THE QUEEN v. BANDA BRACELETS (HK) LTD

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 937 OF 1991

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BETWEEN

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J U D G M E N T

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1. This is an appeal from the Magistrate's Court at San Po Kong.

2. When a forfeiture order was made by Miss Chainrai, the magistrate, in respect of a quantity of alligator skins brought into Hong Kong without a licence. The skins had been landed at Kai Tak Airport and the appropriate authorities had discovered that there was no licence for these particular goods. Apparently, what the facts disclosed was that the exporters in Italy had sent them without Banda bracelets knowing about them. The company was prosecuted in the Magistrate's Court for an offence contrary to section 4(1) of the Animals and Plants (Protection of Endangered Species) Ordinance, Cap. 187.

3. At the conclusion of all the evidence, the company was acquitted of the offence; the magistrate then on the application of counsel for the company ordered all the skins to be returned to the company. However, later on, she was asked to review that portion of her order which related to forfeiture. She reviewed her decision and exercised her discretion in a different way. I confess I cannot discover any new material matters which was brought to her attention at the subsequent hearing which would not have been present in her mind at the earlier hearing, except that she was referred in more detail to some authorities. As I understand the submission made on behalf of the Agriculture and Fisheries Department, they were saving that this was a technical offence and they would have granted the licence for it, but there is no power to grant retrospective licences and that because Hong Kong is a signatory to international standards of not permitting endangered species to be imported then, in some way, Hong Kong would have been put in an embarrassing position in discharging its international obligations. That would appear to me to be the point on which the Magistrate may well have exercised her discretion against the company in ordering forfeiture.

4. As far as the law is concerned, I can do no better than refer to the case of Chung Chi Wing [1988] 1 HKLR at 539, when Mr. Justice Bewley set out all the relevant criteria in relation to forfeiture proceedings; he set out a number of principles on which such discretion can be exercised. At the end of the day, however, all these matters of discretion are based on the particular facts of each individual case which falls for decision by the appropriate court. However, as Mr. Justice Bewley pointed out was that an order should not be made, the result of which would be to frustrate the object to the legislation, which here is to prevent the import of endangered species without a licence. Therefore, it would appear to me that where there is clear evidence that the licence would have been granted and that this was merely a technical offence, then the making an order of forfeiture in itself may well frustrate the object of the legislation which is to provide a method of licencing by the appropriate government department, which has to decide whether or not to permit particular goods which may well be form an endangered species to enter the territory. The evidence before the magistrate was that this was a technical offence and that a licence would have been granted to this company. Although the magistrate does make a reference to that, in my judgment this should have played a significant factor in the exercise of her discretion. For that reason, although I consider that this magistrate has approached the matter in a very careful manner and has set out her findings clearly, and that, judges sitting on appeal must be slow to come to a different decision when the lower court is exercising its discretion, however, having regard to that factor and that clear portion of evidence, in my judgment, it permits me to exercise my discretion anew. It has been found as a fact that there was no fault on the part of the owner, and as Mr. Justice Macdougall said in Chu Shui Fat in 1980 where there is a complete absence of fault on the part of the owner, the magistrate should exercise his discretion in the owner's favour. Bearing all these matters in mind, and having regard to the fact, that a licence would have been granted and that this was a technical fault on the part of the owner, in my judgment, although there is no method of providing for a licence to be granted, once the goods are in Hong Kong, which I accept, nevertheless, it seems to me that Hong Kong authorities are exercising their powers with regard to their international obligations perfectly properly, and I can see nothing embarrassing whatsoever be caused to the Hong Kong government despite these being endangered species. The Italian company were at fault, they should have waited for the licence to be granted and they did not wait. The value of the goods is substantial. Under section 13 on conviction these goods would have been forfeited, but on acquittal, the matter is the question of discretion.

5. Having regard to all the factors in this case, in my judgment, discretion should have been exercised as it was initially by the magistrate in not ordering a forfeiture. In those circumstances, I allow this appeal and I quash the forfeiture order which was made and the goods can be returned to the company. No doubt, the appropriate authority will notify itself of the quantity of these goods despite the fact that no licence was factually granted.