ATTORNEY GENERAL v. F. GARDINER, ESQ., PERMANENT MAGISTRATE

1986 M.P. No. 1679

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

FULL BENCH

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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Macdougall, J.:

1. Having been granted leave to apply for judicial review, the Attorney General moves for an order of mandamus directed to F.Gardiner Esq., a Permanent Magistrate requiring him to state and sign a case pursuant to section 105 of the Magistrates Ordinance, Cap. 227.

2. The matter arose in the following way. On 2nd May 1985 Li Mei Mui and Li Bor were convicted of importing unmanifested cargo contrary to section 18(1)(a) of the Import and Export Ordinance, Cap. 60.  On 17th May the Assistant Commissioner of Customs and Excise made an application under section 28 of the Ordinance for an order for forfeiture of the goods that had been the subject of the prosecution. The application was opposed by Li Bor who submitted a claim for the goods pursuant to a notice given under Sec. 27.

3. At the hearing of the application on 20th November, the respondent refused to forfeit the goods and ordered that they be returned to Li Bor. 0n 30th November the Attorney General then applied to the respondent under Sec. 105 of the Magistrates Ordinance, Cap. 227 to state and sign a case setting forth the facts and grounds of his determination in order that the Attorney General could proceed by way of appeal to a Judge of the High Court.

4. At the invitation of the respondent, Crown Counsel and counsel for Li Bor made submissions to the respondent on 25th April 1986 as to whether he was obliged by law to state a case.

5. On 25th July the respondent refused the application and gave lengthy reasons for so doing. The gist of his determination was that he considered himself to be bound by a decision of Rigby CJ in Attorney General v D.A. Davies [1970] HKLR 203 and that a decision of Mayo J on precisely the same point as arises in this case in Attorney General v G. Watson, Esq., Permanent Magistrate M.P. 350/86 was not binding on him but of persuasive authority only.

6. The respondent gave the following reason for his conclusion:

"There are two conflicting decisions which respect to the correct interpretation of section 105 of Magistrates Ordinance Cap. 227.

 

Davies case (supra) was an appeal from the Magistrates Court in the form of a case stated pursuant to section 105 Magistrates Ordinance. The learned Chief Justice was sitting. in Appellate Jurisdiction i.e. Criminal Appeal No. 34 of 1970.

 

As such that decision is binding on me in respect of my approach to the interpretation of that section.

 

The judgment of MR. JUSTICE MAYO in the Attorney-General: v.G. Watson Permanent Magistrate is not binding on me. Without Rigby C. J.'s judgment, it would be persuasive. But it is a Miscellaneous Proceeding at first instant.

 

However even if such judgments had been of equal standing then I would accept the approach as set out by Rigby C. J. as the better approach, as it accords with my own approach in interpreting the section. The Ordinance is construed as being in respect of criminal matters and, as such, must be strictly interpreted. "

7. The respondent was not represented at the hearing before us but Mr. Wesley Wong who appeared as amicus curiae sought to uphold the respondent's determination. However he was unable to cite any authority to support the respondent's conclusion that because Rigby C.J. was sitting on appeal from a magistrate's determination his status was somehow higher than that of Mayo J.

8. We are unable to agree with this proposition. Both judges were sitting as High Court Judges. Accordingly their decisions are of equal authority. Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision (Colchester Estates (Cardiff) v Carlton Industries PLC [1984] 3 WLR 693 and Minister of Pensions v Higham [1948] 2 KB 153).

9. Section 105 reads:

"105. Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which-the conviction, order or determination was granted and the grounds on which the proceeding is questioned, for the opinion of a judge. In the case of any determination which a magistrate has power to determine in a summary way and which relates to or is connected with an offence the Attorney General shall notwithstanding that he may not be deemed to be a party, have a similar right to apply for a case to be stated as that hereinbefore afforded to the parties and upon the exercise of such right by the Attorney General the complainant or informant shall cease to be a party to any further proceedings. "

10. In his judgment, Mayo J referred to what Rigby C.J. had said as follows:

"Mr Chan placed particular reliance upon a passage at p.208 in the judgment of Rigby, C.J. in the A.G. v. D.A. Davies. The magistrate in that case had fined a police officer who had failed to appear as a witness in a traffic case. The Attorney General had appealed against the fine and the question which had to be decided was whether fining the policeman related to or was connected with the traffic offence. Rigby, C. J. had this to say:

 

With the greatest respect I do not find myself in agreement with the views expressed by Rigby, C. J.

 

His approach is far too restrictive. I do not think that he was justified in coming to a conclusion that the Attorney General's involvement was likely to be limited to cases where private prosecutions are brought. I consider the present case to be an obvious example of the type of situation where it is very much in the public interest that the Attorney General should be able to require a magistrate to state a case. I am satisfied that Miss Hartstein is right in her submission that forfeiture proceedings are undoubtedly closely connected. with or related to offences under the Import and Export Ordinance and that the second limb of section 105 is applicable. It follows from this that the Respondent should have acceded to the application which was made by the Attorney General. He is accordingly entitled to the relief sought and an Order of Mandamus will issue. "

11. It is not absolutely clear to us that Rigby C.J. was doing any more than providing an example of the application of the second limb of the section. However, if he was expressing the view that the Attorney General's right to appeal by way of case stated under that limb is limited to cases in which private prosecutions have been brought, then we respectfully disagree with him. We see no justification for so restricting the clear wording of that limb of the section.

12. Moreover, the view that Rigby C.J. expressed is obiter since his decision was founded on the entirely correct conclusion that the imposition of the fine on the police officer for failure to attend as a witness in a traffic case was not related to or connected with an offence. As he said "the order imposing the fine was purely incidental to and wholly unrelated to the issues in the traffic case in respect of which the police officer had been required to attend as a witness".

13. Mayo J. disagreed not with that conclusion but with the unduly narrow interpretation that he considered Rigby C.J. had given to the second limb of the section.

14. Section 12 of the Magistrates Ordinance provides:

"The Attorney General is hereby entrusted with the duty and discretion of conducting the prosecution of all offences cognizable by a magistrate:

        Provided -

 

15. It is clear from this section that in circumstances where a person referred to in paragraph (a) lays an information on behalf of the Attorney General in respect of an offence, the Attorney General is deemed to be a party to the proceedings.

16. It is plain to us that the second limb of section 105 is designed to confer on the Attorney General the right to apply to a magistrate to state and sign a case in respect of a matter to which he is not a party provided it relates to or is connected with an offence and the case is one which the magistrate has power to determine in a summary way. In the instant case the Attorney General was not a party to the forfeiture proceedings. This is clear from sections 27 and 28 of the Import and Export Ordinance, the relevant parts of which read as follows:

       "27. (1) There shall be liable to forfeiture -

 

whether or not any person has been convicted of an offence in respect of such contravention.

 

        (2)     The Commissioner may, at any time before serving notice under subsection (3), restore any article (other than an article referred to in the Schedule) or any vessel or vehicle which is liable to forfeiture to the person who appears to him to be the owner thereof or the authorized agent of the owner; and upon such restoration the provisions of this section and sections 28, 29 and 30 shall cease to apply to the article, vessel or vehicle.

 

        (3)     Within 21 days after the seizure of any article, vessel or vehicle which appears to him to be liable to forfeiture under subsection (1), the Commissioner shall serve notice of such seizure upon the owner of the article, vessel or vehicle:

 

        Provided that if there is more than one owner of any such article, vessel or vehicle, it shall be sufficient for the purposes of this subsection to give notice to one such owner.

 

        (4)     A notice given under subsection (3) shall be deemed to have been duly served if -

 

 

        (5)     Where a notice has been served under subsection (3) in respect of any article, vessel or vehicle seized under this Ordinance any person -

 

 

(hereinafter referred to as the claimant) may, within 30 days after -

 

 

give notice in writing to the Commissioner that he claims that the article, vessel or vehicle is not liable to forfeiture.

 

        (6)     If, on the date of expiration of the appropriate period of time specified in subsection (5) for the giving of a notice of claim, under that subsection, no such notice has been given in writing to the Commissioner the article, vessel or vehicle in respect of which notice was given under subsection (3) shall be forfeited forthwith to the Crown.

         (2)    When any such application is made to a magistrate, the magistrate shall issue a summons to the claimant, requiring him to appear before a magistrate upon the hearing of the application, and shall cause a copy of such summons to be served upon the Commissioner. ”

17. The second limb of section 105 was added to the section by the same amending Ordinance as that which added section 12 to the Magistrates Ordinance.

18. We also think it is clear from sections 27 and 28 of the Import and Export Ordinance that forfeiture proceedings are determinable by a magistrate in a summary way and that any determination he makes thereunder relates to or is connected with an offence. Notwithstanding therefore that the Attorney General is not deemed to be a party, the second limb of section 105 confers on him the right to apply for a case to be stated.

19. That being so, the magistrate is obliged by section 111 of the Magistrates Ordinance to state a case. Section 111 enables the magistrate to refuse to state a case only where he considers the application to be frivolous and the applicant is a person other than the Attorney General.

20. We do not think that the hearing of proceedings for forfeiture under the Import and Export Ordinance can be said to be the hearing of a complaint information or charge as referred to in the first limb of the section. It also seems to us that it is arguable that the words "other proceeding which he has power to determine in a summary way", appearing in the context in which they do, do not include proceedings by way of forfeiture. It is perhaps for this reason that the legislature saw fit to add the second limb to the section. Since, however, we are of the view that the determination in the present case clearly comes within the second limb, it is unnecessary to consider whether it night also fall within the first limb.

21. Mr. Wong submitted that forfeiture proceedings were civil proceedings and that by virtue of section 113(3) the only remedy available to the Assistant Commissioner of Customs and Excise as a consequence of the respondent's refusal to order the forfeiture of the goods is to appeal against that determination to a judge. He therefore contends that section 105 does not apply in the instant case.

Section 113(3) provides:

 

"(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connexion with an offence either party thereto may appeal from such order or determination of such magistrate to a judge. "

22. In support of his contention that the proceedings were civil, he cited Attorney General v. Jose F. Mercado [1968] HKLR 104 in which Huggins J., as he then was, expressed the view that forfeiture proceedings under Sec. 17 of the Import and Export Ordinance is not a criminal proceeding but a civil proceeding. Deputy Judge Cruden in Tsang Koon-ah v. The Queen, Magistracy Appeal 211 of 1985, expressed agreement with this dictum.

23. Although we accept that forfeiture proceedings are not criminal proceedings and agree with the view expressed by Blair Kerr J. in Reg. v. Ho Shing [1967] HKLR 63 at 65, we are of the opinion that they are quasi criminal in nature. It seems to us that Huggins J. was directing his mind to the standard of proof required where an applicant has laid claim to goods that have been the subject of seizure and was referring to the proceedings in that case as being civil as distinct from criminal in the sense that the civil standard of proof applied. If, however, he meant that the proceeding was truly civil in nature we find ourselves in respectful disagreement with him.

24. Forfeiture proceedings are plainly punitive in nature. The goods are subject to forfeiture because they were seized in connexion with the contravention of section 18 of the Import and Export Ordinance. The object of the forfeiture provisions of the Ordinance is, to use the words of Huggins J. in the Mercado case, "to punish, by depriving them of their proprietary rights, all persons who may have an interest in the articles in question, and such persons may be made to suffer regardless of whether or not they were at fault in the occurrence of a contravention". (see also Attorney General v. Chin Chak-wing [1961] HKLR 479 (Full Court))

25. We are reinforced in our view by section 84 of the Ordinance which reads as follows:

        "34. (1)    In any proceedings under this Ordinance the onus of proving -

        (a)     the place -

        (i)    from which an article has been imported; or

       (ii)    to which an article is intended to be exported; or

        (b)     that an article -

(i)	has been imported in accordance with the terms of a licence;
(ii)	is intended to be exported in accordance with the terms of a licence;
(iii)	has been imported for the sole purpose of exporting the article;
(iv)	has been lawfully placed in or on any vessel, aircraft or vehicle for the purpose of exporting the article;
(v)	has been lawfully removed from any vessel, aircraft or vehicle in or on which it was imported;
(vi)	has been lawfully delivered to or placed in any premises or place after it has been imported; or
(vii)	has been recorded in the manifest of the vessel, aircraft or vehicle in or on which it has been imported or is intended to be exported,

 

shall lie upon the defendant in any such criminal proceedings and the claimant in any forfeiture proceedings.

        (2)     For the purposes of this section, the provisions of Part IV of the Evidence Ordinance (which relates to the admissibility of hearsay evidence in civil proceedings) shall apply as if proceedings under this Ordinance were civil proceedings. " (emphasis supplied)

26. The wording of subsection 2 indicates to us that the legislature did not intend forfeiture proceedings to be civil in nature.

27. Although we agree with Mr. Wong that section 113(3) only applies to civil proceedings, we do not accept his submission that it applies to forfeiture proceedings. This is because not only are forfeiture proceedings not civil proceedings but they are proceedings "relating to or in connexion with an offence".

28. In this connexion we observe that the Magistrates Ordinance confers a limited civil jurisdiction on magistrates. For example, there may be proceedings under section 67 for the recovery of any sum of money claimed to be due which is recoverable summarily otherwise than on information as a civil debt (see the definition of "civil debt" in section 2). Thus the argument that section 113(3) must necessarily apply to forfeiture proceedings because the Ordinance does not confer civil jurisdiction on magistrates in respect of any other matter is based on a false premise.

29. Finally Mr. Wong contended that even if the Attorney General had a right to apply to the magistrate to state and sign a case under Sec. 105 in forfeiture proceedings, there was no point of law involved in the magistrate's determination refusing to order forfeiture and ordering that the goods be returned to the claimant. He advanced no arguments to support this bare assertion.

30. We are satisfied that where a magistrate refuses to make an order for forfeiture, the Attorney General is perfectly entitled to request him to state and sign a case setting forth the facts on which his determination was based and the reasons therefor. There are many instances in the past where he has exercised this right. As the Full Court said in Attorney General v. Chin Chak-wing forfeiture provisions are for the purpose of enforcing the Ordinance by serving as a deterrent against its contravention and, in the absence of good reason to the contrary, were to be used when the prescribed conditions arose. We are in no doubt that the question of whether in refusing to order forfeiture, a magistrate has properly exercised his powers under the Ordinance is a matter of law.

31. The magistrate was clearly wrong in refusing to state and sign a case. The Attorney General is entitled to the relief sought and an Order of Mandamus will issue directed to the respondent to state and sign a case as required so to do by the Attorney General.

32. As there is no suggestion that the magistrate acted perversely we make no order for costs.