HKSAR v. CHUI LOI

HCMA649/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.649 OF 1998

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REASONS FOR JUDGMENT

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1. This is an appeal against a Forfeiture Order under s.48(2) of the Dutiable Commodities Ordinance.

2. The subject matter of the Order was the vessel "Wai Wah 008" which was seized in connection with a case of importing unmanifested goods which occurred on 6 December 1997. The commody involved was 40,000 litres of diesel fuel.

3. On 13 May 1998, a Notice of Application for forfeiture of the vessel was issued. After a contested hearing on 11 June 1998, a Magistrate sitting in the Eastern Magistracy made the Forfeiture Order.

4. The Appellant Mr Chui Loi purports to be the authorized agent of the owners of the vessel and he appeared in the proceedings in the Court below to resist the Government's application and claimed for the return of the vessel. The only issue before the learned Magistrate was the tonnage of the vessel in question. Under s.15(1)(b) of the Dutiable Commodities Ordinance, any ship not exceeding 250 tonnes gross tonnage could be the subject matter of seizure by a member of the Custom and Excise Service. It is the Prosecution's case that the gross tonnage of the vessel is 210 tonnes and this was supported by a Certificate of Gross Tonnage issued by the Marine Department dated 16 December 1997 which was exhibited at the hearing.

5. The Appellant produced before the Magistrate a photocopy of a document dated 11 April 1994 issued by the Chinese Government certifying that the gross tonnage of the same vessel was 256 tonnes. The discrepancy in tonnage is crucial to the issue. If it is accepted by the Magistrate that the tonnage is in excess of 250 tonnes, then the vessel could not have been liable to seizure. On the other hand, if he finds that the gross tonnage is less than 250, then it would fall within the provision of s.15(1) and s.48(2).

6. At the hearing, the learned Magistrate accepted the evidence as contained in the Certificate of Gross Tonnage by the Marine Department and rejected the contents of the document issued by the Chinese Authorities.

7. There is only one ground of appeal and it is this : the learned Magistrate was criticised by Counsel for the Appellant for wrongly placing too much weight on the evidence produced by the Hong Kong Government and for rejecting the evidence produced by the Appellant. At page 4 of the Reasons for Decision, the learned Magistrate dealt with the issue of the tonnage and the Appellant's status as a Claimant. In the course of the hearing, the Certificate issued by the Marine Department was placed before the learned Magistrate. Section 48A(9)(b) provides :

"A certificate issued by the Director of Marine ... certifying the gross tonnage of a ship, shall without proof of the signature, be admissible as evidence of the facts as stated in the certificate."

As the Chinese document was presented to the Magistrate was only a photocopy, the learned Magistrate stated that he was in doubt as to the authenticity of the document. It was certainly open to him to accept the contents of the Certificate issued by the Director of Marine and reject the photocopies.

8. The learned Magistrate was also concerned with the status of the Appellant as Claimant for return of the vessel. Having considered the evidence, he concluded that the Appellant could not satisfy him on a balance of probability that he was the agent of the registered owner of the vessel. The Appellant was not able to produce any supporting document in respect of the relationship between the Appellant and the registered owner.

9. The learned Magistrate had correctly addressed himself on the issues of law and facts and he was entitled to come to the conclusions as he did based on the evidence before him at the hearing.

10. For the reasons given, the appeal against the Forfeiture Order is dismissed.