THE QUEEN v. HU YIN FOO AND ANOTHER

Procedure - Gambling - Forfeiture - Exclusion of s.102 of Criminal Procedure Ordinance by specific enactment - High Court Judge has no wider power or discretion than a magistrate where the statute provides that it is mandatory for a magistrate to forfeit property on proof of certain matters.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS No. 131 OF 1987

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JUDGMENT

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1. THIS is an application for the return of a pleasure vessel which was seized by the police on 2nd November, 1986 as a result of a raid on the vessel where a total of 41 people were arrested and I have been told that these people had been charged with offences under the Gambling Ordinance and were due to appear before a magistrate in the afternoon of 22nd January. The vessel was moored at the Causeway Bay typhoon shelter.

2. A summons was taken out by solicitors acting for the two applicants on 17th January and it came before me at 9:30 a.m. on 22nd January and I adjourned the matter for decision until this morning after Counsel addressed me very briefly.

3. THE applicants are the registered owner of the vessel which they purchased in October, last year with the assistance of hire-purchase facilities from the United Merchants Finance Limited. The loan of $130,000 was to be repaid by 12 equal monthly instalments of $12,080 each to commence from 18th October, 1986.

4. MR. Alderdice who appears for the applicants told me that there was very strong evidence against those who were arrested and charged and they would be convicted on all probabilities. He argued, however, that as his clients had not been charged and were not going to be charged, it would be both unfair and inequitable that they should be penalized. In fact they were nowhere near the vessel at the time of the offence and had no knowledge of the illegal act. There was absolutely no evidence that his clients had done anything wrong and it was the boat-keeper who had the key who allowed the vessel to be used for the illegal activities and he was to be charged with the offence of permitting the vessel to be used for unlawful gambling. Mr. Alderdice submitted that injustice and inequity would result in this case, if the matter was not remedied here and now, because once the issue came before a magistrate who had no discretion but to order the forfeiture of the vessel together with other property and equipments used in or for or in connexion with unlawful gambling as required by section 26 of the Gambling Ordinance which provides:

"If in any proceedings under this Ordinance or otherwise on application by or on behalf of the Commissioner, a magistrate is satisfied that any money, gambling equipment or other property, not being immovable property, has been used in or for or in connexion with unlawful gambling or an unlawful lottery, he shall order that it be forfeited to the Crown, whether or not any person has been convicted of an offence under this Ordinance."

5. IT is to be observed that the test for forfeiture is whether the property, not being immovable property, has been used in or for or in connexion with unlawful gambling and is not whether any person has been convicted or even charged with an offence under the Ordinance. I fail to see how the question of fairness and equity can possibly come into the picture because there has been a long line of authorities that forfeiture arising out of revenue, economic and social offences has nothing to do with guilt or innocence, negligence or blamworthiness.

6. THE decision in the Attorney General v. Chin Chack-wing and another [1961] H.K.L.R.479 is a case very much in point.

"The first respondent was the registered owner of a motor-car purchased on hire-purchase terms financed by the second respondents who under the hire-purchase agreement were the legal owners of the vehicle. While the vehicle was under the control of a third party to whom it had been loaned by the first respondent, dutiable tobacco was seized from it. The magistrate forfeited the tobacco under section 44(1) of the Dutiable Commodities Ordinance, Cap.109, but refused to forfeit, under s.16, the vehicle.

The Crown appealed by way of case stated.

In the case stated, the magistrate said that he exercised his discretion in favour of the finance company who were unaware of the purpose to which the vehicle was put and were not negligent."

7. It was held by the Full Court that s.16 of Cap.109 provides that where dutiable goods are found in a vehicle it may be forfeited; there is no additional requirement of guilt or negligence on the part of the owner for its forfeiture and the magistrate was wrong in relying on the factor of blamelessness on the part of the finance company. It was also held that the forfeiture provisions of section 16 were for the purpose of enforcing the Ordinance by serving as a deterrent against its contravention, and, in the absence of good reason to the contrary, were to be used when the prescribed conditions arose. The Full Court ordered the forfeiture of the vehicle.

8. Another case is the Bank of Tokyo Limited v. the Queen [1962] H.K.L.R.633. The facts which are taken from the headnote are these:

"The appellant company was the legal owner of 2 motor vehicles under a hire-purchase agreement, the vehicles being registered in the name of the hirer. The vehicles were found to have been used to convey illegal immigrants and were seized as having been used in contravention of the Immigration (Control and Offences) Ordinance, 1958. An application was made for forfeiture and a summons was served on the registered owner, who had claimed exemption from forfeiture, requiring him to attend on the hearing of the application.

An order for forfeiture was made by the magistrate at the hearing.

The appellant, who had not been served with notice, and was not a party to the proceedings before the magistrate, appealed against the forfeiture on the ground that notice ought to have been given to it as the owner of the vehicles."

9. In his judgment at page 637, Mills-Owens J. had this to say:

"I would agree that no discretion is conferred on the magistrate where it appears that a vehicle has been so used. If the magistrate finds an offence to have been committed in the user of the vehicle he has no option but to forfeit. No question arises of considering whether the owner or claimant is an innocent party, or of considering the "equity" in the matter. As I understand it the policy of the law is to forfeit. Moral claims are for the Governor in Council to consider, not the Courts. It is a form of legislation which it has been thought necessary to adopt in this type of case, as also, for example, in Customs and Excise cases. And I have no doubt this type of legislation has a long ancestry."

10. I am in complete, and respectful agreement with these utterances which, in my view, also apply to the present situation. Section 26 of the Gambling Ordinance is as much a penal provision as section 16 of the Dutiable Commodities Ordinance, Cap.109 and section 41 of the Immigration (Control and Offences) Ordinance, 1958. Forfeiture is clearly intended by the legislature to be an additional penalty and deterrent to eliminate unlawful gambling.

11. IN this case, my conclusion is fortified by what Counsel for the Crown has told me that there is evidence that the vessel was specifically equipped for gambling and on previous occasions before the raid on 2nd November police officers on surveillance duty had observed large numbers of people going onto and off the vessel.

12. THIS application is purported to be brought under section 102 of the Criminal Procedure Ordinance, Cap.221. But one must not overlook what is stated in subsection (6) which says:

"Where by any other Ordinance it is provided that any particular property shall or may be forfeited, destroyed or disposed of, then the provisions of such Ordinance shall prevail."

13. THIS is precisely the position here. Since section 26 of the Gambling Ordinance has expressly excluded the application of section 102 of the Criminal Procedure Ordinance, the question is one of strict law and not of discretion. Where the statute says that a magistrate shall forfeit on being satisfied that the property has been used in or for or in connexion with unlawful gambling, a judge sitting in the High Court has no wider power or discretion than a magistrate has. The matter must proceed under the normal and prescribed procedure.

14. IN Lo Sam v. The Queen [1959] H.K.L.R. 241 it was held by Sir Michael Hogan C.J. that a statute passed for a particular purpose, must, so far as that purpose extends, override general enactments. That in the circumstances of that case, the magistrate was wrong to order the release of the boat on any terms other than those prescribed by section 41(5) of the Immigration (Control and Offences) Ordinance. The facts were:

"A boat had been seized by an immigration officer, who was also a police officer, in respect of an alleged offence against the Immigration (Control and Offences) Ordinance. The owner had given notice to the immigration authorities of his claim but no application had been made by the Crown for forfeiture. The magistrate made an order under section 41 of the Magistrates Ordinance, Cap.227 for the release of the boat pending the hearing of the case. The Crown appealed by way of case stated."

15. THE law is clear and certain enough to require any amplification or further pronouncement and in my judgment this application is totally misconceived and has no merit. It must be dismissed.