HKSAR v. MALIBANGA JOSEPHINE RAYMOND

CACC 167/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 167 OF 2014

(ON APPEAL FROM HCCC NO. 39 OF 2013)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. At the hearing of the application we granted leave to appeal out of time against the order made on 25 March 2013 by Deputy High Court Judge Stuart-Moore, following her plea of guilty in the Magistracy and her Committal for Sentence to the Court of First Instance in respect of a single charge of trafficking in 0.49 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 that US$4,000 found in the possession of the applicant be paid to the “Legal Aid Fund”. The applicant gave notice of the application by filing Form XI with the Court on 16 May 2014. In an affirmation filed with the Court on 16 August 2014, the applicant sought to explain the delay in giving notice of her application. At the hearing, we said that we would give our reasons for the judgment in due course. That, we do now.

Facts

2. In the Summary of Facts, which the applicant accepted as the basis for the Court accepting her plea of guilty, the applicant accepted that having been arrested on her arrival at Hong Kong International Airport from Tanzania on 30 July 2012, on suspicion of having dangerous drugs inside her body, whilst detained at Queen Elizabeth Hospital, she discharged 90 pellets containing a total of 0.49 kilogrammes of heroin hydrochloride.  The retail value of the drug was estimated to be HK$715,860.

Sentence

3. The judge adopted a starting point for sentence of 17 years 3 months’ imprisonment and enhanced it by 3 months’ imprisonment for the aggravating factor of importation.  Affording the applicant a discount of one-third from the resulting sentence of 17 years and 6 months’ imprisonment, the judge imposed a sentence of 11 years 8 months’ imprisonment on the applicant.

4. In addition to the sentence of imprisonment, the judge made the following order:

“ In addition, I’m going to order that you contribute all the money that was found in your possession to the costs of the defence in this case. In other words, I shall order that the US$4,000 which was found in the items seized from you should go to the Legal Aid Fund, to pay at least in part for the defence of yourself. Otherwise, I will make an order in terms so far as the remaining exhibits are concerned.” [1]

Grounds of appeal against the order

5. On behalf of the applicant, Mr Grossman SC submitted that the Court had exceeded its jurisdiction in ordering that US$4,000 found in the possession of the applicant be paid to the Legal Aid Fund.  Next, he contended that there was no evidence before the judge that the US$4,000 was in any manner connected to her importation of drugs and thus susceptible to confiscation.  Thirdly, it was contended that the judge erred in making an order in favour of the Legal Aid Fund a sum in excess of the amount sought by the Legal Aid Department’s counsel.

The applicant’s explanation for filing the application out of time

6. In her affidavit, the applicant sought to explain the delay of more than one year in filing a notice of application for leave to appeal against the order by asserting first that she did not understand what had happened at the hearing.  She was pre-occupied with the welfare of her baby son, born on 10 March 2013.  She thought that HK$1,000 was the maximum she would be required to pay to the Legal Aid Department.  Subsequently, when she did not receive the return of the money, she wrote to the Customs and Excise Department in April 2013, but did not receive a reply.  She wrote to them again in March 2014 enquiring as to the whereabouts of the money.  Only in April 2014, when she received a letter dated 26 March 2014 from the Customs & Excise Department, did she become aware that the judge had ordered the payment of the money to the Legal Aid Department.

7. In a letter dated 2 April 2014 to the Legal Aid Department the applicant advised them that the Customs & Excise Department had informed her that the US$4,000 had been taken by the Legal Aid Department “as the cost of defence”.  Complaining that she had “only signed to gave you 1000 HD after helping me in my case”, she asked why all of the money had been taken.  On 9 April 2014, she received a letter in reply from the Legal Aid Department informing her that “she was not required to pay any contribution to the Legal Aid Department under the Legal Aid (Assessment of Resources and Contributions) Regulations.”  In addition, she was advised that “your money was forfeited by order of the Judge who directed that it be paid to the general revenue through Legal Aid Department.”  In a letter to the Legal Aid Department dated 17 April 2014 the applicant informed them that she wanted to appeal the order, asserting that the US$4,000 was her money, albeit that $1,500 was her sister’s money.  Having been advised in a letter from the Legal Aid Department dated 25 April 2014 that, if she wished, she could apply for leave to appeal out of time and could seek legal aid to do so, the applicant filed the notice of application for leave to appeal against the order out of time on 16 May 2014.

Respondent’s submissions

8. Mr Virginia Lau submitted that the explanation for the delay in lodging an appeal was wholly unconvincing and invited the Court to reject it.  She pointed out that the applicant had not exhibited any copy of the letter dated April 2013 which she alleged that she had sent to the Customs & Excise Department.  No such letter had been received.  Also, she pointed out that on 6 December 2013 the applicant had acknowledged receipt of nine items of property returned to her by the Customs & Excise Department pursuant to the order of the judge, which items the prosecution had invited the judge to order to be returned to the applicant.  Conspicuous by its absence was any reference to the US$4,000, in respect of which the prosecution had sought forfeiture.  She was unable to explain the delay of more than eight months in giving effect to the judge’s order that those items be returned to the applicant.

9. Of the judge’s order, she submitted that there was power to make the order pursuant to section 106 of the Criminal Procedure Ordinance, Cap. 221.  In the alternative, she submitted that, if this Court determined that the judge had made the order in error, it was open to this Court to make an order of forfeiture of the money pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap. 134, as money used in the commission of or in connection with the offence of trafficking in dangerous drugs.

A consideration of the submissions

10. Nowhere in the exchanges between counsel and the judge, or in the judge’s articulation of the imposition of the order, did the judge identify the power pursuant to which the order was made.

11. It is clear from the transcript, that the issue of making an order for the payment of costs out of the monies found in the possession of the applicant at the time of her apprehension was first raised by the judge in the course of mitigation advanced on behalf of the applicant by Ms Catherine Wong.  Earlier, in response to the enquiry of the judge as to the disposal of exhibits, Ms Sabra Lo informed the Court that the Court and the defence had been provided with a list of the disposal of the exhibits sought by the prosecution.  Further, that issue was taken on behalf of the applicant in respect of the prosecution application for a forfeiture order in respect of the US$4,000 found in the possession of the applicant.

12. At an early stage of mitigation Ms Wong told the judge that the applicant contended that the money “was her own money” [2], which she had intended to use to buy ladies clothing in Hong Kong to sell in a business in Tanzania.[3] She went on to say that, although the applicant had agreed to traffick in the dangerous drugs unlawfully for a reward of $5,000, the money “is only payable upon the successful delivery of the stuff in Hong Kong”.  The judge said:[4]

“ COURT: I mean, why should the State, as it were, pay for this prosecution? She’s able to pay for it herself. She’s brought it on herself. Why shouldn’t I make an order for costs in this very same sum? Do you see what I mean?”

13. Notwithstanding that judicial observation, Ms Wong went on to invite the judge “not to impose the costs order”.[5]  She went on to say that even if the US$4,000 was returned to the applicant, the Legal Aid Department would seek a contribution from the applicant for the costs of their defence of only HK$1,000.[6] Then, during enquiries of her as to the actual cost to the Legal Aid Department of the defence of the applicant, the judge said:[7]

“ COURT: You see, I mean, it’s usually -- I don’t want to award the prosecution with all the costs if there’s going to be legal aid costs as well. It seems to me that some of it should be to the prosecution, as you rightly say it’s a plea of guilty, and also to the defence, because the legal aid is a second bill - the prosecution costs are one bill; the legal aid costs are the other, and it seems to me that it would be sensible -- I’m bound to say I don’t think this is a case for handing back that money for one moment, and I don’t accept for one moment that she came here intending to buy clothes. She was here as a trafficker in drugs.”

14. After an adjournment, Ms Wong informed the judge that the costs to the Legal Aid Department of the defence of the applicant were $41,920, of which they sought a contribution from the applicant of $1,000.[8]  The judge observed:

“ COURT: Why do they ask for a contribution of 1,000 when they can see that she’s got over 30,000 in Hong Kong dollars worth, I just don’t understand that.”

15. Having acknowledged the validity of Ms Wong’s concerns as to a conflict of interests, given that she was representing the applicant, the judge said:[9]

“ COURT: …..But I, from my standpoint, can’t see why Hong Kong should pay a cent towards this prosecution. She’s got the money to pay for it.”

16. As noted earlier, having sentenced the applicant to 11 years and 8 months’ imprisonment, the judge went on to say:

“In addition, I’m going to order that you contribute all the money that was found in your possession to the costs of the defence in this case. In other words, I shall order that the US$4,000 which was found in the items seized from you should go to the Legal Aid Fund, to pay at least in part for the defence of yourself. Otherwise I will make an order in terms so far as the remaining exhibits are concerned.”

17. Obviously, although the judge did not say so in terms, the effect of the judge’s orders was either impliedly to refuse the application by the prosecution for forfeiture of the US$4,000 or, simply to fail to deal with it fully and determine it.  He gave no specific, direct reasons for not determining the application.  Notwithstanding the judge’s peremptory rejection of the submission made by Ms Wong that the applicant was possessed of the money in order to buy clothing in Hong Kong and his statement, “..I don’t think this is a case for handing back that money for one moment”,[10] the judge did not identify or set out any consideration of the steps necessary in a contested application for order of forfeiture.  The Summary of Facts, accepted by the applicant as the basis of the judge accepting her plea of guilty, did not assert that the applicant accepted that in unlawfully trafficking in the dangerous drugs she did so for reward, let alone that the US$4,000 was in any way connected with her unlawful trafficking.  In fact, astonishingly there was no mention of the US$4,000 at all.  An admission of the fact that the US$4,000 was found on her body was only made by Ms Wong in mitigation.  Further, it was admitted that the applicant had agreed to unlawfully traffick in the dangerous drugs for a reward of US$5,000, but it was asserted that money was payable only on a successful delivery and the applicant had been intercepted before she could make a successful delivery.  Finally, it was asserted that the US$4,000 was the applicant’s “own money”.

18. Section 106 of the Criminal Procedure Ordinance, Cap. 221 empowers the Court to make an order:

“ If, on the apprehension of any person charged with an indictable offence, any money is taken from him, the court may in its discretion, in case of the conviction of such a person, order such money or any part thereof to be applied to the payment of any costs, or costs and compensation, directed to be paid by such person.”

19. Since there is no dispute that the monies were taken from the applicant on her apprehension and that she was charged with and convicted of an indictable offence the judge had the discretionary power to order that the whole or any part of the money be applied to the payment of “any costs, or costs and compensation” directed to be paid by the applicant.

20. Section 15(a) of the Costs in Criminal Cases Ordinance, Cap. 492, which appears under the rubric “General Principles” re-affirms the long-standing principle that :

“ In any criminal proceedings –

(a)  the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto.”

21. In informing the Court, after the judge had granted an adjournment on his own initiative so that more information might be provided to the Court, that the Legal Aid Department “ask for the contribution of $1,000” from the applicant, Ms Wong stated specifically that she did so “on instructions”.  In the face of obvious judicial scepticism as to the amount claimed, Ms Wong attempted to provide an explanation:

“ I have to say -- there may be a mechanism for them to calculate the certain formula based on the assets and so forth, but I don’t quite understand how the mechanism have to work. I can’t really comment on that.

COURT: No, no.

MS WONG: But this is the usual kind of arrangement or the calculation that I understand the Legal Aid would be to impose a certain proportion of their assets to be the legal costs.  That’s as far as I can say.”

22. The Legal Aid Ordinance, Cap. 1, together with the Legal Aid (Assessment of Resources and Contributions) Regulations set out a statutory regime pursuant to which any assessment of a contribution by a recipient of legal aid is calculated.  Regulation 3(1) of the latter provision requires the calculation and determination by the Director of Legal Aid of:

“ the financial resources, income, disposable income or disposable capital of a person and the extent of its liability to contribute in respect of any proceedings ..”

23. Regulation 13 in Part III states that:

“ The maximum contribution of an aided person under section 18(1)(b) of the Ordinance shall be a contribution in respect of his financial resources assessed in accordance with part 1 of Schedule 3.”

24. Schedule 3 stipulates the method of calculation for the purposes of regulation 13:

For the purposes of regulation 13- (L.N. 146 of 2012)  

(a)  if the financial resources of an aided person do not exceed $20,000, the maximum contribution of the person is $0;

(b)  except as provided in subparagraph (c), if the financial resources of an aided person exceed the amount indicated in column A but do not exceed the amount indicated opposite that amount in column B, the maximum contribution of the person is the amount or, as the case may be, the percentage of the financial resources of the person, indicated opposite those amounts in column C as follows- (L.N. 146 of 2012)

A	B	C
If the financial resources of the aided  personal exceed	But do not  exceed	Then, the person’s maximum contribution is
$20,000	$40,000	$1,000
$40,000	$60,000	$2,000
$60,000	$80,000	5%
$80,000	$100,000	10%
$100,000	$120,000	15%
$120,000	$144,000	20%

25. An application of that method of calculation and determination is entirely consistent with what Ms Wong informed the Court was the contribution that the Legal Aid Department sought from the applicant on the basis of her financial resources having been determined to be $31,200, namely amount that counsel informed the judge was the equivalent of US$4,000.[11]  It follows that the judge’s order that  US$4,000 was to be paid to the Legal Aid Fund was greatly in excess of the amount of HK$1,000, which was the maximum contribution that the Legal Aid Department were entitled to require from the applicant as a legally aided person.

Conclusion

26. In our judgment, the judge fell into error in making the order that the US$4,000 was to be paid to the Legal Aid Fund.

27. The applicant’s explanations for the delay in filing with the Court a notice of application for leave to appeal against the order out of time are thoroughly unconvincing.  The order of the judge at the end of the sentencing process was clear and simple and the delay lengthy.  The likely explanation for the delay perhaps lies in one of the complaints she made in correspondence to the Legal Aid Department, namely that subsequently she had learnt that some of her fellow inmates had managed to retain the monies found on them on arrest.  Nevertheless, as is the practice of this Court, there being merit in the application we allow the application for leave to appeal out of time against the order and, treating the application as the hearing of the appeal, we quash the order.  It is a matter for the Legal Aid Department to determine if they wish to pursue the applicant for a contribution to the costs of her defence.

28. In all the circumstances of this case, even if we were satisfied that the judge had simply failed to determine the prosecution’s application to forfeit the money, it would not be appropriate for this Court to conduct the hearing of the application which, with respect to the judge, ought to have been conducted to conclusion with a specific determination in the lower court.

[1] Appeal Bundle, pages 6T-7A.

[2] Appeal Bundle, page 10 L.

[3] Appeal Bundle, page 11 A-B.

[4] Appeal Bundle, page 11 N-O.

[5] Appeal Bundle, page 12 H.

[6] Appeal Bundle, page 12 H-P.

[7] Appeal Bundle, page 13 G-K.

[8] Appeal Bundle, page 14 G. “…the Legal Aid – my instruction is that they asked for the contribution of $1,000”.

[9] Appeal Bundle, page 14 P-Q.

[10] Appeal Bundle, page 13 J.

[11] Appeal Bundle, page 19 H.