HKSAR v. ABDALLAH TATU SAID

CACC 218/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 218 OF 2015

(ON APPEAL FROM HCCC 539/2014)

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REASONS FOR JUDGMENT

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

1.  This is an application for leave to appeal, out of time, a forfeiture order made under section 56 of the Dangerous Drugs Ordinance (Cap 134).  Having heard submissions, we treated the application as the appeal itself, allowed the appeal, set aside the said order and remitted the matter to the original trial judge for fresh determination. These are our reasons.

F actual Background

2.  The appellant is a national of the United Republic of Tanzania.  On 11 March 2015, before Deputy Judge S D’Almada Remedios in the Court of First Instance, she pleaded guilty to trafficking in 545.78 grammes of heroin hydrochloride and 94.40 grammes of 6-monoacetylmorphine hydrochloride[1], and was sentenced to 14 years’ imprisonment.  On repeated confirmation from Mr Jonathan Midgley, then representing the appellant, that he had no objection or submissions, the judge granted the prosecution application for an order for the disposal of case exhibits[2].  Amongst those exhibits was USD 5,300 which, according to the list handed by the prosecution[3], was described as “to be forfeited”.  Counsel for the prosecution confirmed that forfeiture was sought pursuant to section 56, Cap 134.

3.  His lack of objection, Mr Midgley now says, was a mistake.  As he quite honourably admitted in an affidavit prepared for this appeal, the following is what happened:

“ 5. On the 11 March 2015, I appeared before Deputy High Court Judge S D’Almada Remedios in order to mitigate on behalf of the Appellant. The mitigation was a relatively lengthy one and was unusually absorbing.

   6.   At the end of the address which was fundamentally a plea to invite the Court to adjourn sentence while the application to a further medical report in relation to the Appellant’s ill health (she is HIV positive) was rejected (sic).  I was disappointed at the outcome and was reflecting upon it at the time the Court asked me if I had any comment to make about the Prosecution’s application to confiscate the exhibit[4]. I regret that inadvertently missed the fact that the Appellant’s money was in the exhibit list and told the Court I had no objection (sic).”

4.  He went on to explain what remedial actions he took – to no avail:

“ 7. Immediately after leaving Court and the sentence had been passed, I attended upon the Appellant in the Court cells.

8. The Appellant, as part of a general conversation, asked me why the Court had not returned her money that had been confiscated and was in prisoner’s property. It was at that point that I remembered my instructions and apologised and told her that I would go back to Court immediately and asked to be heard on the matter.

9. On leaving the Appellant’s cell, I telephoned Mr Man Kwan Bobby Cheung (‘Mr Cheung’), Senior Public Prosecutor, who was the prosecuting counsel. I explained the position and he agreed to return immediately to the Court in order that I might be heard on the topic. At some point, I had a discussion with Mr Cheung about the Prosecution’s position regarding the money. I asked him if there was any evidence connecting the money to the offence charged and he told me that there was not. He said despite this, the Prosecution would object to its return.

10. At approximately 11.45 hours, that is a short while after the Appellant’s case had concluded in front of Deputy High Court Judge S D’Almada Remedios, I returned to Court and arrived there ahead of my colleague, Mr Cheung. The Court was still in session regarding a further case. I explained to the Court clerk that I had returned to the Court in order to be heard regarding a matter that I had overlooked. At some point, the Prosecutor, Mr Cheung, also arrived in Court.

11. Initially the Court clerk told the Prosecutor and myself that Deputy High Court Judge S D’Almada Remedios was going to hear us. A little while after that we were told that Deputy High Court Judge S D’Almada Remedios had changed her mind and if we wished to progress the matter further, we should write to the Court. It is in those circumstances, the Prosecutor and myself left the Court again.

12. It is now produced and shown to me marked as Exhibit ‘JNM-1’ the correspondence that I later had with the Court with regard to this matter from 11 March 2015 to 25 September 2015.  In the event the Court refused to hear the Appellant on this issue.”

5.  The correspondence that Mr Midgley referred to comprises ten letters, five from each side, all of which were conveyed through the judge’s clerk.  From these letters, it can be established that:

(a)  At the latest, by the end of business on 11 March 2015, the judge was fully apprised of the nature of Mr Midgley’s request, namely, a re-opening of the matter of forfeiture of the USD 5,300[5].

(b)  From the start, the judge considered herself functus officio as regards the matter.  She placed much emphasis on the fact that the order was made in open court and by consent.  She relied on the case of R v Man Lim Ping [1985] 1 HKC 61.

(c)  No formal order was ever drawn up for the forfeiture, nor had the judge signed or caused to be sealed any such order.

G round of Appeal

6.  Mr Bullett, who acted for the appellant on the appeal, contended that, first, the judge was at no time functus officio of the forfeiture matter and, second, she was wrong to refuse to re-open the matter upon Mr Midgley’s request.  His reasoning can be briefly stated as follows:

(a)  There is no provision that requires the decision in a trial on indictment in the Court of First Instance to be notified to any other court.

(b)  Whilst section 86 of the Criminal Procedure Ordinance (Cap 221) requires that the Registrar certifies any sentence of imprisonment to the Commissioner of Correctional Services on the day of sentence, there is no requirement in that section that ancillary orders, such as an order of forfeiture, be so certified.

(c)  Forfeiture of any kind is civil by nature: Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877.

(d)  That being the case, and absent any apposite provisions in Cap 221, the High Court Ordinance (Cap 4) and/or Rules of the High Court apply as to the perfection of forfeiture orders.

(e)  The relevant provisions of the said Ordinance[6] and/or Rules[7] require that, for any judgment to be entered, the relevant court order must be drawn up and sealed and have a copy lodged with the Registry.

(f)  Absent the steps in (e), the forfeiture order in the present case has never been perfected.

(g)  It follows from (f) that the judge was not functus of the matter, and she was wrong to refuse to re-open it.

Discussion

The Perfection Rule

7.  No discussion on the subject can begin without referring to the perfection rule which the Court of Final Appeal expounded in HKSAR v Tin’s Label Factory Limited (2008) 11 HKCFAR 637.  Giving the judgment of the Court, Li CJ stated (at 647B–D):

“ 16. For a court of record, it is a well-established rule that until the point of time when its order is finally recorded, it has the power to recall and vary a decision it had earlier made. That moment marks the cut-off point after which the power to change an earlier decision ceases. The final entry of the order in the record is known as the perfection of the order and it will be convenient to refer to that rule as the perfection rule. Such a power is implicit in the court’s power to determine the matter in controversy ….” (emphasis added)

8.  As to the origin of that rule, and the mechanics of its operation, he said (647G–H):

“ 17. A leading authority in England is R v Cross [1973] 1 QB 937. The Court of Appeal held that the perfection rule applies in a criminal appeal. Once the judgment was finally recorded, the power to vary it would be lost. By reference to the relevant court rule and court manual, it was held that the judgment would be finally recorded when the decision of the Court of Appeal was entered on the court record of the trial court on return of the case papers to it after the appeal.” (emphasis added)

9.  Indeed, the location of the cut-off point must vary from court to court and matter to matter, and is identifiable only with reference to a number of aids (647D–E):

“ 16. …. To identify the point of demarcation represented by the final recording of the order, it is necessary to examine the statutory provisions establishing the court and governing its operation and, where required, any relevant court practice.” (emphasis added)

10.  In the case of a magistrate’s appeal, it was held that (at 653D–G):

“ 43. Under [Part VII of the Magistrate’s Ordinance governing magisterial appeals], an appeal against a conviction by a magistrate is instituted by the giving notice of appeal to the magistrate’s clerk or by applying to the magistrate to state a case. Sections 105 and 114. Further, abandonment of an appeal is by notice in writing to the clerk of the magistrate concerned. Section 117(1). Just as an appeal to a judge of the CFI against a magistrate’s decision is commenced in the Magistrates’ Courts by the requisite notice or application lodged in that court, so the final record of the judge’s decision on the appeal is made in the Magistrate’s Courts.

44. As the entry by the magistrate’s clerk in the register of the Magistrates’ Courts kept under s 35(1) constitutes the final record of the judge’s decision, that decision is only perfected when that entry is made.  In accordance with the perfection rule, the judge has the power to change his decisions up to that time.”

Forfeiture Orders by the CFI

11.  As Mr Bullett correctly pointed out, no provision in the Criminal Procedure Ordinance can be construed as immediately relevant to the perfecting of forfeiture orders.

12.  That said, case law[8] has identified section 86(1) of that Ordinance as marking the cut-off point for variation of sentences by the District Court and the Court of First Instance.  It reads:

“ At the end of each day’s sitting of the court, the Registrar shall deliver to the Commissioner of Correctional Services or his deputy, a certificate, in Form 5 Schedule 1, of all sentences passed by the court during that day.”

13.  As forfeiture forms part of sentencing[9], so it can be argued that the “delivery” of such certificates, by the practice of the courts described as “Certificates of Sentence”, is the point at which forfeiture orders are finally recorded.

14.  Whereas, apart from the actual term of imprisonment, a Certificate of Sentence does not make reference to any ancillary order that the judge made, it is the practice of the courts to record an order of forfeiture in another document, which is treated to various parties and maintained as a record by the Clerk of Court.

15.  That document[10] is entitled “Confiscation Order”.  As can be seen from the copy annexed to this judgment, which is the actual form used in the present case, it is a document that has to be signed by both the judge’s clerk and the receiving officer, in this case a Senior Inspector of the Customs and Excise Department.

16.  More importantly, upon signing by the receiving officer of the form in quadruplicate, the judge’s clerk will, as a matter of practice, return the “pink paper” and the “white paper” to the officer as representative of the department “[initiating] the confiscation” and “[receiving] the confiscated goods”; keep the “white paper” on court file as the “officer-in-charge of the case”; and forward the “yellow paper” to the Clerk of Court for “[retention] by the office [issuing] the GF83”[11].

17.  On reaching the Clerk of Court, the “yellow paper” is filed in records maintained by the court according to the serial number at the form’s upper right-hand corner (“B 944771” in this case).  This practice is strongly indicative of the fact that that is an act of “final entry of the order in the record” (see the quoted passage from Tin’s Label Factory Limited under paragraph 7 above).

18.  As explained, the movement of the copies of the Confiscation Order fulfils the dual function of communicating the court’s order of forfeiture to the relevant government department and keeping for the court’s own purposes a record of all the forfeiture orders that it has made.  Clearly, the perfection of such orders occurs when the yellow paper copy of the form is filed by the Clerk of Court.

Was the Trial Judge Wrong?

19.  Although Mr Midgley returned to court to lodge his request shortly after sentence, the Customs Inspector did not sign on the Confiscation Order until the following day, 12 March 2015 (see the annexed form for his date of signature).   It follows that the judge was not functus at the time of Mr Midgley’s return, or any time before the yellow paper copy of the Confiscation Order was filed by the Clerk of Court, the earliest possible opportunity of that taking place being sometime in the afternoon of 12 March 2015.

20.  Although Mr Midgley did not specify his reason to the judge’s clerk, he did say it was in relation to “a matter that [he] had overlooked” (paragraph 10 of his affidavit).  By a fax letter in the afternoon of the same day, 11 March 2015, he clarified the matter to be about the forfeiture of USD 5,300 (footnote 5).  That being the case, the judge fell into error in refusing to hear Mr Midgley upon his return to court; she erred in not granting a re-hearing upon receipt of Mr Midgley’s letter of clarification.

21.  Man Lim Ping, the case relied on by the judge[12], was per incuriam the case of Cross, the English authority referred to in Li CJ’s articulation of the origin of the perfection rule[13].  Indeed, the following is what the then Chief Justice said of the Man case in Tin’s Label Factory Limited (at 649C–D):

“ No authorities were cited and the Court did not discuss the question of when the oral decision should be regarded as finally recorded …. [It] should not be regarded as an authority against the perfection rule.”

22.  Without the benefit of argument, the question of the forfeiture of the US dollars cannot be said to have been judicially determined.  Accordingly, we order that the forfeiture order be quashed.

QUESTION OF DELAY

23.  This application was out of time by some 12 weeks.  We were not impressed by the appellant who cited lack of concentration, albeit HIV-induced lack of concentration, as the reason for the delay.  Nevertheless, we were satisfied that, unless she was granted leave, the Court would be shutting out a meritorious appeal.

DISPOSAL

24.  For the above reasons, we allowed the appellant’s appeal and gave the orders as per paragraph 1 of this judgment.

[1]  As a visitor, the appellant was stopped at the Hong Kong International Airport, taken to a hospital and found to have secreted the said drugs insider her body.

[2]  See the exchanges between court and counsel at page 39 of the Appeal Bundle.

[3]  See page 41 of the Appeal Bundle.

[4]  In an earlier part of the same affidavit (paragraph 4), Mr Midgley attested that insofar as the USD 5,300 was concerned, the appellant’s instructions were that: (a) it had nothing to do with the fact that she was trafficking in drugs; (b) she owned a beauty salon and the sum was put together by she and her friends to buy hair products in Hong Kong; and (c) she was anxious that her friends should not be deprived of their money.

[5]  The relevant letter was faxed into court at 5.18 pm.

[6]  Section 51.

[7]  Order 52.

[8]  See Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476 and HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405.

[9]  See, for example, HKSAR v Nk Wo Nnaemeka Darlington CACC 78/2015 (15 December 2015, unreported) and section 80 of the Criminal Procedural Ordinance.

[10]  “GF 83”.

[11]  See the instructions at the lower left-hand corner of the form. 

[12]  See paragraph 5(b) of this judgment.

[13]  See paragraph 8 of this judgment.