Hoi Kam Hung v Hksar

Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC3/1999
Judgment Date:20 Apr 1999
FAMC000003/1999 HOI KAM HUNG v. HKSAR

FAMC000003/1999

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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Between:
HOI KAM HUNG Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Appeal Committee: Chief Justice Li, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 20 April 1999

Date of Determination: 20 April 1999

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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importance: "For the purposes of the Dutiable Commodities Ordinance, Cap. 109, the manner of testing for light oil need not be published nor prescribed by subsidiary legislation".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...

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