Attorney General v. Carlitc Jaranilia

CACC000532/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.532 OF 1968

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Coram: Morley-John, J.

Date of Judgment: 12 November 1968

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JUDGMENT

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1. On the 30th March 1968 a party of Revenue Officers boarded the M.V. "Philippines" on her arrival from Manila. Revenue Inspector Cheng Heung Wah asked the Chief Officer of the ship for the ship's cargo manifest which he said the Chief Officer handed to him. One item on this manifest was described as "7 Tins Tagalog Films for Dubbin" and marked "CONFI". However when the 7 tins so marked were opened, instead of containing the films as described in the manifest each tin was found to contain silver coins. These were seized by the Revenue Officers and before he left the ship Revenue Inspector Cheng informed the Captain of the seizure and asked him to certify the ship's manifest as a true copy. This, the Captain did and he then gave the manifest to Revenue Inspector Cheng who retained it.

2. On the 18th of July 1968 an application was made in the Magistrate's Court that these coins be forfeited to the Crown as unmanifested cargo imported into the Colony contrary to Regulation 2 of the Unmanifested Cargo Regulations made under Section 5 of the Importation and Exportation Ordinance, Cap.50.

3. This application was refused by the learned Magistrate, whereupon the Crown applied to the learned Magistrate to state a case on the following grounds:-

4. The learned Magistrate stated that there was no question that the seized silver coins contained in the 7 tins arrived from Manila on the 30th March, 1968 and that there was no question that the seized coins arrived in Hong Kong, the port of delivery, by the S.S. "Philippine" (in fact, according to the evidence, the ship's proper designation is the M.V. "Philippines"). The learned Magistrate stated that the only question was whether the documents exhibited in evidence before him were import manifests within the meaning of Section 11, para.(a), Cap.50 remembering that be constitute a statutory presumption in favour of the Crown they had to be furnished by the owners, or charterers, or agents of the ship from Manila. He went on to state "we cannot suppose, or assume that when a witness produces any document calling it a manifest or the ship's manifest or the shipping agents' manifest, such document not being furnished or signed by its proper authority cannot be received as manifests within the meaning of Section 11, para.(a) of Cap.50". The learned Magistrate also stated "the word 'furnish' means to insure and to supply and provide what is necessary useful and desirable. And it is reasonable to expect a person or authority to sign any information or document which such person or authority furnishes for the benefit of another person or authority".

5. The learned Magistrate therefore stated that he was of the opinion that neither Exhibits P.2 - P.4 nor the Exhibit P.5 are manifests within the meaning or Section 11, para.(a), Cap.50 that they were mere copies without any signature attached to them by any responsible authority from the loading port, namely Manila, and therefore refused the application that the coins be forfeited. Regulation 2 of the Unmanifested Cargo Regulations provides that no person shall import into the Colony any unmanifested cargo. Section 5(2) of the Importation and Exportation Ordinance defines unmanifested cargo as meaning cargo not entered on the manifest of the ship or aircraft.

Section 17(1) of the Importation and Exportation Ordinance provides that wherever there occurs a contravention or an attempted contravention of any provision of the Ordinance or any Regulation made thereunder in respect of any article, such article shall be liable to forfeiture whether or not any person is convicted of any offence.

Section 11(a) of the Importation and Exportation Ordinance provides that if any cargo appears on any import manifest furnished by the owners, charterers or agents of any ship or aircraft or by the master of a ship or person in charge of an aircraft at any time before or after the arrival of such ship or aircraft in the Colony it shall be presumed in favour of the Crown against any other party that such cargo was imported into the Colony on board such ship or aircraft unless such other party proves affirmatively that such cargo was not in fact carried into the Colony on board such ship or aircraft.

6. As the learned Magistrate has stated the only question is whether the documents exhibited in evidence before him were import manifests within the meaning of Section 11, para.(a), Cap.50.

7. There is no statutory definition of manifest as such in either the Importation or Exportation Ordinance or in any of the Regulations made thereunder, but Regulation 10 of the Importation and Exportation (Registration of Imports and Exports) Regulations does provide, inter alia, what particulars must be specified in a manifest of cargo imported in every ship, i.e. the number, description and gross weight of packages, the distinguishing marks or numbers appearing on each package, a description of the article in each package, the name and address of the consignor of each package, the place at which each package was loaded on to the ship, and the reference number, letters of the bill of lading in respect of the consignment of each package, and so far as Exhibit P.5 (the document produced by Revenue Inspector Cheng as the ship's manifest) is concerned that document contains all the aforementioned particulars. It is interesting to note that in this Regulation which deals with the particulars that must be contained in manifests, how and where they must be lodged etc., there is no provision that a manifest must be signed, whereas with regard to statements of goods imported to which provisions of the Dutiable Commodities Ordinance apply and which must be furnished under the provisions of that Ordinance there is specific provision that such statement must be signed by the party furnishing it.

8. According to Pullan's Commercial Dictionary "Manifest usually means a statement of a ship's or aircraft's cargo showing marks, numbers, description of goods, shipper's and consignee's names etc."

9. I am satisfied therefore the Exhibit P.5 is in the correct form of a ship's manifest. The learned Magistrate has stated that Exhibit P.5 is not a manifest within the meaning of Section 11(a) of Cap.50 as it is a mere copy without any signature attached to it by any responsible authority from the loading port, Manila.

10. Here I must disagree with the learned Magistrate as I am satisfied that a ship's manifest is merely a statement of a ship's cargo in the form of Exhibit P.5. That the particulars contained in the printed form Exhibit P.5 appear to be inserted therein in carbon indicating that there is more than one copy of this manifest, in my opinion, does not alter the fact that Exhibit P.5, produced by the First Officer and certified and furnished by the Master, was the actual Cargo Manifest carried on board the M.V. "Philippines". I disagree with the learned Magistrate that to furnish this manifest in accordance with the provisions of Section 11 of Cap.50, it must be signed as there is no provision in the Ordinance or Regulations requiring that it should be signed. He also has stated that it must be furnished by the owners, or charterers, or agents from Manila, whereas Section 11 provides that the manifest be furnished by the owners, charterers, or agents of any ship, or by the Master of a ship, and I am satisfied that in this case Exhibit P.5 was furnished by the Master of the M.V. "Philippines".

11. I am satisfied, therefore, that Exhibit P.5 is the ship's manifest of the M.V. "Philippines" and that the 7 tins appearing in that manifest as part of the cargo of the ship described as containing Tagalog Films for Dubbin did not contain such films but instead contained the silver coins, the subject of the application. These silver coins are unmanifested cargo as defined by Section 5(2) of the Importation and Exportation Ordinance and as such, they have been Imported into the Colony in contravention of the Regulation 2 of the Unmanifested Cargo Regulations and are therefore liable to forfeiture in accordance with the provisions of Section 17 of the Importation and Exportation Ordinance.

12. This appeal is therefore allowed, and under the provisions of Section 119(d) of the Magistrates' Ordinance, Cap.227, I condemn the silver coins, the subject of the application, as forfeited in accordance with the provisions of Section 17 of the Importation and Exportation Ordinance.

Representation:

Sandor, C.C., for Appellant.

Shears (Kho & Lo) for Respondent.

Written judgment read in Court.