HKSAR v. Choi Kwok Keung

HCMA 384/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 384 OF 2010

(ON APPEAL FROM TMMP 503 OF 2009)

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 28 October 2010

Date of Judgment: 18 November 2010

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J U D G M E N T

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1.The Appellant appeals against part of a forfeiture order made by the Magistrates’ Court under section 28(7) of the Import and Export Ordinance, Cap. 60. The Magistrate had convicted seven men of attempting to export unmanifested cargo, contrary to section 18A(1)(c) of that Ordinance, and had sentenced them to various terms of imprisonment. That was followed by an application to the Magistrate for the forfeiture of all the goods concerned. The Magistrate forfeited all the goods.

2.Some of the goods had been seized at a warehouse.  Some of the goods had been seized at a jetty outside the warehouse.  Some of the goods had been seized on a sampan moored at that jetty.  There was a backdoor leading from the warehouse to the jetty at which the sampan was moored.

3.The Appellant and a Mr Lee Kwok-fu opposed the forfeiture of the goods seized at the warehouse.  Neither the Appellant nor Mr Lee laid any claim to the goods seized at the jetty or on the sampan.  They accepted that the goods seized at the jetty and on the sampan were the subject-matter of the attempted smuggling and were liable to forfeiture.

4.Mr Lee has dropped out of the picture, but the Appellant now appeals against so much of the forfeiture order as relates to the goods seized at the warehouse.  In his skeleton, where he is referred as “Mr Choi”, the Appellant says:

“Mr Choi’s claim was for all goods either as owner or bailee in possession seized at location 3 plus certain items of his Warehouse Equipment (See Table A at Appeal Bundle 57 to 63). He called his customer Mr Lee who had bailed to him goods at location 3 as shown in Table A. This was a sub-bailment by Mr Lee who was thus no longer as bailee in immediate possession. However these technicalities are not of great moment since Mr Lee could be, and was eventually by agreement treated as himself making a claim under I.E.O. S.28(3A) Cap. 60 which permits such a course.”

5.The Appellant appeals on two grounds.  The first ground of appeal is that the Magistrate “had in the criminal trial already decided that those controlling and using the warehouse … were doing so as a cover for a smuggling operation”, that this was “utterly central” to the forfeiture proceedings, that neither the Appellant who “leased the warehouse … nor his customer” Mr Lee had been charged, and that the Magistrate had erred in declining to recuse himself from hearing the forfeiture application.

6.The second ground of appeal is that the Magistrate: (i) “failed properly, to evaluate the evidence and credibility of the Appellant”; (ii) “failed properly to evaluate the evidence and credibility” of Mr Lee; (iii) “erred in finding that the goods in issue were liable to forfeiture as being seized in connection with “the offence”, the “test” being “an objective one”; and, alternatively (iv) “wrongly exercised his discretion to refuse relief against forfeiture”.

7.As to the first ground of appeal, I do not think that it can be said that a Magistrate either can always or can never properly hear a forfeiture application which is opposed by a person who was not an accused at the criminal trial itself.  It must depend on the circumstances, and is fact-specific.  The thing to note at once about the circumstances of this case is that the Magistrate formed the impression that the Appellant was a dishonest witness and regarded his evidence as “most unbelievable”.  So the basis on which the Appellant asserted that he had status to lay claim to the goods and oppose forfeiture of them was rejected.  That was obviously the fundamental basis on which the Magistrate decided against the Appellant.  It is true that the Magistrate went on to say that he felt sure that the Appellant was “highly complicit in the smuggling”.  But that was not a necessary finding.  Once the Appellant failed to prove any status to lay claim to the goods and oppose forfeiture of them, that was the end of his opposition to forfeiture.  It is also to be noted that the Magistrate had said, before rejecting the Appellant’s evidence of ownership, that he would look at the matter “afresh”, without being “in any way bound by any of [his] previous findings in the smuggling case”.

8.It is argued on the Appellant’s behalf that an informed reasonable bystander might reasonably conclude that there was an appearance of bias on the Magistrate’s part.  In all the circumstances, I do not think that such a bystander might reasonably so conclude.  In my view, the first ground of appeal fails.

9.As to the second ground of appeal, I do not think that the Magistrate failed properly to evaluate the Appellant or Mr Lee’s evidence.  It appears to me that the Magistrate went about his fact-finding function properly.  I see no basis on which I can properly interfere with his findings of fact.  As far as his exercise of discretion is concerned, I see no basis on which I can properly interfere with it.  In my view, the second ground of appeal also fails.

10.The appeal has been ably and thoroughly argued on behalf of the Appellant, but it must be dismissed.

Mr Maurice Tracy, instructed by Messrs Henry Chiu & Partners, for the Appellant

Ms Agnes Chan, of the Department of Justice, for the Respondent