Yip Wing Sum v. The Queen

CACC000465/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 465 OF 1975.

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Coram: Huggins, J.

Date of Judgment: 18th August 1975.

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JUDGMENT

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1. This is an appeal against an order of a magistrate that goods be forfeited under s.28 of the Import and Export Ordinance. The Appellant was previously charged with an offence under the Ordinance and convicted and sentenced. The offence related to the exporting of unmanifested cargo, namely a very large quantity of ginseng. The application, as I say, was for the forfeiture of those goods. The magistrate heard the facts, which I think were not really in dispute, and he decided that an unconditional order of forfeiture ought to be made.

2. It is contended in the present case that the discretion which the learned magistrate accepted that he had - whether to make or to refuse an order - was limited by him in a manner which was not authorised by law. In my view this contention is unjustified. If, indeed, the magistrate had limited his discretion it is beyond doubt that this Court would have to interfere, but there is a great difference between saying that unless certain circumstances are in existence the Court will make an order and saying that because certain circumstances do not exist in the instant case, and in all the circumstances of the case, an order will be made. What happened was that the magistrate, in giving his reasons, went into some detail to show the part played by the Appellant in the smuggling: he was directly implicated and was a party to a conspiracy - and, indeed, to a second attempted conspiracy in relation to the goods. The magistrate referred to the fact that the discretion, as it appeared in the statute, was unlimited and he said it was "a very wide discretion". He referred to a previous decision of his own, which, he said, was the only guidance which he could find as to how this section ought to be regarded. In that case the circumstances were somewhat similar. There had been no previous proceedings, it would appear, and the Commerce and Industry Department applied for the forfeiture of some 2,600 watches. In that case the magistrate clearly did not think that his discretion was in any way limited and he made an order for the return of the watches conditional upon the payment of a fine. I say nothing in the present case as to the propriety of imposing a fine as a condition of the making of an order, but counsel in the present case seeks to say that here despite the fact that in 1972, in a case to which the magistrate here expressly referred, the magistrate was satisfied that he was not in any way limited in his discretion he has indicated that he thought he had only a limited discretion. In my view his Reasons for verdict show quite the contrary. There is nothing to suggest that the magistrate had changed the opinion which he clearly had in 1972. All that he was saying here was that all the circumstances of the case, including the very important factor that the Appellant had been directly implicated in a serious way in the attempt to smuggle these articles, ought to be considered and that, taking the evidence as a whole, he was satisfied that an order ought to be made. He did not say that because the Appellant was at fault "therefore" he was not prepared to exercise his discretion. I see no reason to believe that he did not consider all the circumstances, and in my view there is no ground upon which I could properly interfere. There was a clear distinction between this case and the previous one on the facts, but even if there had not been I am not by any means certain that it would have been proper for me to interfere: it was a matter which was in the discretion of the magistrate.

3. I see no reason to think that the magistrate did not exercise his discretion in a judicial manner and the appeal is therefore dismissed.

18th August 1975.

Representation: