DIRECTOR OF AGRICULTURE FISHERIES AND CONSERVATION v. HOI YUEN GINSENG CO

DCMP 1075/2024

[2024] HKDC 1313

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1075 OF 2024

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DECISION

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Introduction

1.  I have before me an application for forfeiture under s 42 of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (“the Ordinance”) by the Director of Agriculture, Fisheries and Conservation (“P”) by way of Originating Summons dated 21 February 2024 (“the OS”).  The application is supported by an Affirmation of Lau Tak Chuen Edward filed on 21 February 2024.

2.  The Defendant (“D”) has filed an Acknowledgment of Service on 3 April 2024 which indicated that it did not intend to contest the OS.

3.  Mr Chu, who purports to act on behalf of D has appeared in person at today’s hearing.  He has indicated that although D agrees to the forfeiture application, upon sight of the Statement of Costs of P, D opposes the costs order sought against D.

Background Facts

4.  On 3 November 2021, the Customs and Excise Department (“C&E”) examined a 20-feet container consigned to D from Nansha, Mainland China.  It was declared that the shipment contained 20 cartons of America ginseng, under the Bill of Lading No XG2110077/413846352.

5.  Upon examination, the shipment was found to contain 982.35  kg of suspected American ginseng (“the Ginseng”) which was not accompanied by a valid Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) certifying document or certificate in lieu issued in respect of the Ginseng.

6.  On 4 November 2021, the Ginseng was identified as Panax quinquefolius (American ginseng) which are species protected under Schedule 1, Part 2, Appendix II of the Ordinance.  Accordingly, the Ginseng could only be lawfully imported into Hong Kong if it was accompanied by a valid CITES certificate document or certificate under ss  11(1) and 18 of the Ordinance.

7.  Upon investigation by the Agriculture, Fisheries and Conservation Department, no prosecution was ultimately initiated.

Applicable Principles

8.  Section 42 of the Ordinance which provides:

“42. Return or forfeiture of things seized where no prosecution for offences

(1) If a thing has been seized under section 34(1) but no prosecution for an offence under Part 2 or 3 or section 29 or 44 has been brought in respect of that thing, an authorized officer may apply to the court or magistrate for an order in respect of that thing or any proceeds of sale of that thing.

(2) On an application under subsection (1), the court or magistrate may order the thing concerned or any proceeds of sale of that thing—

(a)  to be returned to the person from whom it was seized or to its owner; or

(b)  to be forfeited to the Government.

(3)  If a thing seized under section 34(1)—

(a)  is placed in the possession or under the control of the Director; and

(b)  is abandoned by its owner, or appears to the Director to have been so abandoned,

an authorized officer may apply to the court or magistrate for an order in respect of that thing.

(4)  On an application under subsection (3), the court or magistrate may, if satisfied that the owner of the thing concerned is unknown or cannot be found, order that thing to be forfeited to the Government.”

9.  On a plain reading, by the use of the word “may” in s 42(2) of the Ordinance, the court has a discretion to order forfeiture.  The Ordinance is silent as to the factors to take into account in exercising the discretion so it appears the discretion is an unfettered one.  Of course such a discretion must be exercised judicially and to further the objects of the Ordinance.  See by analogy in R v CEC Finance Ltd [1993] 1 HKC 127 at 128G-H, 130H-I and 131D-E in respect of forfeiture orders under the Import and Export Ordinance, Cap.60.

10.  On a hearing of the forfeiture application, the plaintiff bears the onus of establishing that the seized article is liable to forfeiture.  Once a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the discretion to order delivery to the seized article to the defendant, the court will make an order for forfeiture. See Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 at §65 applied in the context of forfeiture under the Ordinance in Director of Agriculture, Fisheries and Conservation v Wing Fung Hong [2023] 5 HKLRD 723 (see §§8 and 9).

Analysis and Orders

11.  In the present case, I am satisfied given the background facts summarized in paragraphs 4 to 7 above, a prima facie case has been made out for the forfeiture order.

12.  Given D does not contest this application and no evidence has been filed by it to support an exercise of the discretion to return the Ginseng to the owner, I am of the view in these circumstances, it is just to order the Ginseng be forfeited to the Government pursuant to s 42(2)(b) of the Ordinance.

13.  As to costs, in the OS, P seeks costs of and occasioned by this application be paid by D.

14.  Having heard Mr Chu’s submissions, I am of the view that in light of the circumstances of this case and given that D has not contested the forfeiture, the fairer order is no order as to costs.