THE QUEEN v. MAN KIM-PING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 646 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal against an order for forfeiture made by a magistrate on the 20th May 1985 under section 28(7) of the Import and Export Ordinance, Cap. 60.

2. Mr. Cross who appeared for the Crown did not oppose the appeal. The facts which were not in dispute reveal that on the 8th January 1985 a lorry was stopped by Customs Officers at the Man Kam To Control Point for the purpose of making a cargo examination and vehicle search. The driver tendered a manifest covering some of the goods which were being carried together with an import licence. However, the manifest did not include 7 bags of woollen knitted pullovers valued at about $7,500 and 2 bags and 2 cartons of woollen thread valued at about $4,500. The driver was arrested and subsequently charged with importing unmanifested cargo and importing prohibited articles without a licence. He pleaded guilty on the 22nd January 1985 and was fined $500.00 on each charge.

3. The two appellants admitted that they were the owners of the goods and said that they had entrusted them to the transportation company to bring them to Hong Kong, but not until an import licence had been obtained. They denied giving instructions to the company on the date of the offence and were unaware that the driver had brought the goods to Hong Kong illegally.

4. In his statement of findings the learned magistrate said that in order to resist a forfeiture order it is necessary for the claimants to show undue hardship and cited two cases R. v. CHAN Kin-kwan Criminal Appeal 348/83 and R. v. CHENG Ma-choi Criminal Appeal 20/85.

5. However, this is not the correct test. The correct test is that an order should be made unless some good reason is shown to the contrary see Attorney General v. Chin Chack-wing (1961) H.K.L.R. 479, and Director of Immigration v. CHU Shiu-fat (1980) H.K.L.R. 780. The burden of proof which is the civil burden lies with the claimant on the balance of probabilities. Undue hardship suffered by a claimant is obviously a factor to be taken into consideration when a magistrate exercises his discretion. But, where as in the instant case on the agreed facts the appellants were completely blameless, the magistrate should exercise his discretion in their favour.

6. The appeal is therefore allowed and the forfeiture order is set aside.