Jose Felismino Mercado v. The Queen

CACV000015/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.15 OF 1969

Coram: Huggins, J.

Date of Judgment: 11 November 1969

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JUDGMENT

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1. This is an appeal against an order of forfeiture made by a learned magistrate under s.17 of the Importation and Exportation Ordinance. The officials of the Commerce and Industry Department went aboard the steamship "Oronsay" lying in Hong Kong harbour and found in a cabin a very large quantity of Philippine coin currency. These coins have been claimed by the appellant. The learned magistrate first held that certain evidence which was submitted to him at the first hearing of the application for forfeiture was inadmissible. There was an appeal to this court and I held that the evidence was admissible. The case was remitted to the learned magistrate to complete the hearing. It was upon that further hearing that he made his order of forfeiture.

2. The appeal is based on a number of grounds. The first is, it is said that in order to succeed upon an application under s.17 the Crown must prove a contravention of the Regulations. The exact terms of s.17 are:-

That the Crown must prove a contravention of a Regulation or of the Ordinance is not in dispute. What is said here is that the contravention must be proved beyond all reasonable doubt. No authority for that proposition has been advanced and in my view it is unsound. It was held in the previous appeal in the present case that proceedings for forfeiture were of a civil nature and that the civil standard of proof was that which was to be applied. At the same time I did point out that the authorities tended to show that there was perhaps not so much distinction between the two standards of proof as was sometimes thought to exist. It is perhaps unfortunate that the learned magistrate directed himself in the present case that the issue he had to decide was whether the evidence established a contravention under s.15(1) of the Importation and Exportation Ordinance: it would have been more accurate to say that he had to consider whether there was a contravention under reg. 2 since that is the provision a contravention of which was alleged to give rise to the right of forfeiture. However, this is of no consequence, for the contravention referred to by reference to s.15 could only be a contravention under reg. 2.

3. The only evidence here is the record in the criminal proceedings which took place before the hearing of the application for forfeiture. This applicant was charged under s.15 of the Ordinance and he was acquitted. It has been argued that the record of those proceedings, although now held to be admissible, does not provide sufficient evidence to justify a forfeiture here, because it shows that the appellant was acquitted. It is conceded that even where there is an acquittal such a record may be sufficient evidence - but not where the ownership of the goods was not in dispute in the criminal proceeding. The contention seems to be that if the magistrate who tried the criminal charge, and who had the advantage of seeing the witnesses, did not accept the evidence on an issue of fact it would be wrong for the magistrate in the forfeiture proceedings to act upon it. Counsel goes further and he says that the making of an order under s.17 necessarily implies that the appellant was guilty of an offence under s.50. The answer to the first contention is that the decision of the magistrate in the criminal proceedings was clearly based on the absence of evidence that the appellant imported the goods and/or a ruling that the coins were not cargo. The evidence that the goods were imported and that they were unmanifested was not challenged and there is nothing to suggest that it was disbelieved. If it was not disbelieved by the first magistrate applying the criminal standard of proof there can be no reason why it should not be believed by the second magistrate applying the civil standard of proof. As to the suggestion that there was a res judicata, I agree with counsel for the appellant that the cases cited in Jowitt's Judicial Dictionary at p.1534 in support of the proposition that criminal proceedings do not constitute res judicata as regards civil proceedings arising out of the same facts do not support that proposition unless the parties to the civil proceedings are different from those in the criminal proceedings, but it does not follow that the proposition is necessarily wrong in the rare case where the parties are the same. It seems to me that the existence of a different standard of proof is itself enough to make the doctrine inapplicable. What was res judicata was that the appellant was not guilty of the offence alleged and that is immaterial to the present suit. All we are concerned with is whether there was a contravention of the Regulation by any person.

4. Counsel for the appellant sought to base two separate arguments upon the Importation and Exportation (Registration of Imports and Exports) Regulations, but I confess that I am still unable to understand how those Regulations can have any bearing upon the correct determination of the present case. The argument appears to rest upon the assumption that those Regulations and the Unmanifested Cargo Regulations were interdependent so that if it could be shown that there was no breach of the Registration of Imports and Exports Regulations it follows that there was no breach of the Unmanifested Cargo Regulations. With respect to counsel such an assumption cannot be justified and the whole basis of the argument collapses.

5. The only other ground of appeal was an allegation that the learned magistrate failed to consider whether the coins "were part and parcel of the appellant's luggages accompanying him during the voyage". I am by no means satisfied that the learned magistrate did fail so to do. It is true that he did not expressly mention the point in his statement of findings and reasons but it is a fallacy to say that everything not expressly mentioned has been overlooked. In particular this is so where the point has not been raised by counsel for the respondent at the trial and the magistrate is satisfied that, if raised, the point must have failed. The fallacy in the argument is apparent from an examination of the ground of appeal as drafted, for it does not follow the words of the Regulation. Reg. 2 of the Unmanifested Cargo Regulations reads :

and reg. 5 reads :

It will therefore be seen that the important word "ordinary" has been omitted from the grounds of appeal. In the court below it must have been assumed by all concerned that 88,000 coins, weighing 659 pounds, were not luggage which was ordinarily carried by passengers on board ship. Counsel has sought to argue that the Crown ought to have adduced evidence to show that passengers do not ordinarily carry luggage of this kind and he suggests that in view of the more favourable rates of exchange for silver coins from the Philippines it was a possibility that it had become ordinary practice for passengers from the Philippines to bring their currency in this form. The contention of counsel for the appellant was that it was ordinary usage for a passenger to bring money as part of his luggage, that the total value of the coins brought in was not unreasonable and therefore that the coins were ordinary luggage.

6. I think the first fallacy in this argument is to say that we are concerned to know what is ordinary luggage for persons coming from the Philippines or for persons carrying Philippine currency. I think that it is proper to accept the definition of "ordinary luggage" which is to be found in a note to Phelps v. The London and North Western Railway Co.⁽¹⁾

It is true that passengers do normally carry currency for their personal use and that currency may be, therefore, ordinary luggage, but it does not necessarily follow that all currency is necessarily ordinary luggage and it seems to me that the learned magistrate was perfectly justified in using his own knowledge of affairs to find that ordinary passengers do not carry such vast amounts of currency in coin, and in my view it was unnecessary for the Crown to seek to prove the negative that such cargo was not ordinary luggage. It was further argued by Mr. Sandor for the Crown that in any event there was nothing to show that the coins were imported from the Philippines and therefore it was unnecessary for him to adduce evidence to show that the goods were not so imported. In the circumstances I do not find it necessary to deal with this argument.

7. In all the circumstances it seems to me that the order of forfeiture was correctly made upon sufficient evidence and the appeal must be dismissed.

Representation:

Ming Huang (Kho & Lo) for the appellant.

H. R. Sandor, Crown counsel, for the Respondent

(1) 1865 C.B.(N.S.) 321, 327.