THE QUEEN v. SHUM WAH WAH AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 419 OF 1995

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JUDGMENT

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1. The appellants appeal against a forfeiture order made by a magistrate dated 26th March 1995. What was ordered to be forfeited in that order were two lorries which in a trial proceeding the application for forfeiture it was found had travelled between Hong Kong and the People's Republic of China and returned carrying a load of fuel both in the ordinary fuel tanks attached to each of the lorries and in an additional tank attached to each lorry. I am referred to R. v. CEC Finance Limited [1993] HKLR at p. 134, where Bokhary, J.A. set out the manner in which the learned magistrate should approach his discretion to order forfeiture :

"The discretion to order forfeiture being unfettered, the question of whether or not to so order is to be approached from a netural starting point, with both parties on a level playing field, so to speak, and each with the onus of proving on the balance of probabilities any fact which he or it asserts if that affect is not admitted by the opposite party. That is how the questions to be approached. And it is to be answered by reference to what is just in all the circumstances as the magistrate finds such circumstances proved or admitted."

2. Mr Mumford rightly points out that it would be wrong for the learned magistrate to approach the question of forfeiture order on the basis that an order should be made unless those resisting the order could show reasons why it should be not. I also accept, he points out that where a party is innocent, the goods of that party would be unlikely to be forfeited. It is necessarily, therefore, for the learned magistrate to consider firstly on the evidence before him whether he is satisfied that the party is wholly innocent or whether on the balance of probabilities, these may be some complicity by that party in the offence which leads to the forfeiture.

3. The learned magistrate, in this case, did consider the fact that the rights of innocent parties had to be considered at para. 7 of her Reasons. Having said that she did not enter into an analysis as to why she thought these parties were wholly innocent or why she did not. It would have been helpful had she did so. At para. 9 of her Findings, she said:

"I could see no good reason why a forfeiture order should not be made."

It may be that the learned magistrate did approach this matter on the basis referred to by Bokhary, J.A in R. v. CEC Finance Limited. However, on the face of the sentence that I have just quoted, the appellants today may have reason to believe that the playing field was not level and that the magistrate presumed an order should be made unless good reason was given.

4. I therefore allow the appeal to the extent that the order for forfeiture is set aside and I remit the matter to the magistrate to consider the forfeiture order afresh. I do so having heard Mr Munford in respect of the question of remitting the order to the magistrate.