HKSAR v. CHU TSZ KING

HCCC 425/2023

[2025] HKCFI 5110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 425 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before Magistrate Ms. Vivian Ho to the 4 counts set out below and was committed, on 11 December 2023, to the Court of First Instance for sentence. The defendant confirmed his pleas and admission to the Summary of Facts before me and his convictions were duly recorded.

PARTICULARS

COUNT 1

2.  The defendant on 16 March 2022, at a container (“Hut 1”)  at Lot 1600 RP, DD119, Kiu Hing Road, Yuen Long, unlawfully trafficking in a dangerous drug, namely 43.02g of a crystalline solid containing 38.9g of methamphetamine hydrochloride (commonly known as ‘ice’).

COUNT 2

3.  The defendant on 16 March 2022, at a corrugated iron lodging (“Hut 2”)  at Lot 1614 RP, DD119, Kiu Hing Road, Yuen Long, unlawfully trafficking in 509.84g of a crystalline solid containing 505.76g of methamphetamine hydrochloride.

COUNT 3

4.  The defendant on 16 March 2022, at a corrugated iron storage room (“Hut 3”)  at Lot 1614 RP, DD119, Kiu Hing Road, Yuen Long, unlawfully trafficking in 1,109.91g of a crystalline solid containing 1,101.89g of methamphetamine hydrochloride and 0.02g of a solid containing cocaine[1].

COUNT 4 (AMENDED)

5.  The defendant on 16 March 2022, at a container (Hut 1 above)  at Lot 1600 RP, DD119, Kiu Hing Road, Yuen Long, kept a divan where a dangerous drug, namely methamphetamine, was sold in the divan to be inhaled therein[2].

SUMMARY OF FACTS

6.  The defendant came out of the corrugated iron lodging in count 2 (“Hut 2”)  at about 8pm on 16 March 2022, locked it, and then went into the corrugated iron storage room in count 3 (“Hut 3”), which was next door in the same lot.

7.  The defendant came out with a bicycle, locked the door of Hut 3, and rode the bicycle to the container in count 1 (“Hut 1”).

8.  Police officers in ambush went up and intercepted the defendant.  The search warrant was shown to the defendant but he refused to open the door to Hut 1, resulting in the Police breaking in to execute the warrant.  

9.  Hut 1 was searched and the dangerous drugs as particularized in count 1, together with some inhaling devices and straws, were found.  According to the Summary of Facts, Hut 1 was kept as a divan.

10.  The defendant was then brought back to Hut 2, which the Police were able to enter using the keys found on the defendant.

11.  Hut 2 was searched and the dangerous drugs as particularized in count 2 were found.  In addition to the drugs, 10 bulbed glass tubes, lighters, an electronic scale, and 2 inhaling devices with liquids were also seized. 

12.  The defendant was then taken to Hut 3, the Police again gaining entry with the keys found on the defendant.

13.  Inside Hut 3, in addition to the particularized drugs in count 3, a metal box containing another metal box was found.  They were unlocked with keys found on the defendant.  The second metal box contained $95,600 cash, which the defendant said belonged to him.  The defendant also had $4,244.50 on his person.

14.  7 rental receipts for Hut 2 in the defendant’s name were found inside a Ziplock bag in the drawer of a cabinet.

15.  The landlord of Hut 1, 2 and 3 confirmed that he was an acquaintance of the defendant and had let out Hut 2 to him from 1 September 2020 to 31 August 2022.

16.  In around February 2021, the defendant asked to rent Hut 3, but the landlord let him used it for free.

17.  For the period 1 January to 31 December 2022, Hut 1 was rented out to a man named Hui Chi-yuk, who was introduced to the landlord by the defendant.

18.  DNA samples of multiple individuals were found from the inhaling devices, straws, bulbed glass tubes that were inside the huts.

19.  The estimated street value of all the ‘ice’ is $891,244.72, and the cocaine $30.

20.  The defendant admitted by way of the Summary of Facts that he had unlawfully trafficked in the dangerous drugs found in the huts, and that he had kept Hut 1 as a divan.

PREVIOUS CONVICTIONS

21.  The defendant has 4 previous convictions.  The first was in 2002 when he was 16 years old, when he was placed under an 18-month probation order for one charge of wounding or inflicting grievous bodily harm.  He breached that order, resulting in the probation being extended to 25 months.  The defendant breached the extended order as well, and was subsequently ordered to be detained at the Rehabilitation Centre in March 2004 when he was 18.

22.  The defendant was next convicted of possession of dangerous drugs in 2007 when he was 22.  He was sentenced to 3 months’ imprisonment.  In 2008 and 2016, he was convicted of the offence of possession of dangerous drugs again and sentenced to the Drug Addiction Treatment Centre on both occasions.

BACKGROUND AND MITIGATION

23.  The defendant was born in August 1985 and is now 40.  He was 36 at the time of the offences.  His parents divorced when he was very young and it was his father who brought him up.  He was educated up to Form 2 level in Hong Kong and had worked as a waiter, transportation, delivery and decoration worker after leaving school.

24.  Due to health reasons, the defendant had to avoid heavy physical labour and had been working as a repairman, supporting himself and his father.  His father passed away in June 2018.  The defendant never used any of the contributions received from friends and family, wishing to keep the money in memory of his father, and as an emergency fund.

25.  The defendant continued to work as a repairman until late 2018 when he was recalled to the DATC.  He was released in February 2019, and had been relying on CSSA of $8,000 per month, living alone in Hut 2.

26.  During his present remand, the defendant had attended and completed courses and had attained 2 certificates for Bible Studies.

27.  According to Mr. Adonis Cheung’s submissions, the defendant was recruited to deal with the drugs in counts 1 to 3, and to look after the divan in count 4.  He points out that the defendant could not have had the means to operate the divan or be the owner of the quantity of dangerous drugs involved.

28.  At the plea and sentence hearing on 10^th February 2025, at the suggestion of Mr. Adonis Cheung, counsel for the defendant, the case was adjourned pending a substantial review in sentencing guidelines indicated by the Court of Appeal, which was in fact handed down on 5^th March 2025.

29.  Mr. Cheung, most helpfully, prepared his Further Skeleton Submission on Mitigation to assist this court in sentencing under the updated guidelines.

30.  Mr. Cheung also informed the court that the defendant has been diagnosed to have been infected by HBV and HIV, and that he has a history of suffering from depression since 2004, which he had failed to follow up with.  There is also a ‘hearing deficit’ that needs to be followed up at the hearing aid clinic.  

SENTENCE

COUNTS 1, 2 AND 3

31.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

32.  First of all, given its quantity and its minimal impact on the ultimate sentence, I will disregard the 0.02g of cocaine in count 3, which makes up 0.001% of the total amount of drugs seized (0.002% if only counting the drugs in count 3).

33.  The sentencing approach and updated tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Huang Ruifang [2025] HKCA 234 are applied as follows.

34.  All the dangerous drugs that the defendant is being sentenced for were found in close proximity, both in terms of time and location.  I will, therefore, use the aggregate amount to arrive at the global sentence and then order the individual sentences to be served in such a way as to achieve that global sentence[3].

Step 1: The applicable guideline tariff bands

35.  The applicable guideline tariff bands for the 38.9g, 505.76g and 1,101.89g of “ice” in counts 1, 2 and 3 are, respectively,  “7 to 11 years”, “15 to 18 years” and “18 to 20 years”.

36.  For the aggregate quantity of 1,646.55g, the tariff band is 20 to 24 years.

Step 2: The defendant’s role and culpability

37.  The defendant’s role was essentially that of a storekeeper, with the added culpability of his directly trafficking in the drugs by way of supplying them to others, as well as providing them with a place for their consumption.

38.  However, the defendant is facing a sentence for keeping a divan, which also punishes his role as someone who provides drugs and a place for their consumption.

39.  To avoid double punishment, I will adopt the arithmetical starting point for that of a storekeeper, and then consider the final sentence together with the keeping a divan charge by way of the application of the totality principle.

Step 3: The relevant band within the guidelines

40.  As such, I adopt the nominal global starting point of 20 years and 2 months.

Step 4: Aggravating factors

41.  Even though strictly speaking the sentence in count 3 can be enhanced for the defendant trafficking in more than one type of dangerous drugs, being 1,101.89g of ‘ice’ and 0.02g of cocaine, I find, however, that given the insignificant quantity of cocaine, I will exercise my discretion and not enhance his sentence for this aggravating factor.

42.  I have considered whether the previous drug related convictions of the defendant would amount to an aggravating factor and have decided that they do not.  The offences were for the simple possession of drugs, and even the latest one was some 8 years ago.  Given the lapse of time in their commission and their different nature, I will exercise my discretion and not enhance the defendant’s sentence on the basis of him being a habitual offender.  

Step 5: Mitigating factors

43.  It is trite law that poverty and ill health and other personal circumstances are not mitigating factors in serious trafficking in dangerous drugs cases such as the present one.

44.  In HKSAR v Lkhaijav Bayanmunkh [2012] 2 HKC 233; CACC 320/2011, at paragraph 11, the Court of Appeal stressed that the courts had been,

“…at pains to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers. Should it do so the courts are at risk of creating a group that drug traffickers can target for exploitation precisely because it is known that such persons will be treated more leniently.”

45.  Therefore, despite the health condition of the defendant, there are no mitigating factors other than his timely pleas of guilty.

Step 6: Totality for the trafficking offences

46.  I have looked at the global notional sentence after trial of 20 years and 2 months, and am of the view that it is a fair, just and balanced sentence in all the circumstances of the trafficking and of the defendant.

COUNT 4: KEEPING A DIVAN

47.  The maximum sentence for this offence on conviction on indictment is a fine of $5,000,000 and imprisonment for 15 years.

48.  In the Magistracy Appeal case of HKSAR v Fung Wai Hing (馮偉興), HCMA 665/2000, Deputy High Court Judge A.  To identified the following factors to be considered when determining on the starting point of this type of offence:

“1. The scale of operation of the divan: this includes the size of the divan, the number of drug addicts the divan could accommodate, the nature and quantity of equipment or instruments provided for consuming dangerous drugs, and the mode of operation of the divan;

2. The degree of concealment of the divan and the protection it offered to the drug addicts;

3. Whether the divan keeper supplied or sold in the divan any dangerous drugs to persons to be consumed therein, and the nature of the dangerous drugs supplied; and

4. The profit derived by the divan keeper.”

49.  In HKSAR v Lam Lai Chu Patsy, CACC 56/2003, the offence was the applicant “being the tenant permitting premises to be used as a divan” under section 37(1)(a)  of the same Ordinance.  The Court of Appeal found that it is ‘more or less on an equal footing’ with a section 35(1)(a)  (keeping of a divan)  offence.

50.  The Court considered a number of previous sentencing decisions which concerned the keeping of a divan, and noted that “it is apparent that the sentencers in those cases considered that starting points in the region of two years (HKSAR v Ng Ka-wing Kevin, CACC 563/1999)  down to twelve months’imprisonment (HKSAR v Cheung Kung-hang, CACC 459/2000; HKSAR v Ho Sai-chak, HCMA 780/1999)  were appropriate for keeping a divan.”

51.  In the case of HKSAR v Ng Ka-wing Kevin, CACC 563/1999, the Court of Appeal approved and applied the following principle identified by Pang J in Ho Sai-chak:

“...Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other. The appellant was prepared, in addition to providing drugs, to offer the convenience of a divan to drug addicts. As such, the two charges cannot be said to be arising out of the same set of facts.

The order for the sentences to run consecutively cannot be criticised as being wrong in principle. However, one must not lose sight of the totality principle....”

52.  In the present case, the evidence is that 3 inhaling devices with liquids in them were found on a mahjong table in Hut 1.

53.  On the mahjong table was 1 tin foil with 0.04g of a solid containing ‘ice’; 4 plastic straws with traces of ‘ice’ and 3 lighters.

54.  From a cabinet near the door were found 4 plastic straws and a black plastic bag containing 27 inhaling devices.

55.  From a cabinet at the front door was found 1 bulbed glass tube containing 0.08g of solid containing ‘ice’.

56.  The defendant is being charged with keeping Hut 1 as a divan.  Yet the Police also found the following from Hut 2, in addition to the ‘ice’ as particularized:

57.  On the bedside cabinet were 6 bulbed glass tubes containing a total of 0.08g of a solid containing ‘ice’; 2 lighters and 1 electronic scale.

58.  Inside a drawer in Hut 2 were also found 4 bulbed glass tubes containing a total of 0.09g of a solid containing ‘ice’.

59.  On a shelf behind the TV in Hut 2 were 2 inhaling devices, one with 63 ml of a liquid containing traces of ‘ice’.

60.  There were no drug-taking related apparatus found in Hut 3.

61.  I note that there is a large quantity of ‘ice’ found on the premises, but I doubt that they were all for catering to drug users visiting the divan, which would have to be in the hundreds had all the ‘ice’ been for them.

62.  Mr. Cheung pointed out that the defendant was looking after the divan without being promised remuneration, although he himself also consumed drugs there.

63.  Based on the Summary of Facts, I find that the only reasonable inference is that the defendant was keeping the container as a medium sized divan.  The location of the divan appears to be a remote container storage area in the north of Hong Kong, offering reasonable concealment and protection to the defendant who provided the ‘ice’ and inhaling devices on the premises.

64.  Although $96,500 was found from inside a metal box that was inside another metal box that the defendant had the keys to in Hut 3, I find that I am unable to infer that the money must be from the sale and use of ‘ice’ at the divan.  They can also reasonably be inferred to be related to the trafficking of the ‘ice’.

65.  Taking into account all the circumstances, I will adopt a starting point of 18 months’ imprisonment.  

GLOBAL TOTALITY FOR THE 4 COUNTS

66.  Taking a step back, I will order 16 months of the sentence in count 4 to be served consecutively to the combined sentence for counts 1 to 3, leading to a global notional sentence of 21 years 6 months.  

67.  The defendant is to be granted the full one-third discount for his timely guilty plea, bringing the sentence to 14 years 4 months’ imprisonment after plea.

ARRIVING AT THE COMBINED SENTENCE

68.  The guideline sentences for the corresponding quantity of ‘ice’ in counts 1 to 3 are, respectively, 8 years 11 months, 17 years, and 19 years 1 months’ imprisonment.

69.  In order to arrive at the global notional starting point of 20 years 2 months for the 3 trafficking counts, I order 1 years 1 month of the sentence in count 1 to be served consecutively to the sentence in count 3.  The balance of the sentence in count 1, together with the sentence in count 2, to be served concurrently to the sentence in count 3.  The resulting sentence is 20 years 2 months.

70.  As mentioned above, 16 months of the sentence in count 4 is to be served consecutively, and the balance concurrently, to the sentences in counts 1, 2 and 3, leading to the sentence of 21 years 6 months before plea.

71.  The final sentence for the 4 counts after plea is, therefore, 14 years 4 months’ imprisonment.

ANNEXURE 1

RULING ON THE DISPOSAL OF EXHIBITS

1.  The prosecution applied for disposal of exhibits.  The defendant has no objection to their application save for the forfeiture of the following two sums of money.  The defendant says that the moneys were not connected to any of the offences in this case and as such not liable to be forfeited. 

(1)  Item 14-20 found in Hut 3, being HKD$95,600 in cash; and

(2)  Item 21-22 found on the defendant’s person, being around HKD$4,244.5 in cash.

THE LAW

2.  The prosecution’s application to forfeit is made pursuant to section 56(1)(a)  of the Dangerous Drugs Ordinance, Cap.134, on the ground that the money were used in the commission of, or in connection with, an offence under the Ordinance, that is to say, trafficking in dangerous drugs and keeping a divan in the present case.

3.  According to HKSAR v Shoki Fatuma Ramadhani [2018] HKCFA 51, FAMC 34/2018, in a s.56(1)  application, the prosecution has the initial burden of showing a prima facie case for forfeiture and, if discharged, the claimant has the burden of proving on the balance of probabilities that the property falls outside the forfeiture provisions in question.

EVIDENCE

4.  In the present case, the defendant claims that the 2 batches of cash were, respectively, condolence money from his father’s funeral, and his CSSA payments received.

5.  As Mr. Adonis Cheung fairly accepted, given the fact that the $95,600 consisted of individual bundles of large bank notes, and that they were found in a pouch that was placed inside a cabinet that was found in Hut 3, where a large quantity of the dangerous drugs ‘ice’ was found, the prosecution has established a prima facie case for this sum of money to be forfeited, and that it is for the defendant to discharge the said burden.

6.  It would appear that the defendant also did not dispute that there was a prima facie case for the forfeiture of the $4,244.5, given the chain of events prior to his arrest and the circumstances of the case.

7.  The defendant elected to give evidence under oath to seek to prove how the $95,600 came to be there.

8.  It is the defendant’s evidence in chief that the $95,600 found inside Hut 3 was condolences money received from friends and relatives in relation to the funeral of his father.

9.  When asked when his father’s funeral was, the defendant could not remember, but said it was after his release from the Drug Addiction Treatment Centre in Hei Ling Chau.

10.  It is not disputed that the defendant was sentenced to be detained there on 3^rd November 2016, and was first released on 10^th May 2017 (“the first release”).  It was after the first release, and on 29^th June 2018 that his father had passed away. 

11.  With the help of documents, the defendant was able to remember that the funeral was on 17^th July 2018, when his father was cremated.

12.  It was on the day of the cremation that the defendant had received the $95,600 as condolence money from friends and relatives. 

13.  About 3 months after the cremation, the defendant was found to have been in breach of the Supervision Order that came into effect upon the first release.  As a result of the breach, the defendant was recalled and detained in Hei Ling Chau on 28^th October 2018.  He stayed there for about 4 months, and was released on 4^th February 2019 (“the second release”). 

14.  Having worked out the chronology, Mr. Cheung asked the defendant to tell the court how the $95,600 cash came to be kept by him in Hut 3 in March 2022, some 3 years 8 months after he had received the money.

15.  The defendant explained that after he had received the money, he had called an officer of the Social Welfare Office to see if he can deposit that money into his bank account, but was told by the officer that since he was a recipient of assistance money, he could not deposit a large amount of money into his bank account, otherwise there will be a “reduction of money to be received”.

16.  Mr. Cheung asked the defendant why he did not spend the money.  The defendant said it was because “they were left by my father for me, I did not want to spend it”.  Mr. Cheung remarked that the money was not left by his father, but from people who made the condolence money contributions.  The defendant said he understood and explained, “because my father had left, his friends and relatives gave to me and so it belonged to my father”.

17.  In cross-examination, the defendant confirmed that as at the date of the offence in March 2022, he was residing in Hut 2.  He confirmed that the $95,600 was found in Hut 3, which was not where he lived.  The defendant agreed that this sum of money was precious to him because of its sentimental value. 

18.  Ms. Mok for the prosecution asked why the defendant did not keep the money with him at the place where he lived, which was Hut 2, but chose to leave it in a cabinet in Hut 3, together with a large portion of the drugs being trafficked.  The defendant responded by talking about how “on that day I changed the cabinet, 2 days later I was then arrested”.

19.  The court inquired if the defendant meant that he changed the cabinet 2 days before his arrest, or that he changed it on the day of his arrest.  The defendant said it would have been between 5^th and 10^th of March 2022 that he changed the cabinet from the original white cabinet, to the black cabinet that was found in his home, Hut 2, on the day of his arrest.

20.  The defendant explained that the black cabinet in his home in Hut 2 was something he picked up somewhere and which he was fixing up to be used.  It seems that his evidence is that, after the black cabinet had been fixed, he moved the white cabinet that used to be in Hut 2, and replaced it with the black cabinet.  The white cabinet was then moved to Hut 3, and that was where the police had found it, with his $95,600 condolence money inside.

21.  Having had that clarified, to a certain extent, Ms. Mok asked the defendant if he agreed that this white cabinet with the money inside was also precious to him and the defendant agreed.  The defendant also agreed as to how the money was kept, which was in a zippered small pouch the size of a pencil case, and in a small box inside the cabinet. 

22.  Ms. Mok asked the defendant why he did not take the pouch out from the box and the white cabinet before moving it out of his home so that he could keep what is so precious to him in his home or on his person, but had chosen to leave the $95,600 in Hut 3.  The defendant said that one would not bring such precious money out on to the street or to keep it on his person, “since there are so many robberies”, he would not take the money with him “on to the street”.  Furthermore, he was still fixing the black cabinet up, and also the white cabinet had a lock on it.  The defendant said that he had been fixing the black cabinet over a period of time between 10^th and 16^th March. 

23.  Ms. Mok asked if the defendant thought the money was safe to be kept at a place that was away from where he was living.  The defendant replied, “because the white cabinet had a lock, and you can see the photo, I even kept the LaiSee (red packet)  money there as well”.

24.  Since that was the very first time the defendant mentioned red packets, Ms. Mok asked if the defendant is saying that the pouch also contained red packets, to which the defendant answered, “No, I mean in other drawers.”

25.  Ms. Mok then pointed out that according to the Summary of Facts that the defendant had admitted to, no red packets had been seized as exhibits in this case.  The defendant replied, “But they did take my LaiSee as exhibits”. 

26.  Ms. Mok then asked if any of the $95,600 was laisee money.  The defendant said, “Some of it.  I mean the money I saved up, I put inside”.

27.  Ms. Mok then asked more specifically about the composition of the $95,600, and how much of it was condolence money.  The defendant said, “I do not quite remember clearly”.  Ms. Mok immediately pointed out that the defendant had said in chief that all the money was condolence money.  The defendant replied, “I told my lawyers I had put my savings in there as well.”

28.  The defendant confirmed that his latest evidence is that he is not sure how much of the $95,600 was condolence money, how much of it was from laisse, and how much was his own savings.

29.  The defendant confirmed that, for the part that was condolence money, they were in the exact same state that the money was received at his father’s funeral.  The photo of the money in the pouch was shown to the defendant and he confirmed they show over 10 piles of $500 bank notes neatly stacked and lined up in the pouch.

30.  Ms. Mok asked if the defendant agreed that, since Chinese tradition requires the condolence money to always be an odd amount, such as $101 or $501, people would usually put a dollar coin to comply with that tradition.  The defendant agreed that such is the tradition.  Ms. Mok then asked why there were no coins in the pouch at all.

31.  The defendant explained that he had not put the coins into the pouch, but had kept them all in a “tray”.  The defendant proceeded to indicate with his hands the dimension of this “tray” which turned out to actually be the description of a plastic cylindrical container that was about 6.5 inch in height and 6 to 7 inches in diameter.  He said the police did not seize the cylinder, which was half full with coins, and which he had kept in Hut 2, his home. 

32.  When Ms. Mok tried to ascertain with the defendant if his evidence was that all the money given by the friends and relatives were in 500 dollar notes, the defendant said this, “Most of them were 500, but some were 100 dollar notes.  I had changed some of the 100 notes into 500, otherwise no space to store them”. 

33.  Ms. Mok immediately pointed out to the defendant that this directly contradicted his earlier evidence that he had kept all the money in the form as received.  The defendant replied, “Yes, but my family gave me whole pile of 100 notes, and there was not so much space to put it”.  The defendant insisted that he had told his lawyer about that, including his counsel. 

34.  Ms. Mok asked if the defendant shared the condolences money with his siblings.  The defendant claimed that the money was given to him by his father’s friends, and that his family members had “already got some”.  He refused to disclose how many siblings he has.

35.  Lastly, Ms. Mok asked why the defendant put the money in the same place as where the ‘ice’ was kept in Hut 3.  The defendant replied that he did not mean to put the money together with the dangerous drugs, “I just put the cabinet there”.

FINDINGS

THE $95,600 FOUND IN HUT 3

36.  It is not disputed that the $95,600 was found in Hut 3, where the largest quantity of ‘ice’ was found.  The money was locked inside a metal box, that was locked in another metal box, and together they were placed inside a locked drawer, keys for all 3 locks were in the defendant’s possession.  The money were neatly arranged in piles of $500 notes.

37.  On this factual basis, together with all the circumstances of the case, I find that there is a prima facie case for forfeiture, and I move on to consider if the defendant has established that the money should not be forfeited.

38.  The defendant’s evidence began with claiming that all $95,600 was condolence money, and that he had kept the money as received in the pouch.  When challenged why they were all in $500 notes, he mentioned for the first time that he had changed some of the received $100 notes into 500 ones.  When asked about whether he had siblings and did he have to share the money with them, the defendant mentioned for the first time that they had also taken some condolence money, and that the $95,600 (or whatever part of it that was in fact such money, but he cannot remember now)  was money from his father’s friend to him. 

39.  It is obvious that the defendant is not a credible witness, and is lying about how he came to be in possession of the $95,600.

40.  As such, I find that he has failed to prove on the balance of probabilities that the $95,600 fell outside the forfeiture provision. 

THE $4,244.50 FOUND ON THE DEFENDANT’S PERSON

41.  The defendant was seen coming out of Hut 2 at around 8pm on 16^th March 2022, went to Hut 3, took out a bike, and rode to Hut 1 and unlocked the sliding door there.  He was then intercepted and eventually arrested.  It is the landlord’s evidence that Hut 2 was let to the defendant for “self-occupancy” from 1^st September 2020 onwards.  The defendant had admitted that he had kept Hut 1 as a divan.

42.  I find that, based on the finding of cash and the defendant’s movement prior to his arrest, the prosecution has proved that there is a prima facie case for forfeiture.  It is then for the defendant to prove on the balance of probabilities that the cash should not be forfeited.

43.  It is the defendant’s evidence that he was unemployed after the first release and that he had been receiving CSSA.

44.  I find that I can accept, on the balance of probabilities, that he was a recipient of CSSA at the time of his arrest, and that the cash on his person might not have been connected to the drug trafficking or the keeping of the divan, and that they were his personal property.

RULINGS

45.  Based on the above findings, I make the following rulings:

(1)  Item 14-20 found in Hut 3, being HKD$95,600 in cash, to be forfeited.

(2)  Item 21-22 found on the defendant’s person, being HKD$4,244.5 in cash, to be returned to the defendant.