HKSAR v. CHING WAI-LAN

HCCC 236/2015

[2018] HKCFI 1819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 236 OF 2015

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RULING ON PROSECUTION’S
APPLICATION TO FORFEIT

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs.

2.  Particulars of the charge are that the defendant on 28 January 2015, at Room 4, Flat 4, 2^nd Floor of Cheung Ming Building in Sham Shui Po unlawfully trafficked in the following assortment of dangerous drugs: 430.89 g of methamphetamine hydrochloride (commonly known as ‘ice’); 0.92 g of cannabis in herbal form; 0.06 g of a plant material containing traces of tetrahydrocannabinol, being a tetrahydro derivative of cannabinol and cocaine; 3.71 g of cannabis resin; 0.01 g of midazolam; 54 tablets containing 0.73 g of midazolam; 0.03 g of a powder containing cocaine; 11.03 g of heroin hydrochloride and 60 tablets containing 0.6 g of nimetazepam.

3.  The total weight of all narcotics is 447.98 g.

4.  The defendant was sentenced to 10 years 7 months and 24 days’ imprisonment.

5.  The prosecution applied for the forfeiture of two sums of money found, respectively, on the defendant’s person at the time of her arrest and in her home during the subsequent house search.

6.  The defendant resisted the application, leading to a separate confiscation hearing held on 26January 2018.  This is my ruling.

Outline of facts

7.  The following outline is based on the Summary of Facts that the defendant had admitted to after she had entered a plea of guilty.  The defendant was convicted on the basis of the contents of the Summary of Facts and it forms the sole evidential basis for the prosecution’s application to confiscate the said two sums of money.

8.  Police officers conducted a surveillance operation on the defendant’s home in and around Cheung Ming Building in Cheung Sha Wan on 28 January 2015 as a result of information received.

9.  At around 8 pm, the defendant emerged from Cheung Ming Building and got into a waiting taxi.  Inside the taxi was the driver and a female sitting in the rear.  The defendant sat in the rear.

10.  Police officers intercepted when the taxi was moving off.  They identified themselves as police officers and told the defendant that she was suspected of trafficking in dangerous drugs.

11.  The defendant refused to get out of the taxi despite being told to do so, saying “Ah sir, nothing, nothing, you let me go.”

12.  One of the police officers grabbed the defendant’s left arm and pulled the defendant out of the taxi.  The defendant still refused to cooperate and moved her body about to try to escape from the police officer, saying “Ah sir, don't arrest me, ah sir don't arrest me, give me a chance.”

13.  The defendant dropped a packet onto the ground during her struggle.

14.  She was eventually subdued and restrained.  While the officers were busy dealing with the defendant, the taxi drove off.  The identity of the female passenger and the driver remains unknown.

15.  The dropped packet was found to contain some white pellet like objects inside a transparent re-sealable plastic bag.  The defendant remained silent when asked what was inside.

16.  The defendant’s handbag was seized.  Inside were 2 packets of a white crystalline solid inside their respective transparent re-sealable plastic bag, which was wrapped in another plastic bag individually.

17.  There was another packet of 10 pills wrapped inside a silver and red coloured tinfoil.

18.  A bunch of keys, a green wallet, two Samsung mobile phones and $3,164.10 were also found inside the handbag.  The $3,164.10 is the first of the two sums of money that the prosecution seek to have forfeited.

19.  The defendant was arrested for the offence of trafficking in dangerous drugs.  Under caution, the defendant said that the drugs were for her self-consumption and asked for a chance.

20.  The defendant was then brought back to her home in Cheung Ming Building so that the police can execute the search warrant issued against the premises.  They gained entry using the keys found on the defendant when she was arrested.

21.  A search of the flat was conducted.

22.  From inside the bedside cabinet, a pink plastic box was found.  Inside the box were 2 packets of white powder, each wrapped up in white paper; a packet of white powder inside a transparent re-sealable plastic bag; 2 packets of white powder each wrapped in a white plastic sheet; a white pill wrapped in tin foil and 2 blue pills.

23.  Also inside the bedside cabinet was a plastic bottle containing some transparent liquid with 3 straws attached and an electronic scale.

24.  From inside the first drawer of the bedside cabinet, the following items were found.  52 blue pills wrapped in tinfoil, placed inside a transparent re-sealable plastic bag; 50 pills wrapped inside a silver and red coloured tinfoil; one plastic bag containing 7 plastic straws, a tenancy agreement and cash of $11,000.

25.  This $11,000 is the second sum of money that the prosecution seek to have forfeited.

26.  From inside a blue storage box on the bedroom floor, the following items were found.  One packet of white crystalline solid inside a black plastic bag placed inside a red plastic bag; 4 packets of white crystalline solid, each inside a transparent re-sealable plastic bag with two wrapped in silver coloured wrappings, all inside one black plastic bag; one red tin containing a packet of white powder inside a transparent plasticbag, one transparent re-sealable plastic bag containing a packet of herb like substance inside another transparent plastic bag and another transparent plastic bag containing two pellets of a black mud like substance and two packets of herb like substance wrapped in paper.

27.  Also inside the said blue storage box were a box of tin foil, a packet of re-sealable plastic bags and an electronic scale.

28.  The defendant exercised her right and remained silent when questioned under caution about the items found.

29.  The powder, pellets, pills and substances found were later analysed by the Government Chemist.  They were all found to contain dangerous drugs and their composition is as set out in the particulars of the charge on the indictment as set out above.

The applicable law

30.  Section 56 of the Dangerous Drugs Ordinance, Cap 134 governs the forfeiture of articles:

“(1) A court may (whether or not any person has been convicted of such offence) order to be forfeited to the Government—

(a) any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft or a train) 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).” (emphasis added)

31.  It is not disputed that it is for the prosecution to show that there is prima facie evidence that the two sums of money should be forfeited under either section 56(1)(a) or (b).

32.  If the prosecution is able to do so, it is then for the defendant to show, on the balance of probabilities, why the money should not be so forfeited.

33.  At the hearing, I made a ruling that there was prima facie evidence that the two sums of money can be confiscated under either section 56(1)(a) or (b).  I gave the following reasons.

Background facts in relation to the $3,164.10

34.  The money was found inside the handbag of the defendant.  Inside the same handbag were 2 packets of white crystalline solid and a packet of 10 pills.  They were confirmed to be dangerous drugs and form part of the subject matter of the trafficking offence that the defendant had pleaded guilty to.

35.  The defendant was seen getting into a waiting taxi with a woman inside.  The defendant resisted when she was asked to come out of the taxi.  She was dragged out by Police officer.  She continued to struggle and during the struggle, she dropped a packet of dangerous drugs onto the ground.

Background facts in relation to the $11,000

36.  When the defendant was brought back to her home after her arrest, $11,000 cash was found, among other things, inside the flat.

37.  The $11,000 cash was found in the first drawer of the bedside cabinet.  Inside the same cabinet, the Police also found 52 blue pills packed in silver coloured tinfoil in a transparent re-sealable plastic bag; another 50 pills packed in silver and red coloured tin foil, a black plastic bag containing 7 plastic straws, and a tenancy agreement dated 28 September 2014 in the defendant’s name.

Facts common to both sums

38.  The defendant had admitted in the summary of facts that she was unemployed at the time of the offence, which was also the time of her arrest.  She also admitted that she had been receiving CSSA of $1,804 a month up until 31^st December 2012.

39.  According to the antecedent statement, the defendant claimed she was working as a waitress ‘prior to the arrested’.  This is in direct contradiction with what the defendant had admitted to in open court by wayof her admission to the summary of facts.  Since the defendant’s admissionto the summary of facts was subsequent to the preparation of the antecedent statement, it would appear that the defendant had overturned her previous assertion.

Ruling on whether there is prima facie case for forfeiture

40.  The $3,164.10 was found on the defendant’s person, alongside some of the dangerous drugs she was being charged with.  The defendant came out of the building where she resided, with the drug and money in her handbag, and got on to a waiting taxi.  She was either on her way to somewhere as a courier or was dealing with the woman who was waiting in the taxi.  The defendant was unemployed at the time.

41.  I found that there is prima facie evidence that the $3,164.10 was possessed by the defendant as the result or product of the offence of trafficking in dangerous drugs.

42.  As to the $11,000, they were found inside the same drawer where a sizable amount of dangerous drugs were also found.  The defendant was unemployed at the time.

43.  I found that there is prima facie evidence that the $11,000 cash ($300 + $10,700 in P-15 and P-17) was possessed by the defendant as a result of or a product of her trafficking in the drugs kept in the flat.

44.  Subsequent to my ruling, the defendant elected to give evidence in support of her resistance of the prosecution’s application.

The defendant’s evidence

45.  The defendant entered into the tenancy agreement found inside the first drawer of the bedside cabinet 4 months before the incident of her arrest.

46.  She lived at the flat with her friend Ms Wong Ka Po. Ms Wong had committed suicide while the defendant was in remand awaiting her trial and sentence in the present case.

47.  The defendant claimed that while they were living together in the 3 months of the tenancy until the defendant’s arrest, she and Ms Wong shared expenses on a ‘half and half’ basis.

48.  They also each paid half of the general household expenses such as food and utility payments.

49.  During her examination-in-chief, the following exchange took place between Mr Whitehouse and the defendant:

“Mr Whitehouse: The time you were arrested by the Police, you were found in possession of $3,164.10 in your handbag. Do you accept the money was possessed by you in connection with drug trafficking?

Defendant:  As for the $3,000 odd, that’s right.  No dispute about that. ”

50.  As a result, Mr Whitehouse very fairly conceded that the defendant no longer sought to resist the forfeiture of the $3,164.10 found inside the defendant’s handbag.

51.  The defendant continued with evidence on the $11,000.

52.  When asked to whom the $11,000 found inside the drawer belonged, the defendant gave this answer:

“Mine, Wong Ka Po paid me back.”

53.  The defendant was then asked why Ms Wong gave her “the $11,000”.  The defendant answered as follows:

“Because it was the money related to the rent.”

54.  The defendant claimed that Ms Wong was responsible for half of all the expenses, and so $4,000 of the $11,000 was Ms Wong’s share of half of the $8,000 deposit payable under the tenancy agreement.

55.  Mr Whitehouse then asked the defendant about the sharing of the rental payment:

“Mr Whitehouse: You told us you also shared the rent, how much of that $11,000 was represented by her share of the rent?

Defendant: Each of us paid $2,000 each month for the rent.

Mr Whitehouse: So she paid you a share of the rent, $2,000 per month?

Defendant:   Yes.”

56.  Mr Whitehouse then asked the defendant, how many months’rent did Ms Wong give to the defendant that formed part of the $11,000.  The defendant gave the following answer:

“4 months’ rental. Each of us paid $2,000 for the rent.”

57.  The defendant confirmed that Ms Wong paid her Ms Wong’s share of $2,000 per month.

58.  Mr Whitehouse then asked the defendant which months were represented by the $11,000.  The defendant answered “from September 2014 to January 2015”.

59.  Mr Whitehouse asked the defendant how much Ms Wong paid her for those months.  The defendant said “$8,000”.

60.  The defendant was then asked to tell the court how the $11,000 was made up of.  The defendant gave this answer:

“She paid that money to me by several months, but I did not use the money because I was afraid that there may be some urgent matters so I did not really use the money. She paid me every month, I did not use the money, there may be a chance that I need to pay the rent thereafter.”

61.  Mr Whitehouse then asked the defendant to give a breakdown of the $11,000.  The defendant said this:

“She would give me $2,000 per month as rent. She paid 4 months’ rent.”

62.  The defendant was then asked about the balance of $3,000 that she received from Ms Wong, about why the money was paid to the defendant.  The defendant gave this answer:

“For example, electricity, toilet papers, things that we share.”

63.  The defendant said that the $11,000 was given to her “not in one go”.

64.  The defendant was then asked about her employment.

65.  The defendant claimed that, at the time of her arrest, she did not have a formal job.  She did some part-time cleaning but “not have the job very often, not all the time.”

66.  She also said she had been a waitress previously on a part-time basis as well.

67.  During cross-examination, the defendant was asked about the payment of the rental deposit for the flat.

68.  The defendant confirmed that a deposit of $8,000 was required.  Mr Donald for the prosecution then asked if she had split that payment with Ms Wong.  The defendant answered, “We paid together”.

69.  Mr Donald asked the defendant if she got the cash from Ms Wong for the deposit.  The defendant said Ms Wong did pay $4,000, but added that the defendant’s family paid $4,000 for her.

70.  Mr Donald then asked if the money received from Ms Wong was actually paid out or was put inside the drawer.  The defendant responded as follows:

“No, not the case. What did u ask me about the money?”

71.  Mr Donald then ascertained with the defendant about her family give the defendant $4,000 and Ms Wong giving her $4,000.  The defendant agreed that was the case and confirmed that the money was used to pay for the deposit.

72.  Mr Donald then asked if Ms Wong had paid the defendant $2,000 each month over the next 4 months.  The defendant said she did not.  When asked why that was the case, the defendant answered as follows:

“Sometimes she gambled and lost money and wanted me to pay first.”

73.  The defendant claimed that from September 2014 to 28 January2015, Ms Wong had on 4 occasions given her $2,000 each.  The payments were not at fixed times.  Ms Wong paid the defendant after the defendant had paid the rent for the month.

74.  The defendant said that Ms Wong paid the first $2,000 to her one week after the rent was due.

75.  The defendant also claimed that when the rent was due and she did not have enough to pay, she would ask her family for money.

76.  Mr Donald then pointed out that the defendant would have $2,000 that Ms Wong had paid her the month before, and that there would have been no need to borrow from her family.

77.  The defendant explained that it was because Ms Wong indulged in gambling and never paid her share of the money on time.  So that the defendant often had to borrow money from her family to pay the $4,000 rental.

78.  The defendant said that she had borrowed two or three times from her family in that 4 month period, totalling about $,8000 to $12,000.

79.  It is the defendant’s evidence that in the meantime, the defendant never used the $8,000 in the drawer paid to her by Ms Wong.

80.  Mr Donald then asked the defendant as to how $3,000 of the $11,000 was calculated, how much per month for utility payments.  The defendant said she could no longer remember since it was a long time ago.

81.  Ms Wong just paid her the $3,000, just as an approximate sum for toilet papers, daily items like shampoo, sanitary napkins and all those things requiring money.  They did not go into details as to what exactly the $3,000 was for, nor how much was for each month.

82.  The $3,000 was paid by Ms Wong at different times, it was basically an accumulation of Ms Wong’s share of the utility payments for the 4 month period.

83.  The defendant was then asked about her part-time job as a cleaning worker.  She was able to say that she worked in a hotel, but cannot remember the name of the hotel because it was “many years ago”.

84.  Mr Donald then followed up with questions asking the defendant when did she last worked prior to her arrest in the present case.  The defendant gave the following line of answers:

“Q: When you were arrested, how long had it been since you actually worked? Last worked before your arrest?

A: I just worked for 2 times.

Q: 2 days?

A: Yes.

Q: When?

A: In 2013, after I was released from prison. I worked once or twice.

Q: In 2013?

A: Yes.

Q: As a part-time cleaner?

A: Yes.

Q: And the waitressing, when did u work as a waitress?

A: Before 2013.”

85.  The defendant then confirmed her earlier evidence about how she considered Ms Wong as unreliable because she gambled all the time and that the defendant could not trust Ms Wong with her money.

86.  The defendant explained why instead of using the money in the drawer to pay the rent she chose to borrow money from her family to pay.  The defendant said this:

“Because the money she gave me, I thought, if she was not able to give me the following month, I will use the money to pay for rent.”

87.  Mr Donald persisted, asking the defendant why she needed to borrow from her family if she had the money right in the drawer.  The defendant gave this answer:

“Because I thought my mother treats me well, mother loves me and I rely on my mother because she loves me.”

88.  In re-examination, the defendant said that the $11,000 came from Ms Wong because they rented the flat together and the money was given by Ms Wong, $2,000 per month.

89.  The balance of $3,000 was given by Ms Wong at two different times and were for “odd items”, for future use.

Findings

90.  First of all, on the basis of the defendant’s own admission in the witness box that the $3,164.10 found inside her handbag when she was apprehended was money possessed by her in connection with drug trafficking, I am satisfied on the balance of probabilities that this sum of money was in fact so possessed, and should be forfeited under section 56(1)(a) of the Dangerous Drugs Ordinance.

91.  As to the $11,000, I find that although the defendant struggled to give clear evidence at times, her evidence of how the $11,000 came from Ms Wong for her share of rental payments and household expenses stood up in cross-examination.

92.  Having heard from the defendant, I find that on the balance ofprobabilities, she was telling the truth about how she had a flatmate and that she would share half of the rental payment and contribute to household expenses.

93.  I accept the defendant’s evidence that she had earlier receivedanother $4,000 from Ms Wong and that money had been paid to the landlord as part of the $8,000 deposit required.

94.  After that, the defendant would pay the rent every month by borrowing money from her mother if she needed to.

95.  Ms Wong would give the defendant money from time to time as her share of the rent and utilities and assorted household expenses.  I accept the defendant’s evidence as to Ms Wong’s unreliability in her payments.

96.  The defendant is a long time drug addict, it is not unreasonable to believe her when she said that she borrowed money from her mother when it came time to pay the rental, and that she would just keep the money given to her by Ms Wong in a drawer for future use.

97.  The payment of rent was due in advance, so on the day of her arrest on 28 January, the defendant would be getting ready to pay the February rent. There would have been nothing to stop the defendant from using part of the $11,000 to settle the rent if she had not been arrested.

98.  I find that, on the balance of probabilities, the money could have come from Ms Wong.

99.  We do not have evidence as to whether Ms Wong was a drug user or whether she had any connection with the drugs found inside the flat.

100.  That being the case, on the balance of probabilities, the $11,000 might not have been money which has been used in the commission of or in connection with; or which was possessed by the defendant as the result or product of an offence under the Dangerous Drugs Ordinance.

Rulings

101.  I, therefore, order that the $11,000 (exhibits P-15 and P-17) be returned to the defendant, while the $3,164.10 (exhibit P-16) be forfeited to the Government pursuant to section 56(1)(a) of the Dangerous Drugs Ordinance.

102.  There be no order as to costs.