Attorney General v. Kwok Wai Pang

HCMA001046/1990

MAGISTRACY APPEAL NO. 1046 OF 1990

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HEADNOTE

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IMPORT & EXPORT ORDINANCE - MEANING OF "OWNER" IN S.27(3)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1046 OF 1990

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 29 November 1990

Date of delivery of judgment: 21 December 1990

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JUDGMENT

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1. This is an appeal by the Attorney General by way of case stated from a decision of Mr. Todd at Fanling Magistrates Court refusing forfeiture of a vehicle under s.27(3) of the Import & Export Ordinance, Cap. 60.

2. The question of 1aw posed by the magistrate is "Does the word "owner" in Section 27(3) of the Ordinance refer to or include any person or entity other than the owner considering the specific restriction contained in the definition section 2 of the Ordinance for the purposes of Part VI?"

3. S.27(3) of the Ordinance provides :

4. S.2 provides : "owner" means, other than for the purposes of Part VI :

There is no definition of owner in Part VI, which includes s.27.

5. The magistrate took the view that, as the s.2 definition did not apply to s.27, in the case of a vehicle subject to a hire purchase agreement, "owner" meant the finance company not the registered owner.

6. Mr. Tse, for the respondent, submits that the magistrate was right, on the grounds that, the true owner being excluded from the s.2 definition, which is limited to the registered and other apparent owners, the legislature has provided that this definition shall not apply to s.27, in order to avoid the possibility of forfeiture of property belonging to an innocent person, such as the finance company in this case.

7. Mr Tse points to the reference to apparent owner in s.27 (2) & s.27 (5) as emphasising the intention to give a different meaning to "owner" in s.27 (3).

8. There are two answers to this argument. The first is that subsections (2) & (5) are not general in nature and are, in contradistinction to subsection (3), beneficial to the apparent owner. A registered owner is moreover not just an apparent owner; he has rights and duties under the Road Traffic Ordinance. If "owner" in s.27 (3) includes registered owner, as Mr. Saw, for the appellant, submits it does, that would be consistent with the proviso that notice need only be given to one owner.

9. The second answer lies in one of the intended purposes of the ordinance. In Attorney General v. Chin Chack-wing and another [1961] HKLR 479, Hogan C.J., giving the judgment of the Full Court, said at p.490 :

"An agreement for hire-purchase is a legitimate business transaction but it is not necessarily one that should be allowed to obstruct or hinder the enforcement of the fiscal laws of the Colony. It is a transaction which involves a measure of risk, and those who take the risk must face the consequences. The law with which we are now primarily concerned, section 16 of the Dutiable commodities Ordinance, was designed, not to facilitate hire-purchase transactions, but to make more effective the provisions for levying duty. When some measure of conflict arises between the two, it seems reasonable to subordinate the progress of hire-purchase to the prevention of smuggling, and to use the powers conferred by the section in furtherance of the aims and objects of the Ordinance in which it appears."

10. The Import & Export Ordinance and, the Dutiable Commodities Ordinance both contain strict regulatory elements and provisions for forfeiture. The dictum of Hogan C.J. has equal relevance here. For if the magistrate is right, the forfeiture procedure can be frustrated by the registered owner, in cases such as this, failing to reveal the identity of the finance company within 21 days. Since s.27 (3) is mandatory, that cannot have been intended by the legislature.

11. The reason for excluding the s.2 definition from Part VI is this. Other parts of the ordinance deal with carrying prohibited articles, cargo manifests and powers of investigation. In such matters, it is clearly desirable, from the regulatory point of view, that "owner" be defined broadly. For example, it is entirely reasonable that a person in control of a ship should, as "owner", be able to avail himself of the defence in s.18 (2) to a charge of importing or exporting unmanifested cargo - that he did not know the cargo was unmanifested.

12. Not so in the case of forfeiture. If notice. under s.27 (3) could be given to such a person e.g. a driver, the rights of the registered owner might be gravely and unfairly prejudiced.

13. It cannot, however, have been intended that forfeiture proceedings should not take place just because the Commissioner was unable to obtain the name of the finance company within 21 days of the seizure. That in my judgment is an absurd proposition.

14. The appeal is allowed and the question answered in the affirmative.

Representation:

Mr D.G. Saw and Miss Tsang, Crown Counsel, for Appellant.

Mr Joseph W.Y. Tse, instructed by M/s. Ip & Willis, for Respondent.