HKSAR v. MUSAH HAKEEM TAHIRU alias TAHIRU MUSA HAKEM

HCCC 464/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 464 OF 2015

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D E C I S I O N

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Introduction

1.  On 28 April 2017, following his trial in this Court, the defendant was convicted of the offence of unlawfully trafficking in dangerous drugs in relation to drugs found in his flat, but acquitted of the offence of dealing with property known or believed to represent the proceeds of drug trafficking in relation to a large quantity of cash which was found in his flat, consisting of US$736,100, HK$15,000 and EURO$1,170, and on his person, consisting of HK$9,005.10.  Before sentencing the defendant upon his conviction for drug trafficking, the Secretary for Justice made an application for a confiscation order in relation to the funds found in the defendant’s flat.

2.  This decision therefore addresses three matters. First, the defendant’s sentence following his conviction after trial for the offence of drug trafficking.  Secondly, the jurisdictional objection to the Secretary for Justice making an application for a confiscation order for funds the subject of an offence of dealing in the proceeds of drug trafficking for which the defendant was found not guilty after trial.  On this matter, I have already ruled against the jurisdictional objection and will provide my reasons for doing so.  Thirdly, the application for the confiscation order. 

Case background

3.  On 20 April 2017, the defendant stood trial before this Court and a jury on an amended indictment containing two counts. 

4.  Count 1 concerned the offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars of the offence were that the defendant on 29 January 2015 at Room 1, Flat A, 3^rd Floor, Hing Fat Building, Nos. 133-137 Temple Street, at Yau Ma Tei, unlawfully trafficked in dangerous drugs, namely 473.56 grammes of a solid containing 256.73 grammes of cocaine, 19.07 grammes of a crystalline solid containing 18.76 grammes of methamphetamine hydrochloride and 1.06 grammes of cannabis in herbal form. 

5.  Count 2 concerned the offence of dealing with property known or believed to represent the proceeds of drug trafficking, contrary to section 25(1) and (3) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405, (the DTROP).  The particulars of the offence were that the defendant on or about 29 January 2015, knowing or having reasonable grounds to believe that property, namely cash of $736,100 United States currency, cash of $24,005.10 Hong Kong currency and cash of $1,170 Euro, in whole or in part directly or indirectly represented the proceeds of drug trafficking by himself in Hong Kong, dealt with the said property.

6.  On 28 April 2017, at the conclusion of the trial, the defendant by a majority verdict of the jury of 5 to 2 was found guilty on Count 1 but was found not guilty on Count 2 by a verdict of 6 to 1. The case was adjourned to 31 May 2017 for sentence in relation to the conviction on Count 1.

7.  On 31 May 2017, an oral application was made on behalf of the Secretary for Justice pursuant to section 3 of the DTROP for a confiscation order against the defendant in relation to the quantity of cash which was the subject of Count 2. 

8.  On 15 July 2017, Ms Jennifer Fok, for the Secretary for Justice, submitted a written application for a confiscation order.  In support of the application, a statement pursuant to section 5 of the DTROP dated 10 July 2017 from Detective Senior Inspector of Police Cheng Ki-Fung (Senior Inspector Cheng) was tendered into evidence. 

9.  Mr James McGowan, for the defendant, raised a jurisdictional objection to the application in light of the defendant’s acquittal on Count 2.  It was agreed between the parties that the objection be dealt with as a preliminary issue prior to the hearing of the substantive application.  On 17 August 2017, after having heard submissions from the parties, I dismissed the objection and said that I would hand down my reasons later which I now do in this decision.

10.  I directed that the sentencing of the defendant in relation to Count 1 and the hearing of the confiscation order be fixed for 2 September 2017.  I also directed that as a result of the filing of a section 5 statement from Senior Inspector Cheng, the defendant file and serve a statement in reply pursuant to section 5(1B) by 24 August 2017, and that the Secretary for Justice file and serve any reply thereto by 28 August 2017.  The parties were further required to file and serve written submissions in relation to the hearing of the confiscation order by 31 August 2017. 

11.  The defendant filed a statement dated 25 August 2017 and Senior Inspector Cheng filed a further statement in reply dated 29 August 2017. 

12.  Written submissions were filed by the Secretary for Justice and the defendant dated 31 August and 1 September 2017 respectively. 

13.  At the conclusion of the hearing on 2 September 2017, I indicated to the parties that I would hand down my decision on 3 October 2017.  However, soon after the hearing, the defendant submitted a letter to the Court dated 7 September 2017 which was in the form of further submissions which Mr McGowan addressed on 3 October 2017.  I therefore indicated to the parties that I would hand down my decision on 20 October 2017 which was adjourned to 7 December 2017 in order to address and consider additional authority. 

The other counts

14.  For the purposes of addressing the confiscation order, it is necessary that I provide a brief overview of the counts on the original indictment that the defendant faced and how they were reduced down to the two on which he was tried, together with a brief account of related proceedings in the District Court. 

15.  The original indictment against the defendant dated 11 December 2015 consisted of six counts.  In addition to the two counts on which the defendant stood trial, which were Counts 5 and 6 on the original indictment, it was alleged that the defendant was involved in other drug trafficking activities. 

16.  The other first four counts were as follows.  The original Count 1 alleged that the defendant trafficked in 0.38 grammes of a solid containing 0.19 grammes of cocaine together with Jaiteh Musa, Barrow Samba and David Jordan on 21 January 2015.  The original Count 2 alleged that the defendant trafficked in 0.34 grammes of a solid containing 0.16 grammes of cocaine together with Jaiteh Musa, Barrow Samba and David Jordan on 21 January 2015. The original Count 3 alleged that the defendant trafficked in 0.73 grammes of a solid containing 0.35 grammes of cocaine together with Jaiteh Musa, Barrow Samba and David Jordan on 29 January 2015.  The original Count 4 alleged that the defendant trafficked in 7.24 grammes of a solid containing 3.97 grammes of cocaine, 3.02 grammes of a crystalline solid containing 3 grammes of methamphetamine hydrochloride, 9.98 grammes of cannabis in herbal form, 6.43 grammes of cannabis resin and 0.17 grammes of trifluoromethylphenylpiperazine on 29 January 2015.

17.  The prosecution case against the defendant in relation to the six counts was that, on 21 and 29 January 2015, he together with Jaiteh Musa, Barrow Samba and David Jordan trafficked in drugs in the vicinity of Lockhart Road, Wan Chai, and that he was the supplier of the drugs.  There was a police operation observing and engaging through police decoys the four men in drug transactions which went overt on 29 January 2015.  A quantity of drugs was recovered in a nearby rear lane concealed in an air conditioning unit.  When the defendant was arrested he was found to have on him the sum of HK$9,005.10 cash.  The police later searched his residence where they found a large quantity of drugs and a large quantity of cash, mainly in US dollars.

18.  The defendant’s three co-accused had been separately tried in the District Court before Judge J Lam in relation to five charges.  Charges 2 to 4 alleged the same offences as reflected by the original Counts 1 to 3, and Charge 5 alleged the same offence as reflected by the original Count 4 which was laid against David Jordan with the defendant as an unindicted co-defendant.  Charge 1 only concerned Jaiteh Musa for the offence of offering to traffic in a dangerous drug to which he pleaded not guilty. Charges 2 to 4 concerned Jaiteh Musa, Barrow Samba and David Jordan for the joint offence of trafficking in a dangerous drug together with the defendant.  These three offences were reflected in the original Counts 1 to 3.  Jaiteh Musa pleaded guilty to Charges 2 to 4 on the basis that he was trafficking in the drugs on his own and not with the others.  Barrow Samba and David Jordan pleaded not guilty to the charges.  Charge 5 concerned David Jordan only for the offence of trafficking in a dangerous drug together with the defendant to which he pleaded not guilty.  This offence was reflected in the original Count 4.  

19.  The outcome of the case was that the judge acquitted the three co-accused of the offences to which they had pleaded not guilty but convicted Jaiteh Musa on his own plea in relation to Charges 2 to 4.[1]  It appears from the judge’s reasons that he was not satisfied that the evidence supported the finding that Jaiteh Musa had jointly trafficked with the others in the drugs as specified in Charges 2 to 4.  In relation to Charge 5, he found that David Jordan had no case to answer.  The judge in his reasons rejected the prosecution evidence which mainly came from police officers and further rejected the allegation that Jaiteh Musa was part of a joint enterprise with the others. 

20.  Returning to the original indictment that the defendant faced before this Court, he applied for a separate trial on the original Counts 1 to 4 and for the trial to proceed only on the original Counts 5 and 6.  After hearing argument from the parties, in a decision I handed down on 15 November 2016, I refused the application to sever the indictment.[2]

21.  However, subsequently on 5 January 2017, the prosecution decided to proceed against the defendant only on the original Counts 5 and 6.  An amended indictment dated that day was laid containing the two counts only.  The remaining first four counts on the original indictment were ordered to be left on the court file and marked not to be proceeded with, without the leave of the Court or the Court of Appeal. 

Legal and procedural framework for a confiscation order

22.  The confiscation regime that operates under the DTROP was enacted in 1989.  It was modelled on the Drug Trafficking Offences Act 1986 and was later amended following the Drug Trafficking Act 1994.  As a result, decisions from the courts of the United Kingdom in relation to their legislation have been relied upon by the courts in Hong Kong when addressing issues in respect of the DTROP.  A subsequent series of legislation was enacted in the United Kingdom which eventually resulted in the Proceeds of Crime Act 2002, that Lord Bingham of Cornhill in R v May [2008] 1 AC 1028, said consolidated and refined the previous legislation, although retaining the essential structure of the 1986 Act.  It is for this reason that helpful guidance can be provided from recent decisions of the courts of the United Kingdom as certain general principles have been carried forward from earlier decisions, although they have to be carefully considered because there are differences between our respective confiscation regimes.

23.  In 1994, the Organized and Serious Crimes Ordinance, Cap 455, (OSCO) was enacted.  This legislation provided a regime for confiscation of the proceeds of serious crime.  The essential structure of the confiscation regime is similar to that in the DTROP but there are some significant differences.  For example, there is a distinction in the criminal conduct underlying the confiscation order under the two regimes.  Under the DTROP, the court is to determine whether the person has benefited from “drug trafficking”, while under the OSCO, it is a question of whether the person has benefited from any specified offence or, if that offence is an organized crime, from all organized crime he has committed.   

24.  There appears to be some overlap between the two confiscation regimes as the specified offences under the two schedules of the OSCO regime include certain offences under the Dangerous Drug Ordinance, Cap 134, which are contained in the schedule of the DTROP regime.  In any event, the DTROP still remains in force and more specifically deals with drug trafficking.

25.  The confiscation regime under the DTROP has been helpfully explained by Lugar-Mawson J in Secretary for Justice v Lee Chau Ping [2000] 1 HKLRD 49 and HKSAR v Shing Siu Ming & Others (No 2) [2000] 3 HKC 83.  Further helpful guidance has been provided by the trilogy of cases from the House of Lords in R v May [2008] 1 AC 1028, Jennings v CPS [2008] 1 AC 1046 and R v Green [2008] 1 AC 1053, and more recently from the Supreme Court of the United Kingdom in R v Ahmad; R v Fields [2015] AC 299.  These cases were relied on by the Court of Final Appeal in HKSAR v Li Kwok Cheung George (2014) 17 HKCFAR 319 when addressing the meaning of “proceeds of crime” under the OSCO.

The two sets of circumstances for a confiscation order

26.  Section 3(1) of the DTROP delineates two sets of circumstances in which the Secretary for Justice may apply for a confiscation order of the proceeds of drug trafficking. 

27.  The first is under section 3(1)(a)(i) where a person has been convicted of a drug trafficking offence before the Court of First Instance or the District Court for which he is in the process of being sentenced.  The second is under section 3(1)(a)(ii) where proceedings for a drug trafficking offence have been instituted against a person but have not yet concluded because the person has died or has absconded.  In either of those circumstances, the Secretary for Justice pursuant to section 3(1)(b) may apply for a confiscation order to the court concerned. 

28.  I will now set out the procedure applicable to an application made pursuant to section 3(1)(a)(i) as this is the basis of the present application. 

The three preconditions

29.  For a court to entertain an application for an order of confiscation, three preconditions must be satisfied.  First, the person the subject of the application has been convicted of a drug trafficking offence before the Court of First Instance or the District Court (section 3(1)(a)(i)).  Secondly, the person has yet to be sentenced by the court concerned (section 3(1)(a)(i)).  Thirdly, the application has been made by the Secretary for Justice (section 3(1)(b)).

The three questions

30.  It is important to bear in mind that the legislative intent of the DTROP is to deprive the defendant of the benefit gained from drug trafficking, which is equated with the defendant “at any time” receiving “payments or other rewards” in connection with drug trafficking carried on by the defendant or another (section 3(4)). 

31.  When addressing similar legislative provisions in the United Kingdom, Lord Bingham of Cornhill in R v May at paragraph 8 posed three questions that a court is required to address and answer before making a confiscation order.  I will respectfully adopt these questions with appropriate modifications. 

32.  The first question is: has the defendant benefited from drug trafficking?  The second question is: if so, what is the value of the benefit he has so received?  The third question is: what sum is recoverable from the defendant?  If the answer to the first question is in the negative, the inquiry ends.  If, however, the answer is positive, then the court goes on to address the second and third questions. 

33.  As explained by Lord Bingham of Cornhill, in some cases there may be no dispute how one or more of these questions should be answered, but the questions are distinct and the answer given to one does not determine the answer to be given to another.  He emphasised that the questions and answers should not be elided and went on to point out that:

“9 Although “confiscation” is the name ordinarily given to this process, it is not confiscation in the sense in which schoolchildren and others understand it. A criminal caught in possession of criminally-acquired assets will, it is true, suffer their seizure by the state. Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained. “Confiscation” is, as Lord Hobhouse of Woodborough observed in In re Norris [2001] 1 WLR 1388, para 12, a misnomer.”

34.  The three questions as posed under the DTROP require the court to make the following determinations.  The first is to determine whether the defendant has benefited from drug trafficking.  In this regard, the court may rely on the assumptions under section 4 in order to assess the proceeds of drug trafficking together with any statements tendered under section 5 and the evidence at trial.  The second is to determine the value of the defendant’s proceeds which involves a calculation of the amount to be recovered in accordance with section 6.  The third is to determine the amount that might be realised which involves making a calculation in accordance with section 7(3). 

35.  When an application for a confiscation order is made, section 3(2) provides that the court must first impose an appropriate sentence in respect of the offence concerned and make such other orders in relation to the sentence as is appropriate, except for making a confiscation order.  The other orders that may be made are set out under section 3(2)(a)(ii) and include:

“(A) imposing any fine on the person;

(B) involving any payment by the person; or

(C) under section 38F or 56 of the Dangerous Drugs Ordinance (Cap. 134), or under section 72, 84A, 102 or 103 of the Criminal Procedure Ordinance (Cap. 221);”

36.  These orders variously deal with monetary penalty, compensation or forfeiture, and if made would obviously need to be taken into account when a court decides to make a confiscation order.  See also section 3(6) and section 7(2). 

37.  There are two further important aspects of the confiscation regime that need to be noted.  The first is the direction under section 3(11) that a confiscation order made against a person shall be deemed to be a sentence passed on that person in respect of the offence concerned.  The second is the declaration under section 3(12) that the standard of proof required to determine any question arising under the DTROP as to whether a person has benefited from drug trafficking or the amount to be recovered in his case in pursuance of a confiscation order shall be on the balance of probabilities. 

Whether the person has benefited from drug trafficking

38.  The court is required under section 3(3) to determine whether the person has “benefited from drug trafficking”.  In this regard, section 3(4) provides that “a person who has at any time received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking”.  This definition is repeated and elaborated upon when defining a person’s proceeds of drug trafficking in section 4(1).

39.  The conduct of “drug trafficking” is defined under section 2 and means:

“… doing or being concerned in, whether in Hong Kong or elsewhere, any act constituting –

(a) a drug trafficking offence; or

(b) an offence punishable under a corresponding law,

and includes dealing, whether in Hong Kong or elsewhere, with any property which in whole or in part directly or indirectly represents any person’s proceeds of drug trafficking;” 

40.  The concepts of a “drug trafficking offence” and “dealing” as contained in the definition of “drug trafficking” are also defined under section 2.  A “drug trafficking offence” means:

“(a) any of the offences specified in Schedule 1;

(b) conspiracy to commit any of those offences;

(c) inciting another to commit any of those offences;

(d) attempting to commit any of those offences;

(e) aiding, abetting, counselling or procuring the commission of any of those offences;”

41.  While “dealing” in relation to property referred to in the definition of “drug trafficking” includes:

“(a) receiving or acquiring the property;

(b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);

(c) disposing of or converting the property;

(d) bringing into or removing from Hong Kong the property;

(e) using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise);”

42.  Relevant to the present case, trafficking in a dangerous drug, contrary to section 4(1) of the Dangerous Drugs Ordinance, Cap 134, is one of the offences listed under Schedule 1. 

43.  Under section 2, property is widely defined and “includes both movable and immovable property within the meaning of section 3 of the Interpretation and General Clauses Ordinance, Cap 1”.  Section 2(3) provides that the Ordinance applies to property whether it is situated in Hong Kong or elsewhere.  Section 2(5) provides that references “to property received in connection with drug trafficking include a reference to property received both in that connection and in some other connection”, and under section 2(7), property is held by any person, which would include the defendant, if he holds any interest in it. 

44.  In summary, when determining whether a person has benefited from drug trafficking, a court must be satisfied that a person has at any time received a payment or other reward in connection with drug trafficking whether carried on by him or another person. 

Determining the value of the benefit the person has received

45.  Under section 3(5), if the court determines that the person has benefited from drug trafficking, then it goes on to determine in accordance with section 6 the amount to be recovered.  The court is required to take into account, although as it thinks fit, the impact that any other orders that may be made upon sentence, as noted under section 3(2)(a)(ii)(A), (B) and (C), will have on the amount that the person is ordered to pay. 

46.  In assessing the proceeds of drug trafficking, section 4(1) provides that:  

“(a) a person’s proceeds of drug trafficking are—

(i) any payments or other rewards received by him at any time (whether before or after 1 December 1989) in connection with drug trafficking carried on by him or another;

(ii) any property derived or realised, directly or indirectly, by him from any of the payments or other rewards; and

(iii) any pecuniary advantage obtained in connection with drug trafficking carried on by him or another; and

(b) the value of the person’s proceeds of drug trafficking is the aggregate of the values of—

(i) the payments or other rewards;

(ii) that property; and

(iii) that pecuniary advantage.”

47.  Section 4(2) further provides that the court concerned may, for the purpose of determining whether the defendant has benefited from drug trafficking and assessing the value of his proceeds of drug trafficking, make the following assumptions as set out under section 4(3):

“(a) that any property appearing to the court—

(i) to have been held by him at any time—

(A) since his conviction; or

(B) where section 3(1)(a)(ii) is applicable, since the application was made for a confiscation order in his case,

as the case may be; or

(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him,

was received by him, at the earliest time at which he appears to the court to have held it, as his proceeds of drug trafficking;

(b) that any expenditure of his since the beginning of that period was met out of his proceeds of drug trafficking; and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as his proceeds of drug trafficking, he received the property free of any other interests in it.”

48.  It was held by Bokhary JA (as he then was) in R v Ko Chi Yuen (No 2) [1994] 2 HKCLR 65, that the assumptions under section 4(2) and (3) do not infringe the presumption of innocence provision under Article 11(1) of the Hong Kong Bill of Rights.  He explained that they were designed to make convicted and sentenced drug traffickers disgorge their ill-gotten gains.  He noted that a person against whom a confiscation order is sought is not charged with an offence and that the prison term in default is fixed in order to enforce the court’s order for payment.  See section 8.  In other words, a confiscation order is not penal for it is seeking to put a defendant “into the financial position in which he would have found himself if he had not received his proceeds of drug trafficking”.  See also R v Ko Chi-yuen [1993] 2 HKCLR 101 at 111. 

49.  The phrase “held by him at any time since his conviction” in section 4(3)(a)(i)(A) applies to any property held by a defendant on the date which he was convicted, irrespective of the date he began to hold the property.  The assumptions are not ones the judge must make, they are ones that he may make when it is rational and realistic for him to make them in the context of establishing facts.  This was explained in Shing Siu-ming at 94I-95B.  The burden of displacing the assumptions, however, lies with the defendant on balance of probabilities.  See Secretary for Justice v Lee Chau Ping [2000] 1 HKLRD 49, at 68C-D.

50.  In R v Redbourne (1993) 14 Cr App R (S) 162, the Court of Appeal of England and Wales considered the circumstances which a judge may make the assumptions under section 2 of the Drug Trafficking Offences Act 1986.  The wording of that section is similar to section 4 of the DTROP. It was held that it cannot have been the intention of Parliament that the judge must be satisfied on the evidence before him that that defendant has benefited from drug trafficking before he makes any assumption at all.  The judge must have some reason to suspect that the defendant has benefited from drug trafficking before he makes the assumptions or any of them.  The assumptions once made have a drastic effect, but that was plainly the intention of the Parliament.  The effect of the assumptions, if they are not rebutted, is that the assumed fact is to be treated as true.

51.  In a later decision in R v Williams [2001] Crim. L.R. 242, the Court of Appeal of England and Wales considered the circumstances which a judge should make the assumptions under section 4 of Drug Trafficking Act 1994.  The wording of that section is similar to section 4 of the DTROP, except that under that provision it is mandatory for the court to make the assumption unless the assumption was shown to be incorrect in the defendant’s case or that the court was satisfied there would be serious risk of injustice in the defendant’s case if the assumption were to be made. 

52.  The Court of Appeal held that the prosecution must prove to the civil standard that the defendant held property at a time subsequent to his conviction, or that property was transferred to the defendant within the relevant period of six years, or that he made expenditures during that period.  Once the factual basis of one of the assumptions is established to the civil standard, it was held that the court is required to make the assumption unless the defendant either rebuts the assumption or that there would be a serious of injustice to his case if the assumptions were to be made.  The process was explained at 243 as follows.

“The making of an assumption required the court to be satisfied to the civil standard of one of the primary facts. These were either that the defendant had held any property or that any property had been transferred to him, or that the defendant had incurred expenditure during the relevant period. The court must have prima facie evidence of one of the facts before it might make and apply an assumption. ...

It was submitted that the proper valuation of the appellant’ s proceeds was a two stage process. The first stage was an evidence stage, where the court heard evidence and established its findings to the civil standard as to what property appeared to have been held by the defendant since conviction or transferred to him during six years before the proceedings were brought and his expenditure during that period.  Statutory assumptions were of no assistance to the court at this stage; evidence was required to establish the sums in issue.  The second stage was the assumption stage, where the court, for the purpose of treating such property and expenditure as the proceeds of drugs trafficking, applied the assumptions in section 4 of the Act unless and to the extent that the exemptions were proved to be incorrect. … The Court accepted the submissions.”

53.  As the Court of Appeal points out, no assumption can be made until the factual basis for the assumption has been established. The prosecution must prove to the civil standard that the defendant held property at a time subsequent to his conviction, or that property was transferred to the defendant within the relevant period of six years, or that he made expenditures during that period.  The defendant may challenge any evidence adduced to prove these matters. 

Determining the amount to be recovered

54.  Section 6(1) provides that the amount to be recovered under the confiscation order shall be the amount the court assesses to be the value of the defendant’s proceeds of drug trafficking, which is defined under section 4(1)(b) as the aggregate value of payments or other rewards, property and pecuniary advantage that a defendant received in connection with drug trafficking carried on by him or another. 

55.  Section 6(3) provides that:

“If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be—

(a) the amount appearing to the court to be so realised; or

(b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil.”

56.  The amount that might be realised is defined in section 7(3) as:

“(a) the total of the values at that time of all the realisable property held by the defendant, less

(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,

together with the total of the values at that time of all gifts caught by this Ordinance.”

57.  Under section 7(1), realisable property is defined as:

“(a) any property held by the defendant;

(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Ordinance; and

(c) any property that is subject to the effective control of the defendant.”

58.  It is also provided under section 7(2) that property is not realisable property if orders are in force in respect of the property under section 102 or 103 of the Criminal Procedure Ordinance, or section 38F or 56 of the Dangerous Drugs Ordinance.  See also section 3(2)(a)(ii)(C) and (6)(b).  In Shing Siu Ming it was heldat 97F-G that realisable property “does not have to be derived from the proceeds of drug trafficking, including legitimately acquired property”. 

Making the confiscation order

59.  If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made, section 6(2) provides that the court may issue a certificate giving its opinion as to the matter concerned.  The court must do so if it is satisfied under section 6(3) that the amount to be realised is less than the amount it assesses to be the defendant’s proceeds of drug trafficking. 

60.  There is an obligation on the court when making a confiscation order to fix a time in which it is to be paid.  The period of time fixed should not normally be longer than 6 months.  This is provided under section 8(1)(a)(i) and (1A). 

61.  The court is also obliged to fix a term of imprisonment that the defendant must serve if any of the amount that he is liable to pay under the confiscation order is not paid or recovered: section 8(1)(a)(ii).  The imprisonment is not to punish the defendant for benefiting from drug trafficking, but to enforce the court’s order for payment.  The term of imprisonment is determined in accordance with the table under section 8(2).

Preliminary issue on jurisdiction

62.  As I noted at the outset of this decision I had ruled against the jurisdictional objection and these are my reasons for doing so. 

63.  Mr McGowan, for the defendant, contended that the defendant’s acquittal of the dealing in the proceeds count could only have come about because the jury accepted what the defendant had said in evidence and that they could not be sure that the monies were the proceeds of his drug trafficking.

64.  The position, correctly stated, is that the verdict of not guilty on the dealing in the proceeds count reflects that the jury were not satisfied beyond reasonable doubt, in other words, they were not sure, that the monies in question were the proceeds of the defendant’s drug trafficking. 

65.  Mr McGowan argued that the prosecution had made a decision to prosecute the defendant for the dealing in the proceeds count so that he would be punished for the offence, but also to facilitate confiscation.  He submitted that the prosecution had failed in this regard as a result of the jury’s decision.  He further submitted that the prosecution would not otherwise be able to appeal the acquittal but by this application they were seeking to do so. 

66.  As I understood Mr McGowan’s argument, he complained that the confiscation proceedings are civil in nature where the court can make an assumption that the money was the proceeds of drug trafficking under section 4(3) which would be contrary to the jury’s decision. 

67.  I did not see how this argument was relevant to the question of jurisdiction.  Whether an assumption under section 4(3) is invoked is a decision of the court taking into account all the circumstances, including the evidence presented and submissions from counsel.  A court may not need to rely on any of the assumptions set out in section 4(3).  Even if it did, it is not an issue that would act as a bar to invoke the jurisdiction.

68.  Mr McGowan also contended that to proceed with the confiscation application, in light of the jury’s verdict, was illogical and unjust.  I disagreed with this submission. 

69.  The jury by its verdict found the defendant not guilty of dealing in the proceeds of drug trafficking.  In other words, they were not satisfied beyond reasonable doubt that he was guilty of the offence. The elements of that offence are set out in section 25(1) of the Organized and Serious Crimes Ordinance, Cap 455.  The section reads:

“(1) Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence, he deals with that property.”

70.  If the tribunal of fact is satisfied that each of elements has been proven beyond reasonable doubt, it will render a person guilty of the offence and liable to a term of imprisonment.  An application for a confiscation order is governed by a different set of legislative provisions as contained under the DTROP. 

71.  An application by the Secretary for Justice for a confiscation order is provided for under section 3 where a person is to be sentenced in respect to a drug trafficking offence.  When such an application is made, the court is required to determine whether the person has benefited from drug trafficking (section 3(3)).  If the court determines that he has so benefited, the court is then required to determine the amount to be recovered in his case in pursuance of a confiscation order (section 3(5) and (6)).  Most importantly, it is specifically declared under section 3(12) that the standard of proof required to determine these two key questions is on the balance of probabilities. 

72.  It therefore followed that there was no jurisdictional bar for an application of a confiscation order by the Secretary for Justice following a defendant’s acquittal for the offence of dealing in the proceeds of drug trafficking as long as the preconditions for the application under section 3 are satisfied.  In the present case, the defendant following his conviction for trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in proceedings before the Court of First Instance, is to be sentenced in respect to a drug trafficking offence as defined in section 2 and listed in Schedule 1 of the DTROP. 

73.  Mr McGowan relies on the Court of Appeal decision of England and Wales of R v Karl Christopher Johannes (2002) 2 Cr App R (S) where the sentencing judge in that case held a Newton hearing for the purpose of sentence that the appellant was in possession of the drugs as a minder on behalf of the other person but had then taken into account the value of the drugs found in the appellant’s possession in determining the value of his proceeds of drug trafficking in relation to confiscation order. 

74.  The Court of Appeal noted that the judge did not appear to have considered the question whether, in the light of his earlier finding to the criminal standard, the assumption that the drugs represented benefit had been shown to be incorrect and therefore displaced.  The Court held that: “Had he done so, it seems to us he would have found that the assumption was displaced since the second finding by a logical imperative, must have followed the first.” 

75.  The correctness of this decision has been questioned in the commentary to R v Johannes [2002] Crim L R 147 where at 148 to 149 it is stated:

“If the judge’s finding in the Newton hearing had merely been that he was not satisfied to the criminal standard that the defendant had been an active dealer as opposed to a minder, it may be that the conclusion would have been different. If he was equally unsatisfied (to the civil standard) that the defendant was not merely a minder (the burden of displacing the assumption being on the defendant) he might properly have made the assumption that the drugs were bought with cash which was the proceeds of earlier dealing for the purposes of the confiscation order.”

76.  This objection merely highlights, in my view, the distinction between the two sets of proceedings, and why a determination in a criminal trial for an offence contrary section 25(1) of the OSCO, where a verdict of acquittal is returned by the court, does not operate as a bar to apply for a confiscation order under section 3 of the DTROP, as long as the preconditions are satisfied. 

77.  In any event, we do not have the situation that occurred in Johannes in this case.  We do not know what findings had been made by the jury to the criminal standard, except they had so satisfied themselves in relation to the offence of drug trafficking.  All that can be said as to the jury’s verdict of the dealing in the proceeds offence was that they were not satisfied beyond reasonable doubt that the defendant was guilty of it. 

Sentencing of the defendant

78.  As required by section 3(2) of the DTROP, the court must first impose on the defendant such period of imprisonment as is appropriate in respect of the offence concerned together with any other orders that it thinks should be made. 

79.  I want to stress that I have determined the sentence to be passed on the defendant based on the jury’s conviction of him for drug trafficking and on the relevant facts and circumstances presented in evidence at trial that support the conviction as well as the submissions of the parties and the relevant sentencing guidelines and principles.  I have not taken into account my findings in determining the confiscation order as that is a separate matter governed by a different set of legislative provisions and legal principles as already noted by me. 

80.  The defendant was convicted after trial of trafficking in a quantity of dangerous drugs.  The narcotic content of the drugs in question consisted of 256.73 grammes of cocaine, 18.76 grammes of Ice and 1.06 grammes of cannabis in herbal form.  I will for the purposes of sentencing ignore the cannabis as the quantity involved was very small, and would in any event have no or negligible impact on the overall sentence in light of the larger quantities of the more serious drugs.  As the quantity of cocaine was greatest, I will add the narcotic content of Ice to the narcotic content of cocaine and apply the sentencing tariff for cocaine.  I note that the sentencing tariff for Ice starts off slightly higher than that for cocaine, although they are the same once the quantity is 600 grammes or over. 

81.  The applicable sentencing tariff for cocaine is R v Lau Tak Ming [1990] 2 HKLR 370 as confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. 

82.  The defendant was born on 20 March 1973 in Ghana.  He is 44 years old.  He has family in Ghana and a sister in Germany. It is submitted that he has a daughter who is 17 years of age and about to commence her tertiary education.  It is also submitted that he has a daughter with a Singaporean girlfriend who is being cared for by her mother.  The defendant claimed that he first came to Hong Kong in 2003 to try to join a football team but was unsuccessful and left in 2005.  Back in Ghana, he said he had a dispute with an uncle over his mother’s property and therefore returned to Hong Kong in 2007.  He has been here ever since.  He made an application for asylum in 2008.  He confirmed that he was the recipient of assistance from ISS for rent and the provision of food.  He confirmed that he had no source of income.  He stated that he had been living in the Temple Street flat since mid-2013 and that the balance of his rent of $2,000 was paid from the monies given to him by Joan. 

83.  Mr McGowan submitted that the role of the defendant in the present case was one of storing drugs.  He made the point that no scales were found in the premises.  However, in addition to the drugs secreted in the ceiling, the police also found in the premises a large quantity of resealable plastic bags which are commonly used in the drug trade for packaging for distribution and sale of drugs.  I find that the defendant performed the principal role as a supplier and distributer of drugs when one takes into account the array of drugs and the way that they were stored, and the large quantity of plastic bags that were found in the flat. 

84.  The defendant’s criminal record dates back to March 2005 when he was fined for theft and later in November 2008 when he was sentenced to 14 days’ imprisonment for a breach of condition of stay.  However, in April 2011, he was sentenced to 12 months’ imprisonment for trafficking in dangerous drugs and received concurrent sentences of 4 months’ imprisonment for possession of dangerous drugs and 2 weeks’ imprisonment for assaulting a police officer. 

85.  As part of his mitigation, the defendant submitted a letter to the court, expressing his remorse and apology for his involvement in the case.  He explained that he came from a broken family.  He was the middle child of 5 children.  He said he played a major role in looking after his siblings when his parents and older brother passed away.  He said that he has a daughter who is about 18 years old and enrolled in university.  She relies on him for financial assistance and support.  He said he also has another daughter from his Singaporean girlfriend who is 7 years old and suffers with a neurological disorder.  Although, it appears that the mother has or will be moving to Singapore with the daughter.  All of this offers no mitigation on his behalf in light of the grievousness of the offence.

86.  I bear in mind that the defendant had the drugs concerned secreted in the ceiling of his flat to which he had direct control and access, and that the quantity of drugs and of the resealable plastic bags found in the flat meant that they were earmarked for supply and distribution. 

87.  The narcotic content of cocaine was 256.73 grammes and the narcotic content of Ice was 18.76 grammes which makes a total quantity of 275.49 grammes.  This brings the quantity of the drugs in the band between 200 and 400 grammes for which a sentence of 12 to 15 years is suggested.  On an arithmetical calculation, the narcotic content results in a starting point of 13 years and 1 month’s imprisonment. 

88.  There are also present in this case serious aggravating factors that warrant an enhancement of the starting point.  The first is that the defendant’s status as a Form 8 recognizance holder and a non-refoulement claimant at the time of the commission of the offence. 

89.  The Court of Appeal in HKSAR v Mahabul Alam Khan, CACC 116/2016, 8 September 2017, unreported, at paragraphs 29 and 30, repeated the principle articulated in previous decisions, that a non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence.  The Court of Appeal in that case was concerned with the sentence imposed on the applicant who was a Form 8 holder and non-refoulement claimant in relation to trafficking in 238.57 grammes of cocaine narcotic.  The Court enhanced the applicant’s sentence by 15 months for the factor of being a non-refoulement claimant at the time of the offence.  Guided by this case, I will enhance the defendant’s sentence by 16 months.  This brings his sentence to 14 years and 5 months’ imprisonment. 

90.  The second is that the defendant has a prior conviction for drug trafficking in 2011 and as a repeat offender, he has demonstrated a disregard for the law and the court is entitled to treat such matter as an aggravating factor with a view to properly protect the public from further repetition of such conduct.  See HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, 833.  I will enhance his sentence by 4 months.  This brings his sentence to 14 years and 9 months’ imprisonment.

91.  There being no mitigating factors warranting any reduction, I accordingly sentence the defendant to 14 years and 9 months’ imprisonment. 

The application for confiscation

92.  The Secretary for Justice’s application seeks to establish that the defendant has benefited from drug trafficking and that the amount that he has benefited from drug trafficking is the cash found in his possession.  The three preconditions for making an application for an order of confiscation in the present case have been satisfied, namely that the defendant has been convicted of a drug trafficking offence before the Court of First Instance, that he has yet to be sentenced by the court and that the application has been made by the Secretary for Justice.

93.  As noted by Lugar-Mawson J in Shing Siu Ming (No 2) at 93G to I:

“In determining whether a defendant benefited from drug trafficking and the amount of such benefit, the judge may have regard to:

(a) the evidence in the trial;

(b) the material in statements made by the prosecution and defence under s 5;

(c) the s 4(3) assumptions;

(d) the evidence led in the confiscation hearing.

See: R v Dickens [1990] 2 WLR 1384 at 1389 and R v Ko Chi Yuen (Trial) [1993] 2 HKCLR 101 at 106.”

94.  Detective Senior Inspector Cheng Ki Fung has submitted two statements dated 10 July 2017 and 29 August 2017 pursuant to section 5 of the DTROP, setting out the defendant’s prior convictions for drug offences in 2011, his alleged involvement in drug trafficking activities in Wan Chai between November 2014 and January 2015, and his conviction for drug trafficking in the present case and the facts and circumstances in relation to the cash found in his possession. 

95.  The defendant has also submitted a statement dated 25 August 2017 under the same section in response, denying that he has benefited from a drug trafficking as reflected by the cash in his possession which he stated was given to him by others. 

The evidence under section 5

96.  For the purpose of determining a confiscation order, provision is made under section 5 for the tabling of relevant matters before the court. 

97.  Section 5(1) provides that the prosecutor may tender to the court a statement of matters relevant to whether a defendant benefited from drug trafficking and assessing the value of the defendant’s proceeds of drug trafficking.  After such a statement has been served on the defendant, the court may under section 5(1B) require the defendant to indicate the extent to which he accepts each allegation in the statement and if he does not, particulars of any matters on which he proposes to rely.  But where the defendant accepts, to any extent, an allegation in a statement, the court may under section 5(2) for the purposes of determining whether the defendant has benefited from drug trafficking or assessing the value of his proceeds of drug trafficking, treat his acceptance as conclusive of the matters to which the allegation relates. 

98.  If a defendant fails to comply with a requirement under section 5(1B), he may be treated for the purposes of section 5 as accepting every allegation in the statement, apart from, amongst other things, any allegation that any payment or other reward was received by him in connection with drug trafficking carried on by him or another. 

(i) The statements of Senior Inspector Cheng

99.  Senior Inspector Cheng set out the evidence gathered by the police on the original Counts 1 to 4 which he summarised.  In November 2014, the police carried out surveillance in the Wan Chai bar area at night time.  Observations revealed that the four men had been associated together and occasionally chatted with bar patrons. 

100.  It was the prosecution case that the four men were part of a joint enterprise selling drugs in the Wan Chai area.  It was alleged that the drugs were stored at a rear lane beneath an air conditioning unit and the defendant was responsible for fetching them while David Jordan acted as a lookout.  It was Jaiteh Musa who would sell the drugs in the street with Barrow Samba assisting him. 

101.  As I have already noted, Jaiteh Musa, Barrow Samba and David Jordan where dealt with in a separate trial before Judge J Lam in the District Court, where it was alleged in Charge 1 that Jaiteh Musa offered to traffic in drugs, Charges 2 to 4 that the three of them conspired together with the defendant to traffic in drugs, and Charge 5 that David Jordan together with the defendant trafficked in drugs.  Jaiteh Musa admitted his guilt to Charges 2 to 4 but on the basis that he trafficked in drugs on his own and not with the others.  The rest of the charges were contested by the three defendants for which they were acquitted after trial.  The judge was critical of the police evidence and rejected the prosecution case that Jaiteh Musa was part of a joint enterprise with the others.

102.  Senior Inspector Cheng sets out the evidence by way of statements from the relevant police officers of four controlled-buy operations carried out by police decoys.  The first was on 17 and 18 December 2014, the second and third were on 21 and 22 January 2015 and the fourth was on 28 and 29 January 2015. 

103.  After the purchase of cocaine by a police decoy on 29 January 2015, the operation turned overt with the arrest of the four men.  A search of a rear lane at Lockhart Road found the drugs as particularised in the original Count 4.  The estimated street value of drugs seized in the rear lane was about $9,907.09.  

104.  The first controlled-buy took place at around 11:30 pm on 17 December 2014.  The four men were observed wandering outside the bar known as Mes Amis.  At 12:08 am on 18 December 2014, Jaiteh Musa approached a foreigner outside Mes Amis and chatted with him.  Barrow Samba stayed nearby and appeared to act as a lookout.  Jaiteh Musa was seen taking something from his trouser pocket and put it into the palm of the foreigner.  In the meantime, the defendant and David Jordan were seen crossing Lockhart Road and go to a rear lane at 72 Lockhart Road.  The defendant entered the lane while David Jordan waited at the entrance.  The defendant was seen walking towards an air-conditioning unit in the lane and insert his hand underneath it.  He appeared to be doing something there.  The defendant then left the lane and together with David Jordan joined the other two men.  The defendant was seen passing something to Jaiteh Musa who immediately put it in his trouser pocket.  The four men remained outside the bar. 

105.  Later at 12:30 am on 18 December 2014, while a police decoy was drinking outside the bar, Jaiteh Musa approached him and asked if he wanted “coke” at $1,000.  At the same time, the defendant and David Jordan crossed Lockhart Road.  When the police decoy answered affirmatively, Barrow Samba spoke to Jaiteh Musa who in turn told the police decoy that there was no “coke”.  The men then left. 

106.  The second and third controlled-buy took place on 21 and 22 January 2015.  At around 10:30 pm, the four men were observed wandering outside Mes Amis.  A police decoy was at the junction and he was approached by Jaiteh Musa who asked him if he wanted “coke” at $1,000.  Barrow Samba was standing nearby when this happened while the defendant and David Jordan crossed Lockhart Road.  After the police decoy paid $1,000 to Jaiteh Musa, he took a packet out of his pocket and passed it to him.  The packet contained 0.19 grammes of cocaine. 

107.  During this time, police officers observed the defendant and David Jordan going to the rear lane at 72 Lockhart Road.  The defendant entered the lane while David Jordan waited at the entrance.  The defendant went to an air-conditioning unit in the lane where he was seen putting his hand underneath it and doing something.  After the police decoy had successfully purchased the cocaine and left, the defendant and David Jordan joined the other two men.  The defendant was seen passing something to Jaiteh Musa who put it into his trouser pocket. 

108.  The police decoy returned to the location and approached Jaiteh Musa and asked for more “coke”.  The other three men stood nearby.  The police decoy paid $1,000 to Jaiteh Musa who took a packet out of his pocket and passed it to the police decoy.  The packet contained 0.16 grammes of cocaine. 

109.  The fourth controlled-buy took place on 28 and 29 January 2015.  At about 10:30 pm on 28 January 2015, the four men were seen chatting at the junction of Luard Road and Lockhart Road.  The police decoy involved in the two previous transactions, went to the junction at around midnight on 29 January 2015, Jaiteh Musa approached him and asked how much he wanted.  Barrow Samba stood by while the defendant and David Jordan crossed Lockhart Road.  The police decoy paid Jaiteh Musa $2,000.  The money had been marked.  Jaiteh Musa took out two packets from his trouser pocket and passed them to the police decoy.  The two packets contained 0.35 grammes of cocaine. During this time, the police observed the defendant and David Jordan going to the rear lane at 72 Lockhart Road whereas previously the defendant went to an air-conditioning unit in the lane and appeared to be doing something there. 

110.  After this transaction, the police operation turned overt and the four men were arrested. 

111.  A search of the rear lane retrieved from the floor a packet of 0.16 grammes of cocaine and a packet with traces of methamphetamine hydrochloride, and from the supporting frame behind an air-conditioning unit 3 packets containing 9.98 grammes of herbal cannabis, a packet of 6.43 grammes of cannabis resin, a packet of 2 tablets containing a total of 0.17 grammes of trifluoromethylphenylpiperazine, 2 packets of 6 tablets of sildenafil (Part I poison), 5 packets containing a total of 3 grammes of methamphetamine hydrochloride and 13 packets containing a total of 3.81 grammes of cocaine.  

112.  A total of 29 out of the 31 plastic bags seized from the rear lane were found to be made by the same machinery that was used to make plastic bags seized from the defendant’s flat. 

113.  Telephone records retrieved for January 2015 revealed numerous calls between Jaiteh Musa and Barrow Samba, Jaiteh Musa and the defendant, and the defendant and David Jordan. 

114.  There were issues as to the identification evidence, the location of where the drugs were found and whether the defendant was seen entering the rear lane as claimed. 

115.  Senior Inspector Cheng also addresses the evidence presented at the trial of the present case which I will not repeat as I address it later.

116.  Senior Inspector Cheng notes that the defendant was a torture claimant and a Form 8 recognizance holder.  As such, the defendant was not allowed to legally work in Hong Kong.  He stated that the jury by its verdict found the defendant had been trafficking in dangerous drugs seized at his home.  He stated that it was clear that the defendant sustained his living in Hong Kong by drug trafficking from which he benefited.  He noted that the defendant’s involvement in drug trafficking activities could be traced back to 2011, when he was first convicted of trafficking in dangerous drug and possession of dangerous drug. 

117.  Senior Inspector Cheng also relied on the Wan Chai transactions.  He contended that the defendant was seen acting in concert with three other African males, selling drugs to foreign bar patrons at the Wan Chai bar area.  He contended that the defendant played the role of a store-keeper and supplier and had been associated with the convicted drug seller Jaiteh Musa.  He noted that the value of the drugs found at the defendant’s flat was HK$470,885, while the value of the drugs found in the rear lane was HK$9,907.09.  He contended that the defendant was a store-keeper and supplier and needed sufficient cash to source his drugs for later sale.  He submitted that the cash found in the defendant’s flat were payments or other rewards received by him in connection with drug trafficking.  He submitted that the aggregate benefit of the defendant’s drug trafficking was the total amount of cash found at the defendant’s flat and on his person, totalling US$736,100, HK$24,005.10 and EURO$1,170 which is the approximate equivalent of HK$5,765,749.40.  He submitted that the cash is the realisable property of the defendant for which a confiscation order should be made. 

(ii) The statement of the defendant

118.  The defendant in his statement stated that at his trial he testified that the monies were not the proceeds or otherwise of drug trafficking and did not belong to him.  He stated that he received and held the monies “lawfully and legitimately from both my friend Sani and my girlfriend Joan”.  At trial, he testified that the bulk of the monies, except for US$90,000 which he said Sani had asked him to temporarily hold for him, was given to him in 2013 by an Australian woman named Joan with whom he had a relationship.  She gave him the monies so that he could set up a business in Ghana upon his expected return there.  He also stated that it was his case at trial that these two lots of money were kept in two distinct and separate locations in his bedroom.

119.  By way of general comment, the defendant stated that no drugs were found on him at the time of his arrest in Lockhart Road, nor was any marked money used by the police in their operations in Wan Chai found either on him or in his flat.  As to the latter matter, Senior Inspector Cheng, noted that marked money was only used in the fourth controlled-buy operation on 29 January 2015 when the operation went overt upon the purchase by the police decoy of cocaine from Jaiteh Musa. 

120.  The defendant also stated that he was not present in the flat at the time when the police searched it, and was therefore not present when the drugs and the monies were found.  He also stated that apart from the concealed presence of the drugs in the flat, there was no other evidence to link him to the drugs, for example, his fingerprints or DNA were not found on the drugs or on the packaging of them.  He referred to the DNA from at least two sources, one male which was not his, that was found on the outside surfaces and the opening flaps of one of the unused resealable plastic bags found together with the drugs in the flat.  He stated that this suggested the participation of others rather than himself.  However, it may be viewed that it also suggests that others had participated with him in trafficking the drugs for which he now stands convicted.  He also stated that no scales were found in the flat which would usually be used for weighing or packaging drugs. That maybe so, but a large quantity of resealable plastic bags of the same type that were used to package the drugs were also found in the flat.  It is submitted by the defendant that on the evidence the highest that it can be put as to his role was that of a store keeper or ware keeper of the drugs in his flat.  He noted that there was no evidence that he had either purchased the drugs or financed the purchase of them for others.  He further noted that the two laptops seized from his flat as well as his two mobile phones did not reveal any evidence as to suggest any act of trafficking. 

121.  The defendant questioned the evidence relating to the original Counts 1 to 4.  He stated that the District Court trial against his alleged co-accused reflected the paucity of credible evidence.  He claimed that he was not in Wan Chai either at the times or dates claimed.  According to Detective Inspector Cheng, the defendant was observed on the occasions of the first to the fourth controlled-buy.  He was arrested at the scene when the operation went overt at the fourth controlled-buy on 29 January 2015.  There is no dispute that he was arrested for drug trafficking in Wan Chai that evening.

122.  In any event, the defendant stated that it was not unusual for him to be in Wan Chai and together with David Jordan, as they normally had a drink after football training on a Wednesday night. 

123.  The defendant pointed out that notwithstanding the level of observation taking place, there were no photographs or video recording to depict any of the transactions.  He further pointed out that neither his DNA nor his fingerprints were found on any of the drugs or the wrappings found at the scene.  He questioned the evidence of the two police officers that observed him entering a rear lane and fiddling underneath an air-conditioner as another police officer did not see him entering the rear lane. This was addressed in greater detail in written and oral submissions from the defendant and Mr McGowan.  He also noted that the drugs were allegedly found at a location different to where he allegedly retrieved the drugs.  He did not accept that the plastic bags that were used for packaging of the drugs found in Wan Chai were the same plastic bags shown to them that night.  He stated that the telephone records did not show any contact between himself and Jaiteh Musa on any of the dates that he allegedly sold drugs to the police officers. 

124.  The defendant stated that his account of his relationship with Joan was supported in part by the evidence of David Jordan. He pointed out that it was his understanding that all of the bank notes were sent to the Government Chemist to see if any were contaminated with traces of dangerous drugs but none were found to be.  According to Senior Inspector Cheng, this statement is not correct, as none of the bank notes were sent to the Government Chemist for examination. 

125.  The defendant complained that footage from CCTV cameras of his building were not retrieved, which would have shown where he was during the search of his premises by the police, as well as who had visited his flat during the relevant times.  This was a point made during the course of his trial and notwithstanding his complaint, the jury convicted the defendant of drug trafficking. 

126.  The defendant stated that he wished to try to find, or at least make contact with, Joan to see if she would assist him at his trial, and he sought bail on two occasions in order to be released from custody so that he could try to track down a close friend of Joan who lived in Happy Valley and frequented certain bars in Lan Kwai Fong and Soho. 

127.  The defendant stated that he did not benefit from drug trafficking.  He stated that his previous conviction for trafficking in dangerous drugs in 2011 was for a small quantity of drugs.  He stated that no money or drugs changed hands.  I am not quite sure what he means by that as it would appear that the drugs were either of a sufficient quantity or the circumstances of the case were such as to justify a conviction of trafficking.  He stated that the offence occurred before he had met Joan.  He said that after he had begun his relationship with Joan, because of her generosity he was not short of money.  He said that following his release from prison in 2011, he was further detained in the Immigration Detention Centre and that after his release in January 2012, he was homeless for some months.  He said that there was no way he could have accumulated US$700,000 from drug trafficking during the three years since his release from custody.  He said that there was no evidence of such drug trafficking activities and nothing more than low level and low profit street trafficking.  He stated that the value of the drugs found in his flat of about $480,000 was a tenth of the money found.  He pointed out that there was no evidence of what the drugs found in his flat may cost or that he had bought them.

The evidence at trial

128.  The jury by its verdict on Count 1 found the defendant guilty of trafficking in a dangerous drug.  It was not in dispute at the trial that the defendant had been arrested on 29 January 2015 for the offence of trafficking in a dangerous drug in Lockhart Road, Wan Chai.  No drugs were found in his possession but he had on him 2 mobile phones, the sum of HK$9,005.10 cash, a bunch of 3 keys and a resident’s card for his flat.  He rented premises at Room 1, Flat A, Hing Fat Building, in Temple Street, Yau Ma Tei where he had lived for over one year.  The police searched the flat, having gained access to the building with the resident’s card and to the flat with a key that were both found on the defendant.  In the flat, the police found a large quantity of cash, consisting of US$736,100, EURO$1,170 and HK$15,000, and two lots of resealable plastic bags, one consisting of 45 and the other 276. The drugs were found in the suspended ceiling of the flat.  Human DNA was found on the outside surfaces and opening flaps of one of the unused resealable plastic bags which did not belong to the defendant.

129.  The jury by its verdict found the defendant guilty beyond reasonable doubt of trafficking in the drugs found in the suspended ceiling of his flat.  The prosecution put its case, which the jury must have accepted, on the basis that the defendant possessed the drugs for the purpose of supplying or otherwise dealing with them. 

130.  The drugs were grouped at trial as follows: (1) one plastic bag containing 237 g of a solid containing 151 g of cocaine (exhibit P6); (2) two packets containing 20.4 g of a solid containing 7.72 g of cocaine and six packets containing 115 g of a solid containing 47.7 g of cocaine (exhibit P10); (3) one plastic bag containing 44.8 g of a solid containing 25.8 g of cocaine (exhibit P14); one plastic bag containing 53.4 g of a solid containing 23.1 g of cocaine (exhibit P16); six plastic bags containing 2.96 g of a solid containing 1.41 g of cocaine (exhibit P19); one plastic bag containing 0.57 g of a crystalline solid containing 0.56 g of Ice (exhibit P21); one plastic bag containing 18.5 g of a crystalline solid containing 18.2 g of Ice (exhibit P24); and one plastic bag containing 1.06 g of cannabis in herbal form (exhibit P28).

131.  The drugs seized had a retail street value in January 2015 of $462,668 for 473.56 g of cocaine; $8,104 for 19.07 g of ice and $113 for 1.06 g of cannabis in herbal form.

132.  The prosecution case in respect of the trafficking offence was that in light of the quantity of drugs found; the manner in which they were found, that is, in a number of transparent resealable plastic bags and packets; the location where they were found, that is, in the suspended ceiling of the living room; and the large quantity of transparent resealable plastic bags found in the flat that are commonly used to package drugs; that the defendant possessed the drugs for the purpose of trafficking in them. 

133.  The prosecution case in respect of the dealing in the proceeds offence was that in light of the drugs and the large quantity of cash, mainly in US dollars, that was found in the defendant’s flat, and given the defendant’s personal circumstances that he was an asylum seeker with no income, that these monies represented his proceeds of drug trafficking.

134.  The defence case in respect of the trafficking offence was that the defendant had no knowledge of the drugs.  The defendant testified that a friend, Shamsudeen, also lived in the flat, and that he believed that the drugs if found there as claimed by the police may have belonged to Shamsudeen or put there by Shamsudeen to frame him because Shamsudeen believed he slept with his girlfriend.  He also testified that the drugs could have been put there by a previous tenant. 

135.  The defence case in respect of the dealing in the proceeds offence was that the US$700,000 cash, of which about $70,000 the defendant had spent, was given to him by his girlfriend, Joan, that he was holding US$90,000 for his friend, Sani, and that the euro dollars had been sent to him by his sister.  He testified that he was planning to use the monies given to him by Joan to set up a business on his return to Ghana. 

136.  The defendant took issue about how the search was conducted by the police and where various items were found, as well as how he was treated by them.  He testified the police did not allow him to be present during the search.  He testified the transparent resealable plastic bags that were found in his flat belonged to Shamsudeen which were commonly available and used to store food.  He testified that no scales were found in his flat which is commonly used for weighing up drugs for packaging.  It was also point out that the defendant’s DNA or fingerprints were not found on the drugs or their packaging.

The defence evidence at trial

(i) The defendant’s evidence

137.  In the first interview (exhibit P63A), the defendant said that the HK$9,005.10 that he had on him when he was arrested was given to him by his girlfriend Joan.  He said he knew and had dated Joan for about three years.  She lived in Australia and supported him.  He said he last saw Joan for five days in early January 2015. 

138.  In the second interview (exhibit P69A), the defendant said that he took the police to his home and used the key to go inside.  He confirmed the police searched his home. 

139.  He said he lived at the flat for over a year which he rented for $4,500 per month.  He said he lived there with his friend, Shamsudeen, who was from Ghana.  He said his friend would sometimes live there as he would go to mainland China for business.  He said he would go for three months and return.  He said that the last time he saw him was two weeks or one month before.  When asked how he would contact him, he said he would call him on a China number.

140.  He was asked about the cash and the drugs found in his flat.  He said that there were two lots of money.  Of the cash seized from his home, US$90,000 belonged to his friend, Sani, which he kept for him, and that the rest of the cash belonged to him, having been given to him by Joan. He said that Joan gave him cash of around US$700,000 in one go in early 2014 as she knew he would be deported back to Africa soon.  She gave him the money to start up a business in Africa.  He said that he kept the money at home as he could not open a bank account.  He said that he had already used some of the money to purchase two vans, air conditioners, motorbikes and had remitted some money to his family.  He said he did not have a contact number for Joan in Australia and she would contact him (counter 472).  He said he had a Hong Kong number for her.  He said that Joan had a very rich husband in Australia and that they were divorcing. 

141.  He said he mentioned that he had not been charged for trafficking in a dangerous drug and that after they found the money they found some white substance which he said belonged to the other person (counters 183 to 195). 

142.  As for the transparent resealable plastic bags, he initially said he did not understand what the interviewer was referring to but later said that sometimes his friends came to buy them and sent them to China.  He said the bags belonged to his friend (counters 304 to 327). 

143.  Of the cash of $1,170 Euro seized from his home, he said this money had been sent to him by his sister for him to purchase mobile phones for her and ship them to Germany (counters 515 to 527). 

144.  Of the HK$15,000 cash seized from his home, he said it was from the money given to him by Joan which he converted from US to Hong Kong dollars (counters 528 to 532).

145.  As for the drugs, which he discussed during his interview (counters 534 to 562), he testified that he was talking about African food and not about drugs.  He said that the stuff found in his ceiling he believed was put there by his friend, Shamsudeen (counters 550 and 552).

146.  He said apart from himself and Shamsudeen, other friends would sometimes visit him and stay there for a few days.  He said the toothbrushes found at his home belonged to him and Shamsudeen.

147.  The defendant testified that he was born on 20 March 1973 in Ghana.  He explained that he has family in Ghana and a sister in Germany.  He has a daughter who is 17 years of age and attending secondary school.  He said he first came to Hong Kong in 2004 to try to join a football team but was unsuccessful and left.  He had a dispute with an uncle over his mother’s property and came back to Hong Kong.  He made a claim for asylum and was given a Form 8 recognizance.  He said he played football and would meet team members for a drink at Queen Victoria after training.  On the night he was arrested, he had joined friends after training. 

148.  He said that at the end of 2011, he met a woman called Joan in Lan Kwai Fong.  She was Australian and married.  He said she told him that she was having problems in her relationship with her husband, and that they had three children and were trying to sort things out for their sake.  He said that she lived somewhere in South Horizons.  He had not been to her home because she was married.  He said he had an intimate relationship with her and that they would see each other once a week.  She and her husband lived in Hong Kong and she had been working in the banking industry for 20 years, later he said she was in finance.  She told him that she was thinking of leaving Hong Kong and would go back to Australia.  In their discussions together, he told her that his torture claim would be finalised and he would be required to leave and he wanted to set up a business in Ghana by exporting electronic goods from Hong Kong to Ghana for sale.  He said he was hoping to obtain a Hong Kong identity card so that he could come back to Hong Kong in relation to the business.  He said they discussed this several times and she asked how much he needed.  He said at least US$1 million and she laughed. According to him, she indicated that she would see what she could give him.  He said that she bought him clothing and gifts and paid the balance of his rent. At that time, he was receiving a rental allowance from the International Social Services (ISS) as a torture claimant. 

149.  He said that she left sometime in 2012 and came back on two occasions.  He said she returned sometime in early 2013 and gave him US$700,000 in cash.  He said the money was in hundred dollar bills in bundles of a hundred. 

“Q. How did she give you the money?

A. In cash.

Q. When you say in cash, was that in hundred -- or what sort of cash?

A. Hundred US dollar note, yes, in US$10,000 denomination, each in $10,000 denomination, yes.

Q. So that would have been 110 $100 notes in each bundle; is that correct?

A. No, $100 bills, $10,000. One bundle is 10,000, but in $100 bill, yes.”[3]

150.  At the time, the defendant was living in To Kwa Wan and she brought the money to him at his apartment.  He said that he tried to open a bank account at HSBC but they would not allow him to do so, so he kept the money at home.  He said he used some of the money to send to his family in Africa including his 17 years old daughter and to his sister for her husband to open up a business.  He said he also bought two vans which he sent to Africa.  He said the money was transferred through a friend who would do it for him through Western Union.  This friend was Sani.

151.  He said he did not know the address of Joan in Australia.  He had a telephone number which suddenly changed.  He only heard from her once or twice in 2014.  She came back to Hong Kong between 1 and 5 January 2015.  He saw her twice during this time.  She contacted him with a number he did not know and was not sure if it belonged to a friend of hers called Anne.  When she came, she lived with a friend in Happy Valley but did not know the address.  She told him that she had reconciled with her husband and may not see him again.  He had no email address and no home address for her, and he did not know her surname.  He said that it was Joan who would contact him. 

“Q. Have you had any more contact with Joan after she left Hong Kong in early 2015?

A. No, no, she told me -- she told me she might not see me again because she reconciled with her husband.

Q. Did you ever have her email address?

A. No, no, no.

Q. Or have her home address?

A. In Australia?

Q. An address you could write to in Australia?

A. In Australia? Like I said earlier, when she was in Australia, I had her phone number and all the time she change. Yes, so, I didn't have the address.

COURT: So, you had no home address?

A. No, no, I didn’t have, no.

Q. So it was her calling you, contacting you, rather than the other way around?

A. Exactly, yes, exactly, yes.

COURT: Do you know her surname?

A. No, I don’t, I don’t.”[4]

152.  The defendant acknowledged that he had no means of initiating contact with Joan.

“Q. So - so let’s put it another way. She was the one who contacted you and not the other way around?

A. Yes, yes, when she was in Hong Kong, I had her number, so, yes, any time I send her a message, we talk on the phone. But when she left, she is always contacting me whenever she is coming back, yes.

Q. So, no Skype accounts?

A. No, no.

Q. WhatsApp?

A. No, no.

Q. No access to her Facebook account?

A. She - she is not on social -- how do you call it? Social...

Q. Media.

A. Yes, social media. Yes, she is not. Yes, she is not, yes.”[5]

153.  He said he had a girlfriend called Michelle who he had been seeing since 2013 until the time of his arrest.  She would come and see him two or three times a week.  She was a science student at Hong Kong University.  He said a friend from Ghana would come and stay with him.  His name was Shamsudeen.  He said he lived in China where he had a business.  He had a restaurant in Guangzhou.  He said that Shamsudeen had a girlfriend who would also come and stay with him at the flat.  When Shamsudeen came they would share the bed together.  When Shamsudeen came with his girlfriend, the defendant would sleep on the sofa if he had nowhere else to go.  He said that Shamsudeen would come with his traveling bag and bring things, including African food.  He said that the food was white stuff which would emit a strong odour.  The African food he identified was in the plastic bag in the living room.  He told Shamsudeen not to bring the food into the flat.

154.  He said there was only one residents’ card but he made a key for Shamsudeen.  He said because of the secured access to the building, Shamsudeen would call him when he was coming.  He said he last stayed there two months before his arrest in November 2014.  Shamsudeen’s girlfriend stayed with him at some stage in December 2014.  Two weeks before the defendant’s arrest, Shamsudeen rang him and met him at Tsim Sha Tsui, complaining about him having slept with his girlfriend.  That was the last time they saw each other.  He said that they knew each other growing up in Ghana but he did not know his surname.  He said he was not sure what passport he was using as he could not use a Ghana passport to enter Hong Kong and it may be a Tanzanian one. 

155.  He mentioned another friend by the name Sani who he had known in Hong Kong since 2004.  He said he was a Hong Kong permanent resident.  He had a shop in Chung King Mansions selling clothing.  He also shipped electronics and cars to Africa.  Sani would help him out with his financial matters by transferring money for him. 

156.  He said on the night of his arrest he changed US$2,000 into Hong Kong dollars to send to his family in Ghana.  He said that was the $15,000 on top of the refrigerator.  He later met Sani who was in a hurry and carrying a black plastic bag which he said contained US$90,000.  Sani asked the defendant to keep the money for him.  The defendant said he had training, so he took the money home and put it behind the hanging t-shirts in the wardrobe of his bedroom.  He said the $90,000 was in bundles of one hundred dollar bills. 

“Q. That’s the day -- the Wednesday night.

A. Yes, on the night of my arrest, I left my apartment and I took US$2,000 from the money. I wanted to go to Tsim Sha Tsui and then I change. So when I arrived in Tsim Sha Tsui, I change the money. Yes, I change the money to send to my family in Ghana. So when I called Sani, he said he’s not around, so he’s somewhere about, I should wait for him. He is going to come.

Q. Did you actually meet him?

A. Yes, yes, I met him. When he arrived, he was in a hurry. He’s going somewhere and in his hand he was carrying a black plastic bag. So he told me he’s now going somewhere, so this 90,000, I should keep it with him. As soon as he come back from where he was, he will call me and take his -- the money back. So I told him, I am going to -- I am going to training, so if you call me and he couldn't get me, he should know I’m playing football. So when I finish, I will call him back. So as soon as he give me the money, I took a taxi and then I arrive back home and then I put the money down.

Q. Did you count what was in the bag?

A. No, no, no, but he told me it’s 90,000. I didn't count.

Q. Did you look in the bag?

A. Yes, I looked. Yes, it was US dollars, yes, yes.

Q. What sort of -- how can I put it? How was the money made up? What was the denomination of the notes?

A. It is bundled, but I don’t know in 10,000 bundles or whatever. But, yes, he told me there’s 90,000, yes.

Q. Did you see the denomination?

A. Yes, hundred-dollar bills.

Q. Hundred-dollar bills?

A. Yes, yes.

Q. And you took it home?

A. Yes.”[6]

157.  As for the rest of the money, he said he kept the US$700,000 less what he had spent, in his bedroom in a red and white bag in with clothes on top and other bags. 

158.  He said he came home after training and showered to go out.  He said the plastic blue and white bag, which contained the 276 transparent resealable plastic bags, was not on top of the plastic container in the bedroom which he used to store his shorts and socks.  He said that when he left to go to Wan Chai at 11:30 pm it was not there, suggesting it was put there by someone else. 

159.  He said he went to Lockhart Road in Wan Chai to meet with his friend David Jordan.  He said a number of police officers intercepted him and he was arrested. 

160.  After the defendant was arrested for trafficking in dangerous drugs, he taken to Wan Chai police station and later taken to his home for a house search.  He said he was taken there by four police officers. He said a Sergeant who testified at his trial was not amongst them.  He said three police officers went up to his flat while one stayed in the car.  When they went to his flat, he was told by PC 3298, Chan Tsz Kin, (PW1), to stay outside the door.  He said he was on the right side of the door in the lobby area.  He said that the door was not fully open because there were shoes behind it, so it could only be opened to a 45-degree angle.  He said he was not able to see in the flat unless he moved his head and no way could he see in the bedroom.  He said two officers went inside but not in the bedroom.  He said that after 5 minutes, another police officer, PC 3892, Wong Kam Wai, (PW2), came out with a plastic bag with US$90,000.  He asked him who was this for.  He said his friend Sani.  About 5 minutes later, PW2 came out with another bag with a lot of money in it and he said that this money was his.  He said that he could hear noise inside and saw PW2 removing the mattress from his bed.  He said that he put his head around and could see PW2 mixing the money.  He shouted to him to stop what he was doing.  He was told to stay where he was by PW1.  He said that PW1 made a call and another police officer, DPC 3385, Yiu Tai Yau, (PW6), came up into the flat.  Sometime later, PW6 came out and showed him the white substance in the plastic bag and asked him what it was.  He told him it was African food. 

161.  He said that later several officers came to the flat about 6 or 7 of them and they all went inside.  He said that one was the boss.  He said there was one female and five males.  He said that he was given a seat outside in the corridor and told by PW1 to sit there.  He complained and said that they could not conduct a search without him being in the room.  He was later taken to Yau Ma Tei police station where the money was counted.  He said a number of officers were involved including uniformed officers.  He was then taken to Wan Chai where he was interviewed by video recording on two occasions. 

162.  He was taken to his answers about the cash money that was found at the premises which I will not repeat.  He was also taken to his answers about the drugs.  He said he did not see the police find the drugs as he was not present and he was only shown a plastic bag with white stuff in it which was African food.  On this matter he was referred to various answers from counter 534.  Counters 534 to 562 have been read out to you and I will not repeat them.  He said that when he was referring to white stuff, he was referring to African food.  He said that when he was referring to “my ceiling”, he was referring to what was on the shoe cabinet.  He also said that he used terms in his answers because of the question asked of him at counter 534.  We have gone through the questions and answers, and it is a matter for you to assess whether that is the case as stated by the defendant. 

163.  He was also taken to his answers about the toothbrushes and questioned about whether there were three or four toothbrushes and where they were located.  It is a matter for you as to whether there is anything significant in relation to that matter.

164.  He said that after the interview he went through his phones and found a Hong Kong number for Joan.  He said he did not have her Australian number.  He said that the last time he used her number was in 2012 and 2013.  He said he told the police that they could find the number for Shamsudeen in his old phone in the drawer of his wardrobe.  He said he told the officer who stopped him in Wan Chai who had not given evidence.  He said PW2 and PW6 were present.  He said he gave an address of a guesthouse where they could find Shamsudeen.  This was denied by PW6. 

165.  He said that the money that he got from Joan she did not tell him where she got it from.  He said that he did not ask, and as he was an asylum seeker he did not question the giving of the money to him.  He believed that Joan’s husband came from a rich family and she also worked in financing and had access to such money.  He said he had no reason to believe that the money was the proceeds of crime.  He said that he had no reason to believe that the $90,000 from Sani was the proceeds of crime as he was in business. 

“Q. Has he contacted you about his money since your arrest?

A. I contacted him when I was in Lai Chi Kok. I sent him a message to him that he should hold on, but, listen, the - the money found in my apartment has been mixed up, so - so I want to sort out the issue with him. As soon as I sort it out, I will let him go and talk to my - my lawyer so that he will come and...

Q. So he - he hasn’t, according to your knowledge, made any claim in relation to the 90,000?

A. I think he once talked to Mr Simon(?), my solicitor. He once talked to him, yes.

Q. I see. But no one has contacted the police, is that right, or anyone in authority?

A. No, no, I think he contacted my lawyer once, Simon, yes, my solicitor, yes.

…

Q. Do you know if Mr Sani has talked to any other lawyers about his money?

A. Yes, he talked to Mr Simon.

Q. Anyone else?

A. He talked to my -- listen -- my friend also, David Jordan, he talked to him, so I told him, Jordan, to tell him -- to tell him he should hold the money, this was put together. So, yes, yes, I have to sort it out first. When I sort it out, I will let him go and talk to my - my lawyer.

Q. And when - when you say “sort it out”, do you mean the end of this case?

A. Yes, at the end of it, yes.”^[7]

166.  He denied knowing about the drugs in the suspended ceiling of his flat.  He suggested that Shamsudeen may have put the drugs there to get back at him for sleeping with his girlfriend.  He said his friend David Jordan and his wife, and other friends would come to his flat. 

167.  David Jordan testified on behalf of the defendant.  He said that the first time he went to his flat was after the defendant had been arrested, when the defendant had asked him to pack his things and send them to Ghana.  He said that Shamsudeen and his girlfriend, and the defendant’s Chinese girlfriend would come to his flat.  He said that only Shamsudeen had a key which he sometimes gave to his girlfriend. 

168.  He said that in addition to his daughter in Ghana, he has a daughter who is 7 or 8 years old in Hong Kong from his Singaporean girlfriend.  He said that he would remit to Ghana for his family US$1,500 to $2,000 every quarter.  He said he did not support his daughter in Hong Kong.  He confirmed that he came to Hong Kong in 2003 and left in 2005, and that he returned in 2007 and has been here ever since.  He made an application for asylum in 2008.  He confirmed that he was the recipient of assistance from ISS for rent and the provision of food.  He confirmed that he had no income.  He stated that the balance of his rent of $2,000 was paid from the monies given to him by Joan.  He confirmed that he had been living in the Temple Street flat since mid-2013. 

169.  Under cross-examination, the defendant was challenged about the existence of Joan.  He said he met her at a bar in Lan Kwai Fong in 2011.  He said he had known her for three years.  He said that she was 15 or 16 years older than him, although he was not sure.  He said that she lived in South Horizons but he had not gone to her home.  He said that she would come to his home in To Kwa Wan but did not go to his home in Temple Street.  He said she had been in finance for 20 years.  He did not know the company for which she worked.  He said that she was a very rich lady.  When asked if she had bought him expensive items, such as watches, he said she had not as she was old fashioned.  The only contact he had with her was through a telephone number in Hong Kong and later with an Australian number.  He said that she gave him the cash of $700,000 in one go.

170.  He was queried about keeping such a lot of money in his flat.  He was queried why he did not put it in a bank account in his name or through his girlfriend or other friends.  He was asked why he did not put it in Joan’s name but said that it would not be in his name.  He confirmed that he did not keep a record of monies that he had spent.  He was queried about the circumstances of the US$90,000 given to him by Sani who asked him to keep it for him.  He was queried about the HK$15,000 that he had at home and the HK$9,000 on him that night. 

171.  He was taken to answers he had given in interview concerning the resealable plastic bags.  He said at one stage that it was possible that Shamsudeen had framed him by buying the drugs which had a value of $470,000 and putting them in his flat.  He also said it was possible that an old tenant may have left them there.  He was queried about his comments in his interview about references to four packages and the ceiling.  He denied that he had any knowledge of the drugs and he denied that the money did not come from Joan and Sani. 

(ii) David Jordan’s evidence

172.  The defence at trial called David Jordan to give evidence.  He is from Ghana and came to know the defendant through their interest in football.  He came to Hong Kong in 2009 and made an application as a torture claimant.  He was given a Form 8 recognizance. 

173.  He said he got to know the defendant around 2010.  He explained that they played in a football team together in 2014 and 2015.  On training night which was a Wednesday, they would sometimes go out afterwards for a drink at a bar in Wan Chai.  He mentioned one of the bars was Queen Victoria. 

174.  He was asked if the defendant mentioned Joan or Joan to him.  He said the defendant mentioned that lady.  He said the defendant told him that he had girlfriend who was very rich and she would pay his rent and buy him some sportswear, like boots and t-shirts.  He recollected being told this around 2012 to 2013.  He said he met her once.  He said one day after training in around 2013 the defendant pointed out a female to him and said she was his girlfriend.  He described her as European, about his height (about 5 foot 9 inches) with white hair.  The defendant did not introduce her to him. He did not know her surname or background.  All he knew about her was her name, that she was rich and the defendant’s girlfriend.  Nothing else.

175.  He said between February and March 2015, he was asked by the defendant to pack up his things in the flat and send them back to Ghana.  He said he packed up all his clothing and personal items and threw away his papers and other things.  He said that the agent complained that the flat was dirty and that he should clean it up.  He said that this was the first time he had been to his flat. 

176.  He was asked if he knew a friend of the defendant’s named Shamsudeen, he said he did not know him.  He was asked if he ever heard that name before, he said he did not. He was asked if he heard the name Sani he said he had not. 

Decision on the confiscation order

177.  I have not relied on the information and materials that have been put before me in relation to the Wan Chai controlled-buy operation.  I would have been satisfied on the balance of probabilities on the information and materials submitted, including the events subsequent to the defendant’s arrest and the defendant’s statements and submissions, that he was involved in drug trafficking activities as alleged in January 2015.  I note that the charges in relation to the defendant in respect of the Wan Chai controlled-buy operation have been left on the Court file and that the case against the defendant is based on different evidence to the case of his co-accused, although the surveillance evidence is common to them all.  However, there were issues as to the prosecution evidence presented at the District Court trial concerning the location of the drugs that were recovered, and whether the defendant was seen entering the rear lane as claimed.  

178.  Instead, I have relied on the rest of the information and materials in relation to the present case and the defendant’s previous convictions for drug offences in 2011, although limited information was provided about the case because of the lack of records now available.  I have had the benefit of seeing and hearing the witnesses testify in the present case which I am required to evaluate together with the other information and materials submitted on a balance of probabilities.  I have also taken into account the submissions of the parties. 

179.  I will now turn to deal with the three questions that I have noted should be addressed and answered before making a confiscation order. 

(i) Has the defendant benefited from drug trafficking?

180.  In the present case, the defendant has been convicted of trafficking on 29 January 2015 of a stockpile of drugs found concealed in his flat, consisting of a large quantity of cocaine, some Ice and a small quantity of cannabis, together with a large quantity of resealable plastic bags, commonly used for the packaging and sale of drugs.  Found in the concealed ceiling together with the drugs were 45 empty resealable plastic bags (exhibits P29 and P30).  Another 276 empty resealable plastic bags were found on top of a plastic box in the defendant’s bedroom (exhibit P36 to P43). 

181.  The defendant at the time of the offence was 41 years old.  As already noted, he was born in Ghana and first came to Hong Kong in 2004 to try to join a football team.  He was unsuccessful and left.  He claimed that as a result of a dispute over his mother’s property, he came back to Hong Kong and sought asylum and protection.  He became a non-refoulement claimant and a Form 8 recognizance holder.  As a result, he was not allowed to work legally in Hong Kong.  He did not try to suggest in his evidence that he had a source of income.  In fact, he said he had no income.  He lived on the assistance of International Social Service which paid part of his rent and provided food coupons to him.

182.  The street value of the drugs in the present case was HK$470,885.  The drugs in the defendant’s possession would have involved a substantial outlay of funds.  In the absence of any evidence to the contrary, the inference can be drawn that a defendant found in possession of drugs paid for them.  See R v J [2001] 1 Cr App R (S) 273, 276.  I am satisfied that he purchased the drugs in order to trade in them. 

183.  There was the large quantity of unexplained cash of US dollars found in the defendant’s flat.  I reject the defendant’s explanation that most of the cash of US dollars was given to him by an Australian woman named Joan and that the rest of US$90,000 was held by him for a friend named Sani.

184.  The defendant has prior convictions for possession of drugs and trafficking in drugs in 2011.  On the information submitted, it appears that the offences occurred in the Wan Chai area.  Taken together with the conviction for drug trafficking the present case, I am satisfied that he has been heavily involved in the drug trade at least during this period.  It is significant that in relation to the present offence, he had a stockpile of drugs in his flat which would indicate that he had an established business in dealing in drugs. 

185.  I find that the defendant was involved in an elaborate drug trafficking operation.  This is evidenced by the type and quantity of drugs found hidden in the suspended ceiling of his flat and the way some of the drugs were packaged.  The drugs were in 3 transparent resealable plastic bags with a red line.  One of the bags was inside a black sock which contained 8 white colour oval shaped pellets wrapped with plastic film.  This is commonly in the form that drugs are packaged in order to be digested by a drug courier for smuggling.  Of the other two bags, one had a large quantity of cocaine and the other contained a medium-size bag containing herbal cannabis and four other medium-size bags containing variously cocaine and Ice and one smaller sized bag containing 6 bags of cocaine in small quantities which is usual form of packaging for sale or supply.

186.  I find that the lack of DNA and fingerprint evidence on the drugs and the packaging of the drugs, and the lack of scales do not downplay the defendant’s role and participation in the trafficking of drugs for which the jury has found him guilty.  This in all probability was due to the defendant being very experienced and careful in his dealings and trade in drugs. 

187.  In light of the jury’s conviction of the defendant for drug trafficking, and my own evaluation of the information and materials put before me, I find no support for the defendant’s proposition that the prosecution case taken at its highest, showed no act of proven trafficking other than storing of the drugs within the flat.

188.  In his evidence at trial, the defendant was unable to provide any details as to who Joan was and how she could be contacted.  His description of her and of his means to contact and communicate with her were vague and incredulous.  The same can be said about Sani who the defendant claimed was a resident in Hong Kong and operated a business in Chungking Mansions.  He did not know their full names or was unable to provide any means to contact them.  He testified that Sani had contacted his lawyer about claiming the US$90,000 but no information or material has been submitted by the defendant to support this assertion that the monies belonged to Sani. It was also the case he was unable to give adequate particulars of the identity or whereabouts of Shamsudeen. 

189.  The defendant’s drug offence convictions in 2011 indicate that he had by that date established himself in the drug trade.  His latest conviction indicates that he had continued and developed his drug trade operation.  This is evidenced by the array and quantities of drugs in his possession, cocaine, Ice and cannabis.  The total street value of the drugs was a little under $500,000 which would involve a significant outlay at one time which seems to reflect the scale of his operation.  Obviously, given the nature and risk of his illicit trade, he would buy the type and quantity of drugs that he was likely to trade for a specific period and then restock again. 

190.  I am satisfied that he had operated an organized and extensive drug trade operation over the years, at least since 2011 to the date of his arrest for this offence for which he now stands convicted.  There was obviously a period of interruption to his drug activities when he was incarcerated for the offences in 2011.

191.  The different drugs were found in sizeable parcels which would need to be divided into small quantities and packaged for sale.  The large number of plastic bags that were found in the defendant’s flat were more than likely earmarked for that purpose.  The lack of scales may simply mean that they were not necessary or that others assisted the defendant in packaging the drugs given the nature and scale of his drug operation.  It should be noted that the flat was in a messy state with a large quantity of items stored there.  After the defendant was arrested and detained, he arranged David Jordan to collect all his things and ship them to Ghana. 

(ii) The value of the benefit the defendant has received

192.  The cash found in his flat consisted of US$736,100, HK$15,000 and EURO$1,170.  The cash of HK$15,000 was found on top of the refrigerator in the sitting room.  The cash of US$736,100 and EURO$1,170 were found in a recycle bag beside the wardrobe in the bedroom.  The defendant claimed that the US$90,000 from Sani was in a separate bag from Joan’s money but it is not without significance that the US dollars were all in $100 denomination and bundled in the same manner in lots of $10,000.  It is also not without significance that the person called Sani who the defendant claimed gave him the US$90,000 to briefly hold has not come forward to make a claim for the money. 

193.  I am satisfied on the balance of probabilities that the cash found in the defendant’s flat represents payments or other rewards he has received in connection with drug trafficking carried on by him or together with or by others. 

194.  It clearly reflects on the defendant’s credibility that the person, Shamsudeen, who he claimed may have planted nearly $500,000 worth of drugs in his flat, that the woman, Joan, who gave him over US$700,000, and that the friend, Sani, who gave him US$90,000, cannot be identified or contacted. 

195.  I disbelieve the defendant as to the source of the funds found in his possession. 

196.  It is not in dispute that the defendant had no source of income.  It leaves the only reasonable inference to be drawn from the facts and circumstances, having rejected the defendant’s account as to how he was in possession of the funds, that they were payments or rewards in relation to his drug trafficking operation.  He has obviously benefited from his drug trafficking as evidenced by the value of the drugs found in his possession that required an outlay of funds for their purchase as well as the funds found in his possession. 

197.  I find that the funds found in the defendant’s possession were a direct gain from his drug trafficking, which more likely than not were derived from sale transactions of the drugs to customers who paid for them in Hong Kong dollars which were later exchanged for US dollars by the defendant. 

198.  I reject the defendant’s explanation that the HK$9,000 cash found on the defendant and the HK$15,000 cash found in the defendant’s flat when he was arrested were monies that he had exchanged using the US dollars from Joan.  I find that Hong Kong cash was more likely than not the proceeds of his drug trafficking which he would convert into US dollars and store in his flat.

(iii) The sum recoverable from the defendant

199.  I am satisfied that the defendant was involved in drug trafficking as I have stated, and that his proceeds of drug trafficking consisted of payments or other rewards in the sale of drugs by him and with others.  The benefit of his drug trafficking is evidenced by the cash found in his possession as well is by the funds required to purchase the drugs found in his flat. 

200.  I am of the view that in light of the information and materials that I have accepted, particularly the findings that I have made, that I do not have to make any of the assumptions set out in section 4(3)(a) or (b).  If I am wrong in that view, I am satisfied that the assumptions can be made, as the factual basis for doing so has been established to the civil standard and they have not been shown to be incorrect.  The assumptions include any assets, namely the funds, owned by him in the six years prior to the institution of the proceedings against him in the present case and any expenditure by him since the beginning of that period, namely the purchase of the drugs, was met out of his proceeds of drug trafficking.

The confiscation order

201.  As I have stated, I am satisfied that the cash found in the defendant’s flat and on his person represents payments or rewards that he has received in relation to drug trafficking activities either carried on by himself or together with another or others.  The cash was in various currencies, although mainly in US dollars.  The US dollars and the EURO dollars on the balance of probabilities represent payments or rewards that were in Hong Kong currency but exchanged into these currencies.  The Hong Kong currency on the balance of probabilities was in that direct form from drug trafficking in that he received payments or other rewards in connection with drug trafficking carried on by him or together with another or others. 

202.  The aggregate benefit the defendant has received from drug trafficking is at least the total value of the cash seized from his flat and on his person, totalling US$736,100, HK$24,005.10 and EURO$1,170. When converted to Hong Kong currency, it amounts to approximately HK$5,765,749.40.

203.  I therefore order that the defendant pay that amount in accordance with section 3(6).  As the cash amount I have mentioned was seized from the defendant, that is also the realisable property under this order. 

204.  As required under section 8(1), I fix a time in which the confiscation order is to be paid which will be within 1 month, bearing in mind that the cash has already been seized and in the custody of the police.  As also required under section 8(1), I fix a term of imprisonment of 5 years that the defendant must serve if any of the amount that he is liable to pay under the confiscation order is not paid or recovered, which is in accordance with the table under section 8(2). 

Conclusion

205.  In summary, the defendant is sentenced to 14 years and 9 months’ imprisonment following his conviction on Count 1 of the indictment of trafficking in a dangerous drug and he is ordered to pay pursuant to section 3(6) of the DTROP the sum of $5,765,749.40, in default 5 years’ imprisonment.