HKSAR v. LAM SHING FAI and Others

HKSAR v. LAM SHING FAI and Others

The court held that s.48 of Cap.109 is penal and must be strictly construed; the phrases "used" and "made use of" in s.15(1) and s.48(2) require direct use in the commission of the offence and do not extend to items merely facilitating patronage; karaoke equipment were not directly used to commit sale/possession...

Source-derived case information.

Citation
HKSAR v. LAM SHING FAI and Others
Parties
Appellant: HKSAR; 1st Respondent: Lam Shing Fai; 2nd Respondent: Chan Kwan Kit; 3rd Respondent: Shek Kin Man; 4th Respondent: Leung Kan Shing; 5th Respondent: Lam Cheuk Kwun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 August 1997
Case Number
HCMA128/1997
Procedural Posture
Magistracy Appeal (case Stated) to High Court, Court of First Instance / Judgment on Appeal (case Stated)
Outcome
Appeal dismissed
Legal Topics
Forfeiture, Seizure, Disposal of Exhibits, Construction of Statutory Words, Jurisdiction to Dispose of Property
Source Language
en
Criminal Law Statutory Interpretation Property Forfeiture Procedural Law Forfeiture Seizure Disposal of Exhibits Construction of Statutory Words +1 more

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Parties

HKSAR

Appellant

Lam Shing Fai

1st Respondent

Chan Kwan Kit

2nd Respondent

Shek Kin Man

3rd Respondent

Leung Kan Shing

4th Respondent

Lam Cheuk Kwun

5th Respondent

Procedural Posture

Magistracy Appeal (case Stated) to High Court, Court of First Instance / Judgment on Appeal (case Stated)

Legal Issues

  1. 1 Whether magistrate had jurisdiction to order return of seized property under s.102 of Cap.221 rather than forfeiture proceedings under Cap.109
  2. 2 Whether items were "used" or "made use of" within s.15(1) and s.48(2) of the Dutiable Commodities Ordinance so as to be liable to forfeiture
  3. 3 Whether s.15(1)(c) applied to the karaoke equipment

Ratio Decidendi

The court held that s.48 of Cap.109 is penal and must be strictly construed; the phrases "used" and "made use of" in s.15(1) and s.48(2) require direct use in the commission of the offence and do not extend to items merely facilitating patronage; karaoke equipment were not directly used to commit sale/possession offences and therefore were not liable to forfeiture under s.48; accordingly the magistrate had jurisdiction under s.102 Cap.221 to order return of the items to lawful owners and to impose ancillary conditions; s.102(6) did not preclude the order because Cap.109 did not apply.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Order of magistrate dated 27 March 1996 upheld: all disputed items to be returned by the police to the lawful owners at the premises within 3 days and reinstated to their original state by the police at their own expense with the least disturbance to the lawful business of the premises