1 Nov 2023
Plaintiff proved a prima facie contravention and the defendant failed to prove on the balance of probabilities that he did not participate in or facilitate the illegal import by design or negligence; accordingly the court exercised its discretion to order forfeiture under s.42(2)(b) of Cap 589.
19 Dec 2011
The court held that on the evidence there was a prima facie case of conspiracy to defraud and offences under s.21 Theft Ordinance such that the crime/fraud exception applies to all seized materials created on or after 7 September 2008, thereby excluding LPP for those items; litigation privilege was not available because litigation was not reasonably in prospect and the dominant purpose test failed; legal advice privilege is confined to confidential communications between the legal advisers and the designated client (the Group Legal Department) and is lost where documents originate from or are…
27 May 2002
Leave to appeal is granted because the Commissioner has raised substantial questions of statutory construction and procedural consequence under s.27 of the Import and Export Ordinance that merit determination by the Court of Final Appeal, specifically concerning the calculation of the 30‑day challenge period, the effect of misdescription in a notice of seizure, the meaning of "owner" in s.27(3B) and the permissibility of service by exhibition under s.27(4)(c).
9 Oct 2000
The court held that police taking possession of abandoned goods and subsequent handover to Customs constituted a valid seizure under the Import and Export Ordinance; absent evidence to the contrary the magistrate was entitled under s43(3) to assume the officers were properly authorized, and accordingly the forfeiture order was lawful and the appeal failed.
24 Jul 2000
Leave to apply for judicial review was refused because the material before the Court did not disclose an arguable case: evidence established that Customs lawfully seized the vessel and s.27(3A) applied, the applicant failed to discharge the burden of showing otherwise or to make full and frank disclosure, Customs had considered s.27(2), and the statutory scheme placed the onus on the owner to claim within the prescribed period making the owner's lack of knowledge immaterial.
12 Jul 2000
The 2nd Respondent, as a chargee, established it was not a wholly innocent party in the pejorative sense and had taken reasonable and customary banking inquiries, protections in the debenture, inspections and demanded licences after the 1998 statute; there was no evidence the System was specifically designed or adapted to make infringing copies under s133(13); on balance and considering prejudice to the bank as secured creditor, the court refused forfeiture of the System items claimed by the bank and ordered forfeiture only of other infringing items.
19 Dec 1997
The decision of the Commissioner dated 22 October to dismantle and remove the plant was quashed as Wednesbury unreasonable because it was contrary to the effect of Barnett J.'s order and undertakings; the court prohibited dismantling/removal until the Commissioner initiates forfeiture proceedings under section 133(1) and an interlocutory injunction can be sought, unless the plant is used in the meantime, subject to specified protective conditions.
12 Aug 1997
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.
20 Dec 1983
The court held that (A) the informant is not required to produce the document informing the court under s.86A(1) on oath; (B) a police officer need not be authorised in writing to seize under s.86(1); (C) if 'officer' means police officer no written authority is needed, if it means public officer a written authority from the Authority is required; and (D) informing the court may be verbal or by written document (including an annexure) containing particulars showing compliance with s.86(1); if challenged the Magistrate must inquire and may hear sworn evidence.
8 Apr 1983
Where an offence is designated for mandatory forfeiture by section 86A(1)(a) and regulations, a court nonetheless may order forfeiture only if it is satisfied that the goods were seized under section 86(1) and that the informant informed the court of the seizure; absent clear compliance with these statutory prerequisites a forfeiture order is unlawful and must be quashed.