HKSAR v. Dah Sing Bank Ltd

[English Translation - 英譯本]
HCMA 54/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 54 OF 2014

(ON APPEAL FROM FLMP 430 OF 2013)

_______________________

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JUDGMENT

1.The appellant bank is the legal owner of a lorry bearing registration number MH2909 (“the Lorry”). By a hire purchase agreement, the appellant hired the Lorry to a transportation company.

2.In December 2012 the Customs and Excise discovered that the Lorry was used for smuggling, with 155 mobile phones hidden inside a crossbeam structure mounted underneath the tail lift of the Lorry.

3.The driver of the Lorry pleaded guilty to the following offences:

“Charge (1): Attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap 60, Laws of Hong Kong and section 159G of the Crimes Ordinance, Cap 200, Laws of Hong Kong. It is charged that Chan Chong Hing on 18 December 2012 at Outbound Cargo Examination Building, Lok Ma Chau Control Point, New Territories, Hong Kong, attempted to export unmanifested cargo, namely 155 mobile phones.

Charge (2): Attempting to export an undeclared cargo in or on a prescribed vehicle, contrary to section 4(4) of the Import and Export (Electronic Cargo Information) Regulation, Cap 60L, Laws of Hong Kong and section 159G of the Crimes Ordinance, Cap 200, Laws of Hong Kong. It is charged that Chan Chong Hing on 18 December 2012 at Outbound Cargo Examination Building, Lok Ma Chau Control Point, New Territories, Hong Kong, attempted to export an undeclared cargo, namely 155 mobile phones, in or on a prescribed vehicle, namely a lorry with Hong Kong vehicle registration number MH2909.

Charge (3): Failing to lodge information, contrary to section 7(4) of the Import and Export (Electronic Cargo Information) Regulation, Cap 60L, Laws of Hong Kong. It is charged that Chan Chong Hing on 18 December 2012 at Outbound Cargo Examination Building, Lok Ma Chau Control Point, New Territories, Hong Kong, being the person in charge of a prescribed vehicle, namely a lorry with Hong Kong vehicle registration number MH2909, which carried a cargo out of Hong Kong, failed to lodge information, namely the customs cargo reference number of the said cargo and the registration mark of the said prescribed vehicle within the meaning of the Road Traffic Ordinance (Cap 374, Laws of Hong Kong), as required by section 7(1) of the Import and Export (Electronic Cargo Information) Regulation, Cap 60L.

Charge (4): Making use of the altered structure of a vehicle for the purpose of smuggling articles out of Hong Kong, contrary to section 14(1) of the Import and Export Ordinance, Cap 60, Laws of Hong Kong.  It is charged that Chan Chong Hing on 18 December 2012 at Outbound Cargo Examination Building, Lok Ma Chau Control Point, New Territories, Hong Kong, made use of the altered crossbeam of a lorry with Hong Kong vehicle registration number MH2909 for the purpose of smuggling 155 mobile phones out of Hong Kong.”

4.An inspector of the Electrical and Mechanical Services Department stated that the abovementioned crossbeam had been altered with a storage chamber.

5.The Commissioner of Customs and Excise applied for forfeiture of the Lorry together with keys and other accessories pursuant to section 27 of the Import and Export Ordinance[1]. The appellant made a claim for conditional return of these items.

6.At the hearing of the application, the appellant did not call any witness but relied on the witness statement of an asset manager of the appellant bank.

Magistrate’s decision

7.After considering the relevant ordinance and some decided cases, the magistrate held that:

“34. … The appellant has failed to establish on a balance of probabilities any reason which justifies the exercise of my discretion to order the return or conditional return of the five items in question. After consideration, I take the view that the proper approach is to have all five items in question forfeited. I allow the application of the Customs and Excise accordingly.”

8.The magistrate also gave the following reasons for her decision:

“29. In my view, generally speaking, vehicle owners, whether registered or equitable, have the duty to ensure that vehicles are used legally. However, apart from the hire purchase agreement signed with National Express International Limited, the appellant has not been able to adduce any evidence to prove that, in respect of the incident in question, there had been no negligence on its part which resulted in the arrest of the vehicle.

30. The appellant in the present case is the legal owner of the vehicle in question. I understand that by clauses 9.01J and 10.01 of the hire purchase agreement, the appellant has required National Express International Limited not to do anything unlawful and, in case of contravention of the law, the appellant shall be entitled to terminate the agreement and seek compensation from National Express.

31. In my view, the appellant company, being a well-established bank, should have been aware of the seriousness of using a goods vehicle for the purpose of smuggling, but it simply did not care about the use and purpose to which the hired-out vehicle would be put. If the appellant merely relied on the contractual provisions, it has in my view not taken reasonable precautions to prevent smuggling activities. The appellant did not testify or call any witness, and there is no evidence to show that it had carried out regular inspections or examinations to prevent smuggling activities from taking place. The vehicle was altered as a result of the appellant’s negligence. In my view, even though the appellant has had clauses in the hire purchase agreement which govern National Express International Limited, it has still failed to prove on a balance of probabilities that it is wholly innocent.

32. In my view, the appellant may seek recovery of its economic loss from National Express International Limited because clause 10 of their hire purchase agreement expressly provides that National Express is liable to compensate the appellant. I find nothing unfair or unreasonable with the order for forfeiture.

33. On the authority of the case of HKSAR v Chin Kwok Chu HCMA 91/2001, a claimant cannot ask the court to exercise its discretion on the ground that the driver does not have the means to pay compensation. Therefore, in the present case, even if National Express International Limited may not be able to pay compensation, this cannot justify the exercise of the court’s discretion.” [2]

Grounds of appeal

9.The major ground of appeal put forward by Mr Steven Liu[3], Counsel for the appellant is that, had the magistrate correctly assessed the conduct and position of the appellant, she should have ordered the conditional return of the Lorry and the other items to the appellant.

10.The gist of Mr Liu’s submission is as follows:

(1)   It is part of the normal business of the appellant, as a bank, to let the hirer have a lorry by way of hire purchase. The transportation of goods using this lorry, both within the territory and across the border, is a proper use of the Lorry and also a normal commercial activity.  The use of the Lorry has already been governed by contractual provisions, and it would be pernickety to require the bank to inspect each and every lorry delivered to hirers;

(2)   Any vehicle, not only lorries, may be used for smuggling, and the significant number of vehicles involved would render it unreasonable to require the bank to inspect each and every one of them;

(3)  Vehicles may be altered for the purpose of smuggling, but vehicles without any alteration may also be used for smuggling;

(4)  Alterations to vehicles for the purpose of covering up smuggling may take various forms, and the bank does not necessarily possess the requisite knowledge, skills, tools and information to uncover such alterations by means of inspection;

(5)  In the present case, the alterations involved sealing up both ends of a hollow crossbeam at the tail lift, and this crossbeam, which was originally secured by welding, is now installed with bolts. Such alterations are not detectable by ordinary inspection.

11.Mr Liu relies on the case of HKSAR v Kong Hing Agency Limited[4] in support of his argument.  In that case, in examining the statutory defence under section 12(2) of the Trade Descriptions Ordinance[5], Ma CJHC (as he then was) pointed out the following:

(1)  “Reasonable diligence” and “due diligence” entail different requirements.  The use of the word “reasonable” connotes that the test is an objective one.  The court is required to examine what the accused could have been reasonably expected to have done in the circumstances;

(2)  In other words, the inquiry is: what would a reasonable man have expected the accused to do in the circumstances?  What the accused has actually done is not crucial, because even if nothing has been done, he may still escape criminal liability where the exercise of reasonable diligence would not have resulted in the discovery of the contravention. 

Mr Liu submits that this is the very situation the appellant faced: it would not have discovered such alterations even with the exercise of reasonable diligence.  Emphasizing the causal link between inspection and discovery, Mr Liu argues that if the alterations would not have been discovered even if an investigation had been carried out, then the appellant should not be blamed for not having conducted an inspection.

Respondent’s position

12.Mr Yip for the respondent refers to some decided cases and submits that the following circumstances serve to support the magistrate’s decision:

(1)   The provisions of the hire purchase agreement are slanted in favour of the appellant’s interests;

(2)   The agreement empowers the appellant to inspect the vehicle, but the appellant chose not to do so, hence it cannot be regarded as an “innocent” claimant.  This is particularly so when the appellant should have known that the Lorry would be used for delivering goods across the border, which posed a relatively high risk of smuggling.

(3)   The hirer could be made to bear the increase in cost which would arise from an inspection of the vehicle.  Taking such a measure may have an impact on business/profit, but where all vehicle owners in hire and purchase agreements performed the duty of taking such a measure, then even if the impact would not disappear completely, it would put all parties concerned on an equal footing;

(4)   It was solely upon commercial considerations that the appellant decided not to put its resources to an inspection, and having thus assumed the risk, it should bear the consequence;

(5)   The appellant could have taken out insurance to protect its own interests, and the hirer could be made to bear any consequential increase in cost.  It was a pure commercial decision not to take out any insurance, and it would be difficult to claim innocence when things went wrong;

(6)   Had the appellant taken out insurance, it would have already been compensated, and this further militates against the exercise of the court’s discretion in the appellant’s favour by making an order for the return of the vehicle;

(7)   On the facts of the present case, the hirer has paid off most of the instalments and the appellant may still claim against the hirer for the outstanding sum in accordance with the agreement.  In any event, the forfeiture of the Lorry will not really cause a harsh impact[6] on the appellant.

13.Mr Yip also submits that a hirer who knew that the vehicle owner would inspect the vehicle would scruple about using the vehicle for smuggling; on the contrary, if the owner would not carry out an inspection, such as the appellant, the hirer would act without scruples.  Therefore, the approach taken by the appellant can hardly justify a claim of innocence.

14.Mr Yip also points out that the alterations made to the Lorry on this occasion were not really covert and could be discovered simply upon visual inspection.

Discussion and consideration

15.The power of the magistrate in this regard is conferred by the Import and Export Ordinance, the relevant provisions of which are as follows:

Section 28(7):

“Upon the hearing of the application under subsection (1), in any case other than a case referred to in subsection (6)(a) or (b) a court may, if it is satisfied –

(a) that a person is, or would have been, entitled to make a claim under section 27(5) in respect of the seized article, vessel or vehicle; and

(b) that the article (not being such an article as is referred to in Schedule 1), vessel or vehicle is liable to forfeiture, (Amended 30 of 1995 s. 10)

order that the article, vessel or vehicle –

(i) be forfeited to the Government; (Amended 66 of 2000 s. 3)

(ii) be delivered to the claimant subject to any condition which it may specify in the order; or (Amended 62 of 1993 s. 9)

(iii)   be disposed of in such manner and subject to any such condition as it may specify in the order.”

The meaning of “articles liable to forfeiture” is set out in section 27(1):

“There shall be liable to forfeiture –

(a) any article which has been seized by a member of the Customs and Excise Service or an authorized officer in connexion with the contravention of any provision of this Ordinance;

(b) any vessel not exceeding 250 gross tons and any vehicle so seized and which has been used in connexion with, or is the subject of, the contravention of any provision of this Ordinance,

whether or not any person has been convicted of an offence in respect of such contravention.”

16.As the magistrate pointed out, the Court of Final Appeal has in Wong Hon Sun v HKSAR[7] laid down the legal principles and the circumstances and factors to be considered in dealing with this kind of applications for forfeiture.

17.Sir Anthony Mason NPJ said:

“(1) The purpose of the discretion conferred by s.28(7) is to enable a court or magistrate to alleviate the harsh impact which an order for forfeiture would have on the innocent owner of an article liable to forfeiture, by ordering it to be delivered to him or her conditionally or unconditionally. The discretion is to be exercised with this purpose in mind, together with the purposes of an order for forfeiture itself, namely to deter serious illegal activity and protect the revenue.[8]

(2) In a hearing under section 28(7), the Commissioner of Customs and Excise bears the onus of establishing, on a balance of probabilities, that the seized article is liable to forfeiture, namely that it is the subject of a contravention of the Import and Export Ordinance or its subsidiary regulations. Once this is established, the Commissioner of Customs and Excise makes out a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the section 28(7) discretion to order delivery of the seized article to the claimant, the court will make an order for forfeiture.[9]

(3) Accordingly, it is for the claimant to establish a case for the exercise of the discretion under section 28(7), particularly by proving facts to the satisfaction of the court, according to the balance of probabilities, that show that he did not in any way participate in or facilitate, either by design or negligence, the contravention which has resulted in the article becoming liable to forfeiture.[10]

(4)  The abovementioned forfeiture process, including the discretion under section 28(7), does not involve the determination of a criminal charge within the meaning of articles 10 and 11(1) of the Hong Kong Bill of Rights, and therefore those articles were not engaged.”

Li CJ, Chan and Ribeiro PJJ agreed, and Bokhary PJ agreed in part, with the judgment of Sir Anthony Mason NPJ.

18.Bokhary PJ also said:

“Forfeiture proceedings are of a civil, not criminal, character. However, such proceedings affect property rights which, it must be remembered, are constitutionally safeguarded under the Basic Law. Therefore, in exercising the discretion under section 28(7), the court must ensure a level playing field between the parties, namely the state and the owner, for to the extent that the playing field is slanted in favour of the state, property rights are unprotected. As for the burden of proof in these proceedings, the normal approach in judicial proceedings is to be followed, namely that unless the fact asserted is self-evident, each side bears the burden of establishing any assertion, whether affirmative or negative, that it makes but the other side disputes. So, for example, where the claimant’s status as owner is proved or admitted, but the owner does not point to anything beyond that status, in particular circumstances suggesting that forfeiture would be unjust, it is to be expected that forfeiture will normally be ordered. As for the standard of proof, forfeiture proceedings being civil in character, each side must prove its assertions on a balance of probabilities. But in certain situations the court may have to consider taking the ‘commensurate evidence approach’, which means that the strength of evidence needed to prove a serious allegation on a preponderance of probability must be commensurate with the seriousness of the allegation.”[11]

19.The cases cited by Mr Yip were decided before the abovementioned Court of Final Appeal case, except HKSAR v Wu Chi Man[12] in which the Court of Final Appeal case was referred to.  Therefore, in referring to the decided cases, one must be careful not to go against the principles laid down by the Court of Final Appeal.

20.In Wu Chi Man, the appellant bought a fishing vessel and fully authorized his nephew to take care of the vessel.  The vessel was subsequently hired out to a Mainland captain.  The magistrate harboured doubts about the evidence in relation to the appellant’s source of income.  The magistrate also took an unfavourable view of the carefree attitude adopted by the appellant in hiring out the fishing vessel.  He took the view that even if the appellant did not deliberately contravene the legislation, he had at least by his negligence presented an opportunity to criminals.  This decision was affirmed by the Deputy High Court Judge (as he then was).

21.The circumstances of the present case are obviously distinguishable from those of Wu Chi Man.

22.I now consider the present case by applying the principles laid down by the Court of Final Appeal.  I have taken into account matters including the following:

(1)   The appellant had not in any way participated in the offence committed with the use of the Lorry, and indeed cannot be said to have any direct relationship with the offence;

(2)   As to the relationship between the appellant and the person who committed the offence, they are merely parties to the hire purchase agreement.

(3)   The appellant did not know the commission of the relevant offence and was completely in the dark until it received the requisite notice from the Customs and Excise.

(4)   According to clause 10.01 of the hire purchase agreement[13], the hirer cannot do anything contrary to the law, otherwise the agreement would be terminated;

(5)   The hire purchase agreement also contains the following clauses, all of which safeguard the interests of the appellant:

“8.01 The Hirer shall during the Hiring Period (and without prejudice to any liability of the Hirer to the Owner hereunder) insure and keep the Chattel insured against loss or damage by accident, fire, theft and any other risks usually covered by insurance in the type of business (if any) for which the Chattel is for the time being used, the Chattel to be insured in a sum equal to whichever is the greater of:

(a) one hundred per cent (100%) of the full replacement value thereof, or

(b) the total outstanding Hire Rent due hereunder for the time being, and take out public liability insurance in respect of all costs, expenses, claims, demands and liabilities for which the Owner or the Hirer may become liable and against all actions, suits, proceedings or demands of any nature whatsoever which may be taken or made against the Owner or the Hirer (including in the case where the Chattel comprises a motor vehicle, those risks to the extent required by law) which may arise directly or indirectly by reason of the use or possession of the Chattel, the transport of the Chattel from or to, or its installation, or presence in or on, any premises, whether or not due to any act or omission of the Owner or the Hirer, such insurances to be with an insurance company approved by the Owner under a comprehensive policy of insurance approved by the Owner free from restriction or excess. If at the time of damage, the Chattel insured be collectively of greater value than the sum insured thereon, the Hirer shall bear the full damage due to underinsurance.

…

8.02(a) The Owner being authorized by the Hirer, without further instruction from the Hirer, may debit the Hirer’s account (no matter in whatever nature) opened and maintained with the Owner with an amount equal to the full premium and other fees and charges, costs and expenses (if any) required to be paid for or in connection with the insurance protecting the Chattel.

…

9.01(e) Inspection: permit the Owner or any person authorised by the Owner at all reasonable times to inspect the Chattel or enter the premises on or in which the Chattel may for the time being be placed or kept for the purpose of inspecting and examining the condition of the Chattel;

…

(j) Compliance: obtain all necessary licenses, consents, permits and permissions for the use of the Chattel, and not use the Chattel or permit the Chattel to be used contrary to any law, regulation or by-law for the time being in force in Hong Kong or such other territory as may be permitted by the Owner. If the Chattel is registrable and/or requires to be licensed under any applicable law, the Hirer shall keep the same duly registered and/or licensed at all times as required by such law in the name of the Hirer as if he were the owner (unless otherwise required by the Owner) and deliver to the Owner such registration documents and/or license certificate;

…

9.02 (Warning to Hirer): The Hirer acknowledges that the Owner may employ debt collection agencies to collect all amounts due and payable by the Hirer to the Owner under this Agreement and the Hirer shall indemnify the Owner and keep the Owner indemnified, if necessary by payment in cash on demand, from and against all costs and expenses (including legal and debt collection agencies’ costs and disbursements on a full indemnify basis) and losses and damages reasonably incurred by or on behalf of the Owner in connection with the preparation, execution and, if applicable the registration of this Agreement and in ascertaining the whereabouts of, taking possession of, preserving, insuring, storing and disposal of the Chattel and in connection with any legal proceedings taken by or on behalf of the Owner to enforce the provisions of this Agreement.

…

10.01 The Owner shall be entitled (without prejudice to any existing liability of the Hirer to the Owner hereunder) immediately to terminate the hiring of the Chattel hereunder in any of the following events:

(a) if the Hirer fails to make payment in full of any Hire Rent or other sum payable hereunder or fails to comply with any of the other provisions of this Agreement;

(b) if the Chattel is lost, stolen (and not found), destroyed or damaged to such an extent as to be, in the opinion of the insurers, incapable of economic repair;

(c) if the Hirer abandons the Chattel (which shall include, for the purposes of this Agreement, any purported return of the Chattel to the Owner before the end of the Hiring Period without the Owner’s specific written consent);

(d) if any judgment against the Hirer or the Guarantor remains unsatisfied for more than seven (7) days or a distress or execution is threatened against or levied on any of the Hirer’s or the Guarantor’s respective property or assets;

(e) if the Hirer or the Guarantor stops payment to creditors generally or admits inability to pay the Hirer’s or, as the case may be, the Guarantor’s debts as they fall due or enters into any composition or other arrangement with the Hirer’s or the Guarantor’s respective creditors generally or commits any other act of bankruptcy;

(f) if any order is made by any competent court or other appropriate authority or resolution passed by the Hirer, or, as the case may be, the Guarantor for bankruptcy or winding-up or for the appointment of a liquidator, receiver or trustee of all or a substantial part of the Hirer’s or the Guarantor’s respective assets;

(g) if the landlord or owner of any premises on or in which the Chattel is kept or stored shall take or threaten to take any steps to distrain upon the Chattel;

(h) if it becomes impossible or unlawful for the Hirer or the Guarantor to fulfil any of the obligations to be performed by the Hirer or the Guarantor or for the Owner to exercise any of its rights, powers or remedies respectively under this Agreement or, as the case may be, any guarantee;

(i) if anything is done or suffered or omitted to be done by the Hirer or any action is threatened which, in the Owner’s reasonable opinion, may imperil the Owner’s right, title and interest to and in the Chattel and/or the protection created or afforded by this Agreement including, without limitation, any removal or attempted removal of the Chattel or any part thereof to a place outside the Location or (where the Chattel is by its nature not intended to remain at one specific location) outside the region or province as specified in the Schedule or such other territorial limit or limitation as may be approved by the Owner in advance in writing;

(j) if any representation or warranty made or implied under this Agreement proves to have been incorrect in a material particular or would if repeated at any time prove to be incorrect in a material particular at that time; or

(k) Any loan, guarantee or other indebtedness of the Hirer or the Guarantor for borrowed money or other commitment becomes capable of being declared due prematurely by reason of a default by the Hirer or, as the case may be, the Guarantor, or the Hirer or the Guarantor fails to make any payment in respect thereof on the due date for such payment, or the security for any such loan, guarantee or other indebtedness becomes enforceable.

…

23. Amendment

The Owner may at any time delete, replace, add or change any term of this Agreement (including any applicable fees or charges) by giving prior notice to the Hirer.”

(6)   After the Lorry became involved in the offence, the hirer did not notify the appellant but continued to pay the hire rent and has paid 27 of 36 instalments;

(7)   Although the hire purchase agreement empowered the appellant to inspect the vehicle, the appellant did not do so.

23.In Wong Hon Sun, Bokhary PJ and Sir Anthony Mason NPJ pointed out that the existing statutory scheme, which confers a discretion on the magistrate instead of providing for mandatory forfeiture, serves to strike a balance between the general interest of the community and the need to protect fundamental property rights of individuals.  Bokhary PJ said that, in order to achieve this objective, in an application for forfeiture the government and the property owner must proceed on a level playing field, and the legislation does not specify which side has to bear the burden of proof.

24.Of course, when it is necessary to prove a fact, the party who asserts the fact bears the burden of proving it on a balance of probabilities.

25.When the circumstances are such that the goods are hence liable to be forfeited under the legislation, it merely means the court has to exercise its discretion, and the legislation does not specify how the discretion is to be exercised.  The discretion must be exercised judicially without slanting in favour of either side.

26.However, Bokhary PJ also pointed out that where the claimant has only proved that he is the owner but has not set out any other matters relevant to the application, it would be natural for the court to exercise its discretion to make an order for forfeiture because forfeiture would not be unjust in the circumstances.

27.Sir Anthony Mason NPJ stressed that the purposes of an order for forfeiture is to deter serious illegal activity and protect the revenue, and therefore, where goods are proved to be liable to forfeiture, unless there is evidence to support an exercise of the discretion to order that the goods be restored to the owner, the court should make an order for forfeiture.  This is the prevailing view of the Court of Final Appeal.

28.In light of this principle, in order to avoid forfeiture, the claimant has to prove on a balance of probabilities that he has not in any way participated in or facilitated the contravention which has resulted in the goods becoming liable to forfeiture.  Such participation or facilitation could be by design or by negligence.

29.In any event, the burden of proof rests on the party who asks the court to exercise its discretion in favour of his application, and the opposing party has no duty to refute the applicant’s case.

30.Sir Anthony Mason NPJ agreed that if an owner is innocent or blameless, the court should exercise its discretion and order the goods in question to be restored to the owner unconditionally or conditionally.

31.In AG v Chin Chak Wing[14], which also involved a vehicle subject to a hirer purchase agreement being used for smuggling, Hogan CJ made the following observations: Although, in a sense, there was neither fault or omission nor error or mistake on the part of the finance company, the innocence it claimed rested solely upon ignorance of what was happening to its own property.  By deliberately choosing to relinquish effective day to day control over property in which it claimed the ultimate ownership, the company had triggered the events which ended in the misuse of the car.  While it is true that the company did not foresee the commission of the offence, the possibility of such an outcome must have been foreseen.  While maintaining legal ownership of the property, the company did not take effective steps to prevent the offence.  When the company exercised its ownership but had taken no effective step to prevent misuse of the car, the court is entitled to refuse non-forfeiture.

32.Hogan CJ’s view is in line with the principles laid down by the Court of Final Appeal in Wong Hon Sun and is also relevant in considering the present case.

33.Although Mr Liu of Counsel asserts that the alterations in question might not have been discovered even if an inspection had been done, the claimant bears the onus of proof on a balance of probabilities[.  T]here is no direct evidence to support Mr Liu’s assertion.  In my view, not even the proven evidence lends support to the argument in this regard; in particular, as Mr Yip has submitted, the alterations in question could have been discovered simply by visual inspection.

34.Taking into account the purposes of the order for forfeiture itself, and having considered the overall circumstances of the present case and the submissions by both parties, I am of the view that the claimant has by negligence facilitated the unlawful act in question, and therefore I will not interfere with the magistrate’s decision.

35.This appeal lacks merit and is therefore dismissed, and the order for forfeiture of the vehicle is upheld.

Mr Cliff Ip, Public Prosecutor of the Department of Justice, for the HKSAR

Mr Steven Liu, instructed by Anthony Chiang & Partners, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor