LAW FU KIN AND ANOTHER v. COMMISSIONER OF CUSTOMS AND EXCISE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS No. MP3194/1995

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REASONS FOR JUDGMENT

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Jerome Chan, J.:

1. This is an application to judicial review the purported forfeiture of the 1st applicant's eight left-hand-drive vehicles by the Commissioner of Customs and Excise pursuant to s.27(6) of the Import and Export Ordinance, Cap.60 ("the Ordinance"). The 2nd applicant is the wife of the 1st applicant.

2. The 1st applicant is the sole proprietor of Hang Luen Motors Company and Hang Luen Motors (China) Trading Company. The 1st applicant via the said companies bought a total of eight left-hand-drive vehicles for re-sale in mainland China. To facilitate the import of the vehicles into mainland China, the 1st applicant sought and obtained approval of the Commissioner for dismantling the said vehicles. It is the applicants' case that one Sun Wah Fung Company had been engaged as the shipper for the transhipment of the vehicles into mainland China. It would be the responsibility of the said shipper to attend to all necessary re-export formalities. A Temporary Exemption from Direction Order Control Scheme (Customs Registration No.H043) had been obtained for the purpose.

3. On 24 July 1995, without the knowledge of the applicants, the two containers containing the said vehicles were loaded onto a vessel that was subsequently intercepted by the marine police off Tsing Yi Island. It is the applicants' case the containers were mistakenly loaded onto such vessel by the shipper. The said vehicles were seized and detained by the Customs and Excise Department at the Kwai Chung Container Terminal pending further investigation for suspected smuggling. It is not disputed that no prosecution was subsequently instituted against any one in respect of the said vehicles for any offence.

4. The 1st applicant was in mainland China at the material time. The 2nd applicant learned from the shipper that the vehicles were seized and attended the police to claim the return of the vehicles. She was then directed by the police to approach the Customs and Excise Department. In the afternoon of 27 July 1995, she attended the Tsuen Wan Cargo-handling Basin to claim the vehicles. She was interviewed by a customs and excise officer and ended up in giving a cautioned statement to him instead of getting what she came for.

5. Pursuant to s.27(6) of the Ordinance, upon the expiration of the time for giving written notice of claim to the Commissioner in accordance with s.27(5), the vehicles would be forfeited forthwith to the Crown without anything further need to be done about them. In the context of the present case, section 27(5) provides that :-

1. within 30 days from the date of seizure

2. the owner or his authorised agent may

3. give notice in writing

4. with his full name and address for service in Hong Kong

5. to the Commissioner

6. claiming that the vehicles are not liable to forfeiture.

Upon the giving of such a written notice, the Commissioner is obliged by s.28(1) to take out an application before a magistrate or a court for an order for forfeiture if he wishes to forfeit the vehicles.

6. By letter dated 5 September 1995, the 1st applicant's solicitors gave notice pursuant to s.27 to the Commissioner claiming that the vehicles are not liable to forfeiture. That was, as pointed out by the reply from the Commissioner, too late, time for serving such notice having expired over a week prior to the date of the said notice. The 1st applicant was informed that the vehicles had already been forfeited to the Crown pursuant to s.27(6) of the Ordinance. By letter 10 October 1995, the 1st applicant's solicitors explained that the 1st applicant was out of Hong Kong and did not return until 28 August 1995 (i.e. 4 day after the deadline for the notice). They went on to allege that the forfeiture of the vehicles were inequitable "in view of your knowledge (please refer to the statement made by our client's wife to you on 27th July 1995) that our client was in China then and intended to claim (and did through his wife claim) back the seized vehicles". The Commissioner was urged to re-consider his decision. The plea was rejected by the Commissioner and the 1st applicant lodged a petition to the Governor pursuant to s.6(1) of the Ordinance.

7. Though decision on the petition is still pending, no point has been taken by the respondent that the court ought not grant relief in the judicial review as a result of that "parallel" process. The petition to the Governor is to seek to invoke his discretion as head of the Executive, whereas the judicial review is to determine the legal rights, if any, of the applicants.

8. The applicants are relying on the cautioned statement given by the 2nd applicant to constitute the requisite written notice under s.27(5). Though it has been conceded that the 2nd applicant might not have any conscious intent to give any s.27(5) written notice to the Commissioner when giving the cautioned statement, it is submitted if the said document satisfied the statutory requirements it would be open to the applicants to reap the benefit of it.

9. In the preamble of her cautioned statement, that was written by the officer as was the rest of the statement, it was clearly stated that the 2nd applicant was then at the Tsuen Wan Cargo-handling Basin "to claim back the container goods on behalf of her husband". This intent and purpose of her visit was reiterated and confirmed no less than 5 more times in her answers to the questions asked by the officer. It is therefore beyond peradventure for the officer to claim that he was not aware of the intent to claim return of the vehicles. The cautioned statement was given within 3 days of the seizure of the vehicles. It was given by the wife of the owner who alleged she was claiming on behalf of her husband. The 1st applicant in his affirmation filed in support of the application confirmed the authority of the wife so to do. It also contained the full name of the owner as well as the authorised agent and their address in Hong Kong. The cautioned statement was in writing and given to the customs and excise officer. In the cautioned statement the intent to claim return of the vehicles was amply made clear. Prima facie, it appears the cautioned statement satisfies all the requirements of the statutory notice.

10. It is the respondent's submission that though the statute does not provide that the notice must be in any particular format, a notice can only be sufficient if it clearly makes a claim to the Commissioner. It is alleged that the cautioned statement failed to live up to this requirement. It is submitted that the cautioned statement was not addressed to the Commissioner as such. It was a cautioned statement and made for an entirely different purpose, not for claiming return of the vehicles. It was not written by the 2nd applicant, though signed and confirmed by her. Furthermore, the cautioned statement did not contain any statement that the 2nd applicant was there making a claim against the Commissioner by that cautioned statement. It has never been the intention of the applicants that the cautioned statement should be given as a s.27(5) notice. It is the respondent's case that the legislative intent is to have certainty and finality in the Commissioner's handling of seized goods. To achieve this end, it is the intent of the legislative scheme that the owner must make his claim in the most clear and certain manner. It is submitted had that not been the case, and if the Commissioner is to be obliged to search out ambiguous requests, the legislative intent would be defeated and the system grind to a halt.

11. The statutory requirements are clearly set out in s.27(5) and are to be found within the four corners of the section. The section merely requires the fact of a written notice containing stipulated information to be given to the Commissioner within a fixed time. There is no room to infer any additional requirement as suggested by the respondent that there must be a conscious intent to make the claim when the notice is given. A conscious intent would normally be present, but I cannot read anything into the plain words of the statute that the mental element must be present at the time of giving the notice. An illiterate owner of goods may give a valid written notice even if he did not know what he was signing, when he had left the running of his business to his subordinates who just asked him to sign the notice without any explanation. I fail to see any justification, whether on construction of the section or a matter of law or equity, to deprive such an illiterate owner of the benefit of the notice given under those circumstances.

12. I do not accept there is any added requirement that the notice must be a notice that is given for the single purpose of a claim under s.27(5) and cannot be part of a multi-purposed document. I cannot read such restrictive prohibition into the plain words of the section. It is permissible for one to write to the Commissioner on a wholly different and unconnected matter and then say "By the way, I would claim the return of my goods seized by you." It would be a sufficient s.27(5) notice provided it gives all the required information and sufficiently identified the goods in question. That the claim was contained in a cautioned statement and not a formal letter or a solicitor's letter is of no consequence if all other requirements of the statute are duly satisfied.

13. It is wholly void of merits for the respondent to complain that the cautioned statement was not written by the 2nd applicant, and came into existence only because of the officer's intent to investigate if any offence had been committed. The motive for creating the document cannot be relevant as there is nothing in the section that requires any condition to be satisfied regarding motive, or that the notice must be in the own handwriting of the owner or his authorised agent.

14. There is no requirement in the section that the written notice must be "addressed" to the Commissioner. The requirement is for the notice to be given to the Commissioner. In the premises, it will suffice if the notice, despite the absence of a caption of "To the Commissioner of Customs and Excise" is otherwise in compliance with the statutory requirements, is handed to a customs and excise officer. It would have satisfied the statutory requirement of being "a notice in writing to the Commissioner".

15. I now come to the more significant complaint of the respondent. Does the cautioned statement contain a sufficiently clear statement that the 2nd applicant was lodging a claim that the vehicles are not liable to forfeiture? For this purpose, I fail to see any difference of significance between a statement claiming the return of the vehicles and a statement claiming the vehicles are not liable to forfeiture. The first statement is the positive way of asserting the negative lack of right to forfeiture in the latter. It is true that nowhere in her cautioned statement did the 2nd applicant clearly state she would "by this cautioned statement make a claim for the return of the vehicles". That would be the perfect thing to do. However, in the absence of a specified statutory form, home-made forms must be tolerated and accepted as long as they sufficiently achieved the statutory purpose. There must be a wide range of acceptable forms, from a solicitor's skilfully drafted notice in legal terms to the uneducated peasant who is trying his best to convey his intent. The purpose of the notice is to alert the Commissioner that a claim is being made, so that he can no longer consider himself able to rely on the statutory automatic forfeiture, and need to decide if an application is to be taken out before a court of law or to return the goods as requested. I am satisfied that so long as the intent to make a claim for the return of the goods is made known to the Commissioner in a form of writing, it would have satisfied this particular statutory requirement. It cannot be doubted that the customs and excise officer and anyone reading the cautioned statement would not be aware of the clear intention of the 2nd applicant that she was there at the Customs and Excise Department to claim her vehicles back. That was the stated purpose of her visit. She had been running around different government agencies for that purpose. In the officer's words in the preamble, she "is now present at the Tsuen Wan Cargo-handling Basin to claim back the container goods on behalf of her husband". It could not be more clear that she was in front of the officer to claim the vehicles. It is not relevant the officer's secret motive in interviewing her might be for something else. In the cautioned statement the officer investigated how her husband's vehicles could have ended up being on board the vessel and be seized. The interview can, on one view of the record, be an enquiry dealing with the 2nd applicant's claim for the vehicles. I am wholly satisfied, in the circumstances of the case, a sufficient claim for the return of the vehicle was made in the record of interview and constitute a sufficient claim within the meaning of s.27(5).

16. I was reminded that s.27 is a penal provision providing for a most draconian mode of depriving citizens of their rightful property without reasons. In the premises, it has been urged upon me that I should construe the section against the authorities. However, the plain meaning of the section is clear to me, and I do not find any need to resort to any such rule of construction.

17. Lastly, the respondent complained that if such ambiguous notices requiring careful analysis and examination by a court are to be allowed, it would make life most difficult for the Commissioner. The difficulties the Commissioner may face under the statutory scheme are appreciated. Nevertheless, it is the clear intention of the legislature that no statutory form is to be prescribed. The obvious reason is that very often, unrepresented citizens would be involved who would in all probability be ignorant of any statutory form. The inequity in the situation is obvious unless such statutory forms are to be printed by the authority at its costs to be widely made available to the public for easy use. It is a matter for the legislature, and as the plain meaning of the statutory is clear consideration of matters of this nature as suggested by the respondent would neither be appropriate nor helpful.

18. For reasons given above, a declaration was made declaring that the cautioned statement dated 27 July 1995 and signed by the 2nd applicant as authorised agent and on behalf of the 1st applicant is in law and in fact a valid notice in writing to the Commissioner claiming that the vehicles in question are not liable to forfeiture for the purposes of s.27(5) of the Ordinance. Consequently, the Commissioner is obliged to apply to a magistrate or a court for an order for forfeiture or to return the said vehicles to the applicant as he sees fit. There is no decision required of the Commissioner for the purported forfeiture, it being automatic in the absence of a valid s.27(5) notice, the applicants' claim for a certiorari to quash the alleged decision of the Commissioner stating the vehicles have been forfeited is misconceived and was dismissed. Costs were order against the respondent.