WONG HON SUN v. HKSAR

FAMC 55/2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 608 OF 2007)

----------------------

----------------------

----------------------------------------

D E T E R M I N A T I O N

--------------------------------------

Mr Justice Bokhary PJ :

1.  The magistrate began by observing that the claimant objected to forfeiture on the footing that “he is the innocent owner of the goods or at most only negligent, and that forfeiture would cause him undue hardship”.  She then said that “the standard of proof is on a balance of probabilities”.  It is one thing to say that about any fact that each side may assert on the questions of negligence and hardship such as may arise when, as in R v. CEC Finance Ltd [1993] 2 HKCLR 134, forfeiture of a vehicle is resisted by a hire purchase company.  But it is a different thing to say it when an unconvicted owner resisting forfeiture of articles is alleged to have been complicit in the smuggling of those articles.  Is it for the party seeking forfeiture to prove such complicity beyond reasonable doubt or at least on the basis that the more serious the conduct alleged, the more compelling will be the evidence needed to prove it on a preponderance of probability?  And if the allegation upon which forfeiture is being sought is of something other than complicity, what, depending on the nature of such other allegation, is the legal position in regard to proof of it?  These are arguable questions of such importance as to warrant the Court of Final Appeal’s attention.

2.  It should be mentioned that, after reviewing the evidence, the magistrate said that “the only reasonable inference was the Claimant clearly knew how the silver bricks were to be exported out of Hong Kong to his intended destination”.  The “only reasonable inference” criterion is the classic criterion for proof beyond reasonable doubt upon circumstantial evidence.  And the Court of Final Appeal would have to be addressed on whether or not, whatever she said about proof on a balance of probabilities, the magistrate in fact found complicity proved against the claimant beyond reasonable doubt.  But the matter cannot be stopped on that basis at the leave stage.  We grant the claimant leave to appeal.  The parties should in their printed cases and oral arguments assist the Court on whether, if proof was wrongly approached below, the Court of Final Appeal should itself attempt to decide the question of forfeiture on the correct approach or remit that question to the Magistrate’s Court for that court to deal with it on the approach declared by the Court of Final Appeal to be the correct one.