THE Court of Appeal was yesterday asked to determine whether a magistrate was wrong to order the forfeiture of a van used in smuggling when its owner was unaware of the crime. The legal owner of the vehicle, CEC Finance Ltd, was blameless and it was bizarre to put the burden on an innocent party to prove why the order should not be made, it was submitted. CEC is appealing against a forfeiture order made by magistrate Mr Peter Line after a business partner of the registered owner of the vehicle, Mr Patton Tsui Wai-shing, was convicted of smuggling television sets. Mr Tsui, also found to be blameless in the matter, made no claim on the van. The Appeal Court, comprising Vice-President Mr Justice Silke, Mr Justice Bokhary and Mr Justice Mortimer, reserved judgement. Counsel for CEC, Mr Richard Mills-Owens QC, leading Mr H. Y. Wong, on appeal told the court that his client entered a hire purchase agreement with Mr Tsui on June 29, 1991, for the van. The vehicle was to be used in Mr Tsui's transport business in which he was a partner with Pang Ying-wah. On December 22, 1991, without Mr Tsui's knowledge, Pang used the van for smuggling, said counsel. Police found him unloading 55 television sets from the van on to a fishing vessel. Pang was convicted of breaching the Import and Export Ordinance and was sentenced to six months in jail. Only CEC made a claim on the van. It was rejected after a hearing on April 28, last year, by Mr Line who ordered the vehicle confiscated. While it was not in dispute that the van was involved in the smuggling and was therefore liable for forfeiture, by making the order, an innocent party was deprived of its property, Mr Mills-Owens said. He said a forfeiture order was not mandatory. There was nothing in the Import and Export Ordinance to suggest that the burden was on the claimant to prove they would suffer undue hardship if the order was made, he said. Senior Crown counsel Mr Tim Casewell argued that a great loophole would be created if the provision for forfeiture did not cover vehicles under a hire purchase agreement and it would encourage offenders to make use of it.
