R. v. YIP SHU WING

IN THE SUPREME COURT OF HONG KONG

Appellate Jurisdiction

MAGISTRACY CRIMINAL APPEAL NO. 35 OF 1994

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J U D G M E N T

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1. The appellant was one of three defendants who came before Mr. F.H. Tsang, a magistrate sitting at North Kowloon Magistracy, on 6th September 1993, on two charges brought under Sec. 17 of the Dutiable Commodities Ordinance (hereafter referred to as the "DCO") and one charge brought under Sec. 8 of the Smoking (Public Health) Ordinance. He was acquitted after trial of all three charges.

2. The relevant facts were that on the 1st June 1993, at Shampshuipo, Kowloon, dutiable commodities, namely cigarettes, were found by Customs Officers inside a light goods vehicle bearing registration number FK 4279. The appellant was the driver of the vehicle.

3. On the 3rd December 1993, the learned magistrate, having heard arguments by counsel for the Crown and the appellant, ordered the forfeiture of the vehicle as well as one ignition key under Sec. 48(8) of the DCO. This is the appellant's appeal against the order of forfeiture.

4. There were originally five grounds of appeal. The second ground was abandoned at the hearing of the appeal. The remaining grounds are as follows. The first ground is that the magistrate erred in holding he had no discretion other than to order forfeiture under Sec. 48(8). The third ground is that the magistrate erred in ruling that new Sec. 48A(7) under the Dutiable Commodities (Amendment No. 2) Ordinance 1993 did not apply to this case. The fourth ground is that the proceedings for forfeiture in this case are a nullity as separate proceedings should have been instituted in accordance with the now repealed Sec. 48 of the DCO and not in accordance with the amending Ordinance of 1993. The fifth ground of appeal is that it is unjust and inequitable for the magistrate to order such forfeiture.

5. Sec. 48(8) of the DCO provides that where the Commissioner of the Customs and Excise Service applies to a magistrate for the condemnation of any goods or thing on which a notice of claim has been duly given by the claimant of the goods or thing to the office of the Commissioner in accordance with Sec. 48(6), the magistrate shall, if he finds that the goods or thing was at the time of seizure liable to forfeiture, condemn them or it as forfeited.

6. After examining the authorities, the learned magistrate came to the view that Sec. 48 of the DCO admits of no discretion : see Wong J. in The Queen v Chan Sau-lin Magistracy Criminal Appeal No. 92 of 1993. The magistrate then went on to discuss the Queen v Cheung Yin-hang Magistracy Criminal Appeal No. 272 of 1992, decided by Fuad, V.-P., sitting as an additional High Court Judge. The issue which arose in Chan Sau-lin did not appear to have been considered. In the Chan Sau-lin case (supra), Wong J said this about the Cheung Yin-hang case :

"... the point whether Section 48 was mandatory or not does not appear to have been argued or fully argued before Fuad, V.P., who was content to dismiss the appeal on the facts and issues framed before him."

There Fuad V.P. said :

"In his Statement of Findings the learned magistrate referred to section 48 of the Ordinance and stated that the statutory provisions showed that forfeiture was mandatory unless undue hardship would be suffered by the making of a forfeiture order, it was in such cases that the court had a discretion not to order forfeiture."

7. In other words, a magistrate does have a discretion under Sec. 48 whether or not to order forfeiture. Wong, J. appeared to disagree.

8. The third and next ground of appeal relates to the new Sec. 48A(7) of the DCO. The new section came into effect on 23rd July 1993, well over a month after the seizure of the vehicle. It gives the magistrate a discretion either to forfeit, or to deliver to the claimant, or to dispose of the goods or things as he may specify. There is nothing to indicate the 1993 Ordinance was to have any retrospective effect: see Sec. 20 Interpretation and General Clauses Ordinance. The new section does not apply in the present case.

9. In respect of the fourth ground of appeal, the proper procedure under the old Sec. 48 was in fact followed.

10. In all the circumstances there is nothing in the final ground of appeal.

11. The appeal is accordingly dismissed.