ATTORNEY GENERAL v. CHAN TAK KWAI

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1167/90

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BETWEEN

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JUDGMENT

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Hon Yang, C. J.:

1. This is a case stated by Mr. Paterson-Todd, a magistrate sitting at the Fanling Magistracy.

2. On the 7th June 1990, the Respondent was convicted upon his plea of (1) attempting to export unmanifested cargo, namely, 200 ladies' watches without bracelets, 100 men's watches without bracelets, 100 men's and 200 ladies' watch bracelets, and other items, and (2) attempting to export goods to which a forged 'Titoni' trade-mark was applied, namely 200 ladies' watches without bracelets and 200 ladies' watch bracelets. He was fined a total of $8,500. The magistrate also ordered that the said articles be returned to the Respondent on condition that within 30 days from the date of conviction and sentence he caused to be removed from the seized articles the forged 'Titoni' trade-mark.

3. On the 19th June 1990, the Appellant made an application for review against the magistrate's order returning the articles in question to the Respondent on condition, upon the ground that the overall appearance of the "false watches" was similar to that of the genuine watches. The magistrate was of the view that that point not having been raised at the hearing, it would be wrong for him to allow the Applicant to argue it. He therefore refused the application for review.

4. In the case stated, the magistrate found the following facts:

5. The questions of law arising for the opinion of this Court are:

FIRSTLY WHETHER the magistrate exercised his discretion to forfeit the said articles judicially.

SECONDLY WHETHER on the subsequent application to review the magistrate was correct in preventing the Appellant, from raising and arguing the point that the counterfeit watches were similar in appearance to the genuine ones.

The First Question

6. The law on the question is clear. I shall therefore confine myself simply to following the decisions in the Director of Immigration v Chu Shiu-fat (1980) HKLR 780, and the Attorney General v So Lo-kam (1986) HKLR 564, 569. In the later case de Basto, J. lays down certain guidelines that the magistrate should take into account when considering whether or not to order forfeiture (vide p. 569 F - I).With respect, I adopt the same guidelines.

7. Chu Shiu-fat (supra) was followed by Nazareth, J. in The Queen v Ngai Wai Magistracy Appeal No. 750 of 1985 (unreported). There it was held that in considering whether there was good reason for not ordering forfeiture the judge might consider that where forfeiture would constitute so grossly disproportionate a penalty in the particular circumstances of an essentially technical offence, that of itself must constitute good reason for not ordering it. That decision is heavily relied on by the Respondent; it is however easily distinguishable. In the present case, particularly in respect of the second charge, the offence is certainly not technical. The answer to the First Question is therefore in the negative.

The Second Question

8. As to the Second Question it is trite law that a magistrate is empowered to hear on review arguments not raised at the trial. The answer to the Second Question is therefore also in the negative. In any event, the Appellant concedes that for the purpose of the present case, it was not necessary for the issue as to similarity of the watches to be argued.

9. In all the circumstances of the case, an order for forfeiture should have been made in respect of the goods specified in the second charge and I so order.