Attorney General v. Leung Koon-yau and Others

CACC000303/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 303 OF 1982

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BETWEEN

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Coram: Garcia J. in Court

Date: 16 November 1982

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JUDGMENT

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1. This is an appeal by the Attorney General by way of case stated under Section 105 of the Magistrates Ordinance against an order made by the magistrate whereby 111 hemp sacks of silver ornaments, weighing approximately 2754 kilograms are to be returned to the Respondent.

2. The sole question which now falls to be considered in this appeal is whether the magistrate was wrong in principle on the evidence before him, including the summary of facts, to refuse to order forfeiture of the goods in question, the first one framed in the case having been abandoned at the outset of this hearing.

3. The facts set out in the case are shortly as follows : At about 6 p.m. on 1st June 1981, the 3rd Respondent, SIU Tan-bo, the owner of the Shiu Kee Transportation Co. was instructed by the 2nd Respondent, SO Man-ming to take delivery of the sail goods from a Taiwan Fishing Boat Which was on the high seas off the Nine Pins Croup of Islands. Arrangements were then made by the 3rd Respondent with the 1st Respondent, LEUNG Koon-yau, who was the master of the lighter M50283Y, to sail to the designated rendezvous later that day. He did so with the 1st and 2nd Respondents on board and between 8.30 p.m. and 9.30 p.m. the same day the lighter arrived at the rendezvous where the goods were taken off the fishing boat on to the lighter and eventually conveyed to the Flying Eagle Trading Co.'s premises at Wing Lok Street for storage.

4. Shortly after midnight while the goods were being unloaded a party of Police came upon the persons involved in handling the goods and inquiries were thereupon made from them as to who the owner of the goods was. Whilst these inquiries were in progress, the party was joined by the 3rd Respondent, and no satisfactory reply having been received by the Police to the said query, the 3 named Respondents and the other persons involved in handling the goods were taken into custody. They were later referred to the Customs & Excise Service for further inquiries but none of the 3 named Respondents were able to produce any kind of document to show, firstly, who the owner of the goods was, and secondly, there was nothing to indicate that the goods were lawfully imported into Hong Kong. On 4th June 1981, the fourth Respondent, HUNG Wing-wah, went to the Customs and Excise Service and claimed that he was the importer of the goods. Inquiries were made of him and he stated that he was acting on the instructions of his friend in Taiwan, a Mr. LI Ying-long to collect such goods from the fishing boat on the said date and to sell them to Lee Cheong Goldsmith. As he was busy on 1st June, he asked the 2nd Respondent to make the necessary arrangements for him to take delivery of the goods for storage at the Flying Eagle Trading Co. He was unable to produce any instructions from Mr. Li, nor a manifest to show that the goods had been lawfully imported into Hong Kong. However on 18th June, 1981, he produced a copy of an Import Declaration (Form I) to the Trade Industry and Customs Department to indicate that he was the importer of the goods.

5. On 28th July, 1981, the four above-named Respondents appeared in the Magistrate's Court at Western and charged with importing the goods into Hong Kong as unmanifested cargo. They pleaded guilty to this charge and each of them was fined $2,500. On 30th July, 1981 an order was made by the magistrate forfeiting the goods to the Crown out on 20th November, 1981, after a review, he reversed his order.

6. On the occasion when he had ordered forfeiture of the goods, the magistrate acted upon the following findings :

When the magistrate reviewed his order on 18th November, 1981, he had no fresh evidence before him nor was there any variation of the findings listed to show who the owner of the goods was on that date. It is therefore surprising that he should have reviewed his order once he had firm grounds for making the order for forfeiture in the first place. Moreover, even on the hearing of the Review, there was no valid claim made by any of the Respondents to the goods in question, and I would on the ground that he could not be satisfied who the owners of the goods were on the evidence before him, have been disposed to answer the question posed in this affirmation. How could the magistrate have exercised his discretion judicially, in view of the evidence before him, in the way that he did in the Review? It has been admitted by the Respondents that the goods imported into Hong Kong were unmanifested cargo by their guilty plea to the above-mentioned charge and even if they were not disposed to do so, the surreptitious manner in which the goods were collected from the high seas ?? within Mainland china would raise the suspicion that these goods were smuggled from some part of the Mainland - but in any event they were smuggled into Hong Kong. The fact that the 4th Respondent made an import declaration 3 days after the goods came into Hong Kong does not in my view alter the status of those goods - they were unmanifested cargo.

7. It has been submitted that the manifest is a mere piece of paper and therefore the absence of it was a mere technical breach of the Ordinance - it being accepted from the facts that no part of the cargo was prohibited from import into Hong Kong nor was there any evasion of duty.

8. I think it goes without saying that if a manifest had been produced to the Police for the cargo, it would have likely been allowed to be unloaded into the premises of the Flying Eagle Trading Co.

9. But the manifest, and the requirement that cargo imported must be shown in the manifest are not merely technical breaches of the Ordinance because the importation of unmanifested cargo is attended by substantial penalties - a maximum fine of $50,000 or 6 months imprisonment - so that contraventions of the Ordinance are treated very seriously by the Legislature, the maximum fine having been raised from $10,000 to $50,000 in August 1980.

10. In exercising his discretion, the magistrate should have considered the following passage from the judgment of Hogan, C.J. in Attorney General v. Chin Chak Ming (1961) H.K.L.R. 479 which case was cited to him :

"The forfeiture provisions of this section were put into the Ordinance for the purpose of enforcing it and serving as a deterrent against its contravention. They were put there to be used when the prescribed conditions arose, unless some good reason is shown to the contrary. The facts disclosed on the case stated in the present instance would not, in our opinion, justify a refusal to use them."

11. In that case, the magistrate forfeited dutiable tobacco seized from a vehicle under section 44(1) of the Dutiable Commodities Ordinance, Cap. 109, but refused to forfeit the vehicle under s.16 of the same Ordinance, exercising his discretion in favour of his claimant, a hire purchase company, because he had found that (a) the company had taken all reasonable precautions before entering into the hire-purchase agreement, (b) that they were not aware and were not negligent in not being aware of the nefarious purpose for which the vehicle was being used and were, therefore, blameless in the matter; whereupon, it would be contrary to the principles of criminal law to impose a penalty on them.

12. It was held that section 16 of the said Ordinance provides that when dutiable goods are found in a vehicle it may be forfeited; there is no additional requirement of guilt or negligence on the part of the owner for its forfeiture. No good reason has been advanced in this case so far tire magistrate was concerned as to why he should not have exercised his discretion to confirm the order of forfeiture - from the admitted facts there was no clearer case of a deliberate evasion of the relevant law, nor was there any satisfactory evidence to enable him to order the cargo to be returned since he himself had not accepted the production of a power of attorney without the necessary certification or authentication by the competent authorities.

13. In the recent case of Attorney General v. So Ma Por and Others (Application for Review 1981 No.13) which dealt with the proper sentences for the offence of attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, the Court considered the case of Chan Kam Bor & Others v. R. (Criminal Appeal 239 of 1981) where it was said by O'Connor, J. when dealing with an appeal against the sentences imposed (inter alia) for the offence of exporting unmanifested cargo :

"It is clear that a continuing smuggling of articles of any type in either direction between Hong Kong and China is an irritant, tending to disturb the smooth relationship existing between Hong Kong and China."

In the later case, Roberts, C.J. added :

"We agree that substantial weight can be given to the damage that is likely to be done to Hong Kong's relationship with other territories by activities of this nature."

14. Whilst these two cases are only dealing with the export of unmanifested cargo and the sentences therefor, they are in my view equally applicable to the import of unmanifested cargo and to the exercise of the discretion by a magistrate when considering forfeiture under the provisions of section 27(l) of the Import and Export Ordinance.

15. In my judgment, on the acts before him, it was not only open to the magistrate to make the order of forfeiture asked for but he should have made it as he had done on the first occasion application was made to him. I therefore answer the second question in the affirmation, allow the appeal, and hereby order that the goods in question be forfeited to the Crown pursuant to sec. 119 of the Magistrates Ordinance.

Representation:

D.S. Kilgour, Crown Counsel, for Appellant.

Henry Litton, Q.C. & Jimmy Kwong (K.Y. Woo & Co.) for Respondents.