HKSAR v. CHAN YAT WAH

CACC 154/2023 [2024] HKCA 391

On appeal from [2022] HKCFI 3376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2023

(ON APPEAL FROM HCCC NO 270 OF 2020)

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R E A S O N S   F O R   J U D G M E N T   A N D   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment and Judgment of the Court):

1.  Following his plea of guilty in the Magistracy on 9 November 2020 to a single charge of jointly trafficking in dangerous drugs with Kwok Mei Ki, Maggie (“Ms Kwok”), consisting of 17.95 grammes of cannabis, in herbal form, 118.5 grammes of crystalline solid containing 117.1 grammes of methamphetamine hydrochloride (commonly known as “Ice”), 139 grammes of a mixture containing 110 grammes of heroin hydrochloride, 32.3 grammes of a solid containing 27.6 grammes of cocaine and 19.7 grammes of a solid containing 15 grammes of eutylone and 1.48 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134), the applicant was committed to the High Court for sentence. On 18 October 2022, the applicant was sentenced to 8 years and 8 months’ imprisonment by Campbell-Moffat J (“the Judge”).

2.  By way of a notice of application for leave to appeal (Form XI) dated 22 August 2023 and a supporting affidavit dated 21 August 2023, the applicant sought leave to appeal against his sentence out of time.  The application was made about 10 months out of time, soon after he had given evidence for the prosecution against an accomplice who was acquitted after trial on 2 August 2023.  The applicant’s reason for the application was to apply for a reduction of his sentence for the assistance he had rendered to the authorities by giving evidence for the prosecution in the trial against his accomplice girlfriend.  At the time of the application, the applicant’s estimated discharge date of his sentence was 16 March 2025.  The respondent did not dispute that he was entitled to a further discount for testifying for the prosecution. Consequently, the application was directly referred to a two member division of the Court of Appeal.

3.  We granted the applicant an extension of time to file his leave application against his sentence and treated the leave hearing as his appeal.  We set aside his sentence of 8 years and 8 months’ imprisonment and substituted it with a sentence of 7 years and 11 months’ imprisonment. 

The summary of facts

4.  The facts outlined to the Judge and admitted on behalf of the applicant were as follows.^[1]  On 3 June 2019, police officers, who were on an anti-narcotics operation, intercepted the applicant’s girlfriend, Ms Kwok, as she was entering Room B on the seventh floor of the Bridal Tea House Hotel in Yau Ma Tei.  The applicant was standing near the door inside Room B. 

5.  The room was searched, and the dangerous drugs in question were found inside a box placed on the bedside table, with a total estimated street value of $249,400. An electronic scale, a bundle of resealable plastic bags, and a hotel key card and a deposit slip, which were both in Ms Kwok’s name, were also found on the bedside table.  Both the applicant and Ms Kwok were arrested and remained silent under caution. 

6.  In a subsequent video recorded interview, the applicant explained that Ms Kwok was his girlfriend and that they had known each other for 8 to 9 years.  He had stayed in the hotel for 3 to 4 days.  He acquired the dangerous drugs on 3 June 2019 for about $68,000 and stored them in the hotel room for his own consumption. He admitted that the drugs belonged to him and that he consumed cannabis, Ice, cocaine and ketamine. 

7.  It was admitted that the applicant tested positive for amphetamine and opiate and that he, together with Ms Kwok, unlawfully trafficked in the dangerous drugs seized.

The mitigation

8.  The applicant had previous convictions for twenty four offences, three of which were drug trafficking offences.  He was last convicted of drug trafficking on 5 July 2016, for which he was sentenced to 5 years and 2 months’ imprisonment.  It was accepted that the applicant was a persistent offender and that an enhancement of two to three months to his sentence would be appropriate for this aggravating factor.[2]  It was also accepted that trafficking in different kinds of dangerous drugs, which would provide for a wider market, was an aggravating factor.[3]

9.  Defence counsel urged the Judge to disregard the cannabis and eutylone for the purpose of calculating the notional starting point, as their quantity and potency were negligible in comparison with the other types of drugs.[4] Applying the absurdity test, conversion test and ratio test set out in HKSAR v Chan Yuk Leong[5], suggested that the notional starting point would be about 13 years and 8 months’ imprisonment.[6] 

10.  The main thrust of the mitigation was the applicant’s guilty plea and his “genuine assistance” in implicating Ms Kwok in the case.  The applicant resiled from what he had said in his video recorded interview, and claimed that, in fact, it was Ms Kwok who was trading in drugs. Ms Kwok recruited the applicant to become a partner in the business, and she instructed the applicant to keep the drugs in small bags and acquired further drugs from a South Asian male in the area.  At the time of the police raid, Ms Kwok had just returned from delivering drugs to one of her customers.  The applicant gave three non-prejudicial statements (“NPSs”), on 24 December 2020, 17 May 2021 and 8 December 2021, which led to Ms Kwok being separately charged of drug trafficking in HCCC 269/2020 in respect of the same batch of drugs trafficked by the applicant.  Ms Kwok was granted bail but failed to attend court at her case management hearing.  She remained at large at the time of the applicant’s sentencing hearing.[7]

11.  Defence counsel submitted to the Judge that the three NPSs were “of practical use”, and the applicant was willing to testify in Ms Kwok’s trial notwithstanding her absence.[8]  It was urged that a discount in the range of 40% to 50% would be appropriate: HKSAR v Yeung Hoi Ting[9]; HKSAR v Montoya Munoz Mauricio[10].

The reasons for sentence

12.  Having considered the relevant sentencing guidelines and applied the absurdity test, conversion test and ratio test, the Judge adopted the notional starting point 12 years and 10 months, which was computed from the ratio test being the lowest sentence of the tests. 

13.  Regarding the aggravating features, the Judge said:[11]

“There are three aggravating features to this case. The first is the latent risk arising from the multiple drugs available for sale, which may encourage the mixing of drugs by users and a greater market for the seller. The second is the role played by you. You and the 2^nd defendant were operating an independent drug trafficking business, which was clearly lucrative. The third is your appalling criminal record. In taking these into account, I have taken into consideration the principle of totality. I consider the second of these three aggravating features to be the most important.

You are a drug addict. You have been abusing drugs for over 20 years and no doubt you cannot break yourself of the habit. You have been more entrepreneurial than most and gone into business for yourself in order to feed that habit and it has proved a successful business. You have been able to move from one hotel to another rather than rent a flat. You had tens of thousands of dollars at your immediate disposal. That business was encouraging others to harm themselves and it would have done considerable damage to society.

  For your role, applying the principles in HKSAR v Herry Jane Yusuph, I intend to increase the sentence of 12 years 10 months by 12 months, making 13 years 10 months.  For the latent risk element, I intend to increase the sentence by just 3 months in all the circumstances of this case and in the face of the other aggravating features, making 14 years 1 month.  I will increase that sentence of 14 years 1 month by a further 5 months by reason of your recidivism, which I consider the second most aggravating feature of this case, making a total of 14 years 6 months’ imprisonment which I note is still within the upper range for sentencing upon the various tests considered by the court.”

14.  The Judge noted that the applicant’s assistance predated Ms Kwok’s absconding and that he was willing to testify against her.  In the end, the Judge considered a 40% discount to be appropriate, which resulted in a sentence of 8 years and 8 months’ imprisonment.

15.  At the prosecuting counsel’s request, the Judge ordered that the exhibits be kept pending the conclusion of HCCC 269/2020 (Ms Kwok’s trial).

The outcome of HCCC 269/2020

16.  In December 2022, Ms Kwok was eventually apprehended and remanded in custody.  On 24 July 2023, she pleaded not guilty, and her trial commenced before Deputy Judge A Kwok and a jury in the High Court.  The applicant testified for the prosecution between 26 and 27 July 2023.  On 2 August 2023, the jury, by a verdict of 5 to 2, acquitted Ms Kwok of the drug trafficking offence she faced.  

17.  During the hearing of the leave application, it was disclosed that Deputy Judge A Kwok at the conclusion of Ms Kwok’s trial, ordered the forfeiture of the monies found in the applicant’s possession upon his arrest when the applicant was neither a party to nor present in those proceedings.  It was submitted that the applicant had not been given the opportunity to be heard regarding the application by the prosecution pursuant to section 56(1) of the Dangerous Drugs Ordinance to forfeit the monies found in his possession (exhibits P21 (HK$60,000), P22 (HK$28,900), P23 (HK$125,500), P24 (HK$66,000), P25 (HK$14,835) and P26 (Renminbi 1,000)).  The monies in Ms Kwok’s possession were returned to her (exhibits P19 (HK$27,839.50) and P20 (HK$70,000)).

18.  We will return to this matter later in the judgment.

The leave application to appeal against sentence out of time

19.  In his affirmation attached to the Form XI, the applicant explained that he was late in appealing his sentence due to Ms Kwok’s trial being delayed because she absconded.  It was not until late July 2023 that he was able to testify in her case.  Consequently, he was only in a position to lodge the appeal after testifying for the prosecution. 

20.  No objection was raised by the respondent to the applicant’s late filing of the application for leave to appeal against his sentence.  There was the option available to the applicant to apply to the Executive for a reduction of his sentence for the assistance he had rendered to the authorities, but as a matter of general principle, it is preferable that a case of this type should be dealt with by a court of law where such a course is reasonable and appropriate in the circumstances.  Accordingly, we granted the applicant an extension of time to file the application.

21.  Mr David Boyton, on behalf of the applicant, put forward two grounds of appeal.

Ground 1: enhancement for “latent risk” 

22.  Mr Boyton explained that he did not intend to challenge the notional starting point adopted by the Judge.  His complaint in Ground 1 was confined to the Judge’s erroneous application of the “latent risk” factor to the facts of this case.  In advancing this ground, he referred to the Court of Final Appeal decision of HKSAR v Minney[12], which was subsequently cited and considered by the Court of Appeal in Wong Wai Wah[13].  He argued that it was clear from these authorities, that a person convicted of trafficking would be sentenced for “actual trafficking”, and thus, it would be wrong in principle for the Judge to further enhance that sentence for “potential trafficking” or “future risk of trafficking” for the same batch of drugs.  He further argued that the nature of “latent risk” was included in the trafficking offence itself, and to enhance the sentence for “latent risk” would amount to a double punishment of the applicant.  

23.  Mr Boyton contended that had there been an element of self-consumption, the Judge would be entitled to consider “latent risk” in relation to that quantity of the drugs.  However, the issue of self-consumption did not arise in the present case.  Whilst the applicant claimed in his video recorded interview that the drugs were for his consumption and that he tested positive for amphetamine and opiate, the defence never raised the issue of “self-consumption”.  It was only mentioned by the Judge in passing during the mitigation.[14] It followed that the notional starting point should have been 14 years and 3 months, instead of 14 years and 6 months.

24.  Ms Angel Yuen, for the respondent, submitted that Ground 1 was not reasonably arguable.  She accepted that the term “latent risk” was traditionally used in cases of “possession” to refer to the risk that the dangerous drugs would get into the hands of others by access or distribution: Wong Wai Wah.  However, the “latent risk” mentioned by the Judge clearly referred to the fact that the applicant had trafficked in multiple types of drugs, which could cater for a greater market.[15] 

25.  Defence counsel in mitigation for the applicant accepted had he trafficked in five types of dangerous drugs, which could cater for a wider market.[16] As held in HKSAR v Islam S M Majharul[17], trafficking in two or more dangerous drugs is an aggravating factor.  Ms Yuen submitted that the three months’ enhancement for this aggravating factor was, therefore, not wrong in principle. 

26.  We agree with the respondent’s submission.  It would appear that the Judge equated “latent risk” with the dissemination of the drugs to a range of drug abusers and a wider market, and was not applying the concept of “latent risk” in the usual sense.  This was an aggravating factor, and the three months’ enhancement was justified.  We would add that the variety of drugs involved, some of which could be combined to produce additional potency or prolonged effect, and the equipment to package them were clearly for the purpose of engaging in extensive trading in the local drug market. 

Ground 2: discount for assistance

27.  Ground 2 was concerned with an additional discount to be granted to the applicant in view of his post-sentence assistance in testifying for the prosecution in Ms Kwok’s trial.  In support, Mr Boyton sought to produce under section 83V of the Criminal Procedure Ordinance (Cap 221) a copy of the letter dated 6 October 2023 from the Department of Justice to the Director of Legal Aid.[18] In this letter, the prosecution confirmed that:

“The Applicant made 3 non-prejudicial statements (‘NPS’) with the Police Department alleging that KWOK Mei-ki (‘KWOK’) was the person recruiting and giving him instructions in the trafficking offence. The Applicant was called by the Prosecution and testified in the trial against KWOK in HCCC 269/2020 which was held between 24 July and 2 August 2023.

  While KWOK was acquitted upon trial, the Prosecution would confirm that the Applicant’s testimony was in line with his NPSs.  His assistance was useful.”

28.  Mr Boyton contended that as a matter of principle, the applicant was entitled to a discount of up to 50% by giving “truthful and material evidence” against Ms Kwok: Z v HKSAR[19]; Yeung Hoi Ting; HKSAR v Lo Sze Tung Stephanie[20]. Although it should be noted in HKSAR v Sysoev Igorevich Iurii [21], we explained that the Court in Lo Sze Tung Stephanie was not setting out guidelines, just reiterating established sentencing principles.  Mr Boyton submitted that there was no requirement that such a discount was contingent on a conviction, and there was no reason why the court should depart from the usual 50% discount (including the discount for the guilty plea) in the circumstances of the present case.

29.  Ms Yuen conceded that the applicant was entitled to an additional discount for having testified for the prosecution.  She accepted that his assistance was useful because he had given evidence in accordance with his NPSs.  She argued, as suggested by comparable cases, the Court of Appeal had considered in the past, a total discount of no more than 50% would be appropriate in the present case: HKSAR v X [22] (40%); HKSAR v Wan Ming Kwan [23] (40%); HKSAR v Cheuk Yung Kan & Anor [24] (41.67%); HKSAR v Chung Chi Kuen [25] (45%); HKSAR v Chan Sau Hing & Anor [26] (50%); HKSAR v Hui Wai Man, Joanne Marie [27] (50%); HKSAR v Tang Ho Keung [28] (50%).   

30.  There was no suggestion of any threat or danger to the safety of the applicant or his family by reason of his giving evidence against Ms Kwok, the applicant’s ex-girlfriend rather than a senior member of a drug syndicate.  This was particularly so as Ms Kwok was acquitted by the jury.  Ms Yuen suggested that the applicant’s assistance merited a total discount of less than50%. 

31.  As explained by the Court of Final Appeal in Z, a number of factors should be taken into account in deciding whether the assistance given by a defendant to the authorities merits a discount in a case and, if so, its extent.  Such factors usually concern the nature and extent of the assistance and the likely consequence of the defendant giving assistance.[29]  When the assistance extends to the defendant testifying in court, the “usual” discount of 50% (incorporating a one third discount for a timely guilty plea) is given if the evidence is “truthful and material”.[30]  It will be relevant to consider how such evidence was given and received in determining an appropriate discount to the defendant’s sentence for the assistance he rendered that is shown to have been of practical use to the authorities: Yeung Hoi Ting [31].

32.  Even when a defendant, after pleading guilty, gives evidence against an accomplice, it is not automatic that he or she will receive the “usual” 50% discount.  It depends on whether he or she has given “truthful and material” evidence, which will require an overall assessment of the nature and circumstances of the evidence, including the outcome of the case and the bearing the defendant’s evidence has had on the result.[32]  When an appellate court is asked to evaluate the assistance rendered by a defendant in testifying for the prosecution, it is imperative that sufficient information and material is submitted to the court so it can properly calculate an appropriate percentage discount, if any, to the defendant’s sentence.  In the present case, all we were told was that the applicant gave evidence in line with his non-prejudicial statements and that his assistance was “useful”.

33.  The nature and circumstances of the evidence given by the applicant, and any background information or matters leading to and affecting him in giving evidence for the prosecution against Ms Kwok were relevant considerations when making an assessment of an appropriate percentage discount for his assistance.

34.  The applicant committed the offence to which he pleaded guilty on 3 June 2019.  He made his first court appearance in the Magistracy on 5 June 2019.  It was not until 9 November 2020 that he entered a plea of guilty in the Magistracy to the charge that he jointly trafficked in the drugs in question with Ms Kwok.  He also agreed to a summary of facts dated 25 September 2020, in which he admitted that he had trafficked in the drugs together with Ms Kwok.[33] He was committed for sentence to the Court of First Instance.  The applicant then made three non-prejudicial statements dated 24 December 2020, 17 May 2021 and 8 December 2021.  On 18 October 2022, the applicant confirmed his plea of guilty and was sentenced to 8 years and 8 months’ imprisonment, having received a 40% discount (incorporating a one third discount for a guilty plea) for the assistance he so far had rendered to the authorities by his statements.  However, given the background and circumstances of the applicant’s case, there was an issue regarding his credibility and reliability as a witness. 

35.  The drugs and related paraphernalia in the present case were found in a hotel room where the applicant was staying with Ms Kwok.  He had in his possession three mobile telephones and HK$295,235 cash as well as some Reminbi.  He initially told the police that he lived in the hotel room from which he was running a drugs operation.  He said he purchased the drugs for $68,000 and took them to the hotel room to consume.  The Judge noted in her sentencing remarks that he said the telephones were used for work, family and gaming and that the considerable sums of cash found were from income and savings, which was all untrue.  The Judge further noted that by reason of his guilty plea, he accepted that he was trafficking in the drugs and that the monies he had on him were the profit from the drugs operation.  The Judge also referred to his appalling criminal record dating back to 1996 for numerous offences of possession of and trafficking in a dangerous drug.[34]  The applicant dramatically changed his account in his NPSs by stating that Ms Kwok had established the drugs operation and that she had taught him how to package and weigh the drugs, and he assisted her in distributing the drugs to others.[35]  Plainly, in the circumstances of this case, there was always going to be a serious issue regarding the applicant’s credibility as a witness for the prosecution. 

36.  Ms Kwok had absconded and was rearrested and tried on a charge of having jointly trafficked with the applicant in the drugs in question, from 24 July 2023 to 2 August 2023.  The applicant gave evidence for the prosecution on 26 and 27 July 2023.

37.  The case against Ms Kwok rested substantially on the applicant’s evidence.  When he was first interviewed he said the drugs belonged to him and were for his consumption.  However, his position changed when he indicated he would plead guilty.  He then said that Ms Kwok was the person behind the trafficking of the drugs and that he was merely assisting her.  The conflicting accounts given by the applicant and the issue of his credibility, were material factors to be taken into account when assessing the assistance that he has rendered to the authorities in order to quantify a percentage discount to his sentence.  The jury in acquitting Ms Kwok, did not believe the applicant.  Clearly, his evidence impacted on the outcome of the trial, and therefore, it is appropriate to take that factor into account.

38.  We consider that in all the circumstances the applicant should receive a discount of 45% (incorporating a one third discount for his guilty plea) on the notional starting point adopted by the Judge, which we find no reason to disturb.  We, therefore, set aside the previous sentence of 8 years and 8 months and substitute it with a sentence of 7 years and 11 months’ imprisonment.

The forfeiture order

39.  As noted, the trial judge in Ms Kwok’s case ordered monies found in the possession of the applicant at the time of his arrest to be forfeited without hearing from the applicant on this matter.

40.  When the matter was raised before us, it was acknowledged that the applicant should have been heard on the matter.  We granted an appeal aid certificate to the applicant in respect of the forfeiture order and directed the parties to address to the Court as to how the issue should be dealt with.

41.  The Judge in the applicant’s appeal against sentence, which is before us (HCCC 270/2020), ordered that the exhibits in that case be kept pending the outcome of Ms Kwok’s trial (HCCC 269/2020), which is not before us. 

42.  We will briefly repeat the background of this case because it is relevant to the issue that we now have to decide regarding the forfeiture order.  When the applicant and Ms Kwok were apprehended entering the hotel room, where the drugs were found, the applicant had in his possession a total of HK$295,235 and RMB1,000 cash and Ms Kwok a total of HK$97,839.50 cash.  They were jointly charged with trafficking in the dangerous drugs.  The applicant pleaded guilty to the joint charge in separate proceedings, HCCC 270/2020, in which he indicated he would be a witness for the prosecution against Ms Kwok, who had pleaded not guilty to the joint charge.  The Judge in HCCC 270/2020 ordered that the exhibits be kept pending the outcome of HCCC 269/2020 (Ms Kwok’s trial).  Ms Kwok absconded but was eventually apprehended and tried in separate proceedings, HCCC 269/2020, on the joint charge.  Ms Kwok was acquitted and the prosecuting counsel applied for orders for the disposal of exhibits, which included the forfeiture of the monies in the applicant’s possession at the time of his arrest (Exhibits P21, P22, P23, P24, P25 and P26).  Deputy Judge A Kwok in HCCC 269/2020, ordered the forfeiture to the government of the exhibits of these monies, pursuant to s.56(1) of the Dangerous Drugs Ordinance.  Section 56 reads 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).

(2) An order under subsection (1) for the forfeiture of a thing may include a term permitting a specified person or persons to redeem such thing on such conditions, including conditions as to the payment of the value or a proportion of the value thereof to the Government, as the court may think fit.

(3) The court may require that notice of an application for forfeiture under subsection (1) shall be given in such manner as it thinks fit.

(4) The Chief Executive in Council may, in his absolute discretion and after any proceedings under this Ordinance are concluded, entertain and give effect to any moral claim to or in respect of any money, thing or other property which has been forfeited to the Government.”

43.  As provided by s.56(1), a court may order the forfeiture to the government of any money which has been (a) used in the commission of or in connection with, or (b) received or possessed by any person as the result or product of, a relevant drug offence (whether or not any person has been convicted of such offence).  Notwithstanding the applicant not being before the court as a defendant, as he had already pleaded guilty and was a witness for the prosecution in Ms Kwok’s trial, the judge was empowered to make an order pursuant to s.56(1) in respect of the trial exhibits, including the monies in the applicant’s possession.  Unfortunately, the applicant was not notified of the application and, therefore, was not given the opportunity to be heard on the matter when, in our view, he should have been: s.56(3).

44.  The issue that we need to resolve is whether we have jurisdiction to address the matter because the judge’s order was made in HCCC 269/2020, which is not part of the application before us for leave to appeal against sentence out of time in HCCC 270/2020.  There is no appeal before us from HCCC 269/2020, and it begs the question, on what basis do we have jurisdiction to review the judge’s forfeiture order in those proceedings.  The parties are essentially arguing that because the applicant’s monies were exhibits in his case, this Court has jurisdiction to decide the issue of forfeiture of those monies as part of his sentence, which is before us.  However, this ignores the fact that there is an order by a judge in other proceedings that is not before us.

45.  Mr Boyton argued in his written submissions that this Court has jurisdiction to set aside the order of Deputy Judge A Kwok in HCCC 269/2020 and adjudicate afresh the disposal of the applicant’s monies as part of his sentence appeal in HCCC 270/2020.  He complained that the applicant had been denied an opportunity to address the court regarding the forfeiture of monies that he claimed belonged to him and were unrelated to his drug activities.  The authorities are clear that there must be a fair hearing in forfeiture proceedings, as we explained in HKSAR v Chan Chun Hei [36], which Mr Boyton contended was denied to the applicant. 

46.  Similarly, Ms Yuen in her written submissions advocated that this Court has jurisdiction to decide the question of the forfeiture of the applicant’s monies as it is part of his sentence, which is before us.  She suggested that we have jurisdiction to deal with Deputy Judge A Kwok’s forfeiture order because “the forfeiture order was essentially made in both HCCC 269/2020 and HCCC 270/2020, and the order was made on the applicant when dealing with him by virtue of the same offence, it forms a part of his sentence.”  She submitted that as the applicant had already lodged an appeal against his sentence, the forfeiture order being part of his sentence, should also be considered as being before this Court.[37] We had difficulty accepting this submission as it does not address the fundamental issue, namely on what basis can we adjudicate upon an order of the court that is not before us.

47.  After oral submissions, however, the parties acknowledge that we do not have HCCC 269/2020 before us, and accept that we lack jurisdiction to adjudicate upon the forfeiture order of Deputy Judge A Kwok.

48.  In our view, we do not have jurisdiction to address this matter, but it would appear that the applicant has an available remedy under s.56(4), if he chooses to exercise it.  It is open to him to state a case to the Chief Executive in Council for any claim of the monies that have been forfeited to the Government under this provision.[38] The applicant may want to consider such an application.  The Judge, in her sentencing remarks, noted that he was in possession of HK$295,235 cash and some Reminbi when he was arrested, and found that by reason of his guilty plea, he accepted he was trafficking in the drugs in question and that the monies he had on him were the profit from the drugs operation.[39] 

[1]  Summary of Facts, Appeal Bundle, pp 3-5. 

[2]  Appeal Bundle, p 12 J-l and T, p 26, at [5.9]-[5.11].

[3]  Appeal Bundle, p 14 C-F, p 25, at [5.5]. 

[4]  Appeal Bundle, p 24, at [5.2]. 

[5]  HKSAR v Chan Yuk Leong, unrep., CACC 318/2013, 8 April 2014. 

[6]  Appeal Bundle, p 24, at [5.4] and [5.5]. 

[7]  According to the court file in HCCC 269/2020, Ms Kwok was first granted bail by a Magistrate for this case on 14 November 2019.  On 10 February 2022, in respect of another case, she was sentenced to probation order with the condition that she would stay in a Drug Addiction Treatment Centre (DATC).  On 25 March 2022, she escaped from the DATC.  In the first Case Management Hearing held on 9 August 2022, the Judge revoked her bail.  The applicant was sentenced on 18 October 2022, but Ms Kwok was only rearrested on 23 December 2022.   

[8]  Appeal Bundle, pp 25-26, at [5.6] and [5.8]. 

[9]  HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.

[10]  HKSAR v Montoya Munoz Mauricio [2019] 1 HKLRD 439.

[11]  Appeal Bundle, pp 9J-10C.

[12]  HKSAR v Minney (2013) 16 HKCFAR 26.

[13]  HKSAR v Wong Wai Wah [2018] HKCA 671.

[14]  Appeal Bundle, pp 10D and 13D-H.   

[15]  Appeal Bundle, p 9K-L.  

[16]  Appeal Bundle, p 14C-F. 

[17]  HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.

[18]  Affirmation of Wong Lai Ying Cecilia dated 21 November 2023, Annexure WLYC-1. 

[19]  Z v HKSAR (2007) 10 HKCFAR 183.

[20]  HKSAR v Lo Sze Tung Stephanie, unrep., CACC 190/2017, 25 July 2018.

[21]  HKSAR v Sysoev Igorevich Iurii [2023] 3 HKLRD 20, at [131] and [132].

[22]  HKSAR v X, unrep., CACC 109/2011, 8 February 2012.

[23]  HKSAR v Wan Ming Kwan, unrep., CACC 94/2013, 9 June 2014.

[24]  HKSAR v Cheuk Yung Kan & Anor, unrep., CACC 203/2007, 18 March 2008.

[25]  HKSAR v Chung Chi Kuen, unrep., CACC 337/2013, 24 September 2014.

[26]  HKSAR v Chan Sau Hing & Anor, unrep., CACC 211/2001, 13 November 2002.

[27]  HKSAR v Hui Wai Man, Joanne Marie, unrep., CACC 299/2012, 18 January 2013.

[28]  HKSAR v Tang Ho Keung, unrep., CACC 145/2015, 12 October 2016.

[29]  Z, at [13].

[30]  Z, at [23].  See also HKSAR v Khan Sadam Biland (No 2) [2023] 4 HKLRD 799, at [32].

[31]  HKSAR v Yeung Hoi Ting, at [95] and [96].

[32]  See HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at [33], although this case dealt with assistance to the authorities in the participation of a controlled delivery. 

[33]  Appeal Bundle, pp 82-84. 

[34]  Appeal Bundle, pp 7H-T and 28-33. 

[35]  Appeal Bundle, pp 21-23. 

[36]  HKSAR v Chan Chun Hei [2024] 1 HKLRD 118, at [35]-[37].

[37]  Respondent’s submissions on the jurisdiction, dated 12 June 2024, at [21]. 

[38]  See HKSAR v Chan Chun Hei [2024] 1 HKLRD 118.

[39]  Appeal Bundle, p 7A-G..