Attorney General v. Lam Mok
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1. The point raised in these two cases stated is a short one. We are told that another magistrate has reached a different conclusion upon it from that reached by the magistrate who tried both these cases.
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CACC000301A/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 300 OF 1975 -----------------
----------------- CRIMINAL APPEAL NO. 301 OF 1975 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 19th June 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The point raised in these two cases stated is a short one. We are told that another magistrate has reached a different conclusion upon it from that reached by the magistrate who tried both these cases. 2. It is not in dispute that s.86A of the Public Health and Urban Services Ordinance makes it mandatory for a magistrate to make an order of forfeiture in certain circumstances, but what is in issue is the subject matter of such order. The material part of the section is as follows:
Although the Cases Stated do not say so in so many words, it is implicit that the informant (or informants) in the present cases informed the court of a seizure under s.86(1) and that in each instance there was seizure of equipment and commodity. Although we have been referred to the definitions in s.83, nothing turns upon them here. Section 86(1), under which the seizures were made, empowers an authorised public officer to seize "any equipment or commodity in respect of which he has reason to believe that a hawker offence has been committed". It has not been, and could not reasonably be, suggested that because the Legislature there used the disjunctive "or" it was not lawful for the authorised public officer to seize both the equipment and the commodity: he had reason to believe that a hawker offence had been committed in respect of both and he seized both. It was that seizure (or, perhaps more accurately, those seizures) of which the court was informed in each case and upon which the magistrate based his order (or orders) for forfeiture. 3. If the matter rested there it is nevertheless possible that we would be forced to say that, although the Legislature probably intended to make it obligatory that everything seized should be forfeited, that intention had not been expressed with sufficient clarity and that the statute must be interpreted in favour of the Respondents. For my part I am unable to accept the argument advanced on behalf of one of the Respondents that the section gave the magistrate a discretion to choose between three alternatives: (i) to forfeit the equipment only, (ii) to forfeit the commodity only or (iii) to forfeit both the equipment and the commodity. I am clearly of opinion that, if there was any discretion at all, he had a choice between only (i) and (ii) 4. However, that in truth there was no discretion appears to me beyond question when I look at sub-s.(2) of s.86A. This sub-section ordains in effect that, where for sufficient reason no order of forfeiture is made, the goods seized shall be returned to the person charged if it be shown that he was lawfully entitled to possession at the time of the seizure. Thus no order will be made where the person from whom the goods were seized is acquitted or in a case where under para. (b) of sub-s.(1) the court finds special reasons for the exercise of a discretion not to make an order. Neither of those circumstances exists in the cases at bar. If there were a further discretion under para.(a) of sub-s.(1) to order forfeiture of only the equipment or only the commodity where both had been seized, one would have expected the section to require that the property not included in the Order should be similarly returned. The omission of any such provision convinces me that Mr. Carolan's submission is right and that the intention was that, subject to para. (b) of sub-s.(i), all property seized under s.86 must be forfeited if the person charged is convicted. 5. I would therefore answer the question put to us "No" and would remit the case to the learned magistrate with directions to make an order of forfeiture of the equipment as well as of the commodity. 19th June 1975. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 300 OF 1975 -----------------
----------------- CRIMINAL APPEAL NO. 301 OF 1975 -----------------
----------------- Coram: Full Court (Briggs, C.J. Huggins & McMullin, JJ.) Date of Judgment: 19th June, 1975. ----------------- JUDGMENT ----------------- McMullin J.: 6. A point of some importance is raised in both these cases which are presently before us by way of case stated from the decisions of the magistrate, Mr. Ryan, given in both cases on the 28th of February 1975. The respondent in 300, LUI Fuk-yuen, was unrepresented but the matter was argued on behalf of the respondent in 301, LAM Mok, by Mr. Dennis Cheng and it is common ground that the same point of law falls to be decided in both cases. 7. In each case the respondent had been convicted under By-law 5 and By-law 56(1)(a) of the Hawker By-laws 1972 for hawking cooked food without a licence. They were each fined $10 and the learned magistrate ordered that the cooked food seized upon the occasion should be confiscated but that the hawking equipment seized at the same time should be returned to the respondents. The Attorney General argues that the learned magistrate had no such discretion and that the true situation is that once commodities and equipment have been seized under the provisions of Section 86 of the Public Health and Urban Services Ordinance then, upon conviction for an of ence relating to such equipment etc., the court is obliged to order the confiscation of all commodities and equipment so seized. 8. The material part of Section 86A(1) reads as follows:
The sole point at issue concerns the true interpretation of the word "or" in the second line of that subsection. In coming to the conclusion that he had a discretion in the matter the learned magistrate relied principally upon the provisions of Section 3 of the Interpretation & General Clauses Ordinance where the following appears:
Mr. Carolan for the Crown objects that this provision was irrelevant to the issue before the magistrate. Its real purpose, he says, was to do away with the ejusdem generic rule and it can have no reference to the words "equipment or commodity" where they appear in Section 86A(1) since any suggestion that those two terms enjoy some generic connection is in any event removed by the fact that those very terms are defined in Section 83 of the Ordinance in a manner which makes them mutually exclusive of each other. To my mind thin is clearly correct. The Interpretation Ordinance is therefore of he help and we must turn to the wording of Sections 86 and 86A them elves in order to determine the intention of the Legislature in these provisions. Under the former section an anthorised officer is clearly given a discretion to seize either commodity or equipment when he is satisfied that an offence in respect of them has been committed. The word "may" is used. Once things of both kinds have been seized however and the offending owner has been prosecuted to conviction in respect of his use of them, Section 86A by mandatory terms obliges the court to make an order for confiscation. There is no discretion left in the court not to make any order for confiscation whatsoever. The question is whether a discretion is left to the court to distinguish between the two different kinds of things in making any confiscatory order. The only discretion expressly given to the court in the section is to be found in paragraph (b) of Subsection 1 of Section 86A which applies to offences other than offences which have been designated for the purposes of the subsection. That discretion is to refuse to confiscate things seized in respect of non-designated offences if special reasons are shown why no order of confiscation should be made. The offences involved in the present case are clearly designated offences and paragraph (b) throws no direct light upon the present problem since even in cases to which that discretion of the court applies the question will still arise, where both commodity and equipment have been seized, whether the court is obliged to order confiscation of all things seized. Mr. Cheng suggests that it would be very unlikely that the Legislature intended to give a discretion to minor executive officials which was to be denied to the courts. That consideration coupled with the familiar canon which obliges a mitigating interpretation of provisions imposing penal sanctions in cases of doubt would certainly justify the more lenient interpretation of the words in Subsection 1 if the intention were not clear. In the end however, although I cannot say that I much relish it, it seems to me that in this regard the language of Sections 86 and 86A makes the intention of the Legislature only too clear. The decisive contrast is between the permissive formula used in 86(1) which authorises initial seizure and the mandatory direction to the court under 86A(1) in regard to the disposition of items seized. The designated offences which are beyond the alleviation of the court's power to find special reasons for non-confiscation under 86A(1)(b) are four in number. Of these, there are two (By-laws 5 and 36) which prohibit hawking without a licence and two (By-laws 22 and 48) which prohibit hawking outside the licensed area or beyond the confines of the licensed pitch respectively. Clearly those are matters of fundamental concern in relation to the control of hawking generally. No doubt that is why they are exempted from the relief offered by 86(1)(b). In their regard it is understandable that the controlling authority should take the rigorous view that any delinquent who was so fundamentally at fault should constantly be at risk of forfeiting every thing in the interests of control. 86(1)(b) may be of indirect assistance here. It could scarcely be argued that in the case of a non-designated offence, where special reasons had been shown, the court, in exercising its discretion in favour of the delinquent, might discriminate between commodity seized and equipment seized since it is difficult to envisage special reasons which would not apply equally in extenuation to every item seized. Likewise in respect of designated offences once it is accepted that the court's discretion to refuse confiscation is excluded where one thing or the other only is produced before the court there does not seem to be any good warrant for restoring its discretion solely by reason of the fact that things of both kinds have been produced. I would therefore answer the question posed in both cases in the negative and I think the cases must be remitted to the learned magistrate with a direction to confiscate all the property seized in each case. Representation: Carolan, C.C. for Crown/Appellant. Respondent of Criminal Appeal No. 300 of ...(illegible) ...(illegible). D. Chang (D.L.A.) for Respondent of Criminal Appeal No. 301 of 1975. |