is referred to. There is no support for the view that smuggled goods are not covered by the word "cargo". On the contrary, counsel says, section 5(1)(c) clearly implies that something placed on the ship without the consent of the owners, charterers, agents or master, can still be cargo. The confusion underlying the whole of this paragraph is illustrated, he says, by the last sentence, where the judge refers to "cargo ...... smuggled on board" which contradicts the opening premise that goods brought on board clandestinely and concealed are not cargo. It may be that the judge used the word "cargo" in the last sentence through inadvertence but if it were to be replaced by another word such as "goods" that would not accord with the terms of the section which he was purporting to construe. Apparently the judge's approach was dominated by his belief as to the intention and purpose of the Regulations themselves but from an extraneous assumption for which there was no authority or justification.

23. It would, counsel continues, be a travesty of interpretation to say that these Regulations, which are on the face of them intended to make smuggling more difficult, have no application to those engaged in smuggling. If all you have to do, in order to render inapplicable a Regulation which says that you will not import unmanifested cargo, is to say "it has been smuggled", the door is opened wide to the very evasion which the Regulation is designed to prevent.

24. The main strength of Mr. Litton's contrary contentions seemed to me to lie in the argument that a man should not be made responsible for the default of another and since the obligation to prepare and present a manifest, and indeed the opportunity and power to do so, lies primarily - Mr. Litton would say exclusively - with owners, masters and compradores, it would be unfair to impose a penalty on others who import goods when these obligations are not fulfilled. Mr. Litton suggested that such a construction would only be tolerable if the word "cargo" could be limited in some way, although it was not immediately apparent to me how limiting the word "cargo" to articles which were known to the captain would provide any significantly greater justification for prosecuting the importer who still bore no direct responsibility for presenting the manifest.

25. There is no doubt that the construction for which the Crown contends does impose on the importer a substantial burden; one which requires him to ensure that the goods which he imports into the Colony are properly manifested by the appropriate parties. This makes him dependent on the reliability of others but this type of legislation is by no means unknown. An obvious example is the prohibition on driving a motor car which is not insured. The obligation to insure it in the first place does not necessarily rest with the driver but he is told that he will drive at his peril if that obligation has not been discharged.

26. I would be happier to deal with legislation less widely constructed. I would like to see it refined to the point where it could not operate other than equitably and justly so as to restrain only the evil doer and place no undue or heavy burden on the honest trader; but it is not always possible, when enacting legislation, to preserve this distinction and to achieve the first purpose without drawing in the other. When this is the result of the plain language used by the legislature it is not the function of the judges to thwart the intention of the legislators though they may well have power to temper the rigour of the law by the exercise of discretion in the imposition of a penalty.

27. I would have thought that, on the face of it, a Regulation which says:-

"No person shall import into the Colony any unmanifested cargo"

could hardly be plainer or more far-reaching. In these matters not a great deal is to be gained by comparing one phrase with another but it seems no less clear and peremptory than the provision:-

"It shall not be lawful for a person to have in his possession"

which, according to Lord Guest, made it abundantly clear in Warner's case⁽⁹⁾ that an absolute offence was intended. Whether the offence be absolute or not the intention to ensure that goods which come into the Colony are shown on a manifest could hardly be made more obvious. I find it difficult to understand why in the Shun Tak Kan⁽¹⁾ and Leung Nin⁽²⁾ cases, effect was not given to the plain language of the Regulation, the application of which was clearly illustrated by earlier decisions. I think these two cases, which are unsupported by any authority quoted to us, run counter to the ordinary canons of interpretation and conflict with earlier decisions, both in Hong Kong and in England, were wrongly decided and should not be followed.

28. The obligations imposed by Regulation 4 of the Registration Regulations and by Regulation 2 of the Cargo Regulations are independent but not exclusive obligations. By the latter, all are told that they will import goods at their peril if those goods are not manifested. The effect, of course, is to make importers feel that they also have an interest in ensuring that the requirement is met. It puts pressure on all concerned in the transaction to ensure that the law is observed. Stringent measures in this field have proved to be necessary in many countries if widespread evasion is to be obviated. If a master could escape responsibility merely by saying "I didn't know" it would be all too easy for him to shut his eyes to much of what went on board his ship. The aim of this type of legislation, as pointed out in the Pan American case⁽⁴⁾, is to ensure that those who are in the best position to do so will take the steps more readily open to them than to anybody else to ensure that the ships or aircraft which they man and which they control are not used for the purpose of bringing undisclosed goods into this territory. It might have been sufficient to provide that goods so introduced should merely be forfeited but the legislature for reasons which apparently commended themselves have made it an offence for anybody to import cargo which has not been manifested. There is no exception for "smuggled" goods. Masters etc. are not to transport them. Importers are not to import them. Apart from statutory exceptions, this prohibition applies to anyone who chooses to import any cargo into the Colony. Anyone choosing to initiate such action is required, at his peril, to ensure that the goods in question are manifested. This is an onerous obligation and could prove to be a heavy burden. It means that an importer may have to rely on the punctilious observance by others of the Regulations and requirements with which they are more directly concerned, but, of course, in the ordinary way of business imports are regularly manifested, and those who import through the ordinary channels need have little anxiety on this score; few regrets need be wasted on those who choose to conceal from those normally concerned in the preparation of manifest goods which should be included in these papers.

29. The sympathy which one might well feel for a man who brings in goods with no intention of breaking the law, and in circumstances which give him no warning that the law is being broken, would be somewhat misplaced in the present instance, where the crew member who brought in these silver coins could have little illusion that he was doing something which in the ordinary way of business would be free form any taint of illegality.

30. It is of course possible that on occasions a bona fide error would occur and goods might fail to appear on the manifest through no fault of an importer and in circumstances where he could reasonably expect the appropriate steps to have been taken by others. The discretion conferred on the court when imposing a penalty would normally go far to take care of such cases if they should be made the subject of prosecution. But there can, I think, be no escape from the conclusion that the coins in the present case are cargo.

31. It will be convenient to leave on one side, for the moment, the second question put in the case stated, as to whether the Crown had proved the manifest of the ship and to turn at once to the third question, i.e. whether the magistrate was right in holding that, under section 11(d) of the Importation and Exportation Ordinance, already quoted, the onus of proof that the articles had been manifested rested on the appellant.

32. In dealing with this point Mr. Litton continued his argument that the Cargo Regulations established a discipline for carriers and not for importers, who were engaged in a different field of activity. He indicated that a broad construction of the expression "cargo" would help his alternative argument by making it all the more necessary to put other limitations on the application of Regulation 2 if an intolerable burden on the business community was to be avoided. The limitation he suggested was to restrict the words "no person" in Regulation 2 to those - the owner, master or compradore of the ship - who by Regulation 10 of the Registration Regulations are required to lodge a manifest; so that importers would be relieved of any concern in making or lodging the manifest, a matter over which they had little or no control, and would be subject only to the obligations and discipline specifically prescribed for them by Regulation 4 of the Registration Regulations. This obligation would, he argued, supersede any obligation under Regulation 2 of the Cargo Regulations; and the importer had, under the Registration Regulations, a period of 96 hours, after importation, within which to lodge the import declaration just as the owner, master or compradore had, under the same Regulations, 96 hours after the arrival of the ship in which to lodge his manifest. There was, he said, no evidence whatever that these requirements had not been satisfied and consequently his client, notwithstanding the terms of section 11(d), should not have been convicted.

33. In support of this contention he directed attention to section 259 of the English Customs Laws Consolidation Act 1876, (39-40 Vict. Cap.36), which reads as follows:-

"259. If in any prosecution in respect of any goods seized for nonpayment of duties, or any other cause of forfeiture, or for the recovering any penalty or penalties under the Customs Acts, any dispute shall arise whether the duties of Customs have been paid in respect of such goods, or whether the same have been lawfully imported or lawfully unshipped, or concerning the place from whence such goods were brought, then and in every such case the proof thereof shall be on the defendant in such prosecution ......".

34. From this he argued that before the court could have recourse to section 11(d) of the Hong Kong Ordinance there should be, as in the case of section 259, proof of certain preliminary matters, such as, in England, seizure of the goods followed by a dispute. This meant, he said, that in Hong Kong, before section 11(d) could come into play, there should be prima facie evidence of the commission of an offence and that the Crown could not merely come into court with evidence that the defendant was in control of goods and then leave it to the defendant to show that they were lawfully imported. There must, he said, be proof, however tenuous, that the defendant was involved in an illegal importation before he could be called upon to shoulder the burden imposed by the section. Otherwise traders and others engaged in their lawful avocations would find themselves faced with burdens which, on occasions, might prove impossible to discharge.

35. As an adjunct to this argument, he contended that the Crown must do one thing or the other. It must either set out to prove that the goods were unmanifested or, from the outset, rely on section 11(d), and, having undertaken the first and failed, the Crown could not then turn to section 11(d) to save it from the consequences of that failure.

36. For this argument he sought support - though admitting it was remote - from the case of Liew Sai Wah v. Public Prosecutor⁽¹⁵⁾, particularly the quotation by Viscount Dilhorne, when delivering the opinion of the Privy Council, from Halsbury Laws of England⁽¹⁶⁾ which says:-

"It is a general rule that penal enactments are to be constructed strictly, and not extended beyond their clear meaning. At the present day, this general rule means no more than that if, after the ordinary rules of construction have first been applied as they must be, there remains any doubt or ambiguity, the person against whom the penalty is sought to be enforced is entitled to the benefit of the doubt.".

Closer to the issues in the present case comes that of Commissioner of Customs & Excise v. Hebson, Ltd. etc.⁽¹⁷⁾, though I think Mr. Litton may have mentioned it more for the purpose of assisting the court in analysing the problem than for the support it afforded to his own argument.

37. The defendants were indeed successful in that case but on the facts rather than on their construction of the law. The Commissioners of Customs were seeking declarations that a foodstuff imported by the defendants was forfeited. Article 1 of the Import of Goods (Control) Orders (1940) prohibited, subject to the provisions of the Order, the importation of all goods into the United Kingdom. From this omnibus prohibition Article 2 exempted an importation under the authority of a licence granted by the Board of Trade. There was an Open General Licence permitting amongst other things the importation of "halva". The defendants claimed the goods in question were halva. The Commissioners claimed they were not. Dealing with the burden of proof Pearson, J. said⁽¹⁷⁾:

"It was argued on behalf of both defendants that in the special circumstances of the Open General Licence, or the Open General Licence system as a whole, the general burden should be regarded as on the plaintiffs, because they are pressing for a severe penalty, and the principle that the burden is on the prosecution throughout should apply in this case. It was argued that it is for the Customs to prove that the goods are prohibited goods in relation to their claim, and that the question as to what is meant by 'halva' in the Open General Licence is not a matter peculiarly within the information or knowledge of the importers ...".

38. Similarly, in the present case, Mr. Litton claimed that the information as to whether the goods were or were not manifested is not peculiarly within the knowledge of the appellant. It is, he said, within the knowledge of the authorities and should be produced by them.

39. In the Hebson case Pearson, J. continued⁽¹⁷⁾:-

40. Pearson, J. then went on to consider a further argument put forward by Mr. Dingle Foot, as he then was, that an Open General Licence is not really an ordinary licence at all but is part of the general law of the land; consequently it should be treated as something different from an individual licence and the Crown should carry the burden of showing that the general law had been infringed. But the judge, after stating that this argument was one of "great force", remained in favour of the contention put forward by the plaintiffs that the burden of proof was on the defendants to establish lawful authority. He went on to note a further argument, on which the Crown did not wish to place strong reliance but merely desired to keep open, that the burden was placed on the defendants by section 259 of the Customs Consolidation Act. The judge, whilst expressing "some diffidence", said he would have been quite willing to decide that this section also put the burden on the defendants.

41. The judge, having thus found in favour of the Crown on the burden of proof, continued⁽¹⁷⁾:-

42. There is little in this to sustain Mr. Litton's argument which must, I think, fail in any event.

43. Whether it is necessary for the Crown to prove in the first instance, that the goods were imported or merely to establish the connection of the defendant with the goods is immaterial as both were established here and are not questioned. Once that stage is completed then, it seems to me, section 11(d), properly construed, does place on the shoulders of the importer the burden of showing that the goods imported have been manifested. This might in certain cases necessitate obtaining information from the vendor and from the carrier; possibly a troublesome task but not one which in itself could justify imposing a limitation on the language of the enactment which would not otherwise be conveyed by the actual words of the legislation.

44. Consequently, I think the learned magistrate was right in holding that in this case it was for the defendant to show that the coins were manifested. Even if the Crown did produce some evidence that the coins were not on a manifest that would not preclude it from asking the magistrate to apply the terms of section 11(d). Once applied this section placed a burden on the defendant which he could only discharge by showing that the coins appeared on a manifest. This he failed to do.

45. In the circumstances, it seems unnecessary to deal with the second question in the case stated as to whether, on the facts, the Crown had produced sufficient evidence to prove that the coins were not manifested. Determination of this question, if it arose, would necessitate consideration of Mr. Litton's argument that in seeking to determine the meaning of the expression "unmanifested" one must look to the requirements of the Registration Regulations and only if it were shown that these Regulations had been contravened could it be claimed that the goods were unmanifested. This might have involved the subsidiary question whether the older concept of a manifest, which, in days gone by, was normally carried on a ship, frequently in a desire to reduce the danger of being taken from the high seas by a man of war into a port to be searched, has now been largely superseded by documents that travel separately. For the purpose of the present case, it is unnecessary to pronounce on these matters and I would not propose to enter upon them.

46. Having answered, in the manner indicated, the questions put to us, I would dismiss the appeal.

Representation:

Henry Litton (Stephen Lo & Co.) for the Appellant.

M. R. Sandors, Crown counsel, for the Respondent.

(1) Case No.1 in March 1966 Criminal Session

(2) Criminal Appeal No.759 of 1968

(3) (1952) H.K.L.R. 30

(4) (1959) H.K.L.R. 366

(5) (1745) 2 Stra. 1228

(6) 11 C1. & F. 85 at p.143

(7) (1967)H.K.L.R. 563

(8) (1967) H.K.L.R. 63

(4) (1959) H.K.L.R. 366 at p.389

(9) 1968 (2)W.L.R. 1303 at p.1339

(10) 1969 (2)W.L.R. 470

(11) 1895 (1) Q.B.D. 918, 921

(12)(1963) A.C. 160, 165

(9) 1968 (2)W.L.R. 1303,1312

(13) M.P. No.88 of 1968

(14) 1949 (2)K.B. 417, 429.

(15) 1968 (2)A.E.R. 738, 741.

(16) 3rd Ed. Vol.36 p.415.

(17) 1953 (2) Lloyd's List Reports, 382, 397.

(17) (1953) Vol.2 Lloyd's List Law Reports, 382, 397.

(18) (1944) K.B. 68.

(19) (1933) 149 L.T. p ...(illegible)

(20) 5 M. & S. 206.

(17) (1953) Vol.2 Lloyd's List Law Report p.382, 399.