Read the full judgment text of CACC 000303/1982 on BabelCite. This Court of Appeal judgment was delivered on 16 November 1982 before Garcia J..
Criminal law – importation of unmanifested cargo – forfeiture of goods – Import and Export Ordinance – section 27(1) – Dutiable Commodities Ordinance, Cap. 109 – sections 16 and 44(1) – Magistrates Ordinance – sections 105 and 119 – review of magistrate's order – exercise of discretion – case stated – appeal by Attorney General. The four respondents pleaded guilty to importing 111 hemp sacks of silver ornaments (approximately 2754 kg) as unmanifested cargo, having arranged for the goods to be collected at sea from a Taiwan fishing boat off the Nine Pins and unloaded surreptitiously at night at the Flying Eagle Trading Co.'s premises. The magistrate initially ordered forfeiture to the Crown but on review reversed his order and directed return of the goods. On appeal by the Attorney General by way of case stated, the court considered whether the magistrate was wrong in principle to refuse forfeiture. Held, allowing the appeal: the absence of a manifest is not a mere technical breach; importing unmanifested cargo attracts substantial penalties (maximum fine raised from $10,000 to $50,000 in August 1980). Per Hogan CJ in AG v Chin Chak Ming (1961) H.K.L.R. 479, the forfeiture provisions of the Ordinance are intended to enforce it and deter contravention, and should be invoked when prescribed conditions arise absent good reason to the contrary; no good reason was advanced. The 4th Respondent's belated import declaration did not change the goods' unmanifested status, and an unauthenticated power of attorney did not establish lawful ownership or justify displacing the original forfeiture. The principles applied in cases concerning export of unmanifested cargo under section 18(1)(b) of the Import and Export Ordinance (AG v So Ma Por and Others, Application for Review 1981 No.13; Chan Kam Bor & Others v. R., Criminal Appeal 239 of 1981) regarding the seriousness of such offending and its impact on Hong Kong's relations with neighbouring territories apply equally to import of unmanifested cargo. The goods were ordered forfeited to the Crown pursuant to section 119 of the Magistrates Ordinance.
Legal issues: Whether magistrate erred in refusing forfeiture of unmanifested cargo on review
Outcome: Appeal allowed; the magistrate's reversal of the forfeiture order set aside and the goods ordered to be forfeited to the Crown.