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FAMC No. 43 of 2018
[2020] HKCFA 17
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 43 OF 2018 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 97 OF 2018)
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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深圳市泰杰寶珠寶首飾有限公司 |
Applicant |
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| Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Fok PJ |
| Date of Hearing and Determination: 4 June 2020 |
| Date of Reasons for Determination: 10 June 2020 |
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REASONS FOR DETERMINATION
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Mr Justice Fok PJ:
1. The applicant applied for leave to appeal to the Court of Final Appeal against a forfeiture order made under section 28 of the Import and Export Ordinance.[1] An oral hearing of the application was directed and at that hearing, having earlier dismissed part of the application in the circumstances described below, we dismissed the remainder of the application after hearing counsel for the applicant. At that time, we indicated our reasons for doing so would be handed down in due course and these are those reasons.
2. The forfeiture order in question concerns 10 gold bars, said to be worth in excess of HK$3 million, which were forfeited under section 28 of the Ordinance as they had been the subject of importation without a manifest pursuant to section 18(1)(a) of the Ordinance. A Mr Tse Wai-man was convicted of this offence,[2] having been caught entering Hong Kong from the Mainland through Lok Ma Chau Control Point with the gold bars, each weighing 1 kilogramme, hidden in a girdle around his waist. Tse was the person contracted by the applicant’s owner, Mr Ma Wenchang, to transport the gold to his cousin in Hong Kong, Mr Wu Chuangzheng.
3. The forfeiture order was made on 5 February 2018 by a magistrate on the application of the Customs & Excise Department.[3] The applicant appealed against the forfeiture order to a judge,[4] who dismissed the appeal on 14 June 2018. The applicant’s application for a certificate that the judgment involves a point of law of great and general importance was dismissed by the judge on the same date.[5]
4. By notice of application (“Form B”) dated 17 July 2018, the applicant applied for leave to appeal to the Court of Final Appeal on the grounds that a point of law of great and general importance was involved in the decision sought to be appealed and also on the ground that substantial and grave injustice had been done to the applicant.[6]
5. On 18 September 2018, the Acting Registrar of the Court of Final Appeal issued a summons to the applicant under Rule 7(1) of the Hong Kong Court of Final Appeal Rules,[7] calling on the applicant to show cause why the application should not be dismissed by the Appeal Committee.
6. Having received and considered the applicant’s submissions in response to that summons to show cause (“the Rule 7 submissions”), on 8 April 2020, the Appeal Committee made an order:
(1) Directing that an oral hearing be fixed in respect of the applicant’s application for leave to appeal, limited to the application for leave to appeal on the ground that a point of law of great and general importance was involved in the decision sought to be appealed; and
(2) Save as directed aforesaid, dismissing the balance of the applicant’s application for leave to appeal under Rule 7(2) of the Rules, on the ground that it disclosed no reasonable grounds for leave to appeal.[8]
The point of law ground
7. The Court of Final Appeal has addressed the law relating to forfeiture proceedings under the Ordinance in Wong Hon Sun v HKSAR (“Wong Hon Sun”).[9] As Sir Anthony Mason NPJ there held:
“It is therefore for the claimant, in order to avoid this outcome [i.e. forfeiture], to make out a case for an exercise of the discretion to order delivery of the article to him. He may do this by proving facts to the satisfaction of the court, according to the balance of probabilities, that show that he did not in any way participate in or facilitate, either by design or negligence, the contravention which has resulted in the article becoming liable to forfeiture.”[10]
8. In the present case, the applicant was held to have failed to discharge that onus by the magistrate and the judge on appeal. As mentioned above, the latter refused a certificate on a point of law and the applicant now seeks leave to appeal on a point of law and on the basis of substantial and grave injustice. This latter basis is strictly a misnomer since it was held in Wong Hon Sun that forfeiture proceedings are civil.[11]
9. The point of law raised by the applicant is framed as two questions in the Form B, namely:
(1) “Whether in the context of an innocent owner who ‘facilitates’ by negligence the contravention by another party, which results in an article becoming liable to forfeiture: does the ‘facilitation’ mean to ‘procure’, that is, it involves an active role as defined in HKSAR v Shenzhen Bada Logistics Company Limited, HCMA 171/2015; or does it, simply mean ‘to make more convenient’?”[12]
(2) “Whether the failure of an innocent owner to ask a freight forwarder, ‘are the goods to be imported into Hong Kong lawful’, facilitated the contravention by negligence?”[13]
But these two questions are, in effect, telescoped into one question in the Rule 7 submissions which the applicant adopted for the purposes of the oral leave hearing as a question “specifically seek[ing] to clarify the meaning and/or application of the word ‘facilitate’ as used in Wong Hon Sun”.[14] In short, does “facilitate” mean to “procure” actively or “made convenient”?
10. The two alternative meanings come from different Chinese translations of “facilitate”, discussed by DHCJ Douglas Yau in HKSAR v Shenzhen Bada Logistics Co Ltd (“Shenzhen Bada Logistics”).[15] As will be seen below, in his judgment in that case, DHCJ Yau focused on two different Chinese expressions which he considered could be used to translate the word “facilitate”.[16] He concluded, at [31] of his judgment in Shenzhen Bada Logistics, that the word “facilitate” must mean to “procure” (using the parties’ agreed English translation) which was, he held, “a more active role” than “made convenient” which was “more passive”. In reaching that conclusion he referred to:
(1) the translation of “facilitate” in the Lin Yutang Chinese-English Dictionary;[17] and
(2) the translation of “facilitate” in the Chinese headnote of Wong Hon Sun[18]and the fact that it is not the Chinese expression which translates as “made convenient”.
11. In the present case, the applicant contended that DHCJ Yau’s approach is correct and, relying on that approach, submitted that the magistrate and judge here were both wrong in finding that the applicant had facilitated the contravention leading to the gold bars becoming liable to forfeiture in that they applied the more passive “made convenient” meaning of “facilitate”. Had they applied the active meaning of “facilitate”, meaning to “procure”, it was contended that the magistrate and judge should have concluded that the applicant had discharged the onus of showing that it has not facilitated the relevant contravention.
Point of law ground not reasonably arguable
12. In order for the applicant to succeed in the proposed appeal, it would be necessary for it to succeed in persuading the Court of Final Appeal that it is correct in contending that the meaning of “facilitate” at [66] of Sir Anthony Mason’s judgment in Wong Hon Sun is the active sense of to “procure” rather than the passive sense of “made convenient”.
13. We were not satisfied that this contention is reasonably arguable.
14. In Wong Hon Sun, the issue of whether a claimant might “facilitate” a relevant contravention passively as well as actively was not expressly addressed in the judgments of the Court. In that particular case, the magistrate had found the claimant complicit in the smuggling offence and so the claim to set aside the forfeiture order failed.[19] However, Sir Anthony Mason made clear at [66] of his judgment that a forfeiture order might be made because a claimant failed to prove that he did not, by negligence, facilitate the contravention resulting in the article becoming liable to forfeiture. Negligence is a standard to be judged objectively and does not require a subjective state of mind. On that basis, there is no justification for reading Sir Anthony Mason’s judgment in Wong Hon Sun as suggesting that it is only if the facilitation of the contravention is actively facilitated (or procured) by the claimant that a forfeiture order might be made but that such an order will be avoided if it is shown that the facilitation is only passively facilitated (or made convenient) by the claimant. Nothing in Bokhary PJ’s judgment suggests the contrary and the other three members of the Court[20] expressly agreed with Sir Anthony Mason’s judgment. Nor is there any basis in Wong Hon Sun to support the proposition advanced by counsel for the applicant that it was necessary for it to be shown by the prosecution that the negligence of the claimant owner caused or procured the contravention resulting in the forfeiture order. Such a proposition involves a reversal of the burden of proof, which as Sir Anthony Mason made clear, rests on the owner seeking to avoid a forfeiture order.
15. The judgment of DHCJ Yau in Shenzhen Bada Logistics, suggesting that facilitation must be active rather than merely passive, is therefore inconsistent with Sir Anthony Mason’s judgment in Wong Hon Sun. We were not persuaded that it is reasonably arguable that the Court of Final Appeal would hold otherwise or depart from its previous judgment in Wong Hon Sun.
16. It is to be noted that other first instance judges have not adopted the approach taken by DHCJ Yau in Shenzhen Bada Logistics when applying Wong Hon Sun and have instead, correctly, held that facilitation by negligence has sufficed to prevent an applicant from avoiding the making of a forfeiture order.[21]
Reference to Chinese translation of English headnote inappropriate
17. It is not entirely clear why the debate in Shenzhen Bada Logistics turned on the correct Chinese translation of the English word “facilitate” and the question of whether one Chinese expression should be preferred over another. The judgment setting out the principle of law to be applied by the judge in that case was written by Sir Anthony Mason in English and, plainly therefore, he used neither of the Chinese terms referred to by DHCJ Yau in his judgment in Shenzhen Bada Logistics. The meaning that Sir Anthony Mason was intending to convey by the words used by him in expressing his judgment in Wong Hon Sun is to be derived by analysis of the words used as a statement made in the English language.
18. We would therefore, with respect, discourage the practice adopted by DHCJ Yau of trying to determine the meaning of an English judgment by seeking to translate it into Chinese. Whilst it is true that DHCJ Yau heard Shenzhen Bada Logistics in Chinese and therefore gave his judgment in that case in Chinese, his approach resulted in his arriving at a meaning inconsistent with the judgment he was purportedly seeking to apply. Had he read Sir Anthony Mason’s judgment in Wong Hon Sun in context, he should have realised the answer to the linguistic debate he posed was answered in Sir Anthony’s judgment itself.
19. Insofar as DHCJ Yau was led into conducting the translation exercise he undertook in Shenzhen Bada Logistics by his reference to the Chinese headnote of the judgment in Wong Hon Sun and to the Chinese expression used, and not used, there in the translation of “facilitate”, this approach should not have been undertaken.
20. It is a trite proposition that the headnote of a judgment is not authoritative[22] and should be treated with caution.[23] This is self-evident, since the headnote is not the judgment itself. Headnotes can be inaccurate[24] and, from time to time, inaccuracies in them are pointed out.[25] Readers of law reports should, therefore, bear this trite proposition in mind and care should be taken to derive any principle of law in a court decision from the judgment itself as expressed by the court and not as summarised by the law reporter. This caveat applies all the more so when one is considering the Chinese translation of the headnote of an English judgment (and vice versa).
No other basis for leave to appeal
21. It appears from the magistrate’s reasoning leading to her conclusion that the applicant facilitated the contravention by negligence,[26] that she applied the passive meaning of “facilitated”. In upholding the magistrate, the judge likewise applied a passive meaning of “facilitated”.[27]
22. That conclusion is sufficient to support the making of the forfeiture order in respect of the gold bars on a proper application of the law as laid down in Wong Hon Sun. As indicated above, the Appeal Committee dismissed the application for leave to appeal on the basis of an evidential challenge to the forfeiture order under Rule 7(2) of the Rules.
Conclusion
23. For these reasons, we dismissed the only live part of the application for leave to appeal, namely that a point of law of great and general importance was involved in the decision sought to be appealed, which the Appeal Committee had earlier directed to be determined in an oral hearing.
| (Geoffrey Ma) |
(R A V Ribeiro) |
(Joseph Fok) |
| Chief Justice |
Permanent Judge |
Permanent Judge |
Mr David Boyton, instructed by Francis Kong & Co., for the Applicant
Ms Margaret K.W. Yu SADPP (Ag.) and Mr Bobby Cheung SPP, of the Department of Justice, for the Respondent
[1] (Cap.60) (“the Ordinance”).
[2] On 24 August 2017, in FLCC 2570/2017.
[3] Minnie Wat, Deputy Magistrate, in FLMP 455/2017, Statement of Findings dated 20 February 2018 (“SoF”).
[4] Deputy High Court Judge V. Bokhary, in HCMA 97/2018, [2018] HKCFI 1390, Judgment dated 14 June 2018 (“CFI Judgment”).
[5] HCMA 97/2018, [2018] HKCFI 1974, Decision dated 14 June 2018.
[6] FAMC 43/2018.
[7] (Cap.484A) (“the Rules”).
[8] This order was made in accordance with the procedure adopted in HKSAR v Law Yat Ting (2015) 18 HKCFAR 400 at [8]-[10], which the Appeal Committee now adopts for cases in which only part of an application for leave to appeal is considered to be of sufficient merit to justify an oral hearing of the leave application, but where the balance of the application is not reasonably arguable: see HKSAR v Chan Shui Lun (2018) 21 HKCFAR 582, [2018] HKCFA 47, at [10].
[9] (2009) 12 HKCFAR 877.
[10] Ibid. at [66].
[11] Ibid. per Bokhary PJ at [11] and Sir Anthony Mason NPJ at [69]-[73].
[12] Emphasis in original.
[13] Emphasis in original.
[14] Rule 7 submissions at [7].
[15] HCMA 171/2015, Judgment dated 5 August 2015, at [27], [31] and [35].
[16] Ibid. at [31], where DHCJ Yau noted that “facilitate” could be translated in Chinese as “促成” or “促使”, on the one hand (translated in the parties’ agreed translation as “procure”), or as “方便”, on the other hand (translated in the parties’ agreed translation as “made convenient”).
[17] This uses the Chinese phrase “促成”, translated in English as “to facilitate, help realize”. For some unexplained reason, DHCJ Yau uses the Chinese phrase “促使” instead of “促成” when referring to the dictionary entry.
[18] (2009) 12 HKCFAR 877 at 879F-G, where the Chinese words “促成” are used for “facilitate” when summarising Sir Anthony Mason’s judgment at [66].
[19] Ibid. per Bokhary PJ at [41] and Sir Anthony Mason at [51].
[20] Ibid. per Li CJ at [1], Chan PJ at [43] and Ribeiro PJ at [44].
[21] See, for example: HKSAR v Dah Sing Bank Ltd [2015] 1 HKLRD 932 per DHCJ Albert Wong at [31]; 香港特別行政區訴大新銀行有限公司, HCMA 628/2015 (unreported, Judgment on 4 March 2016), per DHCJ Wilson Chan at [14], [17]; and香港特別行政區訴東亞銀行有限公司, HCMA 74/2017 (unreported, Judgment on 15 August 2017), per DHCJ Kwok at [14] - [33].
[22] The Oxford Companion to Law, Professor David M. Walker, (Oxford: Clarendon Press, 1980) at pp.556-557; Dictionary of Law, L.B. Curzon (6th Ed.), (Harlow, Essex: Pearson, 2002) at p.196.
[23] Learning the Law (16th Ed.), Professor Glanville Williams (Sweet & Maxwell, 2016) at p.35; Legal Research: A Guide for Hong Kong Students, Jill Cottrell (HKU Press, 1997) at p.38.
[24] Smith, Bailey and Gunn on the Modern English Legal System (5th Ed.), Bailey, Ching and Taylor (Sweet & Maxwell, 2007) at p.518, para.7-038, FN 390.
[25] See, e.g., Ng Yat Chi v Max Share Ltd & Another (2005) 8 HKCFAR 1 at [91]; HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292 at [36]; Jockey Club Kau Sai Chau Public Golf Course Ltd v HKSAR (2013) 16 HKCFAR 908 at [57].
[26] SoF at [14]-[25].
[27] CFI Judgment at [32].
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