HKSAR v. OKPO STANLEY IGWEBUIKE

HCCC 90/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 90 OF 2016

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REASONS FOR FORFEITURE ORDER

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Introduction

1.  On 19 April 2016, the defendant, having been convicted on his own plea for drug trafficking, was sentenced to imprisonment for 9 years and 8 months.

2.  Following the pronouncement of sentence on the defendant, Mr Richard Donald, counsel for the defendant, objected to an application by the prosecution for a forfeiture order in respect of two lots of seized monies consisting of a total of US$5,000 (items P20 and P21 of the Schedule of Items for Forfeiture).  Instead, he made an application on behalf of the defendant for the return of the monies on the basis that they were unrelated to the offence of drug trafficking to which the defendant had pleaded guilty.

3.  On 19 April 2016, Mr Donald requested an adjournment of the application in order for him to present evidence from a witness in support of the defendant’s claim.  

4.  At the adjourned hearing on 8 June 2016, Mr Donald requested a further adjournment because the witness from whom he had a statement was not in Hong Kong.  The witness was identified as Mr Jonathan Jimmy Muoka, a Hong Kong resident, who it was claimed had on numerous occasions in the past sold electronic goods to the defendant.  Mr Donald explained that a statement had been obtained from him about his dealings with the defendant but he was overseas and would not return until the end of June.  The case was adjourned to 30 July 2016 so that Mr Muoka could testify in support of the defendant’s application.

5.  On 30 July 2016, Mr Muoka had still not returned to Hong Kong and according to Mr Donald’s instructions he was due to return to Hong Kong the next day.  In the meantime, the defendant gave evidence about the US$5,000 and testified about his previous visits to Hong Kong and his dealings with Mr Muoka in buying second hand electronic goods from him.  At the conclusion of his evidence, Mr Donald requested that the case be adjourned to 5 August 2016 so as to enable Mr Muoka to testify for the defendant.

6.  At the adjourned hearing, Mr Muoka was in attendance and gave evidence.  At the conclusion of his evidence and upon hearing submissions from the parties, I ruled in favour of the prosecution’s application and ordered the forfeiture of the sum of US$5,000 to the Government.  I said I would hand down my reasons for my ruling and this I now do.

Statutory provisions

7.  The application for forfeiture by the prosecution is made pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap 134. 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).

(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.”

Relevant principles

8.  The Court of Appeal in HKSAR v Rawe Waikama Magarya, CACC 215/2014, 25 November 2014, unreported, emphasised that forfeiture proceedings must be formally decided on the basis of evidence and the Court should alert the defendant if it has taken a position against him on the available evidence in order to afford him the opportunity to give or call evidence on the issue.

9.  When addressing different forfeiture provisions in the Import and Export Ordinance, Cap 60, the Court of Final Appeal in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, made these general statements of principle that would apply to section 56, namely, that forfeiture proceedings were civil in nature and that the applicant or claimant bore the onus of establishing on the balance of probabilities that the seized item was either liable to forfeiture or belonged to the claimant. 

10.  Normally, where forfeiture is sought the onus is on the applicant to show on a balance of probabilities that there is a prima facie case for the order of forfeiture of the item.  If a claimant asserts that the item belongs to him then the onus would pass onto him to show on a balance of probabilities that the item should not be forfeited and should be returned or given to him.

11.  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.  Section 56(2) further provides that a court may include in the order a term permitting a person or persons to redeem such thing on conditions that it thinks fit. 

12.  There is also provision for a subsequent claim under section 56(4) to the Chief Executive in Council which may 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.

13.  In considering an application pursuant to section 56(1), a court has discretion as to whether or not to make an order for an item to be forfeited to the Government.  Where the prosecution has shown on a balance of probabilities that there is a prima facie case that the item seized comes within one or both of the limbs under section 56(1), then the burden will pass on to the defendant to show otherwise.  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 forfeiture order, the item should be returned to the defendant if it belongs or should be given to him and there is no other reason not to do so. 

14.  In most cases, the property which is the subject of forfeiture proceedings would have been seized by law enforcement officers from a person who either is in possession of it or has used it in respect of a drug trafficking offence.  A few examples of such property would be, a sum of cash that was used for or derived from drug dealing, drug taking equipment, such as equipment for the inhalation or injection of drugs, drug paraphernalia, such as electronic scales and plastic bags for the packaging of drugs, items or devices used for the concealment or transportation of drugs, and the drugs themselves. It could depending on the circumstances of the case extend to other property such as a motor vehicle or vessel that was used to transport or smuggle drugs. The point is that if it cannot be shown that the property had been used in the commission of or in connection with or received or possessed by a person as a result or product of a drug trafficking offence then the property would revert back to its owner which if it was seized from and belongs to the defendant would revert back to him. 

Submissions

15.  Mr Donald for the defendant put the basis of the application in his written submission as follows:

“3. The Defendant was a successful businessman, from Lagos, Nigeria. He owned a shop in Lagos and would make a trip to Hong Kong every three months or so where he would purchase second hand electronic goods for sale in his Lagos shop. This arrangement had been ongoing since 2008. Over the years he had made about 19 trips to Hong Kong; each trip resulted in a profit of between USD $1,500.00 – 2,000.00.

4. After one trip to Hong Kong the Defendant returned to Lagos to find that his shop had been burgled; everything in the shop had been stolen. The burglary left the Defendant insolvent. His financial situation was such that he was not even able to afford a ticket to return to Hong Kong to buy goods in an attempt to revive his business. He had no capital at all.

5. The Defendant’s brother advised him to return to Hong Kong, he informed his brother that he did not have enough money to obtain a Visa. The Defendant then approached a friend, asking the friend if he could borrow US$10,000.00. The friend advised that he would give him US$6,000.00 and support him financially until he was back on his feet. In return he wanted the Defendant to “deliver a parcel” to Hong Kong. The arrangement was that he would get the US$6,000.000 upon his successful delivery of the parcel to Hong Kong.

6. The Defendant then set about borrowing US$5,000.00 from his friends.  Then in accordance with the arrangement he had made with his friend he swallowed the drugs, the subject of the charge, before coming to Hong Kong. The arrangement was that upon his arrival in Hong Kong he would ring someone in Hong Kong and they would come and collect the drugs and he would be given his US$6,000.00.”

16.  The defendant also produced a letter dated 2 March 2016 which he wrote to the Legal Aid Department setting out why the money found in his possession at the time of the offence belonged to him.  It is in my view a self-serving letter to support his claim that the money should be returned to him.  It is worthwhile setting out what he said in the letter as a closer examination of it raised serious doubts as to his explanation. 

“...

Please I writing this letter to you (Legal Aid Department) to tell you the reason while I need my money is because all the monies I have in my life and I don’t have any hope elsewhere like I said in my statement that this money did not belong to drug. The money I raised from my business and I later needed more money to make it up to a reasonable amount to help me buy a better goods in Hong Kong. I have disappointed by my brother and I made a friend who told me to do this, is not what I planned but is out of frustration I have been coming to Hong Kong before but is because of problems I have. I was robbed by thief they broke my shop and carried my goods and the money I have at my shop so I stopped coming to Hong Kong and because of lack of money and even didn’t make use of my 1 year Visa, then till after a struggle with hardship I raise this $5,000.00 US dollar with help of some good friend and later I told one of my brother that I will like to be going to Hong Kong again and he promised me money and ask me to applied for Visa and when my Visa come out he disappointed me and I was looking for who to borrow me money so that this Visa will not expire for the second time and I made this friend who advise me to carry, that when I get to Chung King Mansion and delivered it he will tell someone to give me $6,000 US Dollars and it will be my money that no need of me to pay him back and even that he don’t have money to borrow me and now I have been arrested and I didn’t delivered no money that have been paid to me.

Please help me to tell the Judge that I need the money so that after my sentence when I go out that I will not be frustrated and get the back all the seized money and you know am a young man who never married and I need money to be responsible and I have my old aged mother at village who hoped on me to take care of her life bills.

Please my good people of legal aid remembers is not all about me being sentence to face my warranty but is all about my future not to do bad things again.  Please I need this money it does not belong to drug.”

17.  Mr Donald submitted that the money belongs to the defendant.  He submitted that the money was borrowed by the defendant from friends which together with the reward of US$6,000 was to be used to buy electronic goods in Hong Kong. 

18.  In support of his submission, Mr Donald referred to the antecedent statement of the defendant where he stated that he was running a business of electronic parts in Nigeria at the time of arrest and earning about 3,000 Nigerian Naira (equivalent to around US$150) per month and to the interview with the defendant when he was asked what his purpose was in coming to Hong Kong he answered “for electronic business”; to the defendant’s evidence as to his previous trips to Hong Kong for purchasing used electronic parts and the nature and circumstances of his business; and the evidence of Mr Muoka who testified that the defendant purchased used electronic goods from him in the past which he also shipped for him to Nigeria. 

19.  On the other hand, Mr Peter Power, for the prosecution, referred to the facts that have been admitted by the defendant upon his plea of guilty, namely, that he had swallowed the 50 pellets of cocaine in Nigeria which he brought to and subsequently discharged in Hong Kong a great personal risk to himself and would have only done so if he was to get a reward; that on being intercepted at the airport he was in possession of US$5,000 cash; that he was to receive a reward of US$6,000 for bringing the drugs into Hong Kong; that the defendant’s evidence should be rejected that the US$5,000 was given to him by friends as a gift and that the drug traffickers did not give him any money to facilitate or make his trip to Hong Kong.

Relevant facts

20.  As set out in the agreed facts, the defendant smuggled a total quantity of 795 g of a solid containing 325 g of cocaine which were contained inside 50 pellets which he digested.  The street value of the drugs was $813,285.  It was an agreed fact that he was given the drugs for smuggling into Hong Kong for which he would be paid a reward of US$6,000. 

21.  As part of the defendant’s mitigation, he agreed to smuggle the drugs because he was in financial difficulties due to the fact that his second hand electronic goods shop had been burgled and he had lost everything.  It was claimed in mitigation that the reward of US$6,000 would be paid upon successful delivery. 

22.  When the defendant was arrested and cautioned, the following exchange took place:

“Q   What are the objects inside your body?

A   Cocaine.

Q   How many cocaine did you swallow?

A   50 pellets.

Q   Who give it to you?

A   A friend in Nigeria.

Q   What is the name of this friend?

A   I don’t know.

Q   How much will you get for such cocaine?

A   $6,000 US.”

23.  In a subsequent cautioned interview, the following exchange took place:

“Q   What is your purpose coming to Hong Kong?

A   For electronic business.

Q   What is the thing inside your body?

A   Cocaine.

Q   How many pellets you have swallow?

A   50 pellets.

Q   Who gave you the drugs in Nigeria?

A   A Nigerian man called Emeka.

Q   Where you swallow the drugs?

A   He gave me the drugs to swallow in Lagos, Nigeria.

Q   Do you have any rewards for bringing the drugs?

A   He said USD6,000.

Q   Where you are going to bring the drugs to?

A   I will call Emeka when I arrived and he will find somebody to contact me in Hong Kong.

Q   Do you know who will come to pick up the drugs?

A   No.”

The defendant’s oral testimony

24.  The defendant testified in support of his application.  He said that the US$5,000 was given to him by a number of friends before he left Nigeria and came to Hong Kong and that the money was not connected to the smuggling of the drugs into Hong Kong.  He said he specialised in electronic products and had a business in Nigeria where he sold used electronic products.  He set up the business in 2005 and commenced coming to Hong Kong in 2008.  He would come here to purchase used electronic products. When he first started, he would buy goods that would fill a 20 foot container at a cost of US$20,000 which eventually increased to a 40 foot container at a cost of US$40,000.  He on average would make three trips to Hong Kong in a year.  He said he purchased goods from different people in Sham Shui Po.  One of the dealers was Mr Muoka.  He said he would make a profit of about US$3,000 to US$4,000 on each trip.

25.  He said that his shop was burgled in 2013 and as a result he lost everything.  It meant that he could not come to Hong Kong from then on until 2015. 

26.  He produced a Bill of Lading (Exhibit A1) dated 18 December 2011 which evidenced that he shipped 35 TVs and 30 hi-fi systems from Hong Kong to Nigeria.  He said he could only produce this document because his brother could not find other similar documents that he had in his possession.  He also produced a bundle of currency exchange vouchers (Exhibits A2 to A8) which evidenced that at various time in 2009, 2010 and 2011 he exchanged substantial sums of US dollars. 

27.  In September 2009, he exchanged US$10,000 on 4 September (Exhibit A8), US$5,000 on 5 September (Exhibit A7), US$7,500 on 7 September (Exhibit A6) and US$5,000 on 9 September (Exhibit A5).  On this trip according to the records that he produced he exchanged a total sum of US $27,500 which seems quite a substantial sum of money given his background and circumstances and the nature of business that he was in.  He said that he exchanged in partial amounts because he did not want to have large sums of Hong Kong dollars in his possession.  I note however that this does not explain the fact that he would still have large sum of US dollars in his possession. 

28.  He said that he needed these documents to support an application for visa to Hong Kong and that Mr Muoka would be his sponsor.  He said he did not produce invoices because Mr Muoka did not usually issue an invoice when he sold him second hand electronic goods.  So the only way to show that he did business here in support of this application was the exchange vouchers. 

29.  As to the US$5,000, he said that the money was raised by friends who gave it to him so that he could buy second hand electronic goods when he came to Hong Kong.  He said it had nothing to do with the trafficking of the drugs.  He said he was to receive a reward of US$6,000 for bringing the drugs to Hong Kong and together with the US$5,000 he was going to buy second hand electronic products. 

30.  He said on this occasion Mr Muoka sponsored his trip to Hong Kong.  He reaffirmed his past dealings with Mr Muoka and explained that he still owed him some money prior to the burglary of his shop. 

31.  Under cross examination he was queried about the arrangements he had with Mr Muoka in sponsoring his visa for this trip.  It seems that not only did he buy goods from Mr Muoka but Mr Muoka would also arrange shipment of the goods to Nigeria.  He said that Mr Muoka knew of the burglary of his shop and he arranged with him over the telephone to apply for a visa application.  He said that there were no emails or other forms of communication about the visa.  He said it was the practice with Mr Muoka that he would fill out a visa in advance and Mr Muoka would submit it for him.  He said on this occasion prior to coming he filled out a visa form which he forwarded to Mr Muoka through another Nigerian and accompanied it with the original exchange vouchers.  He said Mr Muoka submitted the application to the Immigration Department for him.  He said he would always submit the originals to Mr Muoka.  He was queried that if that was the case why he had the originals on this occasion which he said were in his prison property.  He then said that if he was in Hong Kong he would hand over the originals to Mr Muoka but when he was not in Hong Kong he would give a copy.  He said that the last one was a copy.  He was questioned about his dealings with Mr Muoka.  He was somewhat vague in answering these questions but it may be that he either could not remember correctly or was not being truthful about these matters. 

32.  He confirmed in evidence that he had no money at the time of this offence and that he was not working and had no income.  He claimed that the entire trip had been financed by his friends and that the drug trafficker had made no financial contribution to him.  He said his friends paid for his air ticket and gave him the US$5,000 not expecting to be repaid.  He said the number of friends who made this contribution was four.  He reiterated that the drug traffickers did not pay for anything.  He was questioned about the risk he was taking in bringing the drugs to Hong Kong and he evidenced that no money was paid to him upfront by the drug traffickers. 

33.  On this aspect of his evidence alone, I did not believe him.  The defendant testified that he had no source of income and no money at the time of this offence.  He also acknowledged that he was bringing the drugs to Hong Kong at great risk to himself and yet no payment of expenses or reward was made to him by the drug traffickers.  The notion that his friends paid for his air tickets in such circumstances is simply not believable.  This is also the case with the US$5,000.  To suggest as the defendant has done that a group of friends would give him such a substantial sum of money without expecting it to be repaid seems highly unlikely.  It is fair to say that relatively speaking the sum of US$5,000 to a person in Nigeria is a substantial sum of money. 

Mr Muoka’s evidence

34.  Mr Muoka testified for the defendant.  He said he has lived in Hong Kong for about 20 years and operates a shipping and trading business mainly between Hong Kong and Nigeria and West Africa.  He was born in Lagos, Nigeria and came from the same tribe as the defendant. 

35.  He first had dealings with the defendant about five years ago when he approached his office in Lagos for sponsorship of a visa to do business in Hong Kong.  He said he did this on a number of occasions but could not remember how many.  He said the defendant would ship through his company used and unused electronic goods. 

36.  He said that in sponsoring the defendant for a visa, a form had to be filled out by both of them which he would submit to the Immigration Department in Hong Kong accompanied by documents that evidenced financial means and business dealings of the defendant. 

37.  He was unable to recall the circumstances or produce records of sponsoring the defendant for his last trip when he was caught trafficking in drugs.  He claimed that he did a lot of transactions and his businesses suffered because of this case and others. 

38.  He initially testified that he had no other dealings with the defendant but later changed his evidence and said that he sometimes traded electronic goods with him.  He was unable to produce any records as he would not normally provide an invoice. 

39.  He could not comment on the monies found in the defendant’s possession at the time of the present offence as he had no knowledge about them.

Findings

40.  On the evidence before me, and bearing in mind the nature and relevant principles of the application, I make the following findings:

1. The defendant is a person of little financial means and comes from a poor background.  He had no income and no job at the material time.

2. The defendant agreed to bring the drugs to Hong Kong at serious risks to himself in that (a) he digested the drugs which could have caused him serious physical harm; and (b) he knew that if he was caught he would face a long term of imprisonment.

3. The defendant participated in smuggling the drugs into Hong Kong because he was in dire financial circumstances and in need of money.

4. The defendant agreed to bring the drugs to Hong Kong for a reward of US$6,000.

5. The defendant had in his possession at the time of the offence the amount of US$5,000 cash.

6. The money was not given to the defendant by friends to buy electronic goods (the explanation proffered by the defendant is rejected).

7. The defendant’s evidence that he was a trader in second hand electronic goods and in the past frequently came to Hong Kong to buy such goods for sale back in Nigeria shows no more than that on other occasions in the past he came to Hong Kong and traded in goods. 

8. The US$5,000 cash was the defendant’s reward for acting as a drug courier and/or to fund his travels in the course of his drug trafficking or to demonstrate his means of sustaining himself as a visitor in Hong Kong if asked. 

41.  I should stress that I did not accept the evidence of the defendant as to the provenance of the monies, even though he had in the past come to Hong Kong to trade in goods.  The fact remains that on this occasion he was part of an elaborate plan to smuggle drugs into Hong Kong for a reward of US$6,000 and at a time when he was in dire financial circumstances. 

42.  I do not accept his evidence that the monies were not connected to the drug trafficking offence and that they were obtained from a separate source for the purpose of buying goods as he had done in the past.  It beggars belief that he could raise US$5,000 from friends which he did not have to repay, and yet at the same time, for an unpaid reward of US$6,000 he transported drugs internally in his body from Nigeria to Hong Kong at great personal risk to himself both physically and criminally.

43.  I find that the only reasonable inference is that the US$5,000 cash was in connection with and received or possessed by him as a result of the drug trafficking offence.  He may have intended to use the money to buy goods to take back to Nigeria to trade but that does not change the provenance of the monies which I am satisfied to the requisite standard come within the two limbs of section 56.

Conclusion

44.  For the foregoing reasons, I found to the requisite standard that the prosecution had established on the evidence before me that the monies in question came within the terms of both limbs of section 56(1) and accordingly I ordered that items 20 and 21 be forfeited to the Government.