HKSAR v. C & C Textiles Ltd
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HCMA713/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.713 OF 2006 (ON APPEAL FROM FLMP 85 OF 2006) ---------------------------- BETWEEN
------------------------ Before : Hon Nguyen J in Court Date of Hearing : 21 August 2007 Date of Judgment : 10 October 2007 ----------------------- JUDGMENT ----------------------- Background 1.On 21 February 2005, the appellant company was convicted of a charge under section 12(1) of the Trade Descriptions Ordinance, Cap. 362, namely importing goods to which a false trade description was applied. The particulars of the charge were that on 19 January 2004, the appellant imported 2,589 ladies knitted cardigans to which the false trade description “made in Uzbekistan” was applied. The appellant company lodged an appeal against that conviction and on 13 July 2005, the appeal was allowed by Pang J, the respondent not opposing the appeal. The reason why the appeal was allowed was that the trial magistrate when considering section 24A of the same Ordinance had committed an error of law. Section 24A of Cap. 362 provides :
2.Section 24A was considered in HKSAR v. Guo Xin Zhi and Another [2004] 3 HKC 50 where it was held that :
3.The trial magistrate who convicted the appellant had fallen into the same error when he said that the appellant had to rebut the presumption created by section 24A on a balance of probabilities. An application by the prosecution for a retrial was rejected by Pang J. 4.On 13 February 2006 the Customs and Excise Department lodged an application for forfeiture of the goods in question. The forfeiture application was heard by Deputy Magistrate Stephen Wong on 13 July 2006. During the forfeiture hearing, the prosecutor called no evidence but produced the transcript of the original trial and certain documentary exhibits which had been produced at the original trial. The law relating to forfeiture of goods 5.The application for forfeiture was made under section 30(1) of Cap.362 which states :
6.Under subsection (3) where goods have not been released to the owner or his authorised agent, the Commissioner of Customs and Excise may, whether in the same proceedings where an offence is prosecuted or in other proceedings under this Ordinance, apply to a court or magistrate for the forfeiture of the goods. 7.Under subsection (4), the court or magistrate, if satisfied that the goods are liable to forfeiture, may order that :
8.Quite clearly then, the Ordinance envisages that the application for forfeiture may be made either during the trial for the prosecution of the commission of an offence under the Ordinance or in other proceedings under the Ordinance. Grounds of appeal 9.Mr Bedford on behalf of the appellant advanced three grounds of appeal. These are :
10.The first two grounds of appeal can be taken together. In essence, counsel’s submission is that the goods in question were not liable to be forfeited unless and until, in accordance with section 30(1) of the Ordinance, it can be shown that an offence under the Ordinance had been committed. It is clear from section 30 that that is all the prosecution need prove and it matters not that no person has been convicted of any such offence. To try and prove that an offence under the Ordinance had been committed, the prosecution relied entirely on section 24A of the Ordinance. Counsel’s submission is quite simply that section 24A could not have been used by the prosecution in the forfeiture proceedings because the section starts off by saying :
Counsel’s submission is quite simply that the forfeiture proceedings were distinct and separate proceedings from the prosecution for an offence under the Ordinance, namely the original trial. Counsel submitted that if it was the intention of the legislature that section 24A can be used in forfeiture proceedings where those proceedings are distinct and separate from the prosecution for an offence under the Ordinance, the legislature should have made that clear in section 24A. If that submission is right, then in my view the legislature could have used the words which appear in section 30(3), namely “whether in the same proceedings where an offence is prosecuted or in other proceedings under this Ordinance” in lieu of the phrase “in any prosecution for an offence under this Ordinance”. 11.The reply by Mr Wong appearing for the respondent is that it is an undisputed fact that the cardigans were imported into Hong Kong from the Mainland. That may be so, but if section 24A cannot be employed in the forfeiture proceedings how does that help the applicant in the forfeiture proceedings that the cardigans were imported into Hong Kong from the Mainland? 12.Mr Wong also submits that to prove that an offence has been committed under the Ordinance as required by section 30(1), the prosecution is entitled to and should turn back to the offence section itself, namely section 12 and apply section 24A which would be relevant for the determination of whether an offence has indeed been committed in relation to the goods sought to be forfeited. He therefore submits that for the purpose of determining whether an offence under section 12 had been committed, the legislature’s intent must be that section 24A can be invoked. He noted that section 30 does not preclude the use of the section 24A provision. 13.I cannot agree with the submission by Mr Wong. On a plain reading of section 24A, that section can only be used where the proceedings are for :
As I mentioned above, if the legislature intended that section 24A can be used for forfeiture proceedings, their intention could have been made quite clear by the use of the words which I suggested above in paragraph 10. Without the use of section 24A which says that the fact that these goods were imported from China would be prima facie evidence that they were manufactured in China, what evidence was there in the proceedings to prove that the goods were indeed manufactured in China? 14.As was decided by the Court of Appeal in The Queen v. CEC Finance Limited [1993] 2 HKCLR 134, the discretion to order forfeiture is unfettered and the question is to be resolved by the court from a neutral starting point :
15.I have found that the use of section 24A in the instant case was wrong and therefore this appeal must be allowed to the extent that the order for forfeiture is set aside. If the Commissioner feels that he can prove that these goods were not manufactured in Uzbekistan without the employment of section 24A then he is at liberty to make another application for the forfeiture of the goods which can then be heard afresh before another magistrate. 16.Before concluding, I should mention that it is most commendable on the part of the Bar Association to provide the Free Legal Service Scheme under the auspices of which this appeal was launched. It is most commendable that counsel would volunteer his time to prepare for and appear in court to argue the appeal. Mr Bedford, most commendably, was able to go through the voluminous transcript of the original trial and the transcript of the forfeiture proceedings, which were all in Chinese. No translations were made and counsel is commended for his industry in this matter.
Mr Michael Wong, SGC of the Department of Justice, for HKSAR Mr Nigel Bedford, instructed by the Bar Free Legal Service Scheme, for the Appellant |
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