HKSAR v. NDUNGU RAHAB WANJIRU (female)

HCCC 351/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 351 OF 2015

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REASONS FOR DECISION

ON FORFEITURE PROCEEDINGS

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1.  This is an application for the forfeiture of US$2,950 and Madagasy Ariary (“MA”) 152,900 under section 56(1) of the Dangerous Drugs Ordinance, Cap 134 (“DDO”). That provides:

“(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)

2.  The respondent pleaded guilty on 5 February 2016, to one count of trafficking in a dangerous drug (“TDD”) contrary to section 4(1)(a) and (3) of the DDO and was sentenced to 14 years and 4 months’ imprisonment.  An order in terms was made for forfeiture of exhibits on the same date save that the respondent opposed the application for forfeiture of the US$2,950 (approx HK$22,715) at serial no P15 and MA152,900 at P17.  She no longer seeks to oppose the application for forfeiture in respect of the MA152,900 (approx HK$370). There was a further HK$100 recovered from the respondent upon arrest, which the prosecution did not seek to forfeit.

Background to proceedings

3.  The respondent first appeared before me on 21 December 2015 for pre‑trial review, at which time she indicated she would plead guilty.  The matter was adjourned to 23 December 2015 for plea, however the prosecution were not in possession of a Summary of Facts on 23 December, and the matter was further adjourned to 5 January 2016.  It was on 5 January that it became clear that there was an issue as to the US$2,950, which had been recovered from the respondent at the time of arrest.  The prosecution and defence asked that the matter be adjourned for a Newton Hearing despite the court indicating that the matter could be resolved by entering a plea to the Summary of Facts as drafted, with the respondent putting on record the fact that she took issue with the origin of the US$2,950. The issue of forfeiture could then be dealt with separately with no risk to the respondent as to discount.  At that time the respondent was warned that it may not be in her best interest to ask for a Newton Hearing on the basis of a bare allegation that the monies were hers and not connected with the offence.  The matter was nevertheless adjourned to 4 February 2016 for a Newton Hearing.

4.  On 4 February 2016, the respondent dispensed with the services of Mr Arthur without warning.  The Director of Legal Aid arranged for her to have new representation at short notice.  Miss Chong was instructed the same day.  The same instructing solicitors were retained.  By that date the court had already referred both parties to HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57 and directed that that plea was to be taken and sentencing to take place the following day, after which a forfeiture hearing would be set down.  Miss Chong was afforded the opportunity to take instructions that day and the plea and sentence were adjourned to 5 February.

5.  On 5 February 2016 there were further submissions as to the content of the Summary of Facts. The prosecution took the admissions about the money out of the summary but indicated that they would be relying upon them in the forfeiture proceedings. On that basis the respondent was prepared to plead guilty to TDD.  An application for forfeiture under section 56(1) of the DDO, Cap 134, was formally made and the matter was adjourned for the issue in respect of item P15 and P17 to be heard before me on 22 and 23 February.

6.  The exact nature of the respondent’s case in respect of the forfeiture proceedings was not clear at the time of adjournment on 5 January as Mr Arthur, who represented her at that time, had not had the opportunity to take full instructions.  However, it was clear that the respondent maintained that she had not made any admissions as to the fact that the money represented earnings for carrying the drugs.  When represented by Miss Chong on 5 February, the respondent maintained her stance with the caveat that if the admissions were found to have been made, then they were made involuntarily.  By a letter dated 15 February 2016, Miss Chong, who represents her in court today, informed the court that no issue was being made as to voluntariness.  As a consequence of what passed between counsel prior to the forfeiture hearing, the prosecution chose to adduce evidence from Inspector Fok Sze Nga (PW5) and rely upon P42 and P43, which were the two statements taken on 31 January 2015, in which the officers post‑recorded the answers given by the respondent upon arrest and caution.  The respondent also asked that the Swahili interpreter be made available.

7.  Although I directed that a Notice of Objection should be provided to the prosecution and court five days in advance of the hearing in order that the prosecution would be able to finalise which witnesses to call, no such notice was provided.  I assume Miss Chong believed she had complied with my direction by way of the letter of 15 February 2016.  That was not the case.  The lack of a proper Notice of Objection led to some miscommunication between counsel and a further delay in proceedings was necessary for the prosecution to adduce evidence in rebuttal.  One such witness was interposed in the evidence of the respondent in order to ensure she was not prejudiced by the miscommunication.  The second witness in rebuttal arose entirely out of the respondent’s evidence.  If a proper Notice of Objection had been served, the prosecution would no doubt have called Inspector Ho as part of its case.

The relevant facts

8.  On 31 January 2015, the respondent had been stopped at the private car kiosk within the Shenzhen Bay Control Point.  She was a passenger in a seven‑seater car on its way to China.  In evidence, the respondent maintained that this was a taxi and she had asked to go to the main train station.  She did not know she was being taken to China, although she accepted that Guangzhou was her ultimate destination.  When examined by a customs officer, she was found to be carrying what appeared to be dangerous drugs in her vagina.  She was arrested and cautioned.  The US dollars, MA and HK dollars were recovered from her at that stage.  She was later taken to Tuen Mun Hospital (“TMH”) where a condom full of Heroin Hydrochloride was removed from her vagina.  She was arrested and cautioned once again but this time by Inspector Fok Sze Nga (PW5). She admitted to swallowing further drugs.  In all 20 packets were eventually recovered from the respondent’s body containing 700g of Heroin Hydrochloride.  The street value of which was HK$849,000.

Admissions upon caution

9.  The respondent was first arrested and cautioned in English at 1330 hrs on 31 January 2015 at the Shenzhen Bay Control Point by CO 98105 Ko Ying Chi (PW2) in the presence of ASCO 9725 Lip Lai Ha (PW1).  She was asked:

“Q: What it this?

A: I don’t know.

Q: Who does it belong to?

A: My friend Donny gave me. I put it inside myself. My friend tell me to help him bring it to China.

Q: How much you can earn?

A: Around USD2,000 …”

10.  She was further arrested and cautioned at 1610 hrs in Room 37 of TMH by Inspector Fok Sze Nga (PW5).  At that time she said:

“Q: So, what is this?

A: I don’t know. My friend gave it to me. It doesn’t belong to me.

Q: So, who is your friend?

A: Danny

Q: Where is he and how to contact him?

A: He is now in Madagascar and he cannot be contacted.

Q: How much you get for conveying these things?

A: Around USD 3,000 and MA 150,000 for this.

Q: Apart from this, did you swallow the similar things?

A:  Yes, about 20 packs.”

11.  Although not relied upon within the forfeiture hearing, the statement of PW5 also shows that at 1805 hrs that evening, after the respondent had discharged a further pellet, she was arrested and cautioned once more and said:

“Q: So what is this?

A: It’s the same as the one inside my vagina. My friend Donny gave it to me.

Q: You conveyed them for what?

A:  To get the things to China forced by Donny, who took my passport.”

12.  Those conversations were post‑recorded and all but the last caution were admitted as P42 and P43.

13.  Under interview by Inspector Ho Tin Hong (PW12) on 1 February 2015, at 1520 hrs in TMH, having excreted all of the pellets, the respondent said she lived in Kenya and had gone to Madagascar on 19 January 2015 to buy kitchenware to sell on in Kenya.  She said she had lost her money and as the hotel was expensive her money had run out.  A friend in Kenya put her in touch with a man in Madagascar who paid her hotel bill and took her passport.  That same man told her to swallow the drugs and it was he who forced the condom of drugs into her vagina.  She had not been paid for doing this and he said he would see to it later.  She said she did it to get her passport back.  He bought her ticket to Hong Kong and she travelled on her own on 30 January 2015.  She said she intended to go to Guangzhou in China and had bought a van ticket to travel to Guangzhou.  When she was in Guangzhou she would call the man in Madagascar to arrange for someone to collect the drugs.

The respondent’s personal circumstances

14.  Under interview on 1 February 2015, the respondent said she was single with a daughter and worked as a casual labourer/broker for small boats for tourists. She had been doing this for five years and earned US$100 per month.  She said she had gone to Antananarivo in Madagascar to buy kitchen appliances.

15.  In her antecedent statement taken on 21 December 2015, she said exactly the same.

16.  In mitigation, Miss Chong said that the respondent had worked originally as a home help and then a supermarket cashier in Nairobi before moving to Mombasa in 2005, where she worked as a boat broker.  In 2006, she had a daughter and in the same year her brother died.  She took on the responsibility of looking after his son who was the same age as her daughter and so, in 2006, both would have been babies.  She inherited some land from her father and a taxi business from her brother.  She also lent money to local villagers earning interest.  From those two she had saved US$6,500 which she wanted to use to set up her own business and had considered going to China to buy clothes.  On the advice of friends she decided to go to Madagascar to buy kitchenware first and had purchased some kitchenware but had been robbed of half of her savings.  A friend had suggested making up the loss by doing other business and had introduced Tony who put her up in a hotel and offered to introduce her to business contacts in China.  He wanted her to take medicine to China which she realised were dangerous drugs.  She allowed her desire to do business in China to overcome her reluctance to traffick in dangerous drugs.

The respondent’s evidence

17.  The respondent is now 34 years old.  She comes from a broken family and lived with her mother and younger brother until she was 16 years old when her mother was murdered in 1999 and she was left to raise her brother.  She is now a single parent with a nine‑year‑old daughter.  Her father died in 2006 (the same year as her brother) and left her a piece of land which she rents out for US$5,000 per annum. She works as a boat operator, sells food in a kiosk on the beach and gives guided tours to tourists.  She said she also loans money and receives interest. As a boat operator she earns a basic salary of US$100 per month.  In the tourist low season she can earn US$360 per month as a tour guide and from her loan business she can earn between US$300 to US$400 per month.  This amounted to an average monthly income of some US$1,260 (approx HK$9,700).  When her younger brother died she inherited his taxi business but that was not good because tourism was down and so she sold the taxi for Kenyan Shillings (“KES”) 320,000 (approx HK$24,330) in 2014.

18.  The respondent provided no documentary support for the above bare assertions.  She gave no evidence as to her living expenses save to say that she was also responsible for raising her nephew who is the same age as her daughter.  She could not provide any evidence of any report to the police in Madagascar of the alleged robbery.  She says that she told Inspector Ho about her other business interests but his response had been to keep it simple and therefore he had recorded only her boat brokerage earnings. She accepted she never told the officers about the land rental or money lending because they never asked. 

19.  The respondent said in evidence that she had savings of US$6,500 which she took to Madagascar with her in cash as she wanted to purchase kitchenware on the market in Antananarivo.  She had previously travelled abroad but not to Madagascar.  She said she was shopping in the market when some of her cash was stolen and she was left with about US$3,200.  She spent US$200 and so she had US$3,000 left which she was going to use to buy clothes in China and sell in Mombasa.  This she was going to do with the help of Tony (not Donny as recorded in her cautioned interviews).  It was Tony for whom she was carrying the drugs and he was to buy her ticket and pay for all of her expenses.  He was her only contact in China and she did not know him but did know he was Tanzanian.  She carried the US$3,000 in cash as there was no reason to put it in the bank.  It was not enough to buy anything in Madagascar so she was going to use it to buy clothes in China, which she had intended to do all along.  She had been given MA190,000 by Tony to exchange for a SIM card on arrival in Hong Kong despite the fact that she had a working international SIM card. 

20.  As for what she said under caution, she denied saying that she was to earn either US$2,000 or US$3,000.  She had told the customs officers that she was not going to earn anything.  That is why she refused to sign P42 and P43.  It was the “madams” who put to her that she had earned US$2,000 and US$3,000.  She said she had told the officers why she refused to sign and she also told the interpreter the next day in the presence of Inspector Ho who had said that it did not matter because they would use his interview (Exhibit P44) only.  All of this was denied by the customs officers and the Swahili interpreter had no recollection of the event one way or the other.

The law

21.  Applications for forfeiture are civil in nature.  The applicant bears the burden of establishing on a balance of probabilities that the monies in question are liable to forfeiture.  Once the applicant has established a prima facie case for forfeiture the burden passes to the respondent on the same standard to show why the court should exercise its discretion in her favour and not make the order sought[1].

22.  In considering this application, I have taken cognizance of the decision of the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57, which laid out the principles to be applied and the manner in which the court should proceed.

23.  This is an application under the DDO.  The court’s power of forfeiture rests upon section 56(1)(a) and/or (b), which allows the court to make a forfeiture order inter alia of monies used in the commission of or in connection with a TDD offence or any monies in the possession of the respondent which are the product of or result of such an offence.  The first issue which arises is whether or not there is a prima facie connection between the monies and the commission of an offence under the DDO.  It is for the applicant to outline the evidence upon which it relies in support of the application to show the statutory pre‑conditions have been met.  In this case Mr Laskey relied upon the Summary of Facts, Exhibits P15 – P18, P42 – P43 and has called evidence from Inspector Fok and Inspector Ho.  I have also heard evidence from the Swahili interpreter Miss Mgiwi.  In essence, the applicant relies upon the admissions made to CO 98105 upon arrest at the border crossing and later by Inspector Fok at TMH.  P42 and P43 are the post‑recorded statements in respect of those two admissions.  By reason of her plea the respondent has already admitted TDD in 700g of Heroin Hydrochloride, which she trafficked from Madagascar to Hong Kong en route to China and has been sentenced.  She further admitted that she was in possession of all the monies referred to above and the evidence of the customs officers is that she admitted earning between US$2,000 and US$3,000 for carrying the drugs.  She told both Inspector Ho and the officer preparing the antecedent history that she earned just US$100 per month as a boat broker and was a single mother with one child.  That evidence is more than sufficient to establish a prima facie case of a connection between the monies and the offence of TDD to which she pleaded guilty.

24.  The burden therefore shifts to the respondent.  The respondent denies that she made any such admissions.  Her case has been outlined above.  I do not accept what the respondent said in evidence.  Her credibility was seriously undermined. There was no documentary support for her assertions despite having had two months to obtain it and being warned that she should do so in advance.  Her story shifted more than once in a number of respects and she points the finger at the officers of Customs and Excise who have nothing to gain by lying about this issue.  She was caught red‑handed with the drugs and would inevitably receive a substantial prison sentence for trafficking.  It is not a foregone conclusion that an order for forfeiture would be made.  My own experience is that it is not always the case although I do not understand why that is.  For her case to be correct, several officers must have colluded in order to show that not only did she admit earning the US$2,000 – 3,000 from trafficking but that she did not have the means to be in possession of so much money legitimately.  I do not accept that she was not to be rewarded for taking such a substantial risk.  This was not a situation where a mule is handed a suitcase with drugs secreted inside.  She took three days to swallow 20 pellets of cocaine given to her by someone she says she did not know and one of those pellets she says was forced inside her vagina.  She knew full well what she was doing and as an intelligent well‑spoken woman she would have known the risks.  I find there was sufficient evidence enable me to infer that the monies were in her possession as a reward for trafficking in drugs and as such are liable to forfeiture under subsection (1)(b).

25.  Even if I did not accept that the admissions in question were in fact made by the respondent and accepted that she had earned or inherited the monies in her possession, the respondent was detained trying to enter China with a substantial amount of drugs.  She would have needed to satisfy the Hong Kong immigration authorities[2] that she was a legitimate business woman and had the means to support herself and to return to Madagascar when she first entered Hong Kong.  The HK$100 and MA152,900 were not sufficient to do that.  The US$2,950 was.  She had not been able to contact Tony on arrival.  She would also have had to secure onward transportation, hotel and food bills during her stay.  I find, in one alternative, that the irresistible inference would be that the monies she had on her were in her possession for that purpose (whether or not they had been given to her as a reward) and would have been consumed in so doing.  As such they fall to be forfeited in the alternative under subsection (1)(a) should I be in error in my findings under subsection (1)(b) above.  I also acknowledge that even if the inference which can be drawn is that at least one of the above alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pin‑pointed[3].

26.  Lastly, Miss Chong submitted that if the court were against the respondent, it could nevertheless order that part only of the funds be forfeited.  Given that the respondent’s case was ‘it is all legitimately mine’ and the court has rejected that argument in full, I fail to see on what basis the court is to assess what part of the monies should be forfeited and what part of the monies should be returned to the respondent.  I gave Miss Chong the opportunity to identify what sum this submission was supposed to cover and, unsurprisingly, she could not do so. 

Conclusion

27.  The US$2,950 is ordered to be forfeited along with the MA152,900 which the respondent does not now oppose forfeiture of.