HKSAR v. Tsoi Sai Yim t/a King Jin Telecom Trade Co

HCMA 376/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 376 OF 2009

(ON APPEAL FROM FLMP 776 of 2008)

____________

BETWEEN

____________

Before: Deputy High Court Judge E Toh in Court

Date of Hearing:  21 August 2009

Date of Judgment:  21 August 2009

_______________

J U D G M E N T

_______________

1.This is an appeal against a magistrate’s order for the forfeiture of the articles seized under the Import and Export Ordinance (Cap. 60).

2.The learned Magistrate after hearing the evidence and considering the exhibits and oral evidence found that the goods were liable to forfeiture, however, he found that the Appellant was an innocent party and therefore entitled to have his goods returned to him. Upon the concession of counsel for the Appellant at the time, the learned Magistrate ordered that the Appellant pay for the storage of the goods in order to have his goods returned to him.

3.The Appellant now appeals against the ruling and order of the learned Magistrate.

4.This case is very simple, the Appellant, on the evidence, is a genuine businessman. He is a wholesaler of mobile telephones.

5.The Customs’ officers had been making observation of a hut in Lok Ma Chau because they were investigating some smuggling related activities. The evidence tying the Appellant’s premises to the hut was that a car which was undoubtedly involved in this smuggling related activities had been seen having some boxes put in it, which was taken from the premises of the Appellant to the relevant car, and that was about 6 days prior to the Customs’ officers going to the premises of the Appellant.

6.One of the issues was whether there was evidence to tie the Appellant’s premises to the smuggling related offences, which was undoubtedly going on in that hut. The Respondent said that the only evidence really that tied the Appellant’s premises to the smuggling related offences is the fact that boxes were seen being carried out from the Appellant’s premises to the car then men were seen to have carried the boxes to the hut. That was 6 days ago.

7.The only other evidence that counsel for the Respondent could point to was the fact of the photographs Exhibits A4-6. Photograph 12, which show some mobile telephones wrapped up in a kind of plastic material and these were mobile telephones seized at Lok Ma Chau. Photograph 11 in Exhibit A5, show mobile telephones, which had been seen there at the village hut wrapped in plastic packaging. Photograph 17 in Exhibit A6, show the mobile telephones seized at the Appellant’s premises. Miss Ng submitted that from the photographs, the mobile telephones look similarly packaged and therefore one can draw the necessary inference that they were connected.

8.Unfortunately, as Mr Percy pointed out at the hearing before the learned Magistrate, no one was called to give evidence about the similarity of packaging of the mobile telephones found at the three places.

9.I agree with Mr Percy, that just by looking at the photographs, all one can see is that perhaps the plastic materials used may be similar, however, no one knows whether the packaging was similar e.g. similarly and stapled was the wrapping of the phones done in any particular way.

10.In these circumstances, Miss Ng said there are not any other evidence because she is restricted by what was produced at the time.

11.Based on that evidence, I therefore have to find the learned Magistrate’s ruling that these goods are subject to forfeiture was in error. There is no admissible evidence linking these goods to the smuggling related offences. Therefore, these goods were not liable to forfeiture. The Appellant should have these goods returned to him unconditionally. So the appeal is allowed.

12.I am informed that number of mobile telephones to be returned, in item 46, should be 191 instead of 190.

13.I consider it is reasonable, in the circumstances to order costs be to the Appellant for the appeal and the hearing below to be taxed if not agreed.

Mr Duncan Percy, instructed by Messrs Michael Pang & Co, for the Appellant

Ms Hermina Ng, Public Prosecutor, for the Respondent