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Hoi Kam Hung v Hksar

Judgment Cited in Precedent Map Related
Vincent
Judgment Date20 April 1999
Year1999
Judgement NumberFAMC3/1999
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
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)

_____________________

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

_____________________

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

_______________________________

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

_______________________________

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"For the purposes of the Dutiable Commodities Ordinance, Cap. 109, the manner of testing for light oil need not be published nor prescribed by subsidiary legislation".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

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