HKSAR v. POON TO-KUN

HCCC128/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 128/2004

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J U D G M E N T

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1.  The Accused pleaded guilty to a single count of trafficking in a dangerous drug.  I refused an application by the prosecution to forfeit four exhibits.  I indicated that I would given my reasons in due course.  These are they.

2.  The summary of facts which the Accused agreed in respect of the count read, in part, as follows:

1.    At about 1200 hours on 10.2.2004, D was seen turning up at Uncle Liu Carpark situated at DD 99, Lot 372, Castle Peak Road, Chau Tau, Yuen Long by a group of police officers including DPC51296 (PW1) and DPC51278 (PW2) laying ambush in the vicinity. When D was about to pick up a private vehicle KR 7037 parked inside the carpark, he was intercepted by PW1 and PW2. …

2.    PW1 conducted a body search on D's person and found 2 blocks of suspected dangerous drugs tucked at D's waistband. PW1 declared arrest of D and cautioned him. Under caution, D said, "As I have already been caught red-handed, no way." The suspected dangerous drugs were seized by PW2 as exhibits in the presence of the D. PW2 also conducted a search on the private vehicle KR 7037 with no contraband found therein. D was then brought back to the Lok Mau Chau police station for further investigation.

3.    PW2 conducted a more thorough search on D's person inside the police station and found on his person 3 mobile phones, a carpark receipt and a quantity of cash including HK$45,150 and RMB¥70.

4.    In the video-recorded interview that followed, D admitted under caution, among others, the following:

·        He left for Mainland China on 8.2.2004 and returned on 10.2.2004;

·        He brought back to Hong Kong 2 slabs of heroin for a reward of HK$2,000; and 

·        He expected to receive instruction over the phone as to which car inside the carpark he would be required to take the drug to.

5.    …

6.    The dangerous drug seized in the present case was estimated to be of a retail value of HK$295,026.

3.  The Accused had 10 previous criminal convictions of which three were similar to the present offence.  In 1995 he had been sentenced to two consecutive terms of imprisonment of 12 years and 5 years in respect of offences of trafficking in a dangerous drug.  He had been discharged from prison on 24 August 2002.

4.  In the course of mitigation, Mr John Dunn, who appeared on behalf of the Accused, made reference to the moneys found in possession of the Accused and indicated that these had been borrowed by him during his trip to the Mainland for the purpose of financing medical treatment for his niece, his sister's daughter, who is suffering from leukaemia.

5.  The Accused’s sister, who, according to Mr Dunn's instructions, is his sole surviving sibling, was present in Court.

6.   After the Accused had been sentenced the prosecution applied for the disposal of the various exhibits as detailed in a document styled "Application for Order of Disposal of Exhibits".  The Accused objected to an order forfeiting items 13, 14, 15 and 16 on that list, being the moneys found on his person at the time of his arrest as referred to in paragraph 3 of the agreed summary of facts.

7.  The prosecution in making this application apparently relied on both on the provisions of s 56 of the Dangerous Drugs Ordinance, 134, and of the provisions of s 102 of the Criminal Procedure Ordinance, 221.

8.  The relevant portion of s 56 of the Dangerous Drugs Ordinance, Cap. 134, provides as follows:

(1)    A court may (whether or not any person has been convicted of such offence) order to be forfeited to the Government-

(a) any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft or a train) which has been used in the commission of or in connection with;
(b) any money or other property received or possessed by any person as the result or product of,

an offence under this Ordinance or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405).

9.  It follows from that provision that a court has a discretion to order the forfeiture of any money which either (a) has been used in the commission of or in connection with or (b) has been received or possessed by, in this case, the Accused as the result or product of an offence under the stipulated Ordinances - in the context of this case, in the offence of which the Accused was convicted.

10.  The relevant portion of section 102 of the Criminal procedure  Ordinance, Cap. 221, provides as follows:

(1)    Where-

(a) …
(b) it appears to a court that an offence has been committed in respect of any property in the possession of the court, the police or the Customs and Excise Service; or
(c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2)    Of its own motion or upon application, a court may-

(a) in respect of property to which subsection (1)(a) applies-

…

(b) in respect of property to which subsection (1)(b) or (c) applies-

(i) …; or
(ii) make an order for the forfeiture of the property.

11.  It follows from that provision that a court has a discretion to order the forfeiture of any property, including money, where (a) there has been an offence committed in respect of that property or (b) the property has been used in the commission of an offence - in the context of this case, the offence of which the Accused was convicted.

12.  Section 56 of the Dangerous Drugs Ordinance fell to be considered by the Court of Appeal in R v LAI Chin-hung 1980 HKC 293 in which the court considered an appeal against the forfeiture of some $33,000.00 found in a wardrobe in a room where a quantity of dangerous drugs had also been found.

13.  In the course of its judgement the court, per McMullin JA, observed:

"The power given to the court can therefore scarcely be thought to be circumscribed by any necessity to find an established connection between the money seized and the drugs which are the charge.... A similar amplitude of intention would seem to underline the very wide words of s 102 of the Criminal Procedure Ordinance.

Although, therefore the Ordinance gives the prosecution no assistance by way of presumption on this matter, the intention of the forfeiture provisions seems plain enough.  Whenever the court has evidence before it is sufficient to justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence, then, whether or not it finds that the offence charged has been proved it may, nevertheless makes the order.  If there is prima facie evidence of such a criminal connection then if no innocent explanation is offered the court may - though it would not necessarily do so - find that the connection with an offence has been established."

14.  In R v NG Muk-kam CACC685/1993 the Court of Appeal was called upon to consider an appeal against a decision to order the forfeiture, under s 102 of the Criminal Procedure Ordinance of an amount of $150,000.00 which was found in a car being driven by the applicant in the course of trafficking in 306,190.63 g of a dangerous drug - conduct the trial judge described as "Trafficking in millions of dollars worth of heroin as an organiser".

15.  The Court of Appeal, Power V.-P, said:

"(The trial judge) was satisfied that the only reason the applicant was carrying those money with him on the drug trafficking operation was to ensure that, whatever eventuality he met, he had ready money sufficient to enable him to carry it through.  The facts speak for themselves.  Other possibilities are fanciful.  The conclusion to which the judge properly came was that the money was being used in the commission of an offence.  Indeed, in the circumstances it was the only sensible one to which a court could have come."

16.  It is clear from these decisions that the court has a discretion whether or not to forfeit moneys, in circumstances such as these, even if it is able to draw an inference that the genesis of the moneys was one of the situations contemplated by either of the two sections.  Whether or not the court will be in a position to draw such an inference will depend upon the facts in each individual case.

17.  In this matter it was the prosecution's case that the Accused was apprehended in the course of his return from the Mainland prior to divesting himself of the drugs into a motor vehicle.  In this sense, the facts in this matter are wholly distinguishable from those in  LAI Chin-hung and NG Muk-kam.  Although the evidential connection in each of those cases between the accused person and the moneys was the fact of possession, the surrounding circumstances were entirely different from the present.

18.  Where a person is carrying a substantial quantity of heroin and is also in possession of a not insignificant amount of money, it would be unrealistic to suggest that an inference, albeit not the only inference, could not be drawn that the moneys fell into one of the categories which rendered them liable to forfeiture.  That is so in this matter.

19.  In the instant matter there was no evidence to link the moneys found on the Accused, other than the fact of its being on his person, with the carriage of the drugs or with any other activity which would constitute trafficking in a dangerous drug.  However, the facts, overall, point away from such a conclusion.

20.  Given that the Accused was, on the prosecution's case, about to deposit the drugs in a waiting motor vehicle, it is hard to see how the moneys were to be used in connection with the offence.  Nor was there anything to suggest that they had been so used.

21.  The Accused was in the course of importing the drugs into Hong Kong.  It seemed to me unrealistic to speculate that he had previously been dealing in some way in other drugs in the Mainland, that those dealings had generated the moneys and that he was now about importing and delivering further quantities of drugs.

22.  The Accused indicated when interviewed under caution that he had agreed to the transport the drugs into Hong Kong for a reward of $2,000.00 but had yet to be paid.  There is nothing to gainsay this assertion.  It militates, in my view, against the notion that the moneys found on him were proceeds of drug trafficking.

23.  There was nothing before me to suggest that the Accused was anything other than a mere courier.

24.  There was nothing in the denominations of the moneys which indicated in favour of or against the moneys being used in connection with or being the proceeds of an offence.

25.  The amount of money seized from the Accused was small in comparison to the admitted value of the drugs which he was carrying, nearly $300,000.00.

26.  The prosecution also accepted that the Accused had indicated, at the earliest opportunity, that these moneys were the proceeds of a loan.  In itself, obviously, that would be a convenient explanation.  However, he had gone further and detailed the purpose of the loan, namely to provide funds for medical treatment for his niece.  I am alive to the fact that that assertion, in the interview, was unchallenged.

27.  In all the circumstances, looking at what was before me as a whole, I regarded it as proper to exercise my discretion against forfeiture of the moneys, and that without the necessity of hearing evidence from the Accused.