THE ATTORNEY GENERAL v. LAU SHUI

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

Magistracy Appeal No. 757 of 1984

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BETWEEN

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JUDGMENT

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1. This is an appeal by way of a case stated. The charge was as follows:

2. A Customs patrol launch intercepted the vessel concerned. Following a search, 22 bags containing 133 silver discs weighing 436.45 kg were found in a concealed compartment. After this discovery, the Respondent came forward and produced two copies of an Import Declaration. He admitted knowledge and ownership of the articles and stated that he was going to declare the cargo at the Western Entrance. The Respondent was asked if he had an Import Manifest, to which he made no reply.

3. At his trial, the Respondent gave evidence that he had obtained the goods from his grandfather in China, that he concealed the goods in case he was robbed by pirates, and that it was his opinion that the form he produced to the Customs Officer served the purpose of a manifest. The form he produced did not contain the name of his grandfather as the consignor, nor did it contain as the name of the consignee his own name, and it was written by someone else.

4. It was contended on behalf of the Appellant that the Import Declaration form produced by the Respondent was not a manifest as provided for by section 17 of the Ordinance.

5. The Magistrate gave judgment to the following effect:

6. Accordingly, the Magistrate dismissed the charge.

7. The questions of law stated for the opinion of this Court are:

8. Mr. McCoy, Crown Counsel for the Appellant, at once made it clear that the essence of the Appellant's submission is that the Import and Export Ordinance (Cap. 60) and the Import and Export (Registration) Regulations in effect provide that only a document that contains all the prescribed particulars can be a manifest i.e. that the prescribed particulars constitute a irreducible minimum. The Import Declaration produced by the Appellant did not contain a number of the prescribed particulars, some of which were significant; therefore it could not be a manifest. Accordingly the goods were unmanifested cargo.

9. Before proceeding to the provisions concerned, it is convenient to record the substance of Mr. Poll's submission for the Respondent. He submits that if the Appellant's submission is accepted in its entirety, it would mean that if even a single detail of the 11 heads of particulars prescribed were inadventently omitted, the relevant document would not constitute a manifest and the importer would be liable to a fine of $50,000, imprisonment for 2 years and forfeiture of the goods concerned. So harsh and draconian a measure would have to be expressed in language of the most unequivocal and clear sort. The relevant provisions fall short of this.

10. Proceeding them to be statutory provisions, section 18(1) provides that -

"Unmanifested cargo" is defined in section 2 in the following terms:

"unmanifested cargo" means any cargo which is not recorded in a manifest.

The same section contains the following definition of manifest:

"manifest" means a manifest containing the particulars prescribed under section 17.

This takes us to section 17 which reads as follows:

11. The particulars are prescribed in the Import and Export Manifest Notice at page C1 of Cap. 60, which came into force on 1st January 1984. It provides in paragraph 2 that an import manifest relating to the import of any cargo into Hong Kong shall contain the following particulars in the case of cargo in packages:

12. I am not able to read into the definition of manifest, particularly in the context of an offence under section 18(1), that the omission of any prescribed particular would render the document concerned incapable of being a manifest. “Cargo" is very widely defined in section 2, in substance including every article imported other than equipment or stores of the vessel and food and provisions for and personal property required for the personal use of the crew and passengers. Clearly, as in this case, it will not always be possible to furnish all the particulars, since some of them will simply not apply e.g. there will not always be a bill of lading.

13. Furthermore, Regulation 11(5) of the Import and Export (Registration) Regulations provides that -

"Any person who, without reasonable excuse, lodges a manifest that, ..... does not give all the particulars required ..... in respect of any articles specified in the manifest, ..... shall be guilty of an offence and shall be liable on summary conviction to a fine of $10,000."

Regulation 11(5) preceded the introduction of the present definition of "manifest", of section 17, and of the increased penalty of 2 years under section 18. Thus in not repealing it when introducing those provisions, the implication must be that the legislature not only intended to preserve it but did so in the contemplation of manifests which did not contain all the prescribed particulars.

14. What the Magistrate held in this regard is that if the document was defective then that constituted another offence under Regulation 11(5) of the Ordinance; and that the document may have been defective in that it did not contain all the details but that it was a manifest albeit a defective one. Clearly Regulation 11(5) would be meaningless if "manifest" is to be so construed that it would not include any document that did not contain every single prescribed particular. Mr. McCoy nevertheless says the Magistrate was wrong in placing any emphasis on Regulation 11(5). He drew attention to Regulation 12A which provides as follows:

15. He also drew attention to section 15 which provides that the master of a vessel shall on entering Hong Kong furnish any member of the Customs and Excise Service a manifest in respect of the cargo being imported if he is requested to do so by such member of the Customs and Excise Service. Accordingly, Mr. McCoy says that one manifest is required to be furnished upon entry, and then another to be lodged 7 days thereafter. With that one must agree. But he goes on to say Regulation 11(5) applies only to the manifest to be lodged and that therefore it can have no application to the section 18 offence in this appeal which is related to the manifest to be furnished on entry. That would require "manifest" notwithstanding its single definition in section 2, to have one meaning in section 18 and another in Regulation 11(5). If anything, it is prima facie unlikely that the legislature contemplated an importer having at the time of importation all the prescribed particulars in his manifest and yet not having all those particulars 7 days later when another manifest is to be lodged. If, notwithstanding that it "does not give all the particulars required" a document can nevertheless be a manifest under Regulation 11, then I can see no reason why it cannot equally be a manifest for the purposes of section 18.

16. Mr. McCoy went on to point out that the offence of importing unmanifested cargo has been held to be an absolute offence in a long line of cases including Cathay Pacific Airways Limited v The Crown ⁽¹⁾ .That may well be, but it does not affect the foregoing view. Once a document was found to be a manifest, the offence would remain an absolute offence.

17. Mr. McCoy also referred to an unreported Criminal Appeal⁽²⁾ in which Addison, J, held that Regulation 12(2) of the Import and Export (Registration) Regulations (which requires a manifest to be lodged not less than 7 days after departure of the ship) presupposes the existence of a manifest prior to departure. If that has any bearing on the present appeal, it must be to strengthen the view that manifest must have the same meaning in the context of the initial import or export as in the context of the subsequent lodging 7 days thereafter.

18. Finally Mr. McCoy very properly referred me to Attorney General v C. Jaranilla⁽³⁾. The legislation at that time was evidently very different, and for instance the Unmanifested Cargo Regulations referred to in that case have disappeared. There was also no definition of “manifest" and although in that case Morley-John, J. refers to particulars that must be specified in a manifest of cargo, he did not consider the question of whether a document could be a manifest despite its failure to contain all the requisite particulars, having found that the document before him did in fact contain all the particulars. I am therefore not able to derive any assistance from these cases, and the latter does not prejudice the Appellant's submissions.

19. Quite apart from the effect of the existing language of the relevant provisions of the Ordinance and Regulations, Mr. McCoy contends that in the context of the provisions they displaced, it clearly must have been the intention of the legislature to provide that a document could only be a manifest if it contained all the particulars prescribed. He points to the following provisions which were replaced:

"Manifest" means a document which records or purports to record such particulars of the consignment of cargo in or on any vessel, aircraft or vehicle as may be prescribed by the Commissioner under section 17.

 

20. Comparing those provisions with their present replacements, I do not see that there is any implication or any sufficiently clear implication that under the new provisions each and every particular prescribed must be contained in the document concerned, failing which it would not be a manifest. Arguably the object of replacement was not that contended for, but rather to exclude documents that merely purported to record the prescribed particulars, and also to empower particulars to be prescribed in respect of the cargo as opposed to those in respect only of the consignment thereof.

21. Lastly Mr. McCoy drew attention to the long title of the Ordinance, i.e. “To provide for the regulation and control of the import of articles into Hong Kong ..... and any matter incidental to or connected with the foregoing", and to section 19 of the Interpretation and General Clauses Ordinance (Cap. 1) which provides as follows:

22. In regard to the latter Mr. McCoy. referred me to the New Zealand case of Union Motors Limited v Motor Spirits Authority⁽⁴⁾ . He pointed out that for the purposes of controlling the smuggling of drugs and for security and related purposes it is most important to have the information sought to be provided by the several particulars prescribed. I do not see that the construction urged upon me by the Appellant would to any significant degree better ensure the attainment of the object of the Ordinance, than the view taken by the Magistrate. In any case, having regard to the oppressive penal effect of the construction sought, I find little scope for the operation of section 19.

23. Having regard to the foregoing considerations, the relatively severe penalties and the possibly trivial and unintended omissions that could attract those penalties on the basis of absolute liability. I do not accept the construction advanced by the Appellant, I conclude therefore that in law a document is capable of being a manifest even if it does not contain every single one of the particulars prescribed.

24. As to the facts, I should like to observe that in the present case the Import Declaration presented by the Respondent contained the following particulars:

(1)    the number of packages;

(2)    a description of the articles contained in each package;

(3)    the address of the consignee i.e. the importer;

(4)    the place where the packages were loaded;

(5)    the name (number) and date of arrival of the vessel.

 

In addition the following particulars did not apply –

 

(1)    distinguishing marks or numbers on each package;

(2)    the reference number and letter of the bill of lading;

(3)    the import licence number;

(4)    the container numbers

25. The latter two items are of course expressly stated to be required only if applicable. Having regard to the extent to which particulars were provided and to the extent to which prescribed particulars were not applicable, I do not feel able to say that a court properly directing itself could not have come to the conclusion that the Magistrate did i.e. that the Import Declaration was a manifest.

26. I answer all three questions of law stated for the opinion of this Court in the affirmative.

27. The appeal is accordingly dismissed.

(1)    [1952] HKLR 30.

(2)    No, 321 of 1983

(3)   [1968] HKLR 648

(4)    [1964] NZLR 146 at P150