Woo Chi-wing v. The Queen

CACC001018/1980

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Coram: Bewley, J.

Date of Judgment: 2nd January, 1981

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JUDGMENT

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1. On 21st May this year 28 bars of gold were seized by customs officers on board a ship which had just arrived from Bangkok. An application was made to a magistrate for forfeiture to the Crown under sections 27 and 28 of the Import and Export Ordinance, Cap. 60. The application was granted and the appellant, who claimed ownership of the gold before the magistrate, now appeals to this Court.

2. There were prior criminal proceedings before another magistrate. The appellant, together with a member of the ship's crew, was charged and convicted under section 18(1)(a) of Cap. 60 of importing unmanifested cargo, namely the 28 gold bars.

3. In those proceedings the Crown case was contained in a typed statement of facts, which was admitted by both defendants under section 65C of the Criminal Procedure Ordinance, Cap. 212. It contained a number of admissions made by both men under caution, including the fact that the appellant had purchased the 28 bars from a friend two or three months ago for HK$4,020,000 and had asked his co-defendant to bring them to Hong Kong.

4. Section 28(8) provides that upon the hearing of the application for forfeiture:

"A certified true copy of the record of the proceedings, including the decision of the Court in any proceedings in respect of the contravention of any provision of this Ordinance, shall be admissible in evidence."

5. The appellant elected not to give evidence at the forfeiture hearing and the only evidence was the admitted statement of facts. The learned magistrate took the view that, as there had been no cross-examination of the appellant, the veracity of the assertion of ownership in his cautioned statement had not been tested and he had not, therefore, discharged the burden of proving that he was the owner of the seized goods. Under section 28(6) it was mandatory, in these circumstances, to order that the gold be forfeited to the Crown and the magistrate so ordered.

6. Mr. Duckett, who appears for the Crown on this appeal, concedes that the only evidence before the magistrate was to the effect that the appellant was the owner of the gold. He does not, therefore, seek to uphold the magistrate's decision.

7. The only question was whether this Court should exercise its discretion as to forfeiture under section 28(7), or whether the matter should be remitted to the magistrate. Counsel agreed that the latter course was preferable and I so ordered.

Representation:

Mr. Corrigan (W.S. & Co.) for appellant

Mr. Duckett, Assistant Crown Prosecutor, for respondent