ATTORNEY GENERAL v. LEUNG WING CHEONG

IN THE COURT OF APPEAL

MAGISTRACY APPEAL NO. 1051 OF 1987

BETWEEN

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J U D G M E N T

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Kempster, J.A. :

1. On 27th March 1986 at Fanling Magistrates Court the respondent to the present appeal by way of case stated, reserved for our consideration by O'Connor J pursuant to section 118 (1)(d) of the Magistrates Ordinance (Cap 227), pleaded guilty to two charges. First, to attempting to export unmanifested cargo and secondly, to attempting to export a prohibited article without a licence. For these offences he was sentenced to four months' imprisonment. Subsequently the Commissioner for Customs and Excise served a notice on the respondent intimating an intention to forfeit the articles seized and the respondent filed a counternotice. In due course, pursuant to section 28 of the Import & Export Ordinance (Cap 60), the Commissioner applied to Mr Paterson-Todd, again at Fanling, for an order for the forfeiture of the articles. The relevant subsection (7) of that section reads :-

"Upon the hearing of the application under this section .... a magistrate may, if he is satisfied that a person is or would have been entitled to make a claim under section 27(5) in respect of the seized article" that means the possessor or owner of the article at the material time" and

(b) that the article .... is liable to forfeiture, order that the article be forfeited to the Crown or delivered to the owner .... subject to any condition which he may specify .... or be disposed of in such manner and be subject to any such condition as he may specify in the order".

2. While the subsection appears to impose upon the Commissioner the burden of demonstrating why a forfeiture order should be made there appears to be authority, which it is not necessary for us to consider on this occasion since no question as to the burden of proof arose before the magistrate, suggesting that it is for the person who at the material time was in possession or the owner of the article to show why a forfeiture order should not be made.

3. The terms of the subsection also appear to give the magistrate an unfettered discretion. Again authority has been cited to us which suggests that following a line of cases, his discretion has substantially been circumscribed. In particular we have been referred to the judgment of de Basto J in Attorney General v So Lo Kam⁽¹⁾ where, at p 569, he set out in commendable detail what he regarded as the basic principles applicable in forfeiture oases.

4. Even against and for purposes of argument accepting that background we are not satisfied that the magistrate erred. The matter taken into account in declining to accede to the Commissioner's application which is impugned is his conclusion that in circumstances where the seizure had in no way affected the relationships between Hong Kong and China it was unfair and an exceptional hardship to order forfeiture particularly when, far from evading customs duties or any fiscal liability, the respondent had merely failed to type or write out a manifest.

5. There was no evidence before the magistrate that this particular attempted export, whether or not it was an export to China, was liable to affect relations between Hong Kong and the Peoples' Republic nor was there evidence suggesting that such an attempted export was in general terms liable to affect such relationships. That no duty or other fiscal liability had been evaded was common ground. We do not think that the magistrate can properly be criticised for taking such factors into account.

6. The extent of the attempted export was not substantial. It involved 26 radio cassette recorders which Mr Hartmann, for the Crown, alleges were worth HK$25,000; a figure which Mr Plowman for the respondent is not prepared to accept. The magistrate did not, we would add finally, use as a factor in relation to the exercise of his discretion the sentence of imprisonment passed one year before.

7. This is not a proper case for us to interfere with the exercise of the magistrate's discretion and the appeal is dismissed accordingly.

(1) [1986] HKLR 564