刑事檢控科各律師/高級律 - Department of Justice

43
Held :
(1) The law was as set out in R v CEC Finance Ltd [1993] 1
HKC 127, 131. Bokhary JA said:
The discretion to order forfeiture being unfettered, the
question whether or not to so order is to be approached
from a neutral starting point, with both parties on a
level playing field, so to speak, and each with the onus
of proving on a balance of probabilities any fact which
he or it asserts if that fact is not admitted by the
opposite party. That is how the question is to be
approached. And it is to be answered by reference to
what is just in all the circumstances as the magistrate
finds such circumstances proved or admitted.
(2) The magistrate found that, as claimant, the Appellant
retained all rights and responsibilities of the owner, that he knew
cross-border trade and that the illicit use of the vehicle was a real
possibility. He found that the Appellant introduced the driver to
Mr Lam and that he had at no time since renting the vehicle
checked or inspected it;
(3) The approach of the magistrate could not be faulted.
Result - Appeal dismissed.