Re Director of Immigration

HCMP000470/1981

Immigration Ordinance, Cap. 115 - principles to be applied in exercising discretion whether or not to order forfeiture of vessel used in the commission of an offence - owner fails to satisfy court that it would be "just and equitable" not to order forfeiture under section 37F(6).

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Fuad, J.

Date: 7 August 1981

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ORDER

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[Transcribed from oral reasons]

1. This is an application by the Director of Immigration under Part VIIA of the Immigration Ordinance, Cap. 115, for the forfeiture of a vessel that was used in the commission of offences under section 37C and 37D of the Immigration Ordinance. It came before my brother Macdougall J. on the 1st May but had to be adjourned because the solicitors who had been acting for the respondent had ceased to act and it was necessary to serve the respondent personally.

2. On the 22nd May 1980 the respondent, who is the owner of a fishing vessel No. M60419P, was intercepted by the authorities within Hong Kong waters and two unauthorized entrants were found on board. The respondent was charged before the High Court with two offences, firstly with being the owner of a ship which entered Hong Kong waters with unauthorized entrants on board contrary to s. 37C(1)(b) of the Ordinance and secondly with assisting the passage within Hong Kong of unauthorized entrants contrary to s.37D(1)(a) of the Ordinance. After a trial before Macdougall J. and a jury, on the 25th November 1980, he was found guilty on both counts and was sentenced to 18 months imprisonment for each offence, the sentences to run concurrently.

3. The Director of Immigration has received the app in writing of the Attorney General to seize and detain the vehicle as required by s.37E(2) of the Ordinance. He has served notice of seizure on the respondent and has given the necessary notices, in the Gazette and in an English and Chinese newspaper also required by the ordinance. The respondent, as he was permitted to de under s.37E(5) of the Ordinance (being a person who had a claim for the purposes of ss. 37E and 37F of the ordinance, under s.37E(9) of the Ordinance) gave notice that the vessel was not liable to forfeiture. This was done through the solicitors who were then acting for him.

4. Evidence on an originating mot on is usually by affidavit but since the respondent had not filed an affidavit, in all circumstances, I decided it would be right to hear him. He told the court that he had borrowed the money to buy the vessel and that his fear was that if the court should order forfeiture the lender would seek to recover the loan from him. He estimated that the present value of the vessel is between $80,000 and $90,000, with which assessment the Crown agrees. Mr. Adams, who appears, for the Director of Immigration, tells me that while the vessel was in a Government dockyard it sunk, and he does not know whether it has ,yet been raised.

5. When one reads sub-section (6) of s.37F of the Ordinance, it is quite clear that the law requires the court to order forfeiture to the Crown unless the objector satisfies the court that it is just and equitable in all the circumstances to order, either that the ship should not be forfeited at all, or that while the ship should not be forfeited, instead certain penalties should be ordered to be paid to the Crown. The words just and equitable" are well-known words and, as the courts have found in the very different field of companies legislation, for example, there is really no adequate equivalent to them. They give the court a wide discretion which must, of course, be exercised judicially, but in the context of this Ordinance the court must bear in mind that the onus is on the respondent to satisfy the court that it would not be just and equitable for a forfeiture order to be made.

6. It would be impossible and undesirable to attempt to define the circumstances in which the court should exercise the discretion not to forfeit, but one might venture to give some example:-

7. By their verdict the jury clearly accepted that the respondent was the owner of the vessel and that he knew that the two illegal immigrants were on board. The penalty of forfeiture, when added to a substantial sentence of imprisonment, is no doubt a severe one and the law is in that sense harsh, but it is quite clear that the legislature made provision for forfeiture as an added deterrent to persons who might be minded to breach the immigration legislation in a manner which has had such serious repercussions on society in Hong Kong.

8. In my judgment, the respondent has not put forward any grounds which would justify me in holding that it was just and equitable not to order forfeiture. Since the vessel is still in existence, the fact that it has sunk is neither here nor there. In the exercise of my discretion under sub-section (6) of s. 37F of the Immigration Ordinance, I order that fishing vessel No. M60419P be forfeited to the Crown. Since Mr. Adams is not asking for costs, there will be no order as to costs.

Representation:

Mr. N. W. Adams, Senior Crown Counsel, for Attorney General/Applicant.

Mr. KWOK Yiu-tai, Respondent in person.