The Queen v. Lai Shap Ng

HCMA000455/1991

HEADNOTE

Magistracy appeal - forfeiture order - smuggling unmanifested goods - general powers of investigation - s. 20, 26 & 27 Import and Export Ordinance.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 455 OF 1991

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BETWEEN

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Coram: The Hon. Mr. Justice Sears in Court

Date of Judgment: 9 July 1991

Date of Handing Down Judgment: 16 August 1991

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J U D G M E N T

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1. This is an appeal from an order of forfeiture  made by Mr. Saunders at the Tuen Mun Magistracy, pursuant to s. 28 of the Import and Export Ordinance, Cap. 60.

2. The brief facts were that at about 7.40 p. m. on June 16th 1990 a motorised sampan left the Castle Peak Bay  typhoon shelter and headed towards an inflatable boat manner   by Customs officers. The sampan ignored an order to stop and then was beached. The Customs officers found 37 VCRs and 19 air conditioners. The goods and the boat were tire subject of the forfeiture order.

3. It was elicited in cross-examination of the prosecution witnesses that this sampan together with another had been seen earlier in the typhoon shelter approaching other vessels berthed there.

4. Section 27(1) makes liable to forfeiture:-

"(a)    any article which has been seized ... in connexion with the contravention of any provision of the Ordinance."

5. It is an offence under s. 18 to export any unmanifested cargo. These articles were unmanifested. The Privy Council in Attorney-General v. TSE Hung-lit (1988) 1 HKLR 25, however, held on facts  where a sampan had waited in Hong Kong waters to load goods onto a fishing boat which did not turn up, that a conviction for attempt to export contrary to s. 18 could not be upheld.

6. It appears to me that on the facts of the present case, the sampan may have been going to China or Macau; further the Privy Council recognised that a charge of conspiracy to export could have been properly laid. The magistrate held that under s. 21 there was a special power to stop a vessel on reasonable suspicion of an offence being committed and s. 26 (1) (b) makes it an offence if a person "fails to comely with any requirement, direction or demand ... of a Customs Officer." He therefore concluded that the goods were liable to forfeiture.

7. Mr. Mason Parker submits the magistrate erred in finding that there was a reasonable suspicion of an offence being committed. It is clear, however, that there is a general power to investigate given to Customs officers by virtue of s. 20:-

"(1) Without prejudice to the powers conferred by section 21, any member of the Customs & Excise Services ... may, for the purposes of this Ordinance.

(b) stop, board and search any veesl, aircraft or vehicle."

8. In my judgment, when Customs officers find motorised sampans at night they are entitled to stop and search them. If they do not obey a signal to stop, then an offence is committed under s. 26 (1) (b). The goods which are subsequently seized are therefore seized in connexion with the contravention of s. 26.

9. The hearing before the magistrate was unnecessarily complicated and it is no fault of his that he had to deal with complex legal submissions. He was not told of the general powers under s. 20. His findings are very full and clear. I come to the same conclusion as he did by a different route, and I trust that in future these applications for forfeiture are dealt with on a more simple basis.

10. The appeal is dismissed.

Representation:

Mr. Casewell for the Crown.

Mr. S.R. Mason-Parker (M/s Haldane, Hidgley & Booth) for the Appellant.