THE QUEEN v. WONG SHIU LUN

MA 748/92

HEADNOTE

Magistrate's Appeal - forfeiture of unmanifested goods - duty on magistrate to accept earlier decision of High Court Judge 'Berrada' direction percentage order.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 748 OF 1992

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J U D G M E N T

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1. This is an appeal against a Forfeiture Order made by Mr. Vennings in Fanling Magistrate's Court. The background facts of this case are that on 26th June 1991, a lorry was intercepted at the border, carrying quite a large quantity of ginseng tea. It was also found that a number of video recorders and camera lenses were packed in boxes with the names appearing on the box. They did not appear on the manifest. The driver pleaded guilty in December 1991 for attempting to smuggle unmanifested good.

2. This appellant was charged also with attempting to export unmanifested cargo and he was convicted by the Magistrate in December 1991. A review was dismissed and then he appealed to the High Court before Bokhary J. On 15th April he gave a written judgment (Magistracy Appeal 156/1992) when the judge very carefully analysed the evidence produced by the prosecution. He came to a clear conclusion that this offence had not been proved and the Appellant was innocent.

3. The Customs & Excise, as it was entitled so to do, then sought to forfeit the V.C.R.s and the camera lenses which had not appeared on the manifest. The matter then came back to the Magistrate at   Fanling. He started his Decision by saying this :

"The manifested cargo was all luxury items for which licences are required and duty is payable by Chinese Customs (sic)."

(The magistrate meant "to" Chinese Customs)

"In M.A. 156/92 the point was made in page 3 that the crown had not established that the duty was payable in China, but this matter, plus the licencing requirement, is common knowledge. Why else is there the serious incidence of smuggling to China of just such items at the present time."

4. That in my judgment, appears to be a criticism of Bokhary J.'s approach and in my view is an improper criticism for a Magistrate to make of a High Court Judge.

5. As a matter of pure fact, the Magistrate is wrong, as no licences are required for these items. I am told in Court by Senior Customs Officers that duty is payable, but nevertheless evidence should be produced. I consider it wrong for the Magistrate to have approached the case on the basis that this Appellant might have been lucky to get a High Court Judge who overturned the conviction. The structure of the judicial system is an appellate one and judges, whatever their rank must not in any way seek to take offence if their decisions are overturned. That is part of our system and it is a public safeguard to have a right of appeal.

6. In my judgment this approach flawed his decision when looking at the matter. He said that he thought the contention of the claimant improbable and unbelievable. The Appellant is a man of good character and the Magistrate, was under a duty give himself a Berrada direction, (see R v. Berrada (1989) 91 Cr. App. R. 131). He must consider whether or not the Appellant was likely to behave in the way alleged, as well as his credibility. The Magistrate also said: "the unmanifested items are the prime commodities which are smuggled into China." Whilst of course, I do not have the experience of sitting as a Magistrate, a High Court Judge also reads the newspapers and knows exactly what is going on in life.

7. Nevertheless, these cases should be decided properly on evidence and not on what one might gleen from newspaper reports. In my judgment the Magistrate's approach here was wrong. It is right to point out that the forfeiture of goods is an important buttress to the offences of smuggling any type of goods. It is clear from the authorities that forfeiture, generally speaking, should be ordered where no proper and valid reasons are presented to the Magistrate.

8. Furthermore, I do accept that as O'Connor J. said as long ago as 1981 in R v. Chan Kam-far C.A. 239/81

"that a continuous smuggling of articles of any type in either direction between Hong Kong and China is an irritant tending to distort the smooth relationship existing between Hong Kong and China."

    de Basto J. in Attorney General v. So Lo Kam (1986) HKLR 564 set out a number of factors which he said Magistrates should bear in mind. I would only add that the learned judge appears not to have emphasised also that this is an exercise of discretion which must be in a judicial and just manner. Forfeiture exists to make it, clear to those who contravene these provisions that they may well find themselves facing a substantial penalty. The Customs are fully entitled to ensure that these forfeiture provisions are activated, indeed the lorry in which the goods were being carried could have been itself subject to forfeiture proceedings.

9. There are other factors, in my judgment, which must be taken into account when exercising a discretion. The Magistrate appears to have placed little weight on the fact that these goods were seized a very long time ago and clearly have depreciated. They were worth over a million dollars and evidence was led, which was unchallenged, that they had suffered deterioration.

10. Although in one sense, forfeiture proceedings are an additional punishment and as de Basto J. pointed out the sentence passed on a claimant is irrelevant, in my judgment, what is relevant is whether or not a person has been convicted, or at least what is his criminality. I accept that it is irrelevant for the exercise of the application to forfeit, but nevertheless, it is a relevant factor in the balancing exercise which a Magistrate must do on discretion. What triggered the application was the conviction of the driver. He was fined $10,000. I do detect running through the decision of this Magistrate, a sense perhaps of some pique and of criticism that Bokhary J. was wrong to allow the earlier appeal.

11. As I said before, all judges, whatever rank, must accept decisions and faithfully act them on. That judgment was binding on the Magistrate insofar as criminality was concerned. Whilst it was still open to the Magistrate to make a forfeiture order, his decision here was seriously flawed. I therefore can exercise my discretion based on all the evidence placed before the Magistrate. Having regard to all the facts, it seems to me that a forfeiture order here should be made.

12. However, Kaplan J., in a very helpful judgment, (R v. Au Kwok-kwan, M.A. 1099/1990) when dealing with the smuggling of watch parts on a fishing.vessel, came to a decision that there was power in the court to order a percentage forfeiture. In that case, the order was to return 70% and he took into account the deterioration of the goods between April and November 1990, some six months. Here, the time is approximately 1½ years Having regard to all the factors, I consider that a forfeiture order should be made but only on a proportion of the goods. Whilst I must uphold the principle that owners of goods.run the risk of losing their valuable merchandise, on the facts here I consider, it would be just to order that 20% of these goods be forfeited and 80% be returned.