The Queen v Ngai Wai

Court:High Court (Hong Kong)
Judgement Number:HCMA750/1985
Judgment Date:10 Sep 1985
HCMA000750/1985 THE QUEEN v. NGAI WAI

HCMA000750/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 750 OF 1985

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BETWEEN

THE QUEEN Respondent
AND
NGAI WAI Appellant
(trading as Kam Fat Hong and Company)

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Coram: Hon. Nazareth, J. in Court.

Date of hearing: 6 September 1985

Date of delivery of Judgment: 10 September 1985

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JUDGMENT

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1. In this case the crew of a Taiwanese fishing boat pleaded guilty and were convicted of attempting to export 1,188 video cassette records without an export licence in breach of the Import and Export Ordinance (Cap. 60). Thereafter the Commissioner of Customs and Excise applied for the forfeiture of the recorders under section 27 of that Ordinance. Under section 28 of the Ordinance, the recorders are in the particular circumstances subject to discretionary as opposed to mandatory forfeiture.

2. The Appellant as owner then applied for the release to him of the recorders. The magistrate, following a hearing, refused and in the exercise of his discretion ordered the goods to be forfeited. From that order the Appellant now appeals.

3. It is common ground that the forfeiture provisions are 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, are to be used when the prescribed conditions arise; and that the onus of establishing good reason lies upon the Appellant. (Attorney General v. CHIN Chack-wing (1961) HKLR 479 and Director of Immigration v. CHU Shiu-fat (1980) HKLR 780)

4. The essential question I therefore have to decide is whether there is good reason why forfeiture should not be ordered. While it is not to be expected that the courts would attempt comprehensively to define good reason, there appears to be very little guidance on that matter. But in the relevant context of Director of Immigration v. CHU Shiu-fat, Macdougall J. held that where there is a complete absence of fault on the part of the owner, the magistrate should on the type of application there concerned, exercise his discretion in the owner's favour, but that it did not follow that where there was fault on the part of the owner, the court must necessarily order forfeiture; that the mere fact that forfeiture would cause undue hardship to the owner does not of itself resolve...

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