THE QUEEN v. MAN LIM-PING

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. This is an application for leave to appeal against the order of a High Court Judge that a sum of HK$226,440 be forfeited to the Crown.

2. The grounds of appeal in support of this application are that:

3. At the end of the hearing we indicated that we would allow the appeal and set aside the order. We indicated that we would give our reasons at a later date, which we now do.

4. The facts giving rise to this application may be summarized as follows.

5. On the 14th of February 1984 the applicant was the first of two accused who was convicted on his own plea of one count of possession of dangerous drugs for the purpose of unlawful trafficking. For that he was sentenced to 7 years imprisonment. It was admitted that some time on the 24th of August 1983 Customs Officers on information kept watch at No. 9 Larch Street, Tai Kok Tsui. They did so for a couple of days. Again on the 26th of August they observed the accused's movement. Eventually they saw that the applicant carried a bag and joined his co-accused in a car which was driven away. The car was intercepted, searched and next to the applicant was found a bag containing some 3.245 kilogrammes of mixtures containing salts of esters of morphine. Keys were found on both accused which fitted the premises at Block E, No. 9 Larch Street, Tai Kok Tsui.

6. After his arrest the applicant made a cautioned statement which was inconsistent with the observation of the officers, though he admitted himself to be a courier of the dangerous drugs. The applicant was then taken to his home at 938 Canton Road 4/F. Nothing of particular significance in relation to the offence was found in his home except for two sums of money. One sum of $106,920 was found in a drawer under his bed and another sum of $119,720 was found in a safe which the applicant opened for the officers. The two sums which came to a total of $226,640 was seized by the officers.

7. During committal proceedings a fair number of exhibits were produced, but the two sums of money were never exhibited. After the applicant was sentenced the learned trial judge, on application of counsel for the Crown, dealt with the exhibits. The judge said that the drugs were automatically confiscated by law and he invited counsel for the Crown, after some exchange of conversations in open court, to make an application at a later stage. There was some discussion whether the key to the car in which the drugs were found should be returned to the rightful owner. The judge said:

"In that case, I think the best order would be that you (Crown counsel) make an application in writing at a later stage. Obviously, defence counsel won't wish to be present and I would then deal with it when the application comes. So far as the car keys are concerned, I would suggest, that the correct application there should be that they remain in the possession of the police until - to be returned to the correct owner in due course."

Crown counsel then replied:

"Yes. My Lord, just one other matter and that is for civilian.witness's expense which is not relevant in the matter."

At that stage Mr. Dinan, on behalf of the applicant, addressed the court as follows:

"My Lord, there is one matter which is not in the list of exhibits but, as a matter of experience, I find that unless I actually mention it in open court, it is sometimes difficult although I have spoken to the inspector. From the defendant's premises, money was seized. A certain amount. The exact amount we are not sure of, but it is not being part of the prosecution's case that that was involved and therefore it is not part of the exhibits. But just for the sake of the record, I understand that the prosecution have no objection to that money being returned to the defendant's family to whom it belongs."

Crown counsel said:

"Well, I don't know about it, my Lord. It is a matter between the police and the defendant, as far as I am concerned."

The judge then said:

"If it has been seized by the police and has it been exhibited in the magistrate's court?"

Crown counsel said:

"No. It hasn't."

The judge said:

"It hasn't. But it came into - it is in possession of the police-in connection with an offence so that section - what is it? - hundred and two in the Criminal Procedure Ordinance - I can't remember the section number - which means that the court can make an order on this subject and I think the Crown must give some indication as to what their attitude is."

Crown counsel said:

"The Crown has no objection to money being returned to the owner."

The judge said:

"Is it known what the quantity is?"

Mr. Dinan said:

"It is approximately two hundred-and twenty-two thousand."

The judge then said:

"The Crown have no objection to this being returned"

Crown counsel said:

"No, my Lord,"

Finally the judge said:

"Very well."

8. Pausing at this stage it is pertinent to observe that although on record the judge appeared to have utterned no more than the words "very well", yet the judge, in subsequent proceedings, said that he did make an express order in open court. It was conceded by the Crown that on the 14th February, 1984 the judge did make the order that the sums of money should be returned to the applicant.

9. To continue with the sequence of events the judge had second thought soon after he rose. He hastened to reconvene the court but then counsel, both for the prosecution and for the defence, had left. The learned judge saw fit to inform the Attorney's Department of his second thought. This led to an application on the part of the Crown to have the money forfeited on the ground, whether under section 56 of the Dangerous Drugs Ordinance or section 102 of the Criminal Procedure Ordinance, that the judge has power to order forfeiture of this sum of money.

10. This application was heard on the 31st of October 1984. At the hearing counsel for the applicant advanced an objection that the learned trial judge was functus officio and further that there was insufficient evidence to justify an inference that the money seized was connected with an offence under the Dangerous Drugs Ordinance. The judge's notes of proceedings show the initial conversations between him and Crown counsel on hearing of the application as follows:

Crown counsel then proceeded to argue that on the basis of the law in England the judge had a power to revoke his previous order to return the money even though section 11 of the Courts Act of 1971 had not been extended to Hong Kong. He further argued that a forfeiture under section 56 of the Dangerous Drugs Ordinance was part and parcel of the sentence and a court, according to English law applicable to Hong Kong, would always have the power to vary the sentence before the end of the session or until the conclusion of the assize. In the course of Mr. Dinan's address in reply the court said at page 5:

"To tell you the truth, I came out of court and immediately was unhappy about the order that had been made. It seemed tome that the Crown had not given it sufficient consideration and they had just conceded, rather lamely, as it were, to the application, and I thought the matter should be heard before I decided the matter, so I immediately got in touch with the Crown and told them that I wanted to reconsider the matter and I believe they got in touch with you?"

Mr. Dinan then proceeded to argue, first of all, on the proposition that a High Court Judge had no power to review his own decision particularly in the absence of an application by the prosecution for a forfeiture order. Ruling on this point the judge said at page 10 of the transcript as follows:

"There doesn't seem to be any real authority on the point. I consider that it would be absolutely ridiculous if, having appreciated that something was wrong with an order which had been made in court, I was not entitled, on leaving the court and going into chambers, to change my mind; and if I had gone back into court at that stage while counsel was still there, obviously, in my view, there could have been-it would be ridiculous, and surely the courts of law are not ridiculous, but it would be ridiculous if I could not have made a variation of the order which I have made on the grounds that there was something disturbing me about the order which it was proposed that I should make."

Then he decided to hear evidence in support and in opposition of the application made by the Crown for an order of forfeiture. Only the applicant gave evidence to the effect that the money obtained in his home has no connection whatsoever with his activities as a dangerous drugs courier. In fact, his main occupation was that of a trader in jade articles and that in that trade cash transactions were required. The money found in his home was entirely in connection with his jade business.

11. In view of our decision it is unnecessary to go into the details of his evidence. Suffice it to say that the judge disbelieved the applicant's evidence and ordered that the sums of money be forfeited to the Crown. It is for this reason that the applicant applied for leave to appeal against this order of forfeiture.

12. On the 1st ground in support of the application neither counsel for the applicant nor counsel for the Crown could cite any authority of assistance. We took the course of consulting our clerks and the Acting Registrar of the Supreme Court apart from refreshing our memory from our past experience. In this instance, the judge had signed a certificate of sentence without referring to any order of release or forfeiture of the money; nor had a formal order been drawn up for the release of the money to the applicant. Section 56(1) of the Dangerous Drugs Ordinance provides that:

"A court may .... order to be forfeited to the Crown any money or other property received or possessed by any person as a result or product of any offence under this ordinance."

Learned counsel for the Crown argued that the forfeiture order was part and parcel of a sentence. He repeated the argument that a judge had always the power to review his sentence. With due respect we did not accede to this argument. It is true that in the case of a magistrate or a district judge both have power of review by virtue of statutory provisions. There has been no statutory power for a high court judge to review his sentence. Even if an order of forfeiture is part of a sentence, the remedy of the Attorney General rests with an application to the Full Court to review the sentence rather than going back to the judge of original-jurisdiction to review his own sentence. In any event, the learned trial judge, when he ordered the money to be returned, did not purport to exercise his jurisdiction under the provisions of section 56 of the Dangerous Drugs Ordinance. On the contrary, he referred to section 102(1) which provides that:

                "(1)     Where -

Subsection. 2 of the same section provides that:

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

Subsection 5 provides that:

It is pertinent to observe at this stage the learned trial judge on the 14th of February 1984 did not make an order for the retention of the money. From our memory and experience and from the Acting Registrar, we understand that when property or money has not been exhibited in court and no order has been made as to its disposal, such property would be a matter between the individual and the authority that seized the property; in this case the Customs & Excise. No formal order need be made. Even if a judge makes an order there is no form provided for a formal order. All that would be necessary, if there is any difficulty, is for the judge's clerk to write a memo or letter to the effect that no order of forfeiture had been made.

13. In the present case, the learned judge had made an order in open court to return the money to the applicant on the 14th of February 1984. In our opinion, in the absence of statutory authority, he had no jurisdiction to revise his order. In our opinion, once the learned judge had made his order he was functus officio. Having come to this decision it is not necessary to consider whether there was sufficient evidence to justify an inference that the money seized was connected with an offence under the Dangerous Drugs Ordinance. Accordingly, we grant leave to the application to appeal against the order, treat the application as the appeal. The appeal is allowed and the order is set aside. The original order to return the money to the applicant is thereby restored.