HKSAR v. NWADIUTO SAMUEL JOSEPH

CACC 210/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2016

(ON APPEAL FROM HCCC 66 OF 2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  The applicant was charged with one count of, on 7 September 2015, unlawfully trafficking in a dangerous drug, namely 958 grammes of a solid containing 454 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He appeared before a magistrate on 29 January 2016 and pleaded guilty to this offence and was committed for sentence to the High Court. On 8 April 2016, the applicant was sentenced by High Court Judge Campbell-Moffat (“the judge”) to 11 years and 6 months’ imprisonment.

2.  After sentencing the applicant, the judge adjourned the proceedings in order to hear and determine an application by the respondent to forfeit the sum of US$4,000 which had been seized from the applicant upon his arrest.  At the conclusion of the forfeiture hearing on 5 July 2016 the judge made an order that these monies be forfeited under section 56(1) of the Dangerous Drugs Ordinance, Cap 134. 

3.  The applicant filed a Notice of Application for Leave to Appeal against sentence (Form XI) making it clear that he was only appealing the forfeiture order.  However, the applicant subsequently indicated in a letter filed with the court on 5 September 2016 that he also wishes to appeal against his sentence of imprisonment.  In this application the applicant appears in person.

4.  At the hearing of the application we refused it both in respect of the sentence of imprisonment and the forfeiture order.  We said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

5.  The Summary of Facts admitted by the applicant and used for the purpose of his sentencing revealed that the applicant, a 42 year old man of Nigerian nationality, arrived at the Hong Kong International Airport as an incoming passenger from Lagos via Doha on 7 September 2015.  He was intercepted for customs clearance upon his arrival and both his baggage and person were searched.  Nothing illegal was found either in his luggage or on his person but internal concealment was suspected and so the applicant was sent to the North District Hospital for a medical examination.  The medical examination confirmed that there were foreign objects inside the applicant’s body and he subsequently discharged 59 packets containing a total of 958 grammes of a solid containing 454 grammes of cocaine. 

6.  When the applicant was arrested and cautioned he denied that he was in possession of dangerous drugs. However, at a subsequent interview, he admitted having brought the cocaine into Hong Kong to earn money for his family and children.  At the time of his arrest, the applicant had in his possession a quantity of United States of America currency to the value of US$4,000. 

The mitigation

7.  Mr R Donald, counsel for the applicant at his sentencing hearing, informed the judge that the applicant is a Nigerian national who was 41 years old at the time of his sentence, his date of birth being 3 November 1973.  He is a resident of Lagos, Nigeria and is married and has three young children.  His wife is a housewife but sometimes earns a little income from hawking.  The applicant’s Antecedents Statement revealed that the children were a daughter aged 3 and two sons aged 5 and 1.

8.  Mr Donald told the court that the applicant, who was the primary breadwinner of the family, had been an owner driver of a taxi earning about US$70 a month prior to committing this offence.  Since 2008 he had also started to engage in trading in electronic goods in order to supplement his income and had come to Hong Kong on four or five previous occasions to make purchases for his business.[1]

9.  Mr Donald said that the applicant was in significant financial difficulty and a friend offered to pay for the applicant’s next business trip to Hong Kong, support him financially on his return and pay him US6,000 if he would take a parcel to Hong Kong.  Because of his financial difficulties and out of concern for his family, the applicant eventually accepted the offer.  Mr Donald emphasized that the applicant’s prime purpose in coming to Hong Kong was, however, to purchase second-hand electronic goods to ship back to Lagos for sale.  Prior to departing he borrowed money from friends[2] so that he could combine that with the US$6,000 that he would receive after successful delivery of the drugs and together these monies would be used to fund the purchase of electronic goods.  Once he had arrived in Hong Kong he was required to call a local number which was stored in the SIM card of his phone and he would then be told how to arrange delivery of the drugs.  

10.  Mr Donald handed to the judge a letter written by the applicant which repeated what Mr Donald had said in respect of how the applicant came to commit this offence and which explained that he got into financial difficulties because a shipment of goods from Hong Kong was not packaged properly and had become water damaged.  As a result the applicantencountered difficulty in selling them and this led to him suffering a great loss.  He said that at first he rejected the offer to traffic drugs to Hong Kong but after the passage of time his financial difficulties worsened and he could no longer pay the rent on his family’s accommodation or his daughter’s school fees.  In these circumstances he accepted the offer.

11.  As far as sentencing was concerned, Mr Donald acknowledged the sentencing guidelines laid down in R v Lau Tak Ming[3], where trafficking in 454 grammes of cocaine would place the applicant in the bracket of 400 grammes to 600 grammes, which would attract 15 to 20 years’ imprisonment as a starting point.  Mr Donald however submitted that the amount trafficked by the applicant should place him at the lower end of the scale. 

12.  Mr Donald also acknowledged that the offence was aggravated by the presence of the international element and that, pursuant to HKSAR v Chung Ping Kun[4], the applicant’s starting point would have to be enhanced by a period of 6 to 12 months. 

13.  Within these sentencing guidelines, Mr Donald urged the court to exercise as much leniency as possible in sentencing the applicant.

The judge’s Reasons for Sentence

14.  Having considered the quantity of the dangerous drug involved, the judge stated that the appropriate starting point for trafficking in 454 grammes of cocaine is, under the Lau Tak Ming[5]guideline, 15‑20  years’ imprisonment.  Applying this guideline the judge arrived at a starting point of 16 years and 3 months’ imprisonment after trial.  The judge then took into consideration the international element and enhanced this starting point by 1 year to 17 years and 3 months’ imprisonment.  The judge then reduced the starting point by one-third to reflect the applicant’s guilty plea and, noting that there was no mitigation advanced that could really reduce the sentence any further, imposed on the applicanta final sentence of 11 years and 6 months’ imprisonment. 

The application for forfeiture

15.  The prosecution applied under section 56(1) of the Dangerous Drugs Ordinance, Cap 134 for forfeiture of the US$4,000 seized from the applicant at the time of his arrest.  The applicant contested the prosecution’s application and the hearing took place on 5 July 2016.  In support of its application the prosecution relied on the Summary of Facts and the applicant’s Antecedents Statement.  The judge found that the prosecution had established, on the balance of probabilities, that the money was, prima facie, liable to forfeiture.

16.  The applicant then gave evidence in order to persuade the judge that the money should not be forfeited.  He asserted that the US$4,000 was borrowed from his brother-in-law so that he, the applicant, could come to Hong Kong and buy electronic goods to resell back in Lagos.  The applicant testified that he had in fact started a business of trading in electronic goods in 2008 and he had previously come to Hong Kong on four or five occasions in order to purchase goods for this business, which he would then ship back to Lagos.  He said that when he had done so and bought about US$10,000 worth of goods, he would make a net profit of about US$1,300 to US$1,500. 

17.  The supporting documents provided by the applicant (through his wife), included bills of lading and container shipment notes and they evidenced that the applicant had engaged in trading activities from 2008 to 2011.[6]  The applicant confirmed that his business ceased operation in 2011 due to the fact that the applicant was unable to pay a debt to his suppliers and the rent of his warehouse in Lagos.  These financial difficulties arose as a result of a shipment suffering water damage.  Since 2011 the applicanthad returned to his self-employed job of being a taxi driver, earning about US$70 a month.

18.  Under cross-examination, the prosecutor queried with the applicant the reason why his brother-in-law on the one hand was happy to lend the applicantUS$4,000 because of the family relationship, but on the other hand was harassing the applicant’s wife for repayment.  The applicant replied that even family members fight over money.  The prosecutor also queried the applicantwhy, if he was intending to do business in Hong Kong, he had no business cards, contacts, or any other documentation at all relating to any business when he came to Hong Kong in 2015.  The applicant did not offer a response to this question other than agreeing that he did not have such documents in his possession.  He was also asked about how he was to make contact with the person to whom he was to hand over the drugs and he said that in Lagos he had been given a Hong Kong SIM card and on arrival in Hong Kong he was to insert it in his phone and wait for someone to call him.[7]  The applicantasserted that he did not have any means of contacting the drug traffickers in Hong Kong and agreed that they would not know where he was residing in Hong Kong.

19.  The applicant was questioned by the judge as to the reason why there were no documents showing that the US$4,000 was borrowed from a family member given that the applicant’s wife was able to gather so many other documents to support the applicant but was not able to obtain a simple note from her own brother proving the loan.  The applicant asserted that his brother-in-law had sent an email to his solicitors but on further questioning by the judge he said:

“I cannot be able to give 100 per cent whether he sent, but I am suspecting maybe he sent. If you check, you can see.”

Mr Donald informed the court that the solicitors had not been able to locate such an email and may not have received it.

The judge’s ruling on the forfeiture application

20.  The judge commenced her ruling by referring to the relevant legal principles and the discussion of those principles by the Court of Appeal in HKSAR v Ngoma Juma Shabani[8]  On the basis of the Summary of Facts and the Antecedents Statement she found that the prosecutor had proven a prima facie connection between the money and the applicant’s trafficking offence.  She then directed herself that, having made this finding, the burden shifted to the applicant to persuade her that a forfeiture order should not be made.

21.  The judge noted that the applicanthad said in his Antecedents Statement that he earned US$300 per month, but on oath before her had said he only earned US$70 per month as a taxi driver.  The judge further noted that the applicant claimed that the US$4,000 was to be used to trade in electronic goods but that he had not traded in electronic goods for the period since 2011.  The documentary proof produced by the applicant only showed that he had engaged in trading in such goods from 2008 to 2011 and the applicant had admitted in evidence that he had not been to Hong Kong on business since May 2011. 

22.  In respect of the applicant’s claim that the US$4,000 was a loan from his brother-in-law the judge said:

“I do not accept that the US$4,000 found upon you at that time was given to you by your brother-in-law. If he was chasing your wife for repayment, then your wife would have ensured that there was a letter before me to show that he was the true owner of the cash. There were many documents before me which were provided by your wife, but not one of them suggested that the US4,000 belonged to your brother-in-law, or one that suggested how you came by that money in any way at all.”

23.  The judge also noted that the applicant would have needed cash to support his stay in Hong Kong as the applicant had said in his evidence that he did not know when he would be contacted to deliver the drugs.  In fact, it would have taken the applicant at least a few days to excrete the drugs and, on his own evidence, during this time he would have had to pay for his accommodation and all living expenses. 

24.  The judge found that the US$4,000 in the applicant’s possession was for his own subsistence and the remainder was likely to be a reward for trafficking in the dangerous drug and so was liable to be forfeited under section 56(1)(b) of Cap 134.  However, the judge went on to say:

“But if I am wrong in that, or wrong as to part of that amount, I note that you would have had to satisfy the Hong Kong Immigration Authority that you were a legitimate businessman. That you had the means to support yourself, to return to Nigeria and had no other money. The US$4,000 was all you had and was sufficient to satisfy the authorities when you came in. You would have also had to secure onward transportation, hotel, and food bills during your stay and I find that the irresistible inference is that the money you had on you was in your possession for that purpose, whether or not they have been given to you as a reward or partial reward, and would have been partially consumed in so doing. As such, they fall to be forfeited in the alternative under subsection 1(a), should I be in error in my findings under subsection 1(b) above.”

The grounds of appeal

25.  In his letter dated 13 October 2016[9], the applicant referred the court to HKSAR v Mohamed HCCC 544/2013 where the defendant trafficked in 477 grammes of cocaine (as opposed to the applicant’s 454 grammes of cocaine) and the judge adopted a starting point of only 15 years’ imprisonment (as opposed to the applicant’s 16 years 3 months’ imprisonment).  With the features of the applicant’s case being very similar to this case, the applicant could not understand why the sentence imposed in his case was so different from that imposed in HCCC 544/2013.[10]

26.  Regarding the forfeiture order, the applicant submitted that he had already provided to the court invoices to show that he was a regular businessman in electronic goods.  The reason he was only able to show invoices bearing dates up to 2011 was because he had not come to Hong Kong after that date and he did not understand why the court was concerned that there were no invoices for 2012 to 2015. 

27.  The applicant explained that the reference to US$300 was not to monthly income but to the amount he paid for the purchase of the taxi.  His income was only US$70 per month.  He also reiterated that his brother-in-law was causing disturbances to his wife regarding the repayment of the loan monies. 

28.  The applicant asked the court to extend leniency to him as he was remorseful for his foolish mistake.  He asked the court to take into account his health condition, namely, that he was suffering from a knee infection, and that he wished to re-unite with his family as soon as possible.

29.  At the hearing of the application the applicant repeated much of what was contained in his correspondence with the court.  He explained how he received formal receipts only for new goods he purchased and that in respect of second hand goods only informal notes were made of what had been bought.

30.  He handed in to the court two letters.  One was from his wife and one from his brother-in-law.  The letter from his wife was dated 8 September 2016 and referred to harassment that she was suffering from the brother-in-law because of the non-repayment of money that he had lent to the applicant.

31.  The letter from the brother-in-law was undated. It referred to a loan of US$4,000 which he had advanced to the applicant and sought repayment of it.

32.  The applicant explained that he sought to produce these letters to the court in support of his appeal and in response to a comment made by the judge in her forfeiture ruling where she said:

“There were many documents before me which were provided by your wife, but not one of them suggested that the US$4,000 belonged to your brother-in-law, or one that suggested how you came by that money in any way at all.”

The respondent’s submissions

33.  Counsel for the respondent, Ms Eva Chan, Senior Public Prosecutor, submitted that each case has to be determined on its own merits and the only relevant consideration in the present case was whether the sentence passed had been proper.  In this respect she relied on comments by Stock JA, as he then was, in HKSAR v Chow Tak Fuk[11] where he said:

“... it is well established that where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper.”

34.  Ms Chan also relied on HKSAR v Lam Ying Kit[12], where the Court of Appeal noted:

“5. ... it should be remembered that whatever the sentences passed in other cases in other circumstances, this court is concerned with whether this sentence was proper within the sentencing judge’s discretion and within the appropriate guidelines and principles established for cases of this kind.”

35.  Consequently, Ms Chan submitted, even if a lower starting point is adopted in another case involving the same or higher quantity of drugs, it does not follow that the court must vary the starting point in the present case when the sentence imposed was neither manifestly excessive nor wrong in principle. 

36.  In the present case, the judge was well aware of the applicant’s personal background and the financial difficulties which led him to become involved in the present offence, but the judge correctly took the view that the offence was too serious for the mitigation that was advanced to have any impact on the sentence.  Ms Chan submitted that the starting point adopted, as well as the enhancement, was within the appropriate range as set out in the guidelines and the final sentence imposed on the applicant was not manifestly excessive.

37.  In respect of the forfeiture order, Ms Chan opposed the application to adduce new evidence on the basis that the applicant had not satisfied the court that there was a reasonable explanation for the failure to adduce it at the forfeiture hearing. 

38.  In upholding the order Ms Chan submitted that the judge was correct to find that, on the basis of the Summary of Facts admitted by the applicant and his Antecedents Statement, there was a prima facie case of a connection between the US$4,000 and the applicant’s trafficking in a dangerous drug.

39.  Furthermore, Ms Chan submitted, the applicant’s claim was based upon purely factual matters the credibility of which was for the judge to determine.  The judge was justified in rejecting the applicant’s explanation in respect of the seized money and to hold that he was in possession of it to facilitate his entry to, and stay in, Hong Kong.  She was satisfied that at least one of the alternatives under section 56(1) of the Dangerous Drugs Ordinance applied.  The judge gave detailed reason for the findings she made and those findings could not be faulted.

Discussion

40.  The drug trafficking sentencing guidelines seek to achieve both transparency in the sentencing process and consistency in the sentencing outcome.  Although arithmetic plays a role in achieving both these goals it is not intended that it should usurp the function of the judge or eliminate the exercise of discretion by him in the determination of what is a just and fair sentence.

41.  The goals of transparency and consistency take on particular importance when the offence is so serious that mitigation counts for little and the sentencing principles of denunciation, deterrence and punishment dominate almost to the complete exclusion of all others. Furthermore, the bulk of drug trafficking cases, certainly in the High Court, are international importations by drug mules and there is frequently little to distinguish one case from another in terms of the circumstances in which the offence is committed or the personal background of the offender.  These offenders mostly come from a third world background and have been tempted by the drug trafficking syndicates by the prospect of what they are led to believe is low risk, easy money.  When apprehended they have to come to terms with Hong Kong’s highly structured sentencing regime based upon lengthy sentences with little allowance for after the event remorse or compassion for the destitute circumstances from which they were trying to escape. 

42.  Transparency in the sentencing process flows from the court demonstrating to the offender how the sentence is calculated. This is essentially a three stage process composed of adopting a starting point, identifying the presence of any aggravating factors and then enhancing the starting point to allow for them and finally discounting that initial sentence, which would be the sentence after trial, to allow for the offender’s mitigation.  In most cases the only mitigation will be the offender’s plea of guilty which attracts a one-third discount.  This court has reiterated on many occasions that most of the matters that are raised in mitigation will be subsumed in this one-third discount.  This includes remorse and sympathetic personal circumstances of the offender which led him to commit the offence.  It requires something exceptional, such as assistance to the authorities, to take the discount beyond the normal one-third.

43.  The way in which the court demonstrates transparency and a key element in achieving consistency is to employ arithmetic as a first step in determining the appropriate starting point. Arithmetic will indicate where the starting point should be before the judge turns to the exercise by him of his sentencing discretion.  But, as has been emphasized on many occasions, the sentencing discretion can be used by a judge to depart from an arithmetically calculated starting point and to adopt a starting point elsewhere within the relevant sentencing band for the particular quantity of drug in which the offender was trafficking. 

44.  Transparency is, of course, part of the rationale for the duty to give reasons and will only be achieved if the judge, in compliance with this duty, explains why it is that he is departing from an arithmetically calculated starting point.  A reasoned departure from such a starting point not only informs the offender being sentenced of how and why the judge has reached a particular starting point but it also informs other convicted drug traffickers and the appellate courts of the reasoning behind the judge’s decision. Departures from arithmetically calculated starting points will, of course, impact upon the consistency of the sentencing regime and this could lead to a sense of grievance amongst offenders that they have been treated less fairly than others.  But reasoned departures should go a long way to preventing such aggrieved feelings from arising.  Even if such feelings do arise the appellate courts will be in a position to explain to applicants why their grievances are unjustified.

45.  In the present case the applicant is understandably aggrieved when, as a foreigner to our legal system, he encounters a sentence imposed on an offender that is less than his but is in respect of a greater quantity of drugs.  That is the position in HKSAR v Mohamed HCCC 544/2013 where the judge, in respect of a Tanzanian drug mule case which had nothing to distinguish it from other such cases, decided to extend greater leniency to the offender before him.  Unfortunately, the absence of reasons which explain why this offender is different from any other drug mule simply confuses others caught by our drug trafficking sentencing regime.

46.  It does not assuage the sense of grievance felt by the applicantfor us to tell him that he is not entitled to the benefit of the same or a lesser sentence than was imposed on this other offender.  He is left thinking that the criminal justice system that dealt with him did so unfairly and is a flawed system.

47.  The applicant is not alone in trying to understand the apparent inconsistencies that sometimes arise from the sentences imposed by our courts.  It is the experience of the Court of Appeal that the applicant’s complaint in respect of the length of his sentence of imprisonment is very typical of most of the complaints that are advanced on unrepresented drug trafficking sentence appeals.  Applicants in this category inevitably conduct a trawl of the judiciary web-site, or of the prison population, in order to find cases of sentences more lenient than their own so that they can then, as aggrieved applicants, point to these other sentences and assert that they have been unfairly and excessively punished.  

48.  However, even if the contrast is dramatically stark, as it is in HCCC 544/2013, it may suggest no more than that the judge in that case has been unduly lenient or, at its highest, that something may have gone wrong in the sentencing process of that other case.  By itself, it does not demonstrate error in the applicant’s own case. 

49.  The correct approach, as Ms Chan has submitted by reference to the cases quoted in paragraphs 33 and 34 of this judgment, is to focus on the applicant’s own sentence and to examine that sentence, the route by which it was reached and the reasons that underlie it in order to determine whether the judge who sentenced him has fallen into appealable error.  In the absence of appealable error all an applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he.  This may well be a source of grievance to the applicant, and understandable grievance at that, but it is not enough reason for this court to interfere.

50.  In this applicant’s case we have carefully examined the judge’s Reasons for Sentence, the starting point she adopted, the amount by which she enhanced it for the international element, the discount she awarded and the length of the final sentence she imposed on the applicant.  We can find no error by her in any of the steps she took or in any part of her reasoning which underlay each of those steps.  There is no merit in any of the applicant’s complaints in respect of the length of the sentence that he received.

51.  In respect of the appeal against the forfeiture order, the applicant sought to produce to us two letters, one written by his wife and the other by his brother-in-law.  We treated them as being sought to be adduced, informally, under section 83V of the Criminal Procedure Ordinance, Cap 221.  We refused to receive them and we shall now explain why.

52.  At the sentencing hearing on 8 April 2016 the judge raised with Mr Donald whether there would be placed before her in the forfeiture hearing some form of documentary evidence in the form of letters, if not affirmations, from the persons who lent the applicant the US$4,000.  Mr Donald replied:

“That’s one of the things I am hoping for, my Lady.”[13]

53.  In order to assist the applicant prepare for the forfeiture hearing it was adjourned until 5 July 2016.  At that hearing a bundle of documents, sent by the applicant’s wife, were produced but these all related to the applicant’s business activities between 2008 and 2011, save for a letter dated 10 May 2016 written by the wife and also some family photos.  At the hearing the applicant explained in his evidence why there was nothing from the brother-in-law.[14]

54.  In the letter written by the applicant’s wife for the forfeiture hearing she referred to the loan but made no mention of the brother-in-law as being the lender and referred to the lender in the plural by such words as “the people”, “they” and “their money”.  Furthermore, at the sentencing hearing on 8 April 2016 the following exchange took place between the judge and Mr Donald:

“COURT: Mr Donald, if he was going to get his $6,000 reward once he came here, where did the 4,000 come from?

MR DONALD: He brought that as well. He brought it, and he was going to have $10,000.

COURT: Yes, I know. But that’s a given, because it was on him when he was arrested.

MR DONALD: Yes.

COURT: Where did it come from originally?

MR DONALD: Which one, the 4,000?

COURT: The 4,000.

MR DONALD: They are from friends in Lagos, and that’s one of the reasons why we are going to try and get some material from Lagos to say that they had lent money to the defendant for his business purposes.

COURT: So his case is that the 4,000 was given to him by friends.

MR DONALD:   Yes.”

55.  There was, therefore, a conflict between what Mr Donald, no doubt on instructions, advanced in his address in mitigation and what the applicant testified to in his evidence during the forfeiture hearing.

56.  The power to receive fresh evidence on appeal is found in section 83V of the Criminal Procedure Ordinance, Cap 221.  There is a broad unfettered power granted to the Court of Appeal by section 83V(1) to receive the evidence “if it thinks it necessary or expedient in the interests of justice.”  Section 83V(2) contains another power requiring the Court of Appeal to receive the evidence if it satisfies certain conditions amongst which are that:

(i)   the evidence is likely to be credible; and

(ii)   there is a reasonable explanation for the failure to adduce the new evidence in the lower court proceedings.

57.  When questioned by the court as to why neither his counsel in his mitigation address, nor his wife in her letter of 10 May 2016, made no mention of the brother-in-law as being the lender of the US$4,000, the applicant could not offer a credible explanation.  The letters have clearly been written, and admitted by the applicant to have been so written, in order to provide a response to part of the reasoning of the judge in her forfeiture ruling.  With that motive in mind, the clear contradiction between their contents and what was said on earlier occasions by Mr Donald and the applicant’s wife, leads us to conclude that the evidence is not “likely to be credible.”

58.  The court also queried with the applicant why the new evidence was not obtained for the forfeiture hearing and produced at that hearing.  Again the applicant’s answers were far from satisfactory and ranged from him not being asked by the judge to obtain it to not knowing he had to produce this evidence to having difficulties communicating with his wife.

59.  The court record shows that the judge made clear her wish to have this evidence and that efforts were going to be made and had been made, to obtain it and for it to be sent to the applicant’s solicitors.  The record also makes clear that the applicant’s counsel did not seek an adjournment in order to have more time to obtain it.

60.  We are not satisfied that there is a reasonable explanation by the applicant for his failure to adduce this evidence at the forfeiture hearing.

61.  These two conditions not having been satisfied we refused to receive the evidence under both sections 83V(1) and (2) of the Criminal Procedure Ordinance, Cap 221. 

62.  In respect of the forfeiture ruling the judge correctly directed herself on the relevant legal principles and there is nothing in her ruling or in the transcript of the hearing to suggest that she in any way misapplied those principles. 

63.  The judge was correct in her determination that the prosecution had discharged the burden which lay upon it of proving that prima facie the monies were liable to forfeiture and that thereafter the burden shifted to the applicant to persuade the court that the money should not be forfeited.

64.  Thereafter the applicant gave evidence in order to discharge this burden and it was for the judge to assess his credibility.  We cannot detect any error in the judge’s reasoning which led to her conclusion that his assertions were not credible.  The judge was quite correct to attach weight to the fact that the applicant had not continued to trade in electronic goods between 2011 and 2015 and was unable to get any statement from his brother-in-law corroborating the existence of the loan. 

65.  Having concluded that the applicant’s evidence was not credible the judge then drew inferences from the evidence before her.  The inferences that she drew were that the US$4,000 was to be used to pay for the applicant’s living expenses during the period he was excreting the drugs from his body and that the remainder was likely to be a reward for trafficking in the drugs.  These were inferences clearly open to her to draw, bearing in mind that the standard of proof was only the balance of probabilities.  These findings were sufficient to satisfy the requirements of section 56(1)(b) and justified the judge in ordering the forfeiture of the whole of the US$4,000. 

66.  The judge also found, in the alternative, that the whole of the money was liable to forfeiture under section 56(1)(a) as it was used by the applicant in connection with an offence as it was possessed by him at the time he entered Hong Kong and enabled him to present himself as a legitimate businessman who had the financial resources to independently support himself.  We agree with the judge’s reasoning in respect of section 56(1)(a) and with her conclusion that the money was equally liable to forfeiture under that limb of section 56(1).

67.  There is no merit in any of the applicant’s complaints in respect of the forfeiture order that the judge made.

Conclusion

68.  For these reasons we refused the application for leave to appeal against sentence, both in respect of the sentence of imprisonment and the order forfeiting the US$4,000 seized from the applicant at the time of his arrest.