HKSAR v. Chow Yuk Leung

HCMA000169/2004

HCMA169/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.169 OF 2004

(ON APPEAL FROM FLMP 688 OF 2003)

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Coram: Hon Gall J in Court

Date of Hearing: 17 March 2004

Date of Judgment: 17 March 2004

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J U D G M E N T

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1.The appellant is a claimant who is appealing an order made by a magistrate on 7 January 2004 forfeiting a lorry, registration no.EZ5135, and its ignition key.

2.The facts were that on 29 July 2003 the lorry arrived at the Sha Tau Kok control point for customs clearance. The driver of the vehicle, Mr Chan Kok Ming, tendered a manifest that declared the vehicle empty. The vehicle underwent an examination. During the search of the vehicle a secret compartment was discovered in the roof of the cargo compartment of the vehicle and a total of 550 computer hard disks in custom-made trays were found in the secret compartment.

3.The defendant in that trial was found guilty and an application was made by the Customs and Excise for forfeiture of the vehicle and the keys.

4.The claimant is the owner of the vehicle and had originally driven it to the Mainland himself. He wished to buy another vehicle and borrowed money to buy one. He could not sell EZ5135 so he decided to lease it to Mr Lam which he did in early June for $5,000 per month.

5.The magistrate heard evidence concerning the claim by Mr Chow who said this about the leasing arrangement :

"The leasing arrangement was very informal. There was no documentation produced. The Claimant clearly retained all rights and responsibilities of the owner, one of which is to ensure the vehicle is not used illicitly. ..."

6.Before me today the claimant has produced what he says is an agreement between he and Mr Lam for the leasing of the vehicle. I permitted him to be examined by the respondent in respect of the providence of this agreement. He was shown his statement to the Customs and Excise dated 9 August 2003 which he acknowledged to be his statement. He acknowledged that he signed that as being true and correct.

7.In the statement he was asked this question : "You rented vehicle EZ5135 to Lam Tak Man did you sign with him any contract or agreement?" The answer that he gave was : "I only had an oral agreement with him." By that answer the claimant clearly understood what was meant by the word "agreement" because he used it in his answer. When being asked further about the written agreement he produced in court, he said that he thought "contract" meant many documents with a company but was unable to clarify the question in regard to "agreement". He maintained that the agreement he had shown me this morning was an existence from the time of the leasing of the lorry. I do not believe him.

8.The evidence was given equivocally and his explanation for the clear and open answer that he gave to the Customs and Excise concerning the agreement is wholly unconvincing.

9.The law that prevails in cases such as this is set out in R. v. CEC Finance Ltd [1993] 1 HKLR at p.134 where Bokhary JA (as he then was) set out the matter in which the magistrate should approach his discretion in respect of an application to forfeit :

"... The discretion to order forfeiture being unfettered, the question whether or not to so order is to be approached from a neutral starting point, with both parties on a level playing field, so to speak, and each with the onus of proving on a balance of probabilities any fact which he or it asserts if that fact is not admitted by the opposite party. That is how the question is to be approached. And it is to be answered by reference to what is just in all the circumstances as the magistrate finds such circumstances proved or admitted."

10.The magistrate found that the claimant retained all rights and responsibilities of the owner, that he knew cross-border trade and the illicit use of the vehicle was a real possibility. The magistrate found that the claimant introduced the driver to Mr Lam and that he had at no time since renting the vehicle checked or inspected it.

11.I cannot fault the approach made by the magistrate and the appeal against his order of confiscation or forfeiture is dismissed.

Representation:

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

Appellant, in person