Hui Yau v. The Queen
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CACC000091/1981
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 91 of 1981 -----------------
----------------- Coram: Mayo J. Date of Judgment: 10th April, 1981. ----------------- JUDGMENT ----------------- 1. A preliminary point was raised that the learned magistrate had not been seized of the matter when he heard the application as it has not been proved that the provisions of section 27(3) and 27(4) of the Import & Export Ordinance, Cap. 60 had been complied with. These subsections lay down the requirements for the Director of Commerce & Industry to give notice to the owner or the person in possession of the article seized that it is his invention to apply for forfeiture of the goods in question. 2. I do not consider there to be any merit in point. The question of serving the requisite notice was a matter which arose prior to the application which was made by the appellant. He did not see fit to raise this issue at the hearing of the application. The appellant proceeded with his application and he can not now be heard to argue that the application was defective due to the absence of proof that the Director complied with the statutory requirements preliminary to the application. I am satisfied that there is no merit in this submission. 3. However the main grounds of this appeal are that the learned magistrate was wrong in making an order that the goods which were seized in relation to case No. SK 7930/80 should be forfeited. 4. In that case the appellant pleaded guilty to having placed a cargo on board the m.v. Tai Fook Shan without the consent of the owner of the vessel contrary to section 16(i) of the Import & Export Ordinance Cap. 60. The cargo consisted of miscellaneous items and during the course of the proceedings reference was made to the goods being valued at approximately $100,000.00. I accept that it is clear that a claim should have been made by the appellant for the goods based upon his having been in possession of the goods. This was accepted by the learned magistrate in his statement of findings. 5. What is in issue in this application is the question of owner-ship of the goods and the question as to whether an order should be made for the goods to be returned to the owners, or forfeited. 6. Mr. Donnelly who represented the appellant submitted that the findings by the magistrate were perverse in that he ordered item 14 on the list of 31 items which were seized to be returned to the appellant and for the remaining items to be forfeited. He argued that it was impossible in logic to distinguish between the evidence of ownership given relating to item 14, 28 porcelain statues, and the evidence given in respect of all the other items. In addition to this he argued that it was clear from the statement of findings that the magistrate had adopted an incorrect standard of proof in determining the question of ownership. He submitted that the magistrate had adopted the burden of proof in criminal cases, i.e. proof beyond a reasonable doubt when he should have considered the question on the balance of probabilities as is required in civil proceedings. The reason he gave for this was that forfeiture proceedings are civil proceedings. His authority for this proposition is the case of the Attorney General v. Mercado(1), I accept that the standard to be adopted is the civil standard namely proof on the balance of probabilities. 7. Mr. Donnelly also placed considerable reliance upon the findings of the magistrate that if he had been satisfied on the question of ownership of the goods in question they should not have been forfeited on account of their value and the disproportionate loss which would be sustained if such an order was made. 8. With respect to Mr. Donnelly I think that this argument overlooks a basic difficulty which arises in this application. In the absence of the ownership of the goods being resolved in favour of the appellant, little or no hardship can be shown to arise. 9. The question of ownership of the goods was the central issue which had to be considered by the magistrate. It was never satisfactorily resolved who the goods belonged to at the hearing before the magistrate. 10. In the agreed facts at the hearing of case SK 7930/80 it was admitted by the appellant, inter alia, that all of the items of goods seized belonged to him. However at the hearing of the forfeiture proceedings the appellant gave conflicting evidence regarding the owner-ship of the goods. He stated on oath that some of the goods belonged to a Mr. Cheung Ah Ying and that he had a part ownership in respect of some of the other items. There was no satisfactory evidence before the magistrate upon which he could make a determination as to who the goods belonged to. 11. This difficulty is compounded by the fact that there is provision in the ordinance contained in section 28(5) for the owner of goods seized to come forward and make a claim in relation to goods which have been seized. No one other than the appellant saw fit to make any claim. 12. In the absence of satisfactory evidence as to ownership I do not think it was open to the magistrate to make any order for the return of the goods to the owners thereof. This must be the case regardless of the standard of proof which is adopted by the magistrate. 13. It may be the case that there was some inconsistency on the part of the magistrate when he ordered that item 14, the porcelain statues, should be returned to the appellant. In the absence of satisfactory evidence concerning the ownership of the statues it may be said that the appellant was fortunate that the magistrate agreed to the statues being returned to him. This does not affect the main issue in this case namely the right of the appellant to have the other items returned to him. 14. There is one other aspect of this application that I would like to deal with. It was implicit in the arguments advanced by Mr. Donnelly that if a claim could be made by the appellant I should order that the goods should be returned to him. Either as bailee of the goods or as the authorised agent for the owners. Mr. Donnelly referred me to the forfeiture provisions in various ordinances and referred to the legislature making it clear that forfeiture was in some cases mandatory. He argued that such provisions were very different to those laid down in the Import & Export Ordinance. I accept that this is true. However, equally, I am satisfied that a magistrate must carefully weigh and consider whether it is just to make an order for the forfeiture of goods or that they be returned to the owner. I do not see how he is able to do this unless he has before him, satisfactory evidence of the ownership of goods. The appellants mere possession of goods does not of itself confer a title to the goods. It may be the case that his stake in the goods is a small one or non existent. Certainly it has not been established that he would suffer undue hardship if the goods are forfeited to the Crown. 15. For the reasons I have given this appeal is dismissed.
Representation: Mr. Donnelly, Q.C. & Leo Remidios (Y.K. Poon & Co.) for Appellant. Mr. J.W. Dick for Crown/Respondent. (1) H.K.L.R. 1968 p.704 |