HKSAR v. LAM KWAN TO BORUS

DCCC 433/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2017

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REASONS FOR SENTENCE

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1.  This is a case of stop and search by police in the street leading to drugs being found on the defendant.

2.  The defendant pleaded guilty before me to one count of trafficking in dangerous drugs. The drugs involved are 35.90 grammes of a solid containing 17.50 grammes of ketamine.

3.  At about 6 O’clock in the evening on 15 February 2017, a plainclothes officer spotted the defendant acting suspiciously near a MTR exit in Tsim Sha Tsui area, and therefore went over to stop him for questioning.

4.  Upon a body search, the officer found from the defendant’s waist bag the drugs in question, which were put in 23 plastic bags. Also found are cash $600 and $14,220 in the right and left pockets of his jacket respectively, and two mobile phones.

5.  The defendant was arrested and under caution, he admitted he was selling Ketamine because he was unemployed.  The street value of the drugs is estimated to be about $10,000.

6.  The defendant, a 40-year-old divorcee, has only 2 previous convictions of burglary. He has a 13-year-old daughter to support but because of this offence, counsel said, the daughter is now left in the care of her uncle.

7.  Counsel for the defendant initially put forward that the defendant had about 1 to 2 grammes of the drugs for his own consumption as a ground for a further reduction in sentence, but having reviewed the relevant authorities including the most recent one - Kong Tat Lung CACC 27/2016, counsel informed the court that the defendant would no longer pursue this matter.

8.  There are sentencing guidelines for trafficking in this type of drug, namely trafficking in an amount between 10 to 50 grammes, a term of 4 to 6 years is to be considered.

9.  Having heard the mitigation put forward, I see no good reason to depart from the guidelines as set down by the higher court.

10.  For the amount he admitted trafficking, I take 51 months as starting point. Giving one third discount for plea of guilty, it is reduced to 34 months. There being no reason for a further reduction, the defendant is therefore sentenced to 34 months’ imprisonment.

Forfeiture

11.  Regarding the cash ($14,220) found in one of his jacket pockets, the defendant resisted an application by the prosecution to have it forfeited on the grounds that these monies are his earnings from his work as a casual construction site worker.

12.  The defendant chose not to take the stand but instead adduced the evidence of his interview with the police after his arrest (only a summary (See MFI-1)). In a nutshell, he told police that he worked in a construction site earning $800 to $1,100 per day before the Chinese New Year (CNY)(New Year day is on 28 January 2017), and after CNY only worked for a few days in the 2-3 weeks that followed. The salary was paid in cash on a certain day.  When asked how many days of work that salary represented, he did not really provide an answer for that. Because of going short of work, he turned to selling drugs.

13.  The law as it now stands is that forfeiture proceedings are civil in nature, it is for the prosecution to establish a prima facie connection between the money and the commission of an offence under the ordinance; once established, the onus would then be on the person claiming the money back to show on a balance of probabilities that he was entitled to it. (See Ngoma Juma Shabani CACC 214/2014 and Yeung Shek Kin HCCC 329/2016)

14.  The prosecution is seeking forfeiture of the money under Section 56 (1) of the dangerous Drugs Ordinance which provides in the first limb that a court may order the forfeiture of any money “which has been used in the commission of or in connection with” a drug trafficking offence (Section 56 (1)(a)), or in the second limb which has been “received or possessed by any person as the result or product of” such an offence (Section 56 (1)(b)).

15.  In answer to the question raised by the defence on appeal that the judge failed to identify which aspect or permutation of Section 56 (1) of the Ordinance had been satisfied in respect of forfeiture, the Appellate Court in Ngoma Juma Shabani said this: -

“The short answer to the first ground is that it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the ordinance is engaged when deciding whether to make an order of forfeiture. It will usually be obvious from the evidence in a contested trial, or from the agreed facts and other information presented to the court upon the hearing of a plea of guilty, as to what the basis of the application is. Indeed, one could readily envisage circumstances where both subsections (a) and (b) of section 56(1) were simultaneously engaged.”

16.  The cash in question ($14,220) is made up of the following denominations:

(1)	3 x $1,000 banknotes;
(2)	14 x $500 banknotes;
(3)	38 x $100 banknotes;
(4)	5 x $50 banknotes;
(5)	6 x $20 banknotes;
(6)	5 x $10 banknotes.

17.  The defendant’s claim is that this is his wages from work in the construction site, but evidence wise it’s entirely unclear what job he did, what position he held, and more importantly why his daily wages were not of a fixed amount but rather of a varying nature such as from $800 to $1,100?

18.  From what he told the police, it’s clear that the wages, though daily, were not paid on a daily basis but on a certain day. If that was the case, he must have a pretty good idea on the pay day for how many days of work he was given the salary, but strangely he did not, when asked, provide an answer for that. 

19.  It is also worth noting that the “wages” comprise 38 $100 banknotes, no reason was given why he was not paid with higher denominations like $500 or $1,000 banknotes, which would normally be expected for a salary payment. Put simply, I do not believe that the money in question was his earnings from work.

20.  He told police that he sold the drugs for $600 a packet, and at the time of arrest, he had only concluded one transaction and the $600 he received was put in the other pocket. He did that, counsel said, clearly not wanting to get the drug proceeds mixed up with his own money.

21.  The drug transactions the defendant was engaging are clearly cash only; in other words, the buyer would be expected to pay for the drugs in cash - I don’t think the defence would argue with that. In the circumstances, it wouldn’t be right for the defendant to assume every buyer would pay with the exact amount, so he must have cash on him to give the change.

22.  According to what he said, at the time when he was going to sell the drugs, he had cash $14,220 on him, which consists of many lower denominations like $100 banknotes.  Firstly, I do not believe this is his earnings from work; secondly, even if so, but when it would be used in connection with an offence of drug trafficking, i.e. being used as change, it’s still caught by the provision.

23.  One might then argue that a $1,000 banknote couldn’t be used as change. But bearing in mind the drugs cost over $500 a packet, more precisely $600, it wouldn’t be unreasonable in the circumstances to expect a buyer to pay with a $1,000 note. Let me recap the amount of cash found on him, in particular 3 $1,000 notes, 14 $500 notes and 38 $100 notes; given the cash like this, I do not believe him when the defendant told the police that he had only done one drug transaction before he was arrested.    

24.  The scenario I outline above falls within both limbs of Section 56(1), I therefore order that the cash, $14,220, be forfeited to the Government.