“Powdered Milk Formula”

For many readers (particularly, “couples” travelling through the customs channel from Hong Kong to the Mainland), the Court of Final Appeal’s judgment in HKSAR v. Lam Tan Ching [2018] HKCFA 1, 25 January 2018, may come as some relief.

The defendant (appellant) was apparently stopped by customs officers and found to have had four cans of powdered milk formula in his backpack, being two cans for him and two for his wife. By the time he was stopped the defendant had become temporarily separated from his wife.

As some readers may recall, the Import and Export (General) (Amendment) Regulation 2013 came into operation on 1 March 2013 in order to combat so-called parallel trading in powdered milk formula between Hong Kong and the Mainland. As a result of amendment to the relevant regulations (Cap. 60A), the export of powdered formula to all places outside Hong Kong became prohibited pursuant to s. 6D(1) of the Import and Export Ordinance (Cap. 60), unless done in accordance with an export licence. However, regulation 6(1D) exempted powdered formula that (among other things):

“… is exported in the accompanied personal baggage of a person aged 16 or above leaving Hong Kong –

(a) if –

(i) the person did not leave Hong Kong in the last 24 hours; and
(ii) the formula does not exceed 1.8 kg in total net weight;”.

The four cans found in the defendant’s possession apparently weighed approximately 3.6 kg. He was convicted before a magistrate of an attempted offence under s. 6D(1) of the Ordinance and received a nominal fine. That decision was affirmed by a High Court judge. It appears that the defendant’s explanation that he was carrying two cans for his wife was to no avail because the magistrate took the view that each person leaving Hong Kong was not allowed to export more than 1.8 kg of powdered formula.

The issue before the CFA was essentially whether “the accompanied personal baggage of a person” was limited to the personal baggage carried by the person or extended to baggage carried by another who accompanied the person leaving Hong Kong. This issue turned on the meaning of “accompanied personal baggage”. The unanimous judgment of the CFA treated this as an everyday expression that was fact dependent and a matter of common sense. A telling passage from the judgment states (at paragraph 13):

“… Without attempting an exhaustive definition, I am of the view that on the basis of the defence case, two of the four cans of powdered formula should be regarded as part of the wife’s accompanied personal baggage, just as if she shared a suitcase with her husband and her clothes were in his suitcase. They were travelling on the same journey with her and belonged to her and should be regarded as her accompanying personal baggage.”

The CFA had no hesitation in quashing the defendant’s conviction. As the judgment notes, “Families travelling together often carry stuff for one another”.

The issue of parallel trading in Hong Kong is serious (particularly, with respect to certain items). However, on reflection, it would seem that the circumstances of this case are not the sort that the regulations were designed to catch. Presumably, customs officers seeking to enforce the regulations in the future may think twice before coming between a married couple and their personal baggage.

Jurisdictions: 

Senior Consultant, RPC

Partner, RPC