The Queen v. Cheung Tai Yau and Another

HCMA000414/1992

HEADNOTE

Import and Export Ordinance cap. 60 - whether acquittal of criminal offence operates as a bar to forfeiture proceedings.

IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

MAGISTRACY APPEAL NO. 414 OF 1992

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BETWEEN

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Coram: The Honourable Mr. Justice Wong in Court

Date of Hearing: 18 August 1992

Date of Delivery of Judgment: 3 September 1992

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J U D G M E N T

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1. On the application by the Attorney General an behalf of the Customs and Excise, Mr. Mackintosh sitting in Kwun Tong Magistrate's Court, on the 14th April 1992, made an order for forfeiture of 133 television sets, 1 cargo conveyer, 1 wooden plank and 4 keys. It is against this order that CHEUNG Tai-yau (C1) and YEUNG Wa-sing (C2) now appeal.

2. It is not in dispute that CHEUNG Tai-yau (C1) is the owner of the goods and effectively the claimant in these proceedings.

3. The facts giving rise to the forfeiture proceedings were very briefly these. At about 12:40 a.m. on 8th June 1991, two police constables on foot patrol approached the seaward side of a godown at No. 4 Hoi Pang Street, Sai Kung and saw three unlit motorized sampans. Cardboard boxes were being loaded onto the sampans. The boxes were coming from the rear of the godown via a cargo conveyer and a wooden plank sliding down to where two men were waiting to pick up the boxes and placed them on the sampans. After observing what was going on for a few minutes, the officers decided to take action and moved forward. Two of the three men on shore boarded the sampans and immediately sailed away. Neither these two men nor the others already on board the sampans had been identified. The third man on shore was C1 who had been helping to move boxes from the conveyer onto the slide.

4. C1 was arrested and taken into the godown where the officers discovered a quantity of other boxes containing television sets and a number of other television sets which were not in boxes. They were situated in a room next door and not in the room immediately adjacent to the conveyer. C1 was in possession of keys to the premises.

5. He later told police that the premises were an electrical appliances company registered in the name of his brother-in-law, C2 and he was the manager responsible for the moving in and out of goods. He admitted to be the owner of the television sets which had been there for about one and a half month and none of them had been sold during that time. He said that he had gone to the godown in response to a telephone call from a man surnamed Chan who had asked to buy four television sets and that he arrived at the warehouse at about 1 a.m. He went to the rear of the premises and saw the sampans. He waited there for a while and was intercepted by the police. He denied taking part in the activities described by the officers.

6. C1 was charged under section 35A(1)(c) of the Import and Export Ordinance for assisting with the removing of restricted articles with intent to assist another person to evade the restriction. He pleaded not guilty and was acquitted after trial by Mr. T.S. Jenkins. The magistrate in that case found that the prosecution had not proved that the boxes being transferred onto the sampans (none of which had been recovered) contained television sets and that despite the highly suspicious nature of the conduct of C1 on that night, he was not guilty of the charge brought against him because the prosecution had failed to prove that C1 was engaged in assisting with the removing of restricted articles. Television sets are articles by virtue of the Schedule to the Import and Export (Carriage of Articles) Regulations 1991. The magistrate also refused an application by the prosecution to bring an amended charge under section 35A(1)(a) which provides:

"Any person who knowingly has possession of any article, the carriage of which is restricted under the regulations made under this Ordinance with intent to evade the restriction or prohibition or to assist another person to evade the restriction or prohibition etc."

7. At the forfeiture proceedings, it was contended on behalf of the Attorney General that while it was necessary to prove that the goods being loaded onto the sampans were television sets, the carriage of which is restricted in a charge brought under section 35A(1)(c) of Cap. 60, this was not necessary in an application for forfeiture. All the Crown needed to establish was that there had been a contravention of the Import and Export Ordinance by someone in relation to the items for which forfeiture was claimed. Once that was done, the liability to forfeiture would arise, notwithstanding the acquittal of C1. It was further argued that the facts proved in proceedings before Mr. Jenkins amounted to a contravention of section 35A(1)(a). C1 or someone else was in possession of a restricted article in circumstances that gave rise to a reasonable suspicion of an intention to evade the restriction and in the absence of evidence to the contrary the presumption in section 35A(2) comes into play.

8. On behalf of the claimants, it was argued that the television sets in the godown were entirely separate from whatever had been going on with the sampans by the landing area and that the goods were therefore not liable to forfeiture.

9. The arguments advanced before me by Mr. Mumford were that since C1 was acquitted of a charge under section 35A(1)(c) there could be no contravention of the Ordinance in terms of section 27(1). The acquittal, he submitted, was for all intent and purposes a bar to all subsequent proceedings. He sought to draw support from the decisions in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458; D.P.P. v. Humphreys [1976] 63 Cr. App. R. 95 and Connelly v. D.P.P. [1964] 48 Cr. App. R. 183 and in particular he relied heavily on a passage of the speech of Lord MacDermott which was quoted in Humphreys by Lord Hailsham at page 115:

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is no less applicable to criminal than to civil proceedings."

10. But his Lordship immediately went on to say in the next paragraph on the same page:

"While I endorse every word of the above passage in the context of the particular case leading up to the conclusion I have outlined I cannot give it the universal applicability which alone would give it relevance here. It would have been clearly wrong in the circumstances of that case for the Crown to argue either (1). that the verdict of acquittal on the ammunition charge was wrong or (2) that it was open to the court to convict on the firearms charge on the basis of the alleged confession unless it clearly understood that the accused was in fact to be treated as innocent on the ammunition charge which was so closely linked to the firearm charge to which the alleged statement related."

11. A close examination of Humphreys certainly does not support the proposition that Mr. Mumford advanced because it was held there that although evidence given at a trial is not admissible at a second trial to prove the guilt of a person of an offence of which he had been acquitted at the first trial or which he could have been convicted at the first trial but was not; nevertheless, that determination in the first trial of an issue in the defendant's favour was no bar to the admission at the second trial of evidence given at the first trial, even though that evidence, if accepted, at the second trial, would lead to the inference that he was guilty of the offence of which he was acquitted at the first trial; thus the trial judge had rightly admitted the evidence of the constable, for the doctrine of issue estoppel was inapplicable, the appeal would be allowed and the conviction of the defendant of perjury would be restored.

12. The line of authorities so heavily relied upon by Mr. Mumford concerned with discussions of doctrines such as issue estoppel in criminal cases and autrefois acquit or autrefois convict and, in my judgment, have no relevance to forfeiture proceedings which are not criminal in nature and the standard of proof is the civil standard of balance of probabilities. There is no one in the dock in forfeiture proceedings which do not determine the quilt or innocence of any individual accused.

13. The magistrate made these findings of facts at p. 42 and p. 43 of the appeal bundle:

"C1 was in possession of the televisions stored in a godown adjacent to the waterfront n Sai Kung. There was no doubt from the speedy departure of the other participants and the sampans, loaded with boxes from that godown in the early hours of the morning, that a smuggling operation had been interruped by the police."

14. I entirely agree C1 was seen moving boxes from the conveyer onto the slide where two men picked up the boxes and placed them onto the sampans. He was clearly not an innocent bystander; he was an active participant in what must be a smuggling operation. To argue that the boxes being loaded onto the sampans were empty ones is, to say the least, unrealistic and an improper inference of the evidence. The evidence clearly establishes a contravention of the Ordinance.

15. Section 27(1)(a) provides:

"There shall be liable to forfeiture any article which has been seized by a member of the Customs and Excise Service or an authorized officer in connection with the contravention of any provision of this ordinance, whether or not any person has been convicted of an offence in respect of such contravention."

16. In my judgment, this subsection is wide enough and clearly intended to cover not only situations where no one has been charged or convicted but also where a person has been acquitted like C1 was in this case.

17. The appeal is dismissed.

Representation:

Mr. Josiah Lee, Sr. Crown Counsel for the Crown

Mr. Mumford Q.C. with Mr. Albert Luk instructed by Messrs. K.C. Tsang & Co. for the Appellants