DIRECTOR OF IMMIGRATION v. LAM HON MUK

DCMP 2661/2015

IN THE DICTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2661 OF 2015

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D E C I S I O N

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Introduction

1. This is an application by the Director of Immigration for an order that “珠担5059”, a wooden fishing vessel with licence number CM64385A (“the vessel”) be forfeited to the HKSAR Government pursuant to section 37F(6) of the Immigration Ordinance (Cap 115) (“the Ordinance”) with costs.

2. The respondent is the registered owner of the vessel at all material times.

Background

3. On 4 January 2014, the vessel was intercepted by Customs and Excise officers at sea off Ha Mei Wan, Lamma Island.  Mr Cheung Lin-tai was the helmsman of the vessel.  Upon inspection, four undocumented Vietnamese males were found by officers on board inside a hidden compartment of the vessel.  Those four Vietnamese males were subsequently confirmed to be unauthorised entrants.  Mr Cheung under caution admitted that he was asked by his employer in Mainland China to transport the four Vietnamese males from Ling Ding, Mainland China, to Hong Kong SAR.  Mr Cheung was subsequently charged in the District Court in DCCC 206/2014 with:

(1)  The offence of assisting the passage to Hong Kong of unauthorised entrance contrary to section 37D(1)(a) of the Ordinance; and

(2)  The offence of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313.

4. Mr Cheung pleaded guilty to the two charges on 24 June 2014 and was sentenced to imprisonment for a term of 3 years and 6 months.

5. As the vessel was used in the commission of the offence under section 37D of the Ordinance, the applicant finds it liable to forfeiture pursuant to section 37E(1).

6. After the applicant seized the vessel under section 37E(2), a notice of seizure of his ship liable to forfeiture dated 5 December 2014 was served on the respondent.

7. The respondent’s solicitors then gave notice of claim of the vessel under section 37E(5) that the vessel should not be forfeited by a letter dated 2 January 2015.

8. The applicant did not terminate the seizure and informed the respondent by letter dated 6 March 2015.  The vessel was all along detained by the applicant.  A valuation of the vessel was made on 5 May 2015 in the sum of HK$132,000.

9. The applicant took out this application by way of notice of originating motion on 7 October 2015.

Legal Principles

10. The underlying statutory provision is section 37F(6)&(7) of the Ordinance.  The test is whether it is “just and equitable in all the circumstances” that the ship should be forfeited or not, with or without any payment to the Director of Immigration.

11. The burden is on the respondent to satisfy the court that it is just and equitable in all the circumstances that the ship should not be forfeited and without any payment to the applicant.

12. The counsel for the applicant submitted the leading case of  Re an Application for Forfeiture of Fishing Vessel (unreported) HCMP 470/1981, High Court, 7 August 1981, the Honourable Mr Justice Fuad said:

“It would be impossible and undesirable to attempt to define the circumstances in which the court should exercise discretion not to forfeit.”

13. However, some examples have been given, one of which is that the vessel might have been stolen or the offence may have been committed without the knowledge of the owner and despite all reasonable precautions on his part to prevent it being used for illegal purposes.

14. Both parties accept that the respondent shall take reasonable precautions in all the circumstances to prevent commission of such a crime.

15. The respondent has submitted R v CEC Finance Limited [1993] 1 HKC 127 which said that the discretion to order forfeiture is unfettered.  It must be exercised judicially and it should be exercised to further the objects of the statute concerned:

“The discretion to order forfeiture being unfettered, the question whether or not to so order is to be approached from a neutral starting point, with both parties on a level playing field and each with the onus of proving on a balance of probabilities any fact which he or she asserts if that fact is not admitted by the opposite party.”

16. The second authority relied on by the respondent is Wong Hon Sun v HKSAR(2009) 12 HKCFAR 877 at paragraph 66:

“It is for the claimant to make out a case for exercise of discretion to order delivery to him. He can do so by proving facts on the balance of probabilities that show that he did not in anyway participate in or facilitate either by design or negligence the contravention which resulted in the article becoming liable to forfeiture.”

The Respondent’s Case

17. The respondent used to be a fisherman.  His elder son, Mr LamChor Hung is a well-known chilled fish wholesaler in Hong Kong carrying on the business in the trade name of Shing Hing Chai for a long period of time.  On 13 November 2012, Shing Hing Chai Company Limited was incorporated, and since then the said fish wholesaling business has been operated by SHC Company. 

18. At the time when Mr Cheung was arrested and the vessel was seized in January 2014, the respondent and his family members are the registered owners of 11 fishing vessels including the vessel in the present case.

19. The vessel was purchased in 1994 for a sum of HK$100,000 by the respondent as a second-hand vessel. The vessel in the present case and 10 other vessels have been operated by the respondent and SHC Company in a successful chilled fish wholesaling.

20. Nowadays, SHC Company is the largest chilled fish wholesaler in Hong Kong.  SHC employed 11 Hong Kong captains, including Mr Cheung and two PRC captains to sail these 11 vessels. Each vessel is also staffed by various PRC fishery officers on board as approved by the relevant authorities, including the applicant.  The vessel in the present case was designated for collecting fish in Lingding, Mainland China, and Mr Cheung was the designated captain of the vessel.

21. It is the respondent’s case that neither the respondent nor his family members had any knowledge of the criminal act of Mr Cheung.  They have never consented to any criminal acts.  SHC Company and the respondent do not have any incentive to take part in the criminal acts in light of the sale and success of SHC Company’s business.

22. The respondent and SHC Company have clear records and Mr Cheung also had a clear record before the conviction of the present offence, and no other captains employed by SHC Company have been convicted for assisting passage to Hong Kong for unauthorised entrance during their employment with SHC Company.

Discussion

23. There is no dispute that the respondent has no knowledge or has not been participating in the crime committed by Mr Cheung.  The main issue is whether the respondent has taken all reasonable precautions in his part to prevent the vessel being used for such illegal purpose.

24. Counsel for the respondent drew my attention to the fact that the respondent and SHC Company have clear records and Mr Cheung also had a clear record before his conviction for the present offence.  However, when I read paragraph 13(9) of the affirmation of the respondent where the clear records of the respondent and other persons are mentioned, it is stated in the context of there being no reasons to suspect the captain to commit such crime.

25. The respondent fails to state in clear terms that he or SHC Company has implemented such policy of employing captains or other staff on board with clear records only.  I am unable to infer that such policy has been adopted by the respondent from allrespondent’s evidence before me.

26. Apart from the above passage in the respondent’s affirmation, nothing about the precaution measures had been mentioned by the respondent in his affirmation.  Having considered all the evidence before me, I find that the respondent has failed to prove on balance of probabilities that the respondent or SHC Company had taken any precautions to prevent their vessels being used for illegal purposes, and also failed to show that the respondent did not in any way facilitate the contravention of the law either by design or negligence.  

27. In the circumstances, the respondent is not blameless.

28. I have considered all the circumstances including but not limited to the respondent’s submission such as the clear record, lack of knowledge, time taken by the applicant to take out the present application.  I find that it is just and equitable in all the circumstances that the vessel should not be forfeited.  However, having regard to the blameworthiness of the respondent, I find that it is just and equitable in all the circumstances that the vessel be released to the respondent upon payment to the applicant according to section 37F(6) and (7) of the Ordinance.

Conclusion and Order

29. Since the quantum of reimbursement as claimed by the applicant is not disputed by the respondent, I order such sum to be paid by the respondent.  Therefore, I order that the vessel be released to the respondent upon payment of HK$22,300 to the applicant.

(Submissions on costs)

Costs

30. Both parties seek costs against each other.  The respondent submits that he is successful to a certain extent in resisting the forfeiture, and succeeds in resisting for payment of the value of the vessel.  However, the respondent’s stance all along is not just resisting the forfeiture and payment of the value of the vessel but to such extent that the vessel be released without any payment at all.  Therefore, I do not agree that the respondent is the successful party in this application. 

31. I make the usual order that costs follow the event.  The respondent shall pay the applicant’s costs of this application.

(Submissions on summary assessment of the costs)

32. I summarily assess the applicant’s costs at $35,000.