HKSAR v. SIN CHUN HO AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 791 OF 1998

(On appeal from TMCC 1789/98)

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J U D G M E N T

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1. The 1st Appellant was convicted by the learned Magistrate of possessing on charge 1 and selling on charge 2 "motor spirit" on 24th November 1997 at an open space beside Ping Ha Road, Yuen Long, contrary to section 17(6) and (8) of the Dutiable Commodities Ordinance Cap. 109. The 2nd Appellant was convicted of possessing the "motor spirit" that the 1st Appellant was found to have been sold.

2. The relevant facts found by the learned Magistrate are as follows. The offences took place at an open space beside Ping Ha Road, Yuen Long. The open space was private land with a rear store house. Two Customs and Excise Officers at an open space observed the 1st Appellant operating a pump transferring oil from a jerry can into the fuel tank of a car owned by the 2nd Appellant. The 2nd Appellant was not there at that time, he was at the toilet of a restaurant on the opposite side of the road. About 10-20 feet from the car was 6 other jerry cans of oil. The learned Magistrate was unable to find how much oil had been transferred from the jerry can to the car, however, the end of the pump going to the fuel tank was creeping with oil. The Government chemist analysed the oil and found it to be "light oil" within the meaning of the Dutiable Commodities Ordinance.

3. The Appellants gave evidence, in its gist, their evidence was that the 2nd Appellant had parked his car at the open space and went to the restaurant not knowing that his car was being refuelled. He had just earlier paid $100.00 for petrol at a gas station. The 1st Appellant said that he had been given petrol 3 days prior to the incident that he had been collected from used cars. He intended to supply the petrol to other vehicles for money. He had intended but had not yet pumped petrol into the fuel tank of the 2nd Appellant's car as he was intercepted by Customs officers.

4. On the version of events provided by the 1st Appellant, the intended supply of oil was purely unsolicited. Both Appellants' evidence was rejected by the learned Magistrate.

5. The learned Magistrate relied on the Government chemist's report and the mechanical engineer's report to find that it was "motor spirit" that was involved. The learned Magistrate also relied on the presumption in section 40(c) of the Dutiable Commodities Ordinance to find that the "hydrocarbon oil" that was the "motor spirit" involved was dutiable.

6. Mr. Ross submitted two grounds of appeal. In his first ground, Mr. Ross argues that the offences with which the Appellants were charged are not one known to law. This is because "motor spirit" is only partly defined in the Dutiable Commodities Ordinance and requires a further regulation to complete the definition. No such regulation had been made. According to Mr. Ross, section 17(6) and (8) of the Ordinance apply simply to "dutiable goods". So far as is relevant, "dutiable goods" are defined in the Ordinance, unless a context otherwise requires to mean goods to which the Ordinance applies (Section 2). Section (3)(1)(c)(iii) provides that the Ordinance applies to the type of carbon oil called "motor spirit". Section 69 of the Ordinance provides that in applying the Ordinance to "hydrocarbon oil", "motor sprit" means any "light oil" suitable for use as fuel in any internal combustion engine other than aircraft spirit. The engineer gave evidence that the oil in the jerry cans was suitable in an internal combustion engine.

7. Mr. Ross then referred me to section 69 of the Ordinance. He further emphasised that in this section, what was provided by the Ordinance is that the test of "light oil" is prescribed by the Government chemist. The reference to a Government chemist was the result of an amendment that took effect on 1st December 1996. Dutiable Commodities Amendment No. 2 Ordinance 1996 sections 1(2) and 31 LN 462 of 1996. It replaced a reference to the Commissioner of Customs and Excise of the United Kingdom. Mr. Ross further argued that 'prescribed' is not defined in the Ordinance, however, sections 2(1) and (3) of the Interpretation and General Clauses Ordinance provide in essence that save where a contrary intention appears in the Dutiable Commodities Ordinance 'prescribed' when used in the Dutiable Commodities Ordinance means prescribed by the Ordinance or by Subsidiary Legislation made under that Ordinance.

8. By the express terms of section 69, the manner of testing "light oil" is not to be prescribed by that Ordinance but by the Government chemist. As the argument goes, "motor spirit" is not fully defined for the purposes of the Ordinance until a Government chemist has prescribed by Subsidiary Legislation, the manner of testing the "light oil".

9. Mr. Ross further said there is nothing in the Dutiable Commodities Ordinance that demonstrates an intention to alter the meanings prima facie ascribed to the definitions above. If a different meaning was intended for "motor spirit", one would expect to see it in the Ordinance.

10. In any event, the Government chemist takes a certain view and I had admitted the letter from the Government chemist annexed to the affirmation of Mr. Ko Kwok Fai under section 118 of the Magistrates Ordinance. He is of the view that there is no legal requirement to prescribe the testing procedure of "light oil" or "motor spirit".

11. It is the argument of Mr. Ross that the absence of a published test procedure which has not been scrutinised by the Legislative Council would result in both uncertainty and unfairness. He said an ordinary citizen is presumed to know the law and in such circumstances, it will cause hardship if the law is uncertain. A number of literature had been referred by Mr. Ross in the course of his arguments.

12. Here, I like to refer to the full terms of section 69 of the Dutiable Commodities Ordinance. Section 69 in so far as its relevant appears as follows:

"Light oil means hydrocarbon oil of which not less than 50% by volume distills at the temperature not exceeding 185(c; or of which not less than 95% by volume distills at the temperature not exceeding 240(c; or which gives off an inflammable vapour at a temperature of less than 23(c when tested in a manner prescribed by the Government chemist."

It must be noted what the Government chemist prescribes is only the manner in conducting the test, otherwise, all the essential components that need to be conducted in a test are set out in the section.

13. In my judgment, the prescribed manner only goes to the way in which the "light oil" is determined. Quite clearly, it is made known to the public what "light oil" is as the component parts of the test are set out clearly in the section.

14. The application of the Interpretation and General Clauses Ordinance is subject to any contrary intention that appears from the context of any other Ordinance. This is made clear by section 2 of Cap. 1. It is the argument of the Government that 'prescribed' is an ordinary work, it is used in many other Ordinances. I was referred to section 33(7) of the Employment Ordinance which states that the medical certificate shall contain the treatment prescribed by the medical practitioner. I have also been referred to section 65(D)(8) of the Criminal Procedure Ordinance which states that the prescribed period means ..... in relation to proceedings transferred to the court under section 4 of the Complex Commercial Crimes Ordinance, such period as may be prescribed by the judge at the trial.

15. I am with the Government on this argument, 'prescribed' quite clearly is an ordinary word.

16. In the context of the Dutiable Commodities Ordinance if the intention of the legislature is to have anything prescribed by a piece of legislation, it will have said so. As in certain sections in the Dutiable Commodities Ordinance itself, section 2(1) "dutiable goods" means goods to which the full duty prescribed by law has not been paid. In the same subsection, "duty paid goods" means goods on which the full duty prescribed by law had been paid. Section 17(5) - no person shall sell any goods to which this Ordinance applies as goods of a standard prescribed by regulation if the goods are not goods of that standard.

17. I am in agreement with the view put forward by Mr. Cheung for the Government that the definition of "light oil" in section 69 of the Ordinance contains objective criteria. I am also with the Government on the point that if it was the intention of the legislature to provide for the manner of testing by way of subsidiary legislation, it would have said so. It follows ground 1 of the appeal must fail.

18. I now turn to ground 2. A presumption under section 40(c) was invoked by the learned Magistrate. The presumption is triggered if there is a finding that (1) a person transfers "hydrocarbon oil" to or from a vehicle's fuel tank; (2) at a location other than premises licence under Part IV of the Dangerous Goods (General) Regulations, Cap. 295 subsidiary legislation and; (3) in circumstances that give rise to a reasonable belief that the "hydrocarbon oil" is dutiable. It is the argument of Mr. Ross that the learned Magistrate found that the presumption had been triggered in that the 2nd Appellant's car was located at the place that was not licensed in accordance with section 40(c)(1). He argued no further evidence was led by the Prosecution that the location was unlicensed. It was not inherently so given that the location was private land with a rear storage house.

19. Therefore, Mr. Ross submitted, the learned Magistrate was unable to draw the inference that the location was not licensed when there was no proper basis in the evidence to make such a finding.

20. In the light of my reasons in dismissing ground 1 of this appeal, ground 2 is academic. In the course of the trial, defence counsel had made certain admissions under section 65(c) of the Criminal Procedure Ordinance. The principal admission was the oil that formed the subject matter of the two charges was (1) "light oil" within the meaning of the Dutiable Commodities Ordinance and; (2) suitable for use a fuel in any internal combustion engine. Accordingly, the oil in each case fell under the definition of "motor spirit" and was therefore dutiable.

21. For the reasons I have given, the appeal must be dismissed. I must thank counsel, Mr. Ross and Mr. Cheung for their diligence and research in this matter.