THE QUEEN v. CHAN SAU LIN

1993, No.MA92

HEADNOTE

Forfeiture - whether power to order forfeiture mandatory - Section 48 Dutiable Commodities Ordinance, Cap. 109.

IN THE SUPREME COURT OF HONG KONG

Appellate Jurisdiction

MAGISTRACY APPEAL NO. 92 OF 1993

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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. Venning sitting in Fanling Magistracy. The order was made under section 48 of the Dutiable Commodities Ordinance, Cap. 109. Subsections 1, 2 and 8 are relevant and I shall set them out.

(1)Wherever there occurs a contravention or an attempted contravention of any provision of this Ordinance in respect of any goods, such goods shall be liable to forfeiture whether or not any person is convicted of any offence.

(2) Wherever there occurs a contravention or an attempted contravention of any provision of this Ordinance, any thing which is mentioned in section 15(1)(a), (b), (c) and (d) and which is made use of in such contravention or attempted contravention shall be liable to forfeiture whether or not any person is convicted of any offence.

(8) When notice of claim in respect of any goods or thing is duly given in accordance with subsection (6), the Commissioner shall apply to a magistrate for the condemnation of such goods or thing and if the magistrate finds that the goods or thing was at the time of seizure liable to forfeiture he shall condemn them or it as forfeited.

In this connection, it would be appropriate to reproduce section 15 to which section 48(2) has made reference. This section deals with seizure of things used for commission of offences. Subsection (1) reads:

“Whenever it is lawful under this Ordinance for a member of the Customs and Excise Service or a police officer to seize, remove and detain any goods, it shall be lawful for him in a like manner to seize, remove and detain -

(a) any receptacle in which the goods are contained;

(b) any ship not exceeding 250 tons gross tonnage or any vehicle or aircraft not being a public transport or state aircraft in which the goods are found;

(c) …..

(d) …..”

Subsection 2 goes on to define public transport. It reads:

“For the purposes of this section, “public transport” in relation to “vehicle” means “taxis” or “public buses” as defined in section 2 of the Road Traffic Ordinance.”

2. The “thing” ordered to be forfeited by the learned magistrate in this case is a private motor car, bearing the registration number of FB 6063 of which the appellant acquired on hire purchase. The facts which gave rise to the forfeiture proceedings were not in dispute and were these. At about 2115 hours on 7 April 1992, the police intercepted a private car, FB 6063 at Shek Chung Kau Police Check Point, Sha Tau Kok, New Territories for routine inspection. The car was driven by Chan Kin-fai, brother of Chan Sau-lin, the appellant and the owner of the vehicle on hire purchase. Upon search, 50,000 cigarettes with a value of nearly $50,000 were found on board. The duty payable amounted to $26,500.00. The driver was subsequently charged with the offence of possession of dutiable goods namely the cigarettes. He was fined and given a suspended sentence. The cigarettes were ordered to be forfeited.

3. In the proceedings for forfeiture, the learned magistrate found that the use of the car by the brother of the appellant was without her knowledge or consent and no blame whatever was attached to the appellant. He had regard to the authorities including the decision of the Full Court in The Attorney General v. Chin Chack-wing and another [1961] HKLR 479 and the latest decision of Fuad, V.P. sitting as an additional High Court Judge in R. v. Cheung Yin Hang, Magistracy Appeal No. 272 of 1992.

4. In Chin Chack-wing, it was held, inter alia:

1. Section 16 of Cap. 109 provides that where dutiable goods are found in a vehicle it may be forfeited; there is no additional requirement of guilt or negligence in the part of the owner for its forfeiture;

2.  The magistrate was wrong in relying on the factor of blamelessness on the part of the finance company.

The power to order forfeiture under section 16, which is now replaced by section 48, was discretionary. Even then, hardship and no fault on the part of the owner were not considered to be grounds to refuse forfeiture, it is difficult to envisage under what circumstances a claim for the return of a vehicle could possibly succeed. From the judgment, only where the car was stolen was thought to be a valid ground to resist an application of forfeiture. It can readily be seen therefore forfeiture is a rule and I should say a very rigid rule with virtually no exception. The reason for the rigidity in the application of the law was aptly summarized by Hogan C.J. at p. 490:-

“It has been argued that there can be no deterrent to an innocent mind; but section 16 may properly be used not only to deter the deliberate use of vehicles by their owners in contravention of the Ordinance, but also to restrict the creation by those owners of conditions which are likely to facilitate, or are capable of facilitating, the use of such vehicles, by the less innocently minded, for the purpose of contravening the Ordinance.”

5. It is not difficult to foresee that the law can be easily evaded and the intention of the legislature defeated if factors, such as hardship, blame or negligence are to be taken into consideration. The case of Cheung Yin Hang stands as a good example. Madam Cheung who never drove a car and had no driving licence was the innocent owner of the vehicle. Who else cannot be? Any member of a family can have a car registered in his or her own name and had nothing more to do with it leaving it to be driven and used by another member or other members of the family.

6. The Attorney General v. Chin Chak-wing and another is still the leading authority on the subject. The decisions of the Full Court, being the predecessor of the Court of Appeal, are binding on magistrates and any judge of the Supreme Court hearing appeals from magistrates.

7. Strong reliance was placed by Mr. Souyave on R. v. Cheung Yin  Hang that section 48 of Cap. 109 was discretionary. The learned magistrate dealt with this decision at page 13 of the appeal bundle:-         

“It is argued for both claimants that under the authority of 272/1992 I do have a discretion, and should exercise it by ordering the return of the motor car to C2. I wish I could accept this argument, because as indicated earlier I consider the only proper decision is to do just that. But despite the references to a discretion in 272/1992 my understanding of the meaning of the conclusion reached in the final paragraph of the judgment is that the motor car in that case had to be forfeited. Also my understanding of the provisions of section 48(8) is that an order for forfeiture of the car is the only decision open to me in applying the law as I find it.”

In despair and very much against his own inclination, the learned magistrate reached the conclusion that he did and he was right. I would only add that the point whether section 48 was mandatory or not does not appear to have been argued or fully argued before Fuad, V.P. who was content to dismiss the appeal on the facts and issues framed before him.

8. In my judgment, section 48 of Cap. 109 admits no discretion. Once the prescribed conditions are satisfied, forfeiture follows as a matter of course.

9. The appeal is dismissed.