SECRETARY FOR JUSTICE v. WINGKASON BROTHERS CO. LTD.

HCA 3137/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3137 OF 1990

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J U D G M E N T

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1. This is a claim brought by the plaintiff for and on behalf of the Commissioner of Customs and Excise (C&E) for the recovery of duty assessed and due under the Dutiable Commodities Ordinance (DCO).

History

2. The defendant is a company incorporated in Hong Kong. At the material time it was the licensee of a licensed warehouse in Quarry Bay for the storage of cosmetics and similar commodities. By document dated 16 May 1987 the defendant and the Nanyang Commercial Bank Limited entered into a bond in the sum of $15,000.00 in favour of C&E to comply with the DCO and meet all duty assessed on dutiable commodities stored in the warehouse.

3. At the material time there was incorporated in Hong Kong a company called Double Household Products Manufacture Limited (Double Household). Double Household and the defendant share the same shareholders and directors.

4. Between June 1986 and August 1988 Double Household sold a quantity of hair setting lotion in bulk form to the defendant. Duty was payable on the sales which was assessed and paid by Double Household. The defendant then carried out the following process, designed to convert the lotion into hair setting mousse for local sale:

(i) the lotion was repacked into a total of nearly 280,000 aluminium cans;

(ii) a valve was placed on each can and crimped;

(iii) a chlorofluorcarbon gas known as "Freon 12" was injected under pressure, and the cans were then capped;

(iv) the cans were stored in the Quarry Bay warehouse;

(v) the end product was sold on the domestic market.

5. This activity attracted the attention of C&E because following the sales the defendant failed to ensure compliance with the DCO; in particular there was no assessment and payment of duty on the finished product. C&E laid charges against the defendant. The defendant pleaded not guilty and the case came on for trial in Western Magistracy in July 1999. The facts were substantially agreed including that if duty was found to be payable it amounted to $1,110,790.90. The case turned on whether in undertaking the process described above the defendant was manufacturing the product or merely repacking it. The magistrate found that the process amounted to manufacturing and convicted the defendant. His decision was upheld on appeal by the Court of Appeal.

6. Following the decisions first in the Magistrates Court and then the Court of Appeal C&E made demand for the duty payable, reassessed at $1,129,593.95. The defendant declined to pay. As a result of that default C&E forfeited the warehouse bond of $15,000.00 and issued a writ.

The Proceedings

7. The plaintiff's writ was filed on 16 May 1990 suing for the assessed duty, interest thereon and costs. The amount representing the duty was subsequently amended as a result of a further reassessment made pursuant to a certificate that issued under section 32(3) DCO to $1,132,794.82.

8. The defendant filed a defence professionally drafted. Subsequently it discharged its solicitors and replaced the defence with a document entitled self-defence which incorporated a counterclaim prepared by an officer of the defendant Miss So Yip Ying (Miss So). At trial Miss So represented the defendant with leave. Prior to the hearing she sought to replace the counterclaim with an amended one. No point was taken by Mr Reyes SC representing the plaintiff as to the informal approach adopted.

9. Essentially the defence pleaded was that the assessment and demand for duty should have been carried out at the time of manufacture and sale on the open market, namely, between June 1986 and August 1988, but was not. The sales having long since been concluded and the defendant having disposed of the stock without providing in the price for the recovery of duty should not now be held accountable and liable after the event. In the counterclaim it sues for recovery of the forfeited warehouse bond of $15,000.00, legal costs incurred and, under the head quantum meruit, $50 million.

10. During the hearing Mr Reyes indicated he had instructions to invite the court, if it found for the plaintiff, to allow a credit for the forfeited warehouse bond. He also asked that the interest claimed be calculated at prime plus 1% from the date of the writ to judgment.

The Trial

11. Neither side called evidence; indeed there was no material dispute of fact. The Court of Appeal had confirmed that the defendant's process converting the bulk setting lotion into mousse amounted to manufacturing. This was not contested nor could it have been. Furthermore there was no dispute as to the quantum of sale of the finished product nor the amount of duty assessed were it to be payable. What was at issue was whether the duty was payable. This boils down to an interpretation of those terms of the DCO which were current during the period of manufacture.

The DCO

12. Section 17(3) states in part :

"17. ......

(3) No person shall import, export, produce, make, manufacture, sell, whether wholesale or retail, or advertise or expose for sale, or supply, or possess for sale or supply, any goods to which this Ordinance applies unless he is authorized to do so by and under and in accordance with a licence or permit or, if such a licence and a permit are prescribed for any transaction, both such licence and such permit:

..........."

Section 26(1) states in part:

"26. Assessment of duty

(1) Subject to the provisions of sections 4 and 26A, the duty on dutiable goods shall be assessed by the Commissioner or any officer authorized by him in that behalf, and the duty shall be paid at such times and to such officer, at the office of the Commissioner or elsewhere, as he may direct. ......."

Section 4 is not applicable. Section 26A is relevant as to sub-section 2A which states:

"26A. Value of goods and assessment of ad valorem duty

......

(2A) The normal price of any dutiable goods manufactured in Hong Kong shall be determined on the assumptions that -

(a) the goods are treated as having been delivered to the buyer at his premises;

(b) the seller will bear transport, insurance, commission and all other costs, charges and expenses incidental to the sale and the delivery of the goods to the buyer; and

(c) the buyer will bear any duty payable in Hong Kong."

Section 32 states in part:

"32. Recovery of duty, etc.

(1) Without prejudice to any other mode of recovery provided in this Ordinance, any duty payable or sum forfeited or deemed to be forfeited under this Ordinance shall be deemed to be a debt due to the Government.

.......

(3) A certificate purporting to be signed by the Commissioner stating the name and last known residence or place of business of the person in default of payment and particulars of the duty assessed and any penalties due is sufficient evidence of the matters stated."

And regulation 10 of the Dutiable Commodities Regulations states in part:

"10. When duty payable

Duty shall be paid upon dutiable goods -

......

(d) if in a warehouse and not removed for export or to another warehouse, before the goods are removed from the warehouse:

......"

13. A reading of the above statutory provisions makes it clear that once duty is assessed in compliance with the procedures provided for the same becomes a debt recoverable by the Secretary for Justice on behalf of C&E. It is no defence to an action brought to recover the debt that the assessment and subsequent demand post-dated the sale of the dutiable commodity concerned. The burden is on the merchant to comply with the provisions of the DCO or otherwise risk prosecution and, if the commodity has already been disposed of, a backdated assessment and demand.

The Result

14. The defendant has no defence to the plaintiff's claim which must succeed for the full amount, less credit for the forfeited $15,000.00 together with interest at prime plus 1% from the date of the writ to this date; thereafter at the judgment rate. The counterclaim is dismissed.

15. Costs taxed if not agreed are to the plaintiff. (This part of the order shall be nisi at first instance).