THE COMMISSIONER OF THE CUSTOMS AND EXCISE DEPARTMENT v. CHANDIRAMANI BHAGWAN KANAYALAL

FAMV No. 6 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2002 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 566 OF 2001)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. In our view, the Commissioner of Customs and Excise has raised issues which warrant the Court of Final Appeal's attention. Accordingly we give him leave to appeal to the Court of Final Appeal.

2. But we would add this in regard to the appeal. The relevance, effect and validity or otherwise of the notice of seizure exhibited in the present case may arise for consideration. If so, the following, among other, questions may have to be decided:-

(a) Under s.27(5) of the Import and Export Ordinance, Cap. 60, a claimant who wants to challenge a threatened forfeiture has 30 days to do so, counting either from the date of the seizure or, where a notice of seizure is exhibited, from the first day on which it is exhibited. The question is whether, where a notice of seizure has been exhibited, it is open to the Commissioner or the courts to ignore the notice when calculating the time available for mounting a challenge.

(b) Another question arises out of the misdescription in the notice of seizure about which Mr Justice Rogers VP said this in para. 10 of his judgment:

"It is also to be noted that the Citizen and Tag Heuer watches and parts listed in that notice were identified as bearing forged trademarks. Two points can be made in respect of this. In the first place there was clearly no justification for any statement that the Citizen or Tag Heuer trademarks were forged. The Customs and Excise Department had been informed on behalf of the trademark owners that the marks were not forged. Moreover, if the trademarks had been forged the goods would have been liable to be seized and destroyed, whether stolen or not. There would have been no purpose in advertising for persons to come forward and make a claim for the goods since they could not have been returned."

The question is this. If the notice of seizure is relevant, does that misdescription affect its validity and, if so, how?

(c) Yet another question is this. If the notice of seizure is relevant, what on the true construction of s.27(3B) is the meaning of "an owner" as used therein? In particular, do the words include persons referred to in s.27(5) as eligible to claim that the goods are not liable to forfeiture? This goes to whether it was permissible to serve or purport to serve the notice of seizure by exhibiting it under s.27(4)(c) rather than by serving it personally or by post on Mr Kanayalal under s.27(4)(a) or (b).

3. The Commissioner's counsel, and any amicus curiae who may come into the case, should address these questions too in his printed case, and be prepared to assist the Court of Final Appeal with oral arguments thereon.