KO CHI YUEN v. R.

1993, No. 298
(Criminal)

H E A D N O T E

Article 11(1) of the Bill of Rights does not extend to confiscation proceedings under the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap.405.

If it did, then the assumptions contained in section 4(2) and (3) of that Ordinance would be justifiable exceptions to the normal principle that the prosecution must prove the defendant's guilt beyond reasonable doubt.

IN THE COURT OF APPEAL

1993, No. 298
(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is the judgment of the Court by which we give the reasons why, at the conclusion of the hearing, we dismissed this application for leave to appeal against sentence.

2. On October 12, 1992, the applicant, a man then aged 42 and of previous good character, pleaded guilty in the High Court to both counts in the indictment preferred against him.

3. Both counts were in respect of dangerous drugs, namely, methyamphetamine hydrochloride, which is commonly known as "ice"

4. The first count was of manufacturing, contrary to section 6(1)(a) of the Dangerous Drugs Ordinance, Cap. 134. And the second count was of possession for the purpose of unlawful trafficking, contrary to section 7 of that Ordinance. Each offence carries the same maximum penalty: a $5 million fine and life imprisonment.

5. 408.57 grammes was the quantity manufactured.

6. 19.9268 kilograms was the massive quantity possessed for the purpose of unlawful trafficking.

7. Both offences were committed on May 18, 1991. And both offences were committed at the applicant's North Point flat: where he lived with his wife, their three young children and his aged mother.

8. The applicant denied that he knew that the dangerous drugs were ice. He asserted that he believed that they were "soft drugs".

9. So the judge, Leonard J, heard evidence on the issue. That left him satisfied beyond reasonable doubt that the applicant knew that the dangerous drugs were ice.

10. Sentence was passed on October 16, 1992. The applicant received 17 years' imprisonment by way of concurrent terms of that duration.

11. Next, the judge turned to the question of a confiscation order under section 3(6) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap.405, which deals with persons who have already been convicted and sentenced in respect of drug trafficking offences.

12. From now-on, unless we indicate otherwise, all references to sections will be to sections of that Ordinance.

13. On June 2, 1993, the judge made a confiscation order in the amount of $8,414,818.00 and fixed three years as the prison term which the applicant was to serve if any of that amount is not duly paid or recovered. It is against that three-year term that the applicant seeks leave to appeal.

14. In determining whether the applicant had benefited from drug trafficking, the judge was satisfied beyond reasonable doubt, without the aid of any assumption, that between March 7, 1990, and May 18, 1991, the applicant (a man whose honest means and earnings were modest) received a total of $8,414,818.00

15. The judge then turned to the assumptions contained in section 4(2) and (3).

16. Subsection (2) reads:-

"The High Court or the District Court, as the case may be, may, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the following assumptions, except to the extent that the defendant shows that any of the assumptions are incorrect in his case."

17. And subsection (3) reads:-

"Those assumptions are -

(a) that any property appearing to the court -

(i) to have been held by him at any time since his conviction; or

(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him or another.

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him or another; and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a payment or reward, he received the property free of any other interests in it."

18. Making those assumptions and not finding that the applicant (who neither gave nor called evidence in the confiscation proceedings) had shown them to be incorrect, the judge determined that he had benefited by $8,414,818.00 from drug trafficking. Hence the confiscation order in that amount.

19. The applicant's grounds of appeal boil down to the contention that the section 4(2) and (3) assumptions are inconsistent with article 11(1) of the Bill of Rights and have been repealed by reason of such inconsistency.

20. As is well-known, article 11(1) provides that:-

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

21. Does article 11(1) extend to confiscation proceedings such as these?

22. Certainly, the presumption of innocence is capable of extending beyond conviction. It will so extend to reverse onus provisions which render a person convicted of one thing liable to be punished as if he had been guilty of something more than that. This Court so held in R. v. Wong Yan Fuk, Magistracy Appeal No. 414 of 1993, November 18, 1993 (unreported).

23. But that is not the situation here.

24. What we have here are assumptions designed to make convicted and sentenced drug traffickers disgorge their ill-gotten gains. When a prison term in default is fixed, that is not to punish him for benefiting from drug trafficking. It is to enforce the court's order for payment.

25. A person against whom a confiscation order is sought is not charged with benefiting from drug trafficking. There is no such offence known to the law.

26. Article 11(1) does not extend to confiscation proceedings such as these.

27. But if it did, then the section 4(2) and (3) assumptions would be justifiable exceptions to the normal principle that that the prosecution must prove the defendant's guilt beyond reasonable doubt.

28. The assumptions are not ones which the court must make. They are ones which the court "may" make.

29. Powers given to the courts are of course to be exercised rationally and realistically. The assumptions are only to be made when (as in the present case) it is rational and realistic to make them in the context of the facts duly established.

30. And giving the courts power to make assumptions such as these when it is rational and realistic to do so is proportionate to the grave danger to society of leaving drug traffickers rich and to that extent powerful even when behind bars.

31. For these reasons, we dismissed this application.

32. Before parting with this case, we wish gratefully to acknowledge the assistance which we have received from counsel on both sides. They prepared their skeleton arguments with care, and supplied them in time for us to study the same before the hearing commenced. We hold that out as an example for others to follow.