HKSAR v. LI CHIANG

HCMA305/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.305 OF 2000

(ON APPEAL FROM ESMP 2627 OF 1999)

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J U D G M E N T

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1. This is an appeal against the magistrate's forfeiture order made in relation to the case of ESMP2627/1999. The original haring was dealt with in Chinese. Counsel for the appellant submitted to this court that as the present appeal turned on narrow points of law, he would prefer to conduct it in English. The respondent had no objection and I would accept the proposal.

2. The background of the case was that on 10 August 1999, some police officers had found a sampan, which was being driven in the direction of the Chinese waters. It refused to stop at the request of the police and persons on board the sampan later managed to escape. The police took the goods found on the sampan and they were subsequently handed over to the Customs and Excise Department ("the C & E"). On 7 September 1999, the C & E issued the Notice under section 27(4) of the Import and Export Ordinance, Cap.60. On 7 October, the appellant served the Notice of Claim pursuant to section 27(5) of the same Ordinance. The learned magistrate heard the matter on 2 March 2000, he finally granted an order in favour of the C & E. The appellant sought to appeal against the order.

3. The appellant, Li Chiang, was the claimant of the goods. He was legally represented at the hearing. He testified that he was the owner of the 94 cartons of goods, which included different sorts of computer accessories, integrated circuits and electronic items. He produced some documents to show that he was the owner. He said that on 12 August 1999, he discovered that his goods were stolen and later on 25 September, he identified the items seized to be his goods.

4. In connection with the circumstances of how the goods were found, the parties had prepared a set of agreed facts under section 65C of the Criminal Procedure Ordinance, Cap.221, which formed the basis of the applicant's case. The contents were as follows :-

1. That at about 23:25 hours on the 10 August 1999, police officers spotted an unlit motor sampan off Fan Kwai Tong in the waters of Hong Kong heading towards mainland China.

2. Police launch gave light signal to order the sampan to stop but it ignored (it).

3. After a short chase, the sampan turned back to Fan Kwai Tong and got ashore.

4. Two men onboard fled away from the sampan. They were lost sight of in the forest.

5. The sampan was installed with an outboard engine of 250 horsepower.

6. The sampan was not equipped with any lighting.

7. Onboard the sampan, police officers seized 94 cartons of articles (as per attached list) and six cans of gasoline. There was no manifest onboard. The articles were handed over to Customs on 12 August 1999.

8. That none of the exhibits referred to in this statement of admitted facts have been tampered or interfered with subsequent to their seizure.

5. Having considered the evidence, and the documentary exhibits produced by the appellant, the learned magistrate came to the conclusion that although he was prepared to accept that the appellant was the owner of the goods, he was not satisfied that the appellant was an innocent party.

6. Counsel for the appellant raised certain legal issues but made no complaint about the factual findings of the magistrate. His grounds of appeal were as follows :-

"The learned Magistrate erred in law and fact in holding that the articles in question (namely the subject matter of the Forfeiture Proceedings) were 'articles liable to forfeiture':-

a. Section 27(1) of the Import and Export Ordinance, Cap.60, confines 'articles liable to forfeiture' as being 'any article which has been seized by a member of the Customs and Excise Service or an authorised officer';

b. the articles in question were:-

i. not seized by members of the Customs and Excise Service;

ii. seized by certain police officers on 10th August 1999 and subsequently 'handed over' to the Customs and Excise Service on 12th August 1999;

c. the police officers who seized the articles in question were not, or alternatively, there is no evidence showing that any of them were 'authorised officers' as defined in sections 2 and 4 of the Import and Export Ordinance;

d. the Respondent has failed to establish that the articles in question were articles liable to forfeiture;

e. the learned Magistrate consequentially erred in ordering the articles in question to be forfeited."

7. Counsel for the appellant had further expanded the arguments in his written submissions. I am indebted to him for a concise and clearly presented skeleton. I have adjourned the matter to give careful consideration to the submissions made and the authorities cited. In the end, despite counsel's able arguments, I was not persuaded that the learned magistrate's order was wrongly made.

8. As both counsel agreed, there was no statutory definition of the terms "seize" or "seizure". The dictionary meaning appears to be simply to take possession. Counsel for the appellant argued that since we were dealing with a punitive statute involving the property of a third person, a narrow meaning should be adopted. Hence, if the goods had been seized by the police officers, then the customs officers could not seize them again. The C & E officers would only be retaining or keeping the goods.

9. I found that I could not agree with this submission. There was no dispute that the police officers were entitled to try to stop the sampan and carry out investigations if they suspected that there was an offence being committed or about to be committed. When the persons on board the sampan escaped successfully and abandoned the goods, the police must be entitled to act and take possession of the goods. It would be unreasonable to suggest that the police must not deal with the goods and should wait for the customs officers to appear otherwise the latter would lose their right to claim forfeiture under the ordinance. This would be applying too narrow an interpretation to the meaning of the term "seize".

10. Counsel for the appellant conceded that the police could seize the goods by virtue of their power under the Police Force Ordinance. But under the present circumstances, when the police had already seized the goods, he argued that the customs officers, for the purpose of section 27(4), could not effectively seize them again. In my judgment, whatever label one applied to the police action vis-à-vis the goods, i.e. seizure or taking possession, the subsequent act by the customs officers in taking over the goods could constitute a valid seizure for the purpose of the forfeiture provisions.

11. I could see no reason why the goods could not be seized by the customs officers from the police officers, whether or not the latter had first seized the goods. I believed this would be analogous to a situation where the persons on the sampan ran away at the sight of an ordinary citizen who decided take possession of the abandoned goods first and later handed them to the C & E department. Whether one would call that a seizure by the citizen, I considered that his act would not affect the application by the C & E for the forfeiture under the relevant provisions.

12. Having reached that conclusion, it seemed that it would be unnecessary to deal with the point about whether the police officers were authorized officers. However, in my judgment, the appellant would also fail on this point. These issues of seizure and whether the officers were authorized officers were not raised at all at the hearing. The dispute concentrated on whether the appellant was the owner of the goods and an innocent party. No submission was made by trial counsel on the points regarding the seizure of the goods and the authorization. While I would not say that points not taken at the trial could never be raised on appeal, but in the present case, the applicant had decided not to call witnesses obviously because of the stance taken by the appellant. If these matters were disputed, the applicant might take a different course.

13. In any case, the difficulty faced by the appellant was the authority of The Queen v. So Tin MA304 of 1992. Counsel for the appellant tried to persuade this Court that the case was wrongly decided and the correct principle to follow was as stated in The Queen v. Shum Kwan Chee [1987] HKLR 740.

14. In the case of Shum Kwan Chee, the appellant was charged with the offence of resisting the arrest by the Urban Services Department officer engaged in hawker control duties. The relevant provision was found in section 84 of the Public Health and Urban Services Ordinance, Cap.132 which provided that "any public officer authorized in writing in that behalf by the Authority may arrest without warrant any person guilty of any scheduled offence". There was no evidence led at the trial to prove that the officers who had arrested the appellant had been authorized in writing to arrest without a warrant. Addison J (as he then was) found that the proof of a power to arrest was necessary, for if the hawker control officer had no power to arrest then the conduct of the appellant could not amount to resisting him in the execution of his duty.

15. The situation was different in the present case. The decision would be more relevant had the police officers stopped the sampan and the persons on board challenged the officers' authority to seize the goods. And if the police officers were not properly authorized and that as a result of their unauthorized action, an innocent party had suffered loss and damages, then the party could take action for remedy. The situation in the present case was entirely different and therefore, in my view, the principle stated in Shum Kwan Chee would not be applicable.

16. On the other hand, the case of So Tin was dealing with the same set of provisions as the present case. Keith J (as he then was) decided that section 43(3) of the Interpretation and General Clauses Ordinance, Cap.1, requires the magistrate to assume that the officer effecting a seizure is properly authorized to do so in accordance with section 4 of the Import and Export Ordinance, Cap.60. An evidential burden is placed upon the person contesting a forfeiture application to prove that the Commissioner of Customs and Excise had not authorized in writing the officer effecting the seizure to do so.

17. Having considered the submissions, I would disagree with counsel that the case was wrongly decided. Even if it could be said, for argument's sake, that such a principle would not be applicable to every situation, I would say it would apply to a case like the present one, where there was no issue taken about such matters by the appellant at the original hearing. Hence, the learned magistrate could assume that the police officers were properly authorized unless there was some evidence to show the contrary.

18. I would, for the above reasons, dismiss this appeal.