HOI KAM HUNG v. HKSAR

FAMC No. 3 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM MAGISTRACY APPEAL No. 791 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. Save where the contrary is stated, all the statutory provisions to which we will refer are those of the Dutiable Commodities Ordinance, Cap. 109. References to "the Ordinance" will be to that Ordinance.

2. This applicant was tried in the Magistrate's Court on one charge of possession of dutiable goods, contrary to s.17(6) as read with s.46(3). He was convicted by the magistrate. His appeal to the Court of First Instance of the High Court was dismissed by the recorder who heard it. The recorder certified the following point of law as one of great and general importance: "For the purposes of the Dutiable Commodities Ordinance, Cap. 109, the manner of testing for light oil need not be published nor prescribed by subsidiary legislation". The applicant now seeks leave to appeal to the Court of Final Appeal.

3. The dutiable goods of which he stands convicted of being in possession of are 10 litres of motor spirit. The same had been pumped from a jerry can into his car while it was parked in an open space. He was not on the spot at the time. And he said that this was done without his knowledge. But the magistrate found in effect that, as a matter of irresistible inference, the applicant was buying petrol on the cheap and on the sly from someone who had evaded the duty on the same.

4. "Motor spirit" is defined in s.69, which provides that it "means any light oil suitable for use as fuel in any internal combustion engine, but does not include aircraft spirit."

5. "Light oil" is defined in the same section, which provides that it "means hydrocarbon oil of which not less than 50% by volume distils at a temperature not exceeding 185(C, or of which not less than 95% by volume distils at a temperature not exceeding 240(C, or which gives off an inflammable vapour at a temperature of less than 23(C when tested in the manner prescribed by the Government Chemist".

6. The Government Chemist has given a certificate which states that the substance in question is " 'light oil' within the meaning of the Dutiable Commodities Ordinance".

7. Two points are put forward by Mr Ross for the applicant in his thorough argument as points of law of great and general importance which he wishes to argue before the Court of Final Appeal.

8. The first point is the point in respect of which the recorder gave a certificate. It is along the following lines.

9. The Government Chemist has not made any regulations under the Ordinance. And the first argument which the applicant wishes to pursue before the Court of Final Appeal is that the offence of which he has been convicted is unknown to the law because the definition of "light oil" is incomplete unless and until the Government Chemist has made regulations under the Ordinance prescribing the manner of testing whether the substance in question gives off an inflammable vapour at a temperature of less than 23(C.

10. In our view, this argument cannot begin to run. The Ordinance expressly confers regulation-making powers on the Chief Executive in Council. We do not accept that it is reasonably arguable that by the mere use of the word "prescribed" the Ordinance impliedly turned the Government Chemist into a subsidiary legislator. Accordingly the Ordinance does not confer any power on the Government Chemist to make regulations. Therefore it cannot possibly be construed as contemplating his doing so. What he prescribes does not have to be ? since it cannot be ? prescribed by way of regulations. An administrative decision by him prescribing for himself and his staff the manner of testing is all that the Ordinance contemplates.

11. The alternative suggestion that the manner of testing should at least be published is nothing to the point. There is no reference to publication in the Ordinance. And it is to be remembered, anyway, that the prescribing is not of how things are to be done by the outside world. It pertains to how the Government Laboratory goes about conducting scientific tests leading to certificates which are only prima facie evidence. Accordingly, as in Lau Suk Han v. HKSAR [1998] 1 HKLRD 673, we decline to grant leave to appeal notwithstanding that a certificate has been given by the court below.

12. The second argument is that the applicant's acceptance of the fact that the substance concerned was light oil within the meaning of the Ordinance was insufficient to trigger the presumption in s.40(c) that:

"if a person transfers hydrocarbon oil to or from a vehicle's fuel tank ?

(i) at a location other than premises licensed under Part VI of the Dangerous Goods (General) Regulations (Cap. 295 sub-leg.); and

(ii) in circumstances that give rise to a reasonable belief that the hydrocarbon oil is dutiable,

the hydrocarbon oil found in or about the location is dutiable goods."

13. It was established that a person transferred the substance concerned to the applicant's vehicle's fuel tank. It was also established that such substance was hydrocarbon oil. This is because the applicant agreed that such substance was light oil within the meaning of the Ordinance. As we have seen, light oil within such meaning is, by definition, hydrocarbon oil. That the circumstances gave rise to a reasonable belief that the hydrocarbon oil was dutiable cannot be denied.

14. There is only one basis on which it is contended on the applicant's behalf that the presumption was nevertheless not triggered. The prosecution led no evidence that the location where such transfer was effected were not premises licensed under Part VI of the Dangerous Goods (General) Regulations. And this, the applicant contends, left it open to doubt whether the location were such premises.

15. The applicant submits that s.94A of the Criminal Procedure Ordinance, Cap. 221, does not - or at least reasonably arguably does not - apply to a situation like this. The respondent submits that it is clear beyond reasonable argument that s.94A applies. For the reason which we are about to state, we need not consider s.94A.

16. The short answer to this contention is that the location was an open space identified merely by its position opposite to a particular lamp post, and it is simply fanciful to think of the same as premises which might have been so licensed. Such premises, as one sees from the Regulations mentioned above, have to be dangerous goods stores: not open spaces with jerry cans of inflammable substances lying about.

17. This answer to the applicant's second argument also puts an end to his complaint of substantial and grave injustice flowing from the recorder's failure to deal with it.

18. Despite Mr Ross's thoroughly researched arguments for which we thank him, leave to appeal to the Court of Final Appeal is refused.