HKSAR v. HO WAI YEUNG

CACC 116/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 116 OF 2014

(ON APPEAL FROM HCCC NO. 412 OF 2013)

____________

____________

J U D G M E N T

____________

1. The applicant seeks leave to appeal out of time against an order made by D. Pang J on 22 November 2013 that $13,145, monies found in the possession of the applicant at the time of his arrest on 11 March 2013 outside Shop 301, Tai Wo Shopping Mall, Kai Wo Road, Tai Po for unlawfully trafficking in 49.33 grammes of ketamine, be forfeited.

2. Having pleaded guilty to two charges of unlawful trafficking in ketamine in the Magistracy on 27 September 2013 the applicant was committed for sentence in the Court of First Instance.  Charge 1 concerned the ketamine that had been found on the person of the applicant, whereas Charge 2 concerned the 200 grammes of ketamine that had been found at his home on the same date.

Sentence

Starting point

3. Having stated that he had regard to the overall quantity of dangerous drugs, the judge stipulated an ‘overall’ starting point for sentence of 8½ years’ imprisonment.

Discount

4. The judge said that the applicant was entitled to a discount of one-third from that starting point to reflect his pleas of guilty.

Sentence

5. In the result, the judge imposed a sentence of 4 years’ imprisonment in respect of Charge 1 and 5 years and 2 months’ imprisonment for Charge 2, ordering that 1 year and 8 months’ imprisonment of the term of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed on the applicant was 5 years and 8 months’ imprisonment.

Other orders

6. In addition to the sentences of imprisonment imposed on the applicant, the judge said that he made ‘An Order in Terms’, in respect of the application made by the prosecution in a Schedule for the disposal of property.  One of the items on the Schedule was the $13,145 found on the applicant, in respect of which the prosecution sought forfeiture.  The judge did not stipulate the power pursuant to which he made that order.

Application for leave to appeal out of time against the order of forfeiture

7. The applicant filed a Form XI Notice with the court on 7 April 2014, seeking an extension of time to give notice of an application for leave to appeal against “Confiscation Order”.  In an affirmation affirmed on 3 April 2014, attached to the Form XI Notice, the applicant explained his delay in filing that notice on the basis of delay by the Legal Aid Department in responding to requests made by him from mid-December 2014 for a copy of the relevant order.

8. Of the merits of the application, the applicant asserted in his affirmation that the monies belonged to his younger brother.  In a letter written to the court dated 18 June 2014, the applicant asserted that in February 2013 he had borrowed money from his brother in order to make a loan to a friend.  Subsequently, the friend relocated to the Mainland, but before doing so in March 2013 repaid the money to the applicant, asking that he return the money to his younger brother.  The applicant contended that on the day of his arrest he had made an arrangement with his brother to meet in order to hand over those monies to his younger brother.

A CONSIDERATION OF THE SUBMISSIONS

9. It is apparent from a transcript of the proceedings on 22 November 2013 that counsel representing the applicant, Mr Alan Ng, objected initially to the order sought by the prosecution for forfeiture of those monies.  Counsel advanced the same explanation as is advanced by the applicant in these proceedings.  In face of the judge’s intimation that, if counsel persisted with the application, the court would order another hearing and, in light of the fact that the applicant was a bankrupt, could ask that an interpleader summons be taken out by those parties interested in that bankruptcy, counsel for the applicant said, “Just a moment.  That item can be confiscated.”  Immediately thereafter, the judge said “order in terms”.

10. The audio tape of the border proceedings was played in court during the hearing today.  There is a gap of 24 seconds after counsel said “Just a moment” before counsel said “That item can be confiscated”.  The applicant informed the court that during that period he had instructed both counsel and a female representative of his solicitors “For now, I do not wish to pursue the matter.”

A CONSIDERATION OF THE SUBMISSIONS

11. On its face, counsel’s concession to the court, in effect, that he did not persist with opposition to the forfeiture of the money was taken with the authority of the applicant.  The applicant did not suggest otherwise in his Form XI Notice, his affirmation or in his two letters written to the court dated 17 and 18 June 2014.  Moreover, he has confirmed that to be the case in terms today.

12. Section 56(1) of the Dangerous Drugs Ordinance, Cap. 134 provides that, whether or not a person has been convicted of such offence, a court may order to be forfeited to the Government:

“ (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).”

13. It is to be noted that the ‘Summary of Facts’, accepted by the applicant as the factual basis of his pleas of guilty, stated that:

“ Upon search, in the black waist bag carried by the Defendant, nine packets of suspected ketamine: a stack of empty resealable plastic bags; and cash of HK$13,145 were found. When arrested for trafficking in the dangerous drug, the defendant stated under caution that the K Chai was the leftover of what he has sold and he asked for a chance.”

14. On the other hand, it is to be noted that in a video recorded interview made subsequently the applicant contended that he had sold only 3.5 grammes of ketamine for $300, which monies he had spent.  Moreover, he contended for the first time that the $13,145 found in his possession was a repayment of a loan from a friend.

Conclusion

15. In those circumstances, it is clear that there is no merit in the grounds of appeal.  Accordingly, the application for leave to appeal out of time against the order of forfeiture to the prosecution of the monies is dismissed.