HKSAR v. HERRY JANE YUSUPH

CACC 93 /2019

[2021] HKCA 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 93 OF 2019

(ON APPEAL FROM HCCC NO 195 OF 2018)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant applies, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a Certificate certifying that a question of law of great and general importance is involved in the Judgment of this Court, which was handed down on 26 November 2020 (“the Judgment”). The parties have agreed that the application may be dealt with on the papers.

2.  The question of law said to be involved in the Judgment is:

“Should a drug trafficker’s possession of money for intended use:

(i) when questioned upon arrival in Hong Kong; or

(ii) to maintain herself whilst staying in Hong Kong;

constitute money which has been used in the commission of or in connection with an offence within the terms of section 56(1)(a) of the Dangerous Drugs Ordinance, Cap 134?”

3.  The point is a very narrow one.  It is contended that section 56(1)(a) can only catch money which “has been used in the commission of or in connection with” a specified offence, but not money which is being carried for such use.  The argument, put simply, is that the words “has been used” connote past activity; consequently, unless money has actually been used in some way to commit, or in connection with, a drugs offence, it is not caught by the section and does not fall to be forfeited.  Thus, where a person trafficking drugs through Hong Kong International Airport, is found in possession of cash as well as the drugs themselves, then no money has yet been used in the commission of, or in connection with, a drug offence, however much it may have been intended for such use.

4.  Quite apart from any purposive approach to the legislation, which would make section 56(1)(a) redundant unless the trafficker actually produced or showed the money to an Immigration officer in order to support his/her entry into Hong Kong, or unless he/she actually spent some money in connection with a drugs offence (which money could then somehow be seized), the argument is, with respect, devoid of common sense and sound reasoning.  Any person who gets on an aeroplane with the intention of trafficking dangerous drugs across the world into Hong Kong, and carries money either to bolster his/her entry into the territory (if required to produce it) or to support himself/herself while carrying or effecting delivery of the drugs, has used the money; regardless of whether it has actually been produced or shown to an Immigration officer, or spent in connection with an offence.

5.  The Supreme Court of Victoria in Chalmers v The Queen (2011) 215 A Crim R 275 had to consider, in the context of applications for forfeiture, the meaning of the phrase “used in connection with the commission of the offence”, which appears in the definition of “tainted property”.  The Court of Appeal held:

“We have found the analyses by the respective courts illuminating, and they disclose a high degree of unanimity of approach. We would respectfully adopt the following propositions which emerge from those authorities:

1. The word “used” should be given its ordinary meaning of “employed, or made use of, for a particular end or purpose”.

2. The statutory phrase is of wide scope. The inclusion of the words “in connection with” was plainly intended to extend the scope of the definition of “tainted property” beyond circumstances where the property could be said to have been “used in the commission of” the offence.

3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a “substantial” connection, or that the crime could not have been committed without using the property.

4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the court’s discretion whether or not to order forfeiture of the property.

Very often, the decisive issue will be whether the relevant property can be said to have been “used”, since “use” is (by definition) employment for a purpose. Once it is concluded that the offender “used” the property at or around the time of the commission of the offence, it will usually follow that there was the requisite connection between the use of the property and the commission of the offence. Put differently, if the offender (or some other person) “employed or made use of” the property for a purpose associated with the offending, then it would follow that the property was “used in connection with the commission” of the offence.”

6.  In Commonwealth Director of Public Prosecutions v Little [2006] QDC 129, a single judge had to consider, in circumstances similar to those before us, whether money being carried on the person of a cocaine smuggler at Brisbane Airport in Australia should be forfeited.  The judge reasoned:

“In my opinion it is appropriate, and permitted by the Act, to take a common sense approach. Where a person arrives in this country with drugs being illegally imported, and has, on his person, other items such as cash which are self-evidently brought along to facilitate the journey, that cash is used in connection with the commission of the offence in the same way as are items of luggage where drugs are secreted or the airline ticket used …”

7.  Inasmuch as both of these judgments can be said to apply simple common sense to the interpretation of the word “used” in the context of forfeiture applications, where cash is being carried by international drug traffickers, we respectfully agree with them.  It should be remembered that the trial judge, when ordering the money to be forfeited, specifically recited the words of Macrae JA in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57, at [33][1]:

“No international drug trafficker, especially a foreigner from another continent, could conceivably expect to carry out his purpose of trafficking a valuable consignment of dangerous drugs into and through Hong Kong without the means to achieve it and support himself in the process.”

Both of the other judges in Ngoma Juma Shabani made similar statements in their respective judgments[2]. Clearly, the trial judge in the present case, having disbelieved the applicant’s evidence in the forfeiture proceedings, was making a finding that she had used the money in order to traffick the drugs into Hong Kong.

8.  We do not think it can be reasonably argued that the applicant had not used the money in her possession in connection with the trafficking of dangerous drugs when she entered Hong Kong for that purpose from Tanzania. Since the point is not reasonably arguable, there can be no question of law of great and general importance, and the application for a Certificate must be refused.

[1] Appeal Bundle, p 41O-Q.

[2] Ngoma Juma Shabani, at [12] per Lunn VP; and at [49]-[50] per McWalters JA.