HKSAR v. TSANG CHIN CHIU AND ANOTHER

HKSAR v. TSANG CHIN CHIU AND ANOTHER

The Court held that s.46(1) is a strict liability offence but an accused may raise a defence of honest belief which must be proved on the balance of probabilities; the magistrate's finding that the 1st appellant failed to meet that burden was upheld and the conviction stands. However, the forfeiture order was set aside because the magistrate proceeded without ascertaining or giving the company (the owner) an opportunity to be heard, breaching natural justice, rendering the forfeiture unsafe.

Citation
HKSAR v. TSANG CHIN CHIU AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: Tsang Chin Chiu; 2nd Appellant: Noble Knight Development Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 July 2002
Case Number
HCMA356/2002
Procedural Posture
Criminal Appeal From Magistrates' Court (magistracy Appeal) / Appeal to High Court (court of First Instance)
Outcome
Appeal by 1st appellant dismissed (conviction upheld); appeal by 2nd appellant allowed (forfeiture quashed and funds to be returned)
Legal Topics
Strict Liability, Forfeiture of Proceeds, Natural Justice (right to Be Heard), Licence Conditions, Appeal Against Conviction
Source Language
EN
Criminal Law Procedure Evidence Administrative/licensing Law Strict Liability Forfeiture of Proceeds Natural Justice (right to Be Heard) Licence Conditions +1 more

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Parties

HKSAR

Respondent

Tsang Chin Chiu

1st Appellant

Noble Knight Development Ltd

2nd Appellant

Procedural Posture

Criminal Appeal From Magistrates' Court (magistracy Appeal) / Appeal to High Court (court of First Instance)

Legal Issues

  1. 1 Whether offence under s.46(1) Dutiable Commodities Ordinance is one of strict liability
  2. 2 Whether the accused could rely on an honest belief defence and burden/standard of proof for that defence
  3. 3 Whether the magistrate's questioning showed bias

Ratio Decidendi

The Court held that s.46(1) is a strict liability offence but an accused may raise a defence of honest belief which must be proved on the balance of probabilities; the magistrate's finding that the 1st appellant failed to meet that burden was upheld and the conviction stands. However, the forfeiture order was set aside because the magistrate proceeded without ascertaining or giving the company (the owner) an opportunity to be heard, breaching natural justice, rendering the forfeiture unsafe.

Court Disposition

Appeal by 1st appellant dismissed (conviction upheld); appeal by 2nd appellant allowed (forfeiture quashed and funds to be returned)

Orders

  • Appeal by 1st appellant against conviction dismissed
  • Conviction of 1st appellant under s.46(1) Dutiable Commodities Ordinance upheld