HKSAR v. NGOMA JUMA SHABANI

CACC214/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 214 OF 2014

(ON APPEAL FROM HCCC NO. 480 OF 2013)

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J U D G M E N T

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Introduction

1. On 15 January 2014 the applicant appeared before P. Li J and pleaded guilty to “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On the same day he was sentenced to 10 years 4 months’ imprisonment.

2. At this sentencing hearing the prosecution applied for forfeiture of an amount of US$4,500 that had been seized from the applicant at the time of his arrest.  After a contested hearing of the application the judge acceded to it and ordered that the whole sum be forfeited except for HK$1,000 which should be paid to the Director of Legal Aid.

3. The applicant seeks leave to appeal this order.

The Background to the Offence

4. The Summary of Facts admitted by the applicant revealed that he agreed to be a drug mule and trafficked 0.38 kilogrammes of heroin hydrochloride, contained in pellets within his body, from Dar Es Salaam, Tanzania to Hong Kong.  The Summary of Facts further revealed that in an interview with Customs and Excise officers the applicant admitted:

“The plan was that someone who had D’s phone number would call him and pick him up after his arrival at Guangzhou. That person would then collect the heroin from him and he would receive US$4,000 as a reward. D claimed that the US$4,500 cash found on him was money related to his mobile phone business.”

The Application for Forfeiture

5. Although the basis of the prosecutor’s application was not apparent from his opening comments to the judge, it is clear from his closing submission that it was section 56(1) of the Dangerous Drugs Ordinance, Cap 134.  In support of the application the prosecutor relied on a decision of Verina Bokhary J in HKSAR v Chan Chi Wai Jimmy [2011] 4 HKLRD 302 in which, after referring to the various alternative factual bases set out in section 56(1) for making a forfeiture order, the judge said at page 304, paragraph 4 of her judgment:

“If the inference is that at least one of these alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pinpointed.”

6. The prosecutor’s position, as he put it in his final submission, was as follows:

“So, the prosecution say that it is very clear that the money was, at least, to be used in the commission of this trafficking offence, which he’s instructed to go to Guangzhou from Hong Kong, or it was used in connection with this offence.”

7. The prosecutor, who was of course the applicant in this application, did not place any evidence before the court and the carriage of the application appears to have immediately passed to counsel for the defendant who then called his client to give evidence.

8. The judge disbelieved the applicant and explained why.  He then made his forfeiture order without identifying the particular factual basis under section 56(1) for doing so. 

Discussion

9. I take the relevant legal principles governing forfeiture applications to be those laid down by the Court of Final Appeal in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877.  These can be summarized as follows:

(i) applications for forfeiture are civil in nature;

(ii) the applicant making the forfeiture application bears the burden of establishing that the seized article is liable to forfeiture;

(iii) this burden of proof is discharged to the civil standard of the balance of probabilities;

(iv) once this had been done then there is a prima facie case for an order of forfeiture in respect of the seized article.

10. In the present case I shall assume that the prosecutor relied on the Summary of Facts as his evidence on the application.  That only showed that the defendant was a drug mule who was trafficking drugs for reward.  From this bare fact alone the prosecutor invites the inference that any cash money found on such a person is, on the balance of probabilities, connected in some way with his drug trafficking.  Here the connection relied on by the prosecutor was that the monies were to be used in the commission of the offence or used in connection with the offence.  How they were to be used under either of these limbs was not elaborated upon, but this may have been because of the position adopted by the prosecutor that the way in which the monies are connected with the drug trafficking do not have determined by the judge when making an order for forfeiture.

11. Whether, on these bare facts, the prosecutor had established a prima facie case and whether the judge before making an order must make a finding of fact on which he bases his decision that the seized article is liable to forfeiture are matters which, I believe, justify the granting of leave.  So that they can be properly explored an appeal I grant the applicant legal aid.