HKSAR v. LEUNG CHI MING ERIC

DCCC 1445/2024

[2025] HKDC 1972

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1445 OF 2024

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RULING

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1.  This is an application from the Prosecution to forfeit the cash of $12,906, which was found in possession by the Defendant at the time of his arrest for the present offence, pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap. 134.

2.  On 30 July, 2025, the Defendant pleaded guilty to a charge of trafficking in dangerous drugs[1] and was sentenced to 4 years’ imprisonment.

3.  The defence opposed the application on the ground that the cash in question were not in connection with the commission of the offence. Those money were the earnings/income of the Defendant as a taxi driver.

Legal Principle

4.  Forfeiture proceeding is civil in nature and the burden of proof is on the balance of probabilities.

5.  In Wong Hon Sun v HKSAR[2], Sir Anthony Mason NPJ, giving the principal judgment of the Court of Final Appeal, said in respect of an application for forfeiture pursuant to the Import and Export Ordinance (Cap 60):-

“65. ... the Commissioner bears the onus of establishing that the seized article is liable to forfeiture. … Once this is established the Commissioner makes out a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the discretion to order delivery of the seized article to the claimant, the court will make an order for forfeiture.”

6.  In the recent case of HKSAR v Chan Chun Hei[3], the Court of Appeal laid down the steps to be taken in an application for forfeiture:-

“36. In an application for forfeiture, the first question a court must ask is pursuant to what statutory provision is the application being made? The relevant statutory provision determines the jurisdiction of the court, sets the parameters of the court’s power and identifies the matters of which the court must be satisfied in the exercise of its power. The second question the court must ask is on what evidence are the parties relying on in order to satisfy the court that the application should or should not be granted? Furthermore, a forfeiture application must be formally decided on the basis of evidence, and the court should alert an aggrieved party if it has taken a position against them on the available evidence in order to afford them the opportunity to give or call evidence on the issue. However, it would usually be obvious from the evidence in a contested trial, or from the agreed facts and other information presented to the court upon the hearing of a plea of guilty, as to what is the basis of an application for forfeiture, but an aggrieved party should be given the opportunity to address the court on the matter.

37. In considering an application pursuant to subsection 56(1), a court has discretion as to whether or not to make an order for the property to be forfeited to the Government. Where the prosecution has shown on a balance of probabilities that there is a prima facie case that the property comes within one or both of the limbs under section 56(1), then the burden will pass on to the defendant to show otherwise. If the defendant has not discharged this burden, an order will be made for the property to be forfeited. If, however, the prosecution has not shown on a balance of probabilities that there is a prima facie case for the forfeiture order, the property should be returned to the defendant if it belongs or should be given to him and there is no other reason not to do so.”

7.  As pointed out by the Court of Appeal in HKSAR v Ngoma Juma Shabani[4], it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the Dangerous Drugs Ordinance is engaged when deciding whether to make an order of forfeiture. The various alternatives are set out in section 56(1) so as to cast the net as widely as possible.

8.  In Ngoma Juma Shabani, Macrae JA (as he then was) had rejected the argument that, in order for money to be successfully forfeited under section 56(1)(a), it would have to be shown to have been used for some purpose connected to drug trafficking in Hong Kong, since “[i]f that were the law, there would invariably be no money to forfeit (unless perhaps paid over to a law enforcement agent in Hong Kong) and, far from casting the net as widely as possible, s.56(1)(a) would be rendered almost useless”

Summary of facts

9.  According to the amended summary of facts, which had been admitted by the Defendant upon his plea, on 17 July 2024 at about 1:00 a.m., the police intercepted a taxi, which was driven by the Defendant at the material time, outside Lung Cheong House, Lower Wong Tai Sin Estate.

10.  There were altogether 42 plastic bags containing cocaine and 17 plastic bags containing ketamine were found from:-

(a)  The storage compartment of the driver’s door;

(b)  Inside the sun visor at the driver seat;

(c)  Inside the cushion at the driver seat;

(d)  On the Defendant’s person.

11.  The Defendant admitted under caution that the drugs belonged him.

12.  The estimate street value of the drugs was between $16,417[5] and $20,670[6] respectively.

13.  As to the $12,906, the Defendant said under caution that the cash was his income as a taxi driver.

14.  All the cash were in bank notes except $6 were in coins. The Prosecution said that it was inconsistent with a taxi driver’s business model.

15.  During mitigation, the Defendant said that he earned about $1,000 to $1,200 a day. Therefore, the Prosecution said it was unreasonable for him to carry 10 times of his daily earnings and ran a risk of being caught at the material time.

16.  I ruled there is a prima facie case against the Defendant based on the evidence before me.

17.  The Defendant gave evidence. According to him, about $8,000 was his earning/income and $4000 was the reserve in the event there was minor accident, he would use that money to settle any dispute as he had 3 traffic incidents in the month of June and July, just before his arrest.

18.  In a gist, he said that the cash of $12,906 was not used in the commission of or in the connection of the offence or received or possessed by him. As such, the $12,906 should not be subjected to forfeiture.

Consideration

19.  The cash in question was contained in the sling bag of which the Defendant carried it at the time of arrest.

20.  In the big compartment of the sling bag, it contained big denomination of cash, such as $100, $500 and $1,000 (the Defendant was not sure) while the small compartment contained $100, $20 and coins, a total of $6.

21.  According to the photos, there was no $1,000 bank note, however as to other denominations, there were:-

$500 x 17 pieces

$100 x 40 pieces

$50 x 4 pieces

$20 x 8 pieces

$10 x 4 pieces

Coins = a total of $6

22.  As to the $12,906 was:-

(a)  $8,000 was his 7-8 days income;

(b)  $4,000 - was his reserve.

23.  He usually deposited the income into the Bank every 10 days. There was no documentary evidence to support his claim.

24.  His daily earning as a taxi driver has been inflated from $1,000 to $1,200 in mitigation to about $2,000 when he gave evidence.

25.  He carried the money with him in order to meet in the event of minor accident that parties can settle the matter between themselves.

26.  In the month of June-July, the Defendant has 3 traffic incidents:-

(a)  in Hing Wah Street, he ran through a red light and ordered to pay a fine on 21 July 2025 for $2,000;

(b)  the Olympic City accident - settled by $2,000;

(c)  in Golden Chicken Plaza accident - settled by $1,000.

Rents of the taxi

27.  The Defendant was required to pay a deposit ($17,000), but he could not afford it.

28.  Daily rent for the taxi:-

(a)  Hybrid type: $500 per shift;

(b)  Gas type: $400 to $430 per shift.

29.  He did not pay his taxi company/agent KK Ho daily, he paid every 5 days or 10 days.

30.  Before his arrest, his payment to KK Ho was:-

(a)  10 July for $4,600 in cash;

(b)  He said in cross examination that the next payment should be on 20 July. He was not required to pay rent on the day of arrest.

31.  In further cross-examination, the Defendant then changed his evidence that he also paid $5,000 to KK Ho on 15 July.

(a)  $2,000 for car rental ($400 x 5 days);

(b)  $3,000 for part of the deposit (as he ran through a red light and collided with another vehicle which caused damage to the front part of the taxi).

32.  As such, between 10 July to 15 July, the Defendant paid KK Ho 2 times:-

(a)        10 July - $4,600;

(b)        15 July - $5,000.

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Total: -              $9,600

33.  The Defendant claimed he earned about $2,000 per day, 5 days amount to $10,000. After payment of $5,000 to KK Ho and payment to his girlfriend to travel to China (just before his arrest), his daily payment of fuel/gas of the taxi, meals and etc, there was hardly anything left.

$20,000/month (roughly) to his girlfriend

34.  The Defendant’s family relied on him for financial support as his girlfriend (aged 43) is a housewife and she stays at home to look after their 1¹/₂ years [at the time of his arrest] daughter who has medical issue.

35.  The Defendant paid his girlfriend household expenses $5,000 to $6,000 every 7 to 8 days.

36.  According to the defence calculation, the monthly total of household expenses to his girlfriend was about $20,000.

37.  At the time of his arrest, he just paid (could not remember the sum) his girlfriend before she left to China with their daughter. The Defendant planned to pick them up on 22 July.

Utilities $2,630/month

38.  He is also responsible for the payment of utilities:-

(a)	Rent	$1,480
(b)	Electricity	$1,100
(c)	Water Authority	$50
(d)	Gas – his brother pays for him	-- ______
	TOTAL:	$2,630

Drugs/Gambling

39.  On top of all his family expenses, the Defendant has got vice habits, he is a drug addict (since 1982) and he gambles.

40.  He played mahjong with other taxi drivers - 4 to 5 times per month, each time a few hours, he called off duty a bit earlier, there is no fixed frequency. Normally in the club or “shop”, no fix location. There is no evidence as to the result of his mahjong activities.

41.  He took drugs 5 to 6 times per month for taking cocaine, each time $400 to $600. According to the defence calculation, it was about $2,200[7].

42.  He took ketamine 1 to 2 times each month, each time was $400 because it helped him to sleep.

43.  Just for the consumption of drugs, each month amounts to $2,600.

The drugs - $16,000 to $20,000

44.  The Defendant admitted under caution that the “stuff” belonged him and he agreed that the street value of the drugs was between $16,000[8] to $20,000[9].

45.  I have already said it in the Reasons of Sentence that it accounted for a huge part of his earnings. I also said that the Defendant has a young family to take care, he knew that once when he embarked on this high risk activities and subsequently arrested, his family would lose the financial support from him. However, the Defendant has financial responsibility to his young family. As such, there was a strong motivation for the Defendant to take such a risk, as it was all because of money.

46.  The total value of drug ($16,000 to $20,000) together with the cash $12,906, that amounts to $ 28,906 to $32,906. Bearing in mind, the $12,906 was all in bank notes[10]. I agree with the Prosecution that the large number of bank notes in his possession did not fit into the business model of a taxi driver.

Conclusion

47.  Assuming the Defendant have a monthly earning of $22,000 to $26,400 (so he claimed), I am not persuaded by the Defendant ‘s evidence that the cash of $12,906 was his earning/income.

48.  His monthly income could not support his monthly expenses. Just by deducting the household expenses of $20,000 per month to his girlfriend from his monthly income of $22,000 to $26,400, he was actually living in the red.

Household expenses to wife	$20,000
Drugs	$2,600
Utilities bills	$2,630
Gambling	No information ____________
	TOTAL: $25,230

49.  In all the circumstances of the case, I conclude that the Defendant’s evidence is not credible, I reject his evidence. I do not accept his assertion that the cash of $12,906 was not related to drugs trafficking.

50.  In fact, I conclude that the cash were the proceeds of his illegal activities in trafficking of dangerous drugs.

51.  On the evidence before me, I found the Prosecution has proved on a requisite standard that came within the term of either or both limbs of section 56(1) of the Dangerous Drugs Ordinance.

Order

52.  Accordingly, I exercise my discretion to order the whole sum of $12,906 to be forfeited to the Government.