THE QUEEN v. HO KIN PING

bjbj HCMA000549/1991 1991, No. 549 ------------------

HEADNOTE ------------------- FORFEITURE PROCEEDINGS - SMUGGLED VIDEO RECORDERS - GUILTY KNOWLEDGE OF CLAIMANT - NO GROUNDS FOR ORDERING CONDITIONAL RETURN OF GOODS.

IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 549 OF 1991 ---------

BETWEEN THE QUEEN Respondent and HO KIN PING Appellant Coram : Hon. Bewley J. in Court Date of hearing : 10th December 1991 Date of handing down of judgment : 27th December 1991 ----------------

JUDGMENT ----------------- This is an appeal against a forfeiture order made by Mr Venning in Fanling Magistrates Court. The appellant is the claimant of the goods which consist of 650 video tape recorders. On 20th October 1990 at Man Kam To Border Control the driver of a lorry tendered to customs officers a manifest stating that the lorry was carrying 60 drums of palm oil. When a search was made the video recorders were found in 54 of the drums. The driver, his employer and the consignor, Wan Choi-moon alias Chan Sun, were charged with attempting to export unmanifested cargo. Mr Wan was the only defendant convicted and he was fined $25,000 and sentenced to six months imprisonment suspended for two years. Mr Wan said he was a businessman engaged in the palm oil trade and the construction business. He admitted concealing the goods in the drums with the intention of evading detection by the Chinese customs. He was to receive $50,000 from the claimant for conveying the goods to China. The claimant appeared before the magistrate on 2nd May 1991 in an attempt to show cause why the goods should not be forfeited. He said he was a trader in electrical appliances. On 9th October 1990 a friend from China telephoned and asked him to buy about 700 video recorders on his behalf and to send them to him in Canton. The claimant agreed but said he did not know how to go about sending them to

him. Consequently he asked his friend Mr Wan, who he said was in transport and trading , to arrange transportation of the goods to Canton and the approval of the Chinese authorities for their importation into China. Mr Wan agreed to carry out this service for an inclusive fee of $50,000 payable by the claimant. The latter informed his friend in Canton that the arrangements were in hand and asked him to send the purchase money. In due course he received a cheque for $1.2 million, which he cashed but which was not produced in court. The claimant then purchased a total of 656 video recorders from two companies. The invoices were produced and show that the cost was $1,599,760. The claimant delivered 650 of these machines to Mr Wan with instructions to transport them to Canton as soon as possible. Mr Wan was then to telephone the claimant from China so that the latter could arrange for the goods to be transferred to his friend. Unfortunately for the claimant they never arrived in China. It was submitted both on appeal and below that the claimant was not at fault in committing a breach of the ordinance and that his property should therefore be restored to him. Alternatively it was submitted that, if the court found that the fault was relatively minor and forfeiture of the goods would impose a penalty grossly disproportionate to the circumstances of the case, then the goods should be

returned conditional on payment of a proportion of their value to the Commissioner. Three cases were cited in which the latter approach was adopted. See R. v. Ngai Wai, Mag. App. 750/85, A.G. v. Chung Chi Wing, Mag. App. 892/87, R. v. Au Kwok Kwan, Mag. App. 1099/90. In distinguishing these cases on the facts, the magistrate said :- There has also been a considerable upsurge in the smuggling of electronic items into China. I consider this makes the use of formulas similar to those adopted in the three cases to be inappropriate in cases of smuggling situations in which the prime aim is to avoid duty and licensing restrictions. In Au Kwok Kwan Kaplan J. said at p.3 :- In my judgment, the learned Magistrate was perfectly entitled to come to the view that forfeiture was appropriate because forfeiture can be, and is, ordered even though the owner of the goods has not committed a criminal offence. Nevertheless, owners of goods cannot wash their hands of the provisions of the Import and Export Ordinance. The forfeiture provisions are there to underpin the legislation and if owners wish to avoid the risk of forfeiture, and the costs involved in trying to get goods back, they should take certain basic steps to ensure that the Ordinance is not breached by those to whom they have entrusted the carriage of the goods. However, even if there is an element of fault on the part to the owner of

goods, it does not necessarily follow that forfeiture must be ordered or that if forfeiture does follow it should be of all the goods in question. The wide discretion should not be unduly circumscribed. Each case must be considered on its merits. Concerning the claimant s evidence the magistrate said this :- As far as claimant s contentions that he was innocent of any fault I find myself unable to attach any credibility to the same. All the circumstances of the transaction implicate him circumstancially as a guilty and knowing party. I cannot believe that he would not be fully informed of the rules in China. I accept the forfeiture of the goods is financially disastrous to Claimant and his China principal, but that is a risk they took when they entered into this illicit high profit activity. This was a conclusion to which he was fully entitled to come. The claimant s story was unbelievable. The only reasonable inference is that he Knew that the goods were to be smuggled into China. There are no gounds for interfering with the magistrate s decision. The appeal is dismissed. (E. de B. Bewley) Judge of the High Court Representation: Mr Lavac, Senior Crown Counsel, for Crown Mr Mumford, Q.C. and Mr Souyave (M/s Wong Shum & Co.) for Appellant

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