HKSAR v. WONG SHUK KING

DCCC 181/2023

[2024] HKDC 162

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 181 OF 2023

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RULING

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1.  On 21 December 2023, the D was convicted on her own plea for a charge of trafficking in a dangerous drug, namely 15.29 grammes of a mixture containing 10.82 grammes of heroin.

2.  Following her conviction, the Prosecution applied for the forfeiture of the cash HK$13,521.20 under section 56(1)(b) of the Dangerous drugs Ordinance Cap 146.

3.  The Defence objected to the forfeiture order.

Statutory provisions

4.  The application for forfeiture by the prosecution is made pursuant to section 56(1)(b) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”). Section 56 reads:

“(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).

The legal principle for a forfeiture proceeding

5.  In Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, Sir Anthony Mason NPJ, when addressing the forfeiture provisions in the Import and Export Ordinance, Cap 60, made the following general statements of principle, namely that forfeiture proceedings are civil in nature, and that the applicant bore the onus of establishing on a balance of probabilities that the seized item was liable to forfeiture or belonged to the claimant:

“65. … the Commissioner bears the onus of establishing that the seized article is liable to forfeiture. … Once this is established the Commissioner makes out a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the discretion to order delivery of the seized article to the claimant, the court will make an order for forfeiture.”

6.  Of the burden on the party opposing the forfeiture order, Sir Anthony Mason NPJ said:

“He may do this by proving facts to the satisfaction of the court, according to the balance of probabilities…”

7.  In considering an application under section 56(1), a court has a discretion as to whether or not to make an order for money or other property to be forfeited to the Government.

8.  The onus in forfeiture applications is on the applicant to show on a balance of probabilities that there is a prima facie case that the money or other property comes within one or both of the limbs under section 56(1). Once the item is liable to forfeiture, the onus will in those circumstances shift to the one claiming the money or other property to satisfy the court, on a balance of probabilities, that he is entitled to have it. If the defendant has not discharged this burden, then an order will be made for the item to be forfeited. If, however, the prosecution have not shown on a balance of probabilities that there is a prima facie case for the order of forfeiture, the items should be returned to the defendant if it belongs. (See also the recent decision in HKSAR v Chan Chun Hei CACC 52/2022 paragraph 37)

9.  Under section 56(1), for a court to make a forfeiture order to the Government, it must be satisfied that either (a) the money or thing has been used in the commission of or in connection with a drug trafficking offence; or (b) the money or the other property was received or possessed by a person as a result or product of a drug trafficking offence.

10.  When addressing section 56, the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57 stated at paragraphs 23 and 25 that it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the Ordinance is engaged when deciding whether to make an order of forfeiture.

Evidence

11.  The evidence in the present case consisted of:-

(a)  The admitted fact between the parties as to the denominations of the $13,521.20;

(b)  That the D said that under caution in a record of interview that she claimed the cash was her personal savings from her previous employment;

(c)  The amended summary of facts of this case; and

(d)  The D’s evidence.

12.  The Prosecution applied for forfeiture of the $13,521.21 on the ground that this money was the proceed of unlawful trafficking:-

(a)  The D was a recipient of CSSA;

(b)  The $13,521.20 were seized from the D when she was arrested for an offence of trafficking in a dangerous drug; and

(c)  Under caution, she said that she was meeting someone in the park for a delivery for an award of $500.

13.  The Defence conceded that there is a prima facie case for the application. The D gave evidence that:-

(a)  She was injured during an employment in 2016 and received a compensation of $60,000 from her employer in 2017;

(b)  She was discharged from prison in May 2019 and she withdrew $59,000 from her bank account in June 2019;

(c)  She found a job as a waitress and earned $12,500 per month. She was laid off in February, 2022 and started to receive CSSA at the end of March 2022;

(d)  The money on her person was part of her compensation back in 2017 and her saving over the year from her employment; and

(e)  Her monthly expenses on drug was about $10,000. Her monthly rental is $2,200.

Ruling

14.  I do not accept the D’s evidence that the money found on her belonged to her.

15.  There is simply no documentary proof when she gave evidence as to her income and her compensation. The Defence said that when she was in previous proceeding in DCCC 469/2017, she already told the Court in mitigation that she had received $60,000 employment compensation in September, 2017. She was still in custody at that time. When she was discharge in 2019, she withdrew $59,000 from her HSBC account.

16.  She explained that the reason for withdrawing such a large sum in one go was to facilitate her to buy drugs whenever she needed the money. On the other hand, she did not keep the cash in her sub-divided unit was because her neighbor had been burgled before. She found it safe to keep the money in person.

17.  I found this explanation totally absurd and incredible as it is definitely the safest place to keep the money in the bank.

18.  In any event, she was discharged from prison in May 2019 and did not have any income for the first two months.

19.  She said that her expenses at that time was:-

(a)  Drugs: $10,000

(b)  Rent: $2,200

(c)  Living expenses: $4,000 to $5,000 (food, transportation and job hunting)

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Total: between $16,200 to $17,200 per month

20.  The two months expenses was $32,400 to $34,400. That means she only had less than half of the compensation left in 2019.

21.  One would wonder how long could this money last, bearing in mind that she has been a heroin addict since 1994 and she was arrested 3½ years later.

22.  The D said that she started to work in July 2019 and her monthly salary was $12,500. She managed to save $1,000 per month. The restaurant provided meals to her and it was in a walking distance from her home. Her basic monthly expenses remained at: -

(a)  Drugs – $10,000

(b)  Rents – $2,200

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Total – $12,200

23.  It is simple math that she did not have a monthly saving of $1,000.

24.  She was laid off in February 2022 due to bad business of the restaurant. Six months before she was laid off, she did not really work as a full time staff, her monthly income reduced from $12,500 to $9,000 to $10,000. She admitted that the entire income was devoted to feed herself of heroin.

25.  She also said that there was no saving during the covid period as income had reduced. Surely, she had spent all her so-called savings and compensations over this period of time.

26.  Coming to the period after she was laid off and up until the time of her arrest. She admitted that there were 2 months without income:-

(a)  February 2022 – she was laid off and without job; and

(b)  End of March, 2022 – she started to receive CSSA of $3,200.

27.  In these 2 months, she continued to pay rent and consumed drugs:-

(a)  Drugs: $10,000 × 2 months

(b)  Rents: $2,200 × 2 months

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Total: $24,400

28.  This begs a question, did she has any money left by the time of her arrest?

29.  From April to November, 2022, she said that she had a monthly income of $8,200:-

(a)  CSSA $3,200; and

(b)  Part-time job income $5,000 per month.

30.  Her monthly expenses:-

(a)  Drugs: $10,000

(b)  Living expenses: $1,500

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Total: $11,500

31.  She had a monthly deficit of about $3,300. For a period of 7 months, from 4/2022 to 11/2022, the total deficit was $23,100 ($3,300 × 7 months).

32.  The question to ask: where did she made up the balance for her living? $10,000 was a constant figure for her drug expenses. Clearly, she could not live without taking heroin. With an income of $8,200, that was not sufficient to feed her drug habits.

33.  She committed the present offence of drugs trafficking in November 2022.

34.  She had been sentenced to goal for the same offence in 2017 and was released in May 2019. Surely, she must know that to engage in such a high risk of illegal activities, she would have to face a long period of imprisonment once she was caught.

35.  According to the summary of facts, she admitted that her reward was $500. For a relatively small sum of money to face a high risk of several years of imprisonment, it only tells me that the D was in dire straight, she needed money badly and therefore embarked on this illegal activity.

36.  When she was arrested in November 2022, she never said that the money with her was part of the compensation she received in 2019. Assuming that she did receive the compensation in 2019, in between this period, she had spent it all long before she was arrested.

37.  To this end, I rejected the D’s evidence as being credible. I ruled that the D has failed to satisfy me on a balance of probability that any part of the $13,521.20 belonged to her. The D by way of unlawful trafficking in dangerous drugs obtained the money in issue.

Order

38.  I order the total sum of $13,521.20 to be forfeited to the government.