Director of Immigration v. Chu Shiu-fat
Read the full judgment text of CACC 760/1980 on BabelCite. This Court of Appeal judgment.
1. This is an appeal by way of case stated under S. 105 of the Magistrates Ordinance arising out of a decision of a magistrate to make an order under section 48(4) of the Immigration Ordinance that a vehicle liable to forfeiture by virtue of section 47(2)(a) of that Ordinance be returned to the owner thereof.
Cited by 1 case
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CACC000760/1980
----------------- Coram: Macdougall, J. Date of Judgment: 10th October, 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal by way of case stated under S. 105 of the Magistrates Ordinance arising out of a decision of a magistrate to make an order under section 48(4) of the Immigration Ordinance that a vehicle liable to forfeiture by virtue of section 47(2)(a) of that Ordinance be returned to the owner thereof. 2. The respondent who was the owner of vehicle No. BB6891 was intercepted by the police on the Tai Po Road on 21st April 1980 and was found to be carrying an illegal immigrant on board. He was subsequently charged and convicted, on his own plea of guilty, of aiding and abetting a person who had landed in Hong Kong unlawfully to remain in Hong Kong without the authority of the Director of Immigration. He was fined $2,000 in respect of that offence. 3. Subsequently the Director made an application under section 48 of the Ordinance to the magistrate for forfeiture of the vehicle. At the hearing of the application the respondent sought to persuade the magistrate to make an order for delivery of the vehicle to him for two reasons, first, that in conveying the illegal immigrant he had not acted in pursuance of any pre arranged scheme, and second that he required the vehicle for business purposes. 4. The learned magistrate, being of the opinion that:
concluded that he must exercise his discretion in favour of the respondent and accordingly ordered that the vehicle be returned to him. 5. The questions posed by the learned magistrate are -
6. Insofar as the learned magistrate concluded that he must exercise his discretion in favour of the respondent for the reason that an order for forfeiture of the vehicle would amount to the imposition of a further penalty which would necessarily cause undue hardship because the first magistrate must have considered the fine of $2,000 to be adequate, he must be wrong. If the view taken by the learned magistrate were correct it would mean that a court would always be obliged to exercise its discretion in favour of a claimant who had been convicted and punished in respect of the earlier prosecution relating to his use of the vehicle for the carrying of illegal immigrants. This cannot possibly have been the intention of the legislature. 7. The first question posed for the consideration of this court has not been framed so as to require an examination of the process of reasoning by which the learned magistrate concluded that the respondent would suffer undue hardship and that therefore the discretion conferred by section 48 must be exercised in his favour. Had the learned magistrate not fallen into error in his underlying reasoning it seems to me that he would have concluded that forfeiture of the vehicle would not involve undue hardship to the respondent and have made an order accordingly. Notwithstanding this, the first question does involve a matter of some importance that is deserving of attention. I will therefore answer it. 8. The subject of forfeiture of a vehicle used in the commission of an offence under section 44(1) of the Dutiable Commodities Ordinance fell for consideration in the Attorney-General v. Chin Chak-wing(1). 9. In that case the magistrate exercised his discretion in favour of the claimant, a hire purchase company, whom he found (a) had taken all reasonable precautions before entering into a hire purchase agreement concerning the vehicle with the person who ultimately used it to commit the offence, (b) was not aware and was not negligent in not being aware, of the nefarious purpose for which the vehicle was being used and (c) was therefore blameless in the matter. On the basis of these findings, he concluded that it would be contrary to the principles of criminal law to impose a penalty on the company. 10. The Full Court held that the operative factor was the presence of the dutiable goods in the vehicle and that the section provided that in such circumstances it may be forfeited. The court was of the opinion that there was nothing in the section to suggest that an additional fact of guilt or negligence on the part of the owner of the vehicle was necessary before the forfeiture provisions could be applied. 11. Hogan C.J. in delivering the judgment of the court said at page 487:
12. The Court observed that in some cases there may be a conflict between the interests of the community, endeavouring to prevent the illegal acts at which the Ordinance is aimed, and those of the owner of the vehicle to whom no fault or error could be ascribed. The view expressed by the court was that, in such circumstances, there would be a natural reluctance on its part to deprive the owner of his property. 13. On the facts of that case, however, the court reasoned that although in a sense the hire purchase company was free from fault or error in that it was ignorant of what was being done with its property, it had nevertheless chosen quite deliberately to relinquish effective day to day control over the vehicle, and that, although it had not foreseen that that particular vehicle would be misused in the manner in which it had been, it must have foreseen the possibility of such an outcome, but nevertheless, whilst maintaining legal ownership, had taken no effective steps to prevent the misuse of the vehicle. The Court concluded that a hire purchase agreement involved a measure of risk and that hiring companies who took that risk must face the consequences. So that where there was a conflict between the two, it was reasonable to subordinate the progress of hire purchase to the prevention of smuggling, and to exercise the power of forfeiture in furtherance of the aims and objects of the Ordinance in which it appeared. In the Court's view the forfeiture provisions could properly be invoked not only to deter the deliberate use of vehicles by their owners in contravention of the Ordinance, but also to restrict the creation by those owners of conditions which are likely to facilitate, or are capable of facilitating, the use of such vehicles, by the less innocently minded, for the purpose of contravening the Ordinance. 14. The Court then drew a distinction between a hire purchase company and an owner whose car had been stolen, and observed that in the latter case the loss of control is involuntary. 15. Finally the learned Chief Justice said:
16. It seems to me to be implicit in the Court's reasoning that where there is a complete absence of fault by the claimant the magistrate should exercise his discretion in the claimant's favour and order that the vehicle be delivered to him. 17. I do not think, however, that it follows from this that where there is fault on the part of the claimant the court must necessarily order forfeiture. If good reason is shown as to why forfeiture should not be ordered, the magistrate may properly refuse to make such an order. Nevertheless, in the exercise of his discretion, he must bear in mind the purpose of the forfeiture provisions and not make an order the result of which would be to frustrate the object of the legislation or to impair its effectiveness. 18. I cannot think, for example, that it would be wrong for a magistrate to order that a vehicle be delivered to the owner where the circumstances were that the latter had conveyed his aged parent, an illegal immigrant suffering from a terminal illness, so that he could pass his few remaining weeks in the bosom of his family in Hong Kong, and where forfeiture of the vehicle would be ruinous to the claimant's business. I do not conceive that such an exercise of the magistrate's discretion could reasonably be said to defeat the object of the legislation or to impair its effectiveness. 19. Where, however, the claimant is a hire purchase company, it is clear from the reasoning in Chin's case that to refuse to order forfeiture on the ground alone that it did not foresee that the particular vehicle concerned would be used in the commission of an offence under the Ordinance, would be an improper exercise of the discretion. 20. In my view it follows from Chin's case that the mere fact that forfeiture would cause undue hardship to a claimant does not of itself resolve the matter in his favour. 21. Consider, for example, the case of a claimant who, for a considerable reward to be paid on the successful completion of his venture, conveys a busload of illegal immigrants but is apprehended before he can reap the fruits of his illegal enterprise. No doubt the forfeiture of the claimant's bus would cause him undue hardship but, again on the reasoning in Chin's case, this consideration alone would not justify a magistrate in refusing to order forfeiture. 22. In embarking on an analysis of Chin's case and in offering some examples which are not directly applicable to the circumstances of the present case I have sought to demonstrate that although there are certain guiding principles that a magistrate should follow in deciding whether to exercise his discretion under section 48 in favour of the claimant, there is no single immutable rule that governs every case other than that he must not come to a decision the result of which would be to thwart the purpose for which the forfeiture provisions were put into the Ordinance. 23. The answer to the 1st question posed by the learned magistrate is therefore : No. 24. Having thus answered the first question it has become unnecessary to embark on a consideration of the second question. 25. It follows from my answer to the first question that the facts disclosed on the case stated did not justify the making of an order for delivery of the vehicle to the respondent. It was not only open to the magistrate to order forfeiture but he should have ordered it. In pursuance of the powers conferred by section 119 of the Magistrates Ordinance, I hereby order that vehicle No. BB6891 be forfeited to the Crown.
Representation: Mr. Maxwell and Mr. Winston Leung, counsel for Appellant. Mr. A. Huggins (Director of Legal Aid) for Respondent. (1) [1961] H.K.L.R. 479
----------------- Coram: Macdougall, J. Date of Judgment: 10th October, 1980 ----------------- JUDGMENT ----------------- 26. This appeal by way of case stated was argued with C.A. 760/1980. 27. The answers to the questions of law posed in paragraph 10 of the stated case are;
28. The reasons for judgment are fully set out in C.A. 760/1980 and those reasons apply equally to the present appeal.
Representation: Mr. Maxwell & Mr. Winston Leung, counsel for Appellant. Respondent in person. |
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