HKSAR v. SHOKI FATUMA RAMADHANI

CACC 187/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2014

(ON APPEAL FROM HCCC NO. 336 OF 2012)

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J U D G M E N T

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Hon Lunn VP :

1.  The applicant, who appeared in person, gave notice of her application for leave to appeal out of time against conviction by Form XI, which was filed with the Court on 3 June 2014. However, it was clear by the attached submission that her application was directed at the order made on 28 November 2012 by Toh J that US$2,600 found in the possession of the applicant be forfeited. On that date the applicant appeared before the judge for sentence, following her plea of guilty in the Magistracy and her Committal for Sentence to the Court of First Instance in respect of a single charge of trafficking unlawfully in 0.5 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Having been informed by the Court that the order of forfeiture fell to be regarded as a matter of sentence, rather than conviction, the applicant applied to give notice of an application for leave to appeal against sentence out of time and to rely on the written submissions that she had made in her application in respect of conviction. We treat her application on that basis, so that the application in respect of conviction is abandoned.

The facts

2.  In the Summary of Facts, accepted by the applicant as the basis on which the judge was invited to accept her plea of guilty, the applicant acknowledged that having been arrested on her arrival at Hong Kong International Airport from Tanzania on 25 March 2012 on the suspicion that she had dangerous drugs in her body and having been taken to hospital, she discharged 84 pellets containing a total of 0.5 kilogrammes of heroin hydrochloride.  Furthermore, she accepted that under caution she said that “…she swallowed 80 pellets in a hotel in Tanzania for a reward of US$4,000.”  The retail value of the drug was estimated to be HK$642,880.[1]

Sentence

3.  The judge sentenced the applicant to 12 years’ imprisonment.

Forfeiture

4.  Apparently, having provided those representing the applicant with a copy of the prosecution’s ‘Application for Order for Disposal of Exhibits’ prior to the hearing, after mitigation had been advanced on behalf of the applicant and sentence imposed, counsel for the prosecution informed the Court that the prosecution sought forfeiture of the US$2,600.  In the event, the judge made that order in favour of the prosecution.

Mitigation

5.  It appears that it was in those circumstances, namely in the knowledge that the prosecution sought forfeiture of the US$2,600, that counsel for the applicant, Mr Dunn addressed the issue in mitigation.

6.  Of the background to the commission of the offence, the judge was informed that the applicant “was born into a very poor farming in Tanzania” and that she became the second wife of a much older man, whilst she was very young.  There was a son of the union.  Their marriage was unhappy.  He was promiscuous and she contracted HIV from him.  Of the reward of US$4,000, to which reference was made in the Summary of Facts, having informed the Court that the applicant’s son had also contracted HIV and that the applicant, who had begun working as a street traders selling clothing in order to buy medicine for her son, had been desperate to get money to buy the more expensive and more effective drugs needed to treat that condition, Mr Dunn asserted:[2]

“ It was while she was in this condition of being desperately in need of money and obviously extremely vulnerable, that she was approached by someone who knew of the position and offered her US$4,000 to do a drugs run to Hong Kong……… she instructs me that she was only to be paid on successful delivery of the drugs.”

7.  Mr Dunn acknowledged of the applicant that “…she was found, of course, with $2,600 in her possession when she was arrested”, but went on to assert of the money:[3]

“ She instructs me that the money in fact has nothing to do with the drug; it was her money, she brought for possibly to do some trading while she was in China, or possibly in Hong Kong.”

The forfeiture application 

8.  In making the application for forfeiture of the US$2,600, counsel for the prosecution adverted to the submissions of Mr Dunn in mitigation, indicating that he wished to reply in respect of the application for forfeiture.  He said:[4]

“ Firstly, the defendant, as my learned friend had indicated, should be really poor in Tanzania. It would be very unusual for her to be in possession of such a large sum of money……. Secondly, actually, after the defendant was arrested, she made certain admissions which was post recorded and that is in the committal bundle.

And in gist, when she was asked, “Why did you swallow the pellets?” She answered - of course, in her language - she answered, “They gave me US$4,000 as reward.” ”

9.  For his part, Mr Dunn asserted:[5]

“ I understand that that was in fact a misunderstanding. She was promised $4,000. As I say, it would be most unusual for a drug trafficker to be paid before delivering the goods. If you’re entrusting somebody with $600,000 worth of drugs, but you also give them money for delivering in advance, then you have no hold over them.”

10.  There followed an interchange between the judge and Mr Dunn:[6]

“ COURT: Well, you do because the drug traffickers would know where her family lives, etc, so there is certainly a lot of ways and means.

MR DUNN: Indeed, my lady, but I would simply say there is nothing to connect this money with the drugs, there is no evidence to connect it.

COURT: What evidence do you need if she said that she’s poor..

MR Dunn: Well, I would suggest that simply based…I’m sorry.

COURT:…why would she have $2600 US? That’s a lot of money for someone of her background.

MR DUNN: Indeed, my lady.  It is a matter of course for your ladyship’s discretion.”

Ruling

11.  Then, the judge ruled, stating that she made an “Order in Terms” in respect of the application made by the prosecution for disposal of exhibits, including the forfeiture of US$2,600 found on the applicant.  The judge explained:[7]

“ … Mr Dunn has raised objection to the amount in Exhibit P21, which is US$2,600 from being forfeited on the grounds that the defendant claimed that this was money which had nothing to do with drug trafficking and she had brought the money along in order to try and do business over here or in Guangzhou.

     Well, the only thing I can say is that, as Mr Cheung very correctly pointed out, in mitigation, the defendant claimed to be very poor and was indulging in this trafficking in order to raise money to cure her son. Why she would have US$2,600 on her person again does not gel with the mitigation advanced on her behalf.

     I am satisfied that this was money which was part of her drug trafficking, so the amount is forfeited.  Thank you.” 

Grounds of appeal against the forfeiture order

12.  In a submission dated 29 May 2014 attached to Form XI, the applicant asserted that the US$2,600 which the judge had ordered to be forfeited was her money, it being a loan made to her in Tanzania in order to expand her business.  In a letter faxed to the Court on 26 September 2014 the applicant reiterated that contention and said that she intended to use the money “to buy merchandise for my shop”.  Further, she asserted that the reward that she had been promised was “a promise only if I could have successfully delivered the drugs in China”.  Then, she explained the delay in making her application out of time, namely that she has sought unsuccessfully to obtain evidence of the fact of the making of the loan to her by a bank.  Although she had sought the assistance of relatives, no assistance was forthcoming.  In her oral submissions, the applicant acknowledged that she was aware of the order of forfeiture at the time it was made on 28 November 2012.  She explained that on the advice of the Welfare Officer she had engaged in correspondence for months with the Customs & Excise Department seeking return of her personal property.

The respondent’s submissions

13.  Mr Raymond Cheng, for the respondent, opposed the grant of an extension of time in which to make an application out of time to leave to appeal against sentence, contending that the applicant had failed to provide a satisfactory explanation for the delay in making the first application and asserting that there was no merit in the application.

14.  Mr Cheng submitted that it was clear that the order for forfeiture of the money was made under section 56(1) of the Dangerous Drugs Ordinance, Cap. 134, which provided that:

“ (1) a court may (whether or not any person had been convicted of any such offence) order to be forfeited to the Government -

(a) any money or thing……… 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).”

15.  In the result, Mr Cheng submitted that the admission by the applicant that a reward of US$4,000 was promised and that the heroin trafficked by her was worth HK$654,880 provided sufficient prima facie evidence for an inference to be drawn that the US$2,600 found on the applicant fell within one of the alternatives stipulated under section 56(1) of Cap. 134 and hence was liable for forfeiture.

A consideration of the submissions

16.  The ‘Application for Order of Disposal of Exhibits’ provided by the prosecution to the judge listed no fewer than 30 items.  Forfeiture was sought in respect of only the dangerous drugs and the US$2,600.  In neither case was the specific basis on which an order for forfeiture was sought identified in any way in the document.  Similarly, the document did not identify from whom the US$2,600 had been seized.  Further, no reference was made to the fact of that seizure in the Summary of Facts.  Those various omissions are most regrettable.  It was important that the judge be presented with a clear description of all those circumstances, so that both the legal and factual basis of the application for forfeiture was identified.  Then, the judge is in a position to determine whether or not the property in question was liable to forfeiture and whether or not it is appropriate to exercise judicial discretion to make the order sought.

17.  In R v Lai Chin Hung [8] this Court was seized with an application for leave to appeal sentence in respect of an order of forfeiture of $33,690 found in premises of which the applicant was the tenant.  The applicant pleaded guilty to possession of dangerous drugs for the purpose of trafficking in those premises and another flat of which he was also the tenant.  At an adjourned hearing to consider the application for forfeiture, the Crown relied only on the ‘Agreed Facts’, which the applicant had accepted in pleading guilty.  In his evidence, the applicant asserted that the money was a loan and had nothing to do with the dangerous drugs found in the premises.  In dismissing the application, although McMullin JA, in the judgment of this Court, said that it was not clear whether the order had been made pursuant to section 102 of the Criminal Procedure Ordinance or section 56(1) of the Dangerous Drugs Ordinance he went on to say of the sections:

“ …the intention of the forfeiture provisions seem plain enough. Whenever the court has evidence before it sufficient to justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence, then, whether or not it finds that the offence charged has been proved it may, nevertheless make the order. If there is prima facie evidence of such a criminal connection then if no innocent explanation is offered the court may - though it would not necessarily do so - find that the connection with an offence has been established.”

18.  As Sir Anthony Mason NPJ said in his judgment in Wong Hon Sun v HKSAR [9], with which three of the four judges agreed, in the context of an application for forfeiture, pursuant to the Import and Export Ordinance, Cap. 60 : [10]

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

19.  Of the burden on the party opposing the forfeiture order, Sir Anthony Mason NPJ said:[11]

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

20.  It is readily apparent that no issue was taken that the US$2,600 had been found in the possession of the applicant.  Indeed, the fact that the US$2,600 was found in the possession of the applicant was admitted specifically in the mitigation advanced by Mr Dunn on behalf of the applicant.  Similarly, there was no issue that the applicant accepted that “she swallowed 80 pellets in a hotel in Tanzania for a reward of US$4,000.”  It follows that the applicant was trafficking unlawfully for reward in dangerous drugs, which were found on discharge from her person, having travelled from a far distant country and found to be in possession of a substantial amount of money in the currency stipulated for the reward.  Given the informal manner in which the parties and the Court allowed the application to be made, those circumstances having been admitted on behalf of the applicant, it was not necessary for evidence in proof of those circumstances to be called by the prosecution.

21.  In my judgment, in all those circumstances clearly the US$2,600 was liable to forfeiture pursuant to section 56(1) of the Dangerous Drugs Ordinance.  Indeed, it is clear that there was no dispute as to that before the judge.

22.  As is readily apparent from the interchange between the judge and Mr Dunn, the former made it abundantly clear to Mr Dunn that she did not accept his submissions that there was no evidence that the US$2,600 with the drugs. In those circumstances, clearly Mr Dunn had the option of inviting the judge to receive the testimony of the applicant on the issue to establish, on the balance of probabilities, that there was no such connection.  No doubt, that much was obvious to Mr Dunn. It was not incumbent on the judge to inform him of the obvious.  No such application was made and no evidence was called.

23.  In all the circumstances, we are satisfied that the judge was correct to order the forfeiture of the US$2,600.

24.  I am not satisfied that the applicant has explained the lengthy delay in making her application and I would refuse her application to appeal against sentence out of time.

Hon Macrae JA :

25.  I agree with the judgment of Lunn VP.

Hon McWalters JA :

Introduction

26.  For the reasons which follow I disagree with the judgment of Lunn VP on the disposition of this application.  As the facts are set out in detail in his judgment I shall not repeat them.  In a nutshell the applicant appeared before Toh J (“the judge”) on 28 November 2012 and pleaded guilty to a single count of trafficking in dangerous drugs.  The judge sentenced her to 12 years’ imprisonment and ordered that US$2,600 found in her possession be forfeited.  The applicant has indicated in documents filed with the court that her only complaint is with the judge’s order forfeiting her US$2,600.

27.  As the application is an application for application for leave to appeal against sentence I will, in this judgment, refer to the defendant as the applicant notwithstanding that the only part of the sentence which she seeks to appeal is a forfeiture order to which she was the respondent.  In order not to confuse her with the applicant of the forfeiture application, I shall simply refer to that applicant as the prosecutor.

The Summary of Facts admitted for sentence

28.  In the Summary of Facts used for the purpose of sentencing, the applicant accepted that having been detained on her arrival at Hong Kong International Airport from Tanzania on 25 March 2012 and, whilst at a hospital to which she had been taken by Customs officers, she discharged 84 pellets containing a total of 0.5 kilogramme of heroin hydrochloride.  The retail value of the drug was estimated to be HK$642,880.  It was part of the Summary of Facts that under caution the applicant said she swallowed the pellets for a reward of US$4,000.

The sentencing hearing

29.  At the applicant’s sentencing hearing the prosecution applied for an order to dispose of exhibits in accordance with a document in which it set out 30 different items of property, each of which had been given a separate exhibit number.  Against each item it indicated the order it was seeking.  The document did not indicate the source of each item of property but exhibits P12-P21 would all appear to have been obtained from the applicant.  P21 was the US$2,600 and it was the only item of the applicant’s property that the prosecution sought to forfeit.  This document was given to the applicant’s counsel, Mr Dunn, prior to the sentencing hearing but it is not clear whether it was already with the judge.

30.  The first mention of the application in fact came from Mr Dunn when he informed the judge of it in the course of making his speech in mitigation.  In the course of referring to the applicant’s background Mr Dunn told the judge that the applicant was desperate to earn money to purchase drugs needed for her HIV positive son and to this end she was working very hard as a trader.  Whilst in this desperate and vulnerable position she was approached to traffic in drugs and she was offered US$4,000 to take drugs to China but would only be paid on successful delivery of the drugs. 

31.  Mr Dunn then referred to the fact that the applicant was found in possession of US$2,600 when she was arrested and in respect of that he said:

“She instructs me that that money in fact is nothing to do with the drugs; it was her money, she brought it for possibly to do some trading while she was in China, or possibly in Hong Kong.”

32.  Mr Dunn then addressed the prosecutor’s forfeiture application, in effect making his response to it before the prosecutor, as the person whose application it was, had been called upon to speak to it.  Mr Dunn said:

“I would simply say this, your Honour. I know my learned friend is applying for the forfeiture of the money found on her. I will simply say this, that it would be most unusual for a drugs courier to be paid in advance. That would give the people organising this type of trade no leverage over her at all, give her no incentive to take the risk of delivering the drugs to China or wherever else, and she could quite easily abort the deal and walk away with the money. So I would suggest that it’s more likely than not that this money is not connected with the drugs and is her own property.”

33.  At the conclusion of Mr Dunn’s speech in mitigation the prosecutor rose to his feet to address the court on the forfeiture application.  No mention was made by him as to the source of the power which he was asking the judge to exercise, what it was, pursuant to that power, of which the judge had to be satisfied in order to find the property was liable to forfeiture and the evidence he was adducing in support of his application.

34.  As the prosecutor did not adduce any oral evidence in respect of the money, there was almost no evidence before the judge in support of the application.  There was, of course, the Summary of Facts but no mention was made of the discovery and seizure of the US$2,600 in this document.  The only relevant fact admitted by the applicant in the Summary of Facts is that she committed the offence for a reward of US$4,000.  Thus, even proof that the US$2,600 was seized from the applicant could only have come from the admission implicitly made by Mr Dunn in the course of his mitigation speech. 

35.  The reality of the situation was that the prosecutor dealt with the application by way of submission only.  In the course of his submission he relied on a statement the applicant made at the time of her arrest which was recorded as a notebook entry against which the applicant signed.  Although this document was in the committal bundle, it does not appear to have been placed before the judge and the prosecutor merely stated what he described as “the gist” of the entry.  This was that when the applicant was asked “Why did you swallow the pellets?” she answered “They gave me US$4,000 as reward.”  The significance of this answer lay in the applicant’s apparent use of the past tense. 

36.  In reply to the prosecutor’s submission Mr Dunn maintained that what was recorded in the notebook entry was a misunderstanding.  He relied on his submission that drug mules are not paid in advance for transporting drugs for otherwise the trafficker has no hold over them.  Mr Dunn did not call the applicant to testify in support of her assertion that the monies were not connected with her drug trafficking despite the judge indicating her doubts about such a claim.  He relied upon his submission that there was no evidence to connect the money to the drugs. 

37.  After hearing Mr Dunn, the judge stated that she would make an “Order in Terms” in respect of the application made by the prosecution for disposal of exhibits, including the forfeiture of US$2,600 found on the applicant.  The judge explained:

“… Mr Dunn has raised objection to the amount in Exhibit P21, which is US$2,600 from being forfeited on the grounds that the defendant claimed that this was money which had nothing to do with drug trafficking and she had brought the money along in order to try and do business over here or in Guangzhou.

 Well, the only thing I can say is that, as Mr Cheung very correctly pointed out, in mitigation, the defendant claimed to be very poor and was indulging in this trafficking in order to raise money to cure her son. Why she would have US$2,600 on her person again does not gel with the mitigation advanced on her behalf.

 I am satisfied that this was money which was part of her drug trafficking, so the amount is forfeited.  Thank you[12].”

Reasons for the application being out of time

38.  In an affirmation accompanying her Form XI the applicant affirmed that the US$2,600 came from a loan she obtained in order to expand her business. 

39.  In a later letter addressed to the court, dated 23 September 2014, the applicant stated as follows :

“I have a shop that I was paying tax for and because of that I managed to obtain a loan from bank. I have tried to request for documents to be sent to me but until this moment I have only received one letter from my family and this was before my sentence. Since then I have not received any letter and that is why my appeal is out of time. All along I have been waiting for the supporting documents but until now I have not received anything.”

40.  This clarifies why, on her account, she was late in filing her application for leave to appeal.  She has, of course, filed the wrong application in order to appeal the forfeiture order and should have applied for leave to appeal her sentence. On being informed of this by the court she applied for an extension of time in which to appeal her sentence.

41.  At the hearing of the appeal she had nothing new to say as to why her application for leave to appeal was filed 17 months out of time.

42.  The respondent recognized that the applicant had to abandon her current application against conviction and file a new application for leave to appeal out of time against sentence in respect of the forfeiture order.  However, the respondent submitted that the new application should not be granted as the applicant had failed to provide a satisfactory explanation for the delay in making the first application and that her application is, in any event, devoid of merit.

43.  I am not persuaded that the applicant’s explanation satisfactorily explains the lengthy delay that occurred in this case.  Nevertheless, because I see merit in her appeal and because the practice of the court is not to shut out meritorious appeals I consider it appropriate to grant the applicant an extension of time in which to apply for leave to appeal her sentence.  

Grounds of appeal against the forfeiture order

44.  In the affirmation accompanying her Form XI and in her letter of 23 September 2014 the applicant repeated her case as articulated by Mr Dunn at her sentencing hearing.  She stated that although she agreed to smuggle drugs, she was only promised to get a reward and refund of air ticket and visa expenses after successful delivery of the drugs to China.  The US$2,600 found on her was her own money.  She intended to use the money to buy merchandise for her shop.

The respondent’s submissions

45.  On the merits of the appeal the respondent submitted that the order for forfeiture of the money must have been made under section 56(1) of the Dangerous Drugs Ordinance, Cap 134 although not expressly so stated by the prosecutor.  Under section 56(1) money is liable to forfeiture if:

(1) it has been used in the commission of a Cap 134 offence or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 (the offences);

(2) it has been used in connection with the offences;

(3) it has been received or possessed by any person as the result or product of the offences.

46.  The respondent submitted that the admission by the applicant that a reward of US$4,000 was promised and that the heroin trafficked by her was worth HK$654,880 provide sufficient prima facie evidence for an inference to be drawn that the US$2,600 found on the applicant’s person falls within one of the alternatives under section 56(1) of Cap 134 thereby making it liable to forfeiture. 

Discussion

47.  In a sentencing hearing the role of the prosecutor is normally a limited one.  The prosecutor will read out the Summary of Facts and then tender to the court an antecedent statement in respect of the defendant.  Occasionally the prosecutor will provide assistance to the judge on legal principles relevant to the judge’s sentencing task.  The defendant’s counsel will then commence his mitigation speech on behalf of his client after which the judge will determine the sentence to be imposed.

48.  There will almost always be an application by the prosecutor for the disposal of exhibits acquired by the investigating law enforcement agency in the course of its investigation of the defendant’s conduct.  This application is commonly made after the defendant has been sentenced as the last matter for the judge’s determination.  The application document will normally be given to the defence counsel in advance but may or may not be filed with the court in advance of the sentencing hearing.  Invariably, there are very few disputes between the parties in respect of the orders sought by the prosecution.  The only area of dispute will usually be, as happened here, when the prosecution seek the forfeiture of property which, prima facie, belongs to the defendant and which the defendant wishes returned to him or her.

49.  It is, perhaps, not surprising that in these circumstances the contested forfeiture application is not severed from the application for disposal of exhibits and held as a separate judicial proceeding or that the application for disposal of exhibits becomes a matter which the defendant’s counsel addresses in the course of making his mitigation speech.  But the informality of such an approach can have the effect of devaluing the importance of the application and distract the court from focusing on its key elements.  These key elements are the role of the prosecutor as applicant of the application; the burden on the prosecutor, as applicant, to establish that the property of the defendant is, prima facie, liable to forfeiture, the obligation on the judge to make a finding that the property has been proven by the prosecutor to be, prima facie, liable to forfeiture; the passing of the burden, on such a finding being made, to the defendant, as owner of the property, to make out a case why the judicial discretion should be exercised in his or her favour and finally the obligation on the judge to provide adequate reasons for his or her decision on the application.

50.  Another consequence is that the defendant’s counsel may, as happened here, proceed on the basis that the issue can be resolved in his client’s favour simply by submission from the bar table made in the course of a mitigation speech.  The danger of this is that defence counsel may be misled into thinking that the legal principles relevant to facts asserted in mitigation and of the obligation on a judge in respect of facts asserted which he might not be willing to accept unless supported by evidence, are applicable to the forfeiture application. These “Newton enquiry” principles, it seems to me, are irrelevant to an application for forfeiture. 

51.  I say this because an application for forfeiture is a quite separate judicial proceeding, civil in nature, that is held to determine whether a person should be deprived of property which that person claims to own.  If acceded to, then the person’s right to ownership of this property is extinguished.  It has nothing to do with the sentence the judge should impose on the defendant and there will be occasions when the property the subject of the application is not the property of the defendant or of any person implicated in the commission of the defendant’s offence. 

52.  Once it is recognized that a forfeiture application is a judicial proceeding separate from the sentencing of the defendant then, as with any judicial proceeding, any person, defendant or otherwise, affected by it is entitled to have his or her legal right to his or her property properly determined in accordance with law.  In Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 Bokhary PJ in delivering a separate concurring judgment emphasized the importance of forfeiture proceedings, saying of them at page 885E:

“They affect the property rights of owners. Indeed they may bring such rights to an end. So it is important to bear in mind that such rights are constitutionally safeguarded under the Basic Law.”

What this constitutional safeguard meant he explained at page 890A-B:

“By virtue of art.10 of the Hong Kong Bill of Rights entrenched by art.39 of the Basic Law, the right to a ‘fair’ hearing before an ‘impartial’ tribunal is not confined to the determination of criminal charges. It extends to the determination of ‘rights and obligations in a suit at law’ and therefore covers forfeiture proceedings.”

53.  That being the applicant’s constitutional right the question for me is did the applicant in the adjudication of this right receive a fair hearing.  The starting point to answering this question is to understand the nature of the proceeding before the court.  This was explained by the Court of Final Appeal in the Wong Hon Sun case.  I would summarize the position as follows:

(i) applications for forfeiture are civil in nature;

(ii) the applicant making the forfeiture application bears the burden of establishing that the seized article is liable to forfeiture;

(iii) this burden of proof is discharged to the civil standard of the balance of probabilities;

(iv) once this has been done then there is a prima facie case for an order of forfeiture in respect of the seized article; and

(v) once the property is prima facie liable to forfeiture the burden passes to the property owner to make out a case as to why the judicial discretion should not be exercised adversely to him ie why the court should not accede to the application and order the property to be forfeited.

54.  In the context of an application where a party is making an application adverse to the legal right of another party it is surely incumbent on the applying party to identify on what legal basis he makes that application and on what evidence he relies, if evidence is necessary, in order to satisfy the court that the order he seeks should be made.  If evidence is necessary then it will be the evidence of what a witness actually says and not of what the witness would say, unless of course the witness’ evidence is not in dispute and can be placed before the court by means of an agreed witness statement or an admitted set of facts.

55.  Thus, in an application for forfeiture the first question a court must ask is pursuant to what statutory provision is the application being made?  It is the statutory provision which invests the court with the power to accede to the application; which sets out the parameters of the court’s power and which identifies the matters of which the court must be satisfied before exercising the power adversely to anyone.  This was not done in the present case but it is the respondent’s position that the relevant power is section 56(1) of Cap 134.

56.  The second question the court must ask is on what evidence is the applicant relying in order to satisfy the court that the particular statutory preconditions to the exercise of the power have been met?  The application is adjudicated by the court upon the evidence adduced before it.  As the burden of proof is on the person seeking forfeiture, the prosecutor, as applicant, must be familiar with the statutory provision on which the application is based and the legal principles underlying such applications so that he is in a position to assess what evidence he needs to place before the court in order to persuade the court that the statutory pre‑conditions are satisfied and that there is sufficient, credible evidence to enable the court to conclude that, prima facie, the property is liable to forfeiture.  In cases where forfeiture is being sought against a defendant in criminal proceedings, the primary evidence will be the set of facts presented to the court by the prosecutor as the basis for the sentencing of the defendant.  The prosecutor should ensure that this document contains as much information on the property the subject of the forfeiture application as can be agreed between the parties. 

57.  Because these two questions were never addressed in the present case the application proceeded in a confused manner.  It first arose in the course of Mr Dunn’s mitigation speech after which the prosecutor replied, then Mr Dunn had the last word and the judge ruled.  In these circumstances it is hardly surprising that the lines between a mitigation speech and a forfeiture hearing became blurred and the two, in effect, melded into one.  No one, the prosecutor, defence counsel or judge seemed to be aware that this was happening and so no consideration was given to what I have described in paragraph 53 of this judgment as the key elements of the application. 

58.  As a consequence, the application proceeded without anyone addressing issues of pursuant to what power the court was being invited to act, on what evidence the prosecutor was relying and to which the applicant would have to respond, and without the respondent being aware that the judge was satisfied that the US$2,600 was, prima facie, liable to forfeiture and that the burden had passed to her “to make out a case for an exercise of the discretion to order delivery of the article to him” for “a party who seeks to have a judicial discretion exercised in his favour bears the burden of establishing his case”.[13]  In the end the judge did not hear from the applicant yet, for the purpose of determining the application adversely to her, relied on factual matters about her, not in evidence, but which were advanced on her behalf from the bar table by her counsel in the course of his mitigation speech. 

59.  In my view what took place here was not a fair hearing of the application. 

Conclusion

60.  For these reasons I would grant the application for an extension of time in which to apply for leave to appeal sentence, give leave to the applicant for leave to appeal and, treating the hearing of the application as the hearing of the appeal, allow the appeal.  I would quash the order of forfeiture made by the judge and remit the hearing of the forfeiture application back to the Court of First Instance to be determined by another judge.

Hon Lunn VP :

An extension of time

61.  The applicant having acknowledged to this Court that she was aware of the order of forfeiture at the time it was made on 28 November 2012, it is clear that an application for leave to appeal against sentence ought to have been filed within the requisite time.  The applicant’s explanation that she allowed about 18 months to elapse whilst she sought to gather evidence to support her application does not in any way justify filing the application out of time.

Conclusion

62.  There being no merit in the application for leave to appeal against sentence and no acceptable explanation for the application being made out of time, by a majority we dismiss the application for an extension of time for leave to appeal against sentence.

[1] Appeal Bundle, pages 12 and 13.

[2] Appeal Bundle, page 7 C-G.

[3] Appeal Bundle, page 7 H-J.

[4] Appeal Bundle, page 8 M-Q.

[5] Appeal Bundle, pages 8 T - 9 B.

[6] Appeal Bundle, page 9 B-H.

[7] Appeal Bundle, page 9 I-O.

[8] R v Lai Chin Hung[1980] HKC 283.

[9] Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877.

[10] Wong Hon Sun v HKSAR, page 901 D-E, paragraph 65.

[11] Wong Hon Sun v HKSAR, page 901 F-G, paragraph 66.

[12] Appeal Bundle, page 9I-O

[13] Per Sir Anthony Mason NPJ in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 at 901 F-H.