Hong Kong Case Law: Decisions & Judgments

Topic

Innocent owner defence

Legal area

Court

15 Aug 2017

香港特別行政區訴東亞銀行有限公司

Citation

香港特別行政區訴東亞銀行有限公司
Court

Court of First Instance
Case number

HCMA74/2017

Appellant, as legal owner of the tractor unit, failed to show on the balance of probabilities that it neither participated in nor negligently facilitated the smuggling; reliance solely on hire‑purchase contractual terms without reasonable preventive measures (such as an inspection regime) amounted to negligence that justified refusal of discretionary relief under s28(7); the appellate court found no error in the magistrate's factual conclusions and upheld the forfeiture order.
25 Jul 2016

HKSAR v. LIU LIXIANG

Citation

HKSAR v. LIU LIXIANG
Court

Court of First Instance
Case number

HCMA95/2016

Magistrate correctly found the goods were prima facie liable to forfeiture, accepted only invoice C2 supported by CW1 establishing ownership of 100 iPhones, rejected invoices C1 and C3 and CW2 as unreliable documentary hearsay, and the appellant having failed to give evidence or establish on the balance of probabilities that she did not facilitate the contravention, failed to discharge the burden necessary to obtain delivery under s28(7); accordingly the forfeiture order was properly upheld.
21 Aug 2009

HKSAR v. TSOI SAI YIM t/a KING JIN TELECOM TRADE CO

Citation

HKSAR v. TSOI SAI YIM t/a KING JIN TELECOM TRADE CO
Court

Court of First Instance
Case number

HCMA376/2009

The magistrate erred because there was no admissible evidence linking the appellant's goods to smuggling; accordingly the goods were not liable to forfeiture and must be returned to the appellant unconditionally.
13 Jan 2009

WONG HON SUN v. HKSAR

Citation

WONG HON SUN v. HKSAR
Court

Court of Final Appeal
Case number

FAMC55/2008

Leave to appeal was granted because whether the correct standard of proof applies to allegations of complicity by an unconvicted owner in forfeiture proceedings and whether the magistrate in fact applied the criminal standard are arguable questions of law of sufficient importance to warrant determination by the Court of Final Appeal; parties to address whether the appeal should be decided by this court or remitted to the Magistrate's Court.
19 Oct 2004

HKSAR v. QUAN & CO ACTING ON BEHALF OF CHENG LOI TAI

Citation

HKSAR v. QUAN & CO ACTING ON BEHALF OF CHENG LOI TAI
Court

Court of First Instance
Case number

HCMA521/2004

The magistrate permissibly found on the balance of probabilities that the objective facts supported an irresistible inference the goods were intended for export to Mainland China, the claimant failed to prove he was an innocent owner, and therefore the magistrate correctly exercised her unfettered discretion to order forfeiture under the Import and Export Ordinance.
12 Jul 2000

COMMISSIONER OF CUSTOMSAND EXCISE v. KA SHING CAPITAL LTD. AND ANOTHER

Citation

COMMISSIONER OF CUSTOMSAND EXCISE v. KA SHING CAPITAL LTD. AND ANOTHER
Court

District Court
Case number

DCMP2157/1999

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.
13 Feb 1996

THE QUEEN v. SHANTOU SPECIAL ECONOMIC ZONE TEXING INDUSTRY TRADE COMPANY

Citation

THE QUEEN v. SHANTOU SPECIAL ECONOMIC ZONE TEXING INDUSTRY TRADE COMPANY
Court

Court of First Instance
Case number

HCMA1072/1995

The appeal is allowed because the magistrate's reasons were legally inadequate and his reliance on the company's paid up capital was an impermissible basis to reject documentary and testimonial proof of ownership; where ownership is established and involvement in smuggling is not, forfeiture must be set aside and goods returned.
9 Feb 1996

R. v. RANK XEROX (HONG KONG) LTD.

Citation

R. v. RANK XEROX (HONG KONG) LTD.
Court

Court of First Instance
Case number

HCMA1104/1995

The Magistrate acted within jurisdiction in exercising his unfettered discretion under s.5(3); disposal proceedings are to be approached neutrally with parties proving asserted facts on the balance of probabilities per R v CEC Finance; the Crown need not prove seizure beyond reasonable doubt; the Magistrate did not misplace the burden or err in drawing inferences; appeal dismissed.
19 Sept 1995

THE QUEEN v. SHUM WAH WAH AND ANOTHER

Citation

THE QUEEN v. SHUM WAH WAH AND ANOTHER
Court

Court of First Instance
Case number

HCMA419/1995

The appeal was allowed because the magistrate's reasons did not sufficiently demonstrate she approached the forfeiture discretion neutrally and analysed whether the appellants were innocent; the proper practice is to start from a neutral position, require parties to prove disputed facts on the balance of probabilities, and decline forfeiture where goods belong to innocent parties, so the forfeiture order was set aside and remitted for fresh consideration.