HKSAR v. HO LEE CHIN

HCCC 93/2020

[2021] HKCFI 3161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 93 OF 2020

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R E A S O N   F O R   F O R F E I T U R E   O F   M O N E Y

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1.  In this case where the defendant was found guilty after trial of one count of Trafficking in a dangerous drug, the prosecution applied for disposal of exhibits. The Defence has no objection except to the application for forfeiture of a part of the money found from the defendant, to the amount of HKD21,930[1]. Having satisfied that the money should be forfeited, I made an order in terms in relation to the prosecution’s application for disposal of exhibits, including forfeiture of the money in question. This is the reason for my decision.

2.  The facts in relation to Count 1 may be summarised as follows.

3.  When Customs officers inspected a parcel posted from Spain to the address as stated in the indictment, suspected dangerous drug was found.  The Customs took over the parcel and conducted an exercise of controlled delivery.  In the first such exercise, nobody received the parcel.  Then the Customs received calls from the defendant and arrangement for further delivery was confirmed.  On 7 May 2019, during the second controlled delivery, the defendant received the parcel, pretending to be the wife of the original consignee and having produced to the officer proof of identity of the original consignee.

4.  The defendant was a Malaysian citizen who came to Hong Kong on 12 April 2019 and since the following day had been staying in the room to which the parcel was sent.  Under caution, she admitted to have received the parcel upon request of another person called “Lo Gwai” for a promised reward of $5,000.

5.  There were two other batches of dangerous drug found inside the flat the defendant was staying.  One batch was a relatively small quantity of ketamine contained in a transparent plastic bag put inside an unsealed carton box.  The other batch was liquid cocaine contained in 11 bottles with the appearance of ordinary wine bottles.  The defendant was charged in relation to these two batches of drug. She denied knowledge and was found not guilty for the two counts.

6.  The basis of the prosecution’s application is section 56(1) of the Dangerous Drugs Ordinance[2], which provides:

“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).”

7.  Ms Catherine Wong, representing the defence, submitted that the prosecution failed to fulfil the conditions for forfeiture as stated in the statutory provision and in any case the court should exercise discretion not to order forfeiture of the money.

8.  In this connection, the defendant elected to testify.  The crux of her evidence was that the money was her savings from her earnings and contribution from children over the several years before she came to Hong Kong, and that the money had nothing to do with any drug trafficking activities, nor was reward for that purpose.  It was undisputed evidence from the defence that the defendant had been in stable and gainful employment in Malaysia and that the children of the defendant were working.

9.  In consideration, I had had regard to the observation by the Court of Appeal in HKSAR v Ngoma Juma Shabani[3], a case relied upon by Mr Duncan Percy, Counsel representing the Prosecution, as well as HKSAR v Shoki Fatuma Ramadhani[4].

10.  In both of the above said cases, the test in Wong Hon Sun v HKSAR[5] was adopted and it was held that the prosecution bears the onus of establishing that the item in question is liable to forfeiture.  Once it is established, a prima facie case for an order for forfeiture is made out and in the absence of evidence to support an exercise of the discretion to order returning of the item to the defendant, the court will make an order for forfeiture.  Regarding the burden on the party opposing the forfeiture order, it may be discharged by proving facts according to the balance of probabilities.[6]

11.  I have considered the testimony of the Defendant, given during the trial if relevant and for this matter, and submission of Counsel.

12.  It was my finding that the defendant did not come to Hong Kong for an innocent purpose.  It clearly was consistent with the verdict of the jury.  Besides, that I have this finding does not mean that I excluded the possibility that the defendant could have stayed in Hong Kong for some legitimate purpose at the same time, such as enjoying the place or going to have sightseeing in the mainland as she had claimed.  My finding was that her primary purpose for coming here was not an innocent one.  Having considered the whole circumstances as revealed by evidence, in my judgment this must have been the case.

13.  On the day of her arrest, the defendant had been staying in the flat for almost a month.  Whilst she might not have to pay for the accommodation, she herself accepted that she had to bear her own daily expenses during her stay in Hong Kong.  She had taken active steps in receiving this batch of illegal drug and also by disguising to be the wife of the consignee.  She did so for a reward.

14.  The defendant purported to be a visitor when she sought entry into Hong Kong and she was permitted to enter in that status.  The money in the possession of the defendant must have served the purpose of satisfying the authority, if necessary, that she had the means to stay in Hong Kong.

15.  Evidence revealed that there was no concrete plan of the defendant to leave Hong Kong even after having received the parcel in question.  She came to Hong Kong with a single trip flight ticket paid by those behind the scene.

16.  In the circumstances, I was satisfied that the money in question was liable to forfeiture.  It was money which has been used in the commission of or in connection with the offence of Trafficking in a dangerous drug.

17.  I therefore proceeded to consider whether in all the circumstances a forfeiture order should not be made.

18.  I noted that the prosecution did not seek to challenge that the money was that of the defendant herself.  However, I did not think this matter by itself justified my exercising of discretion to make an order to return the money to the defendant, as the money served the purposes I have just mentioned.

19.  Ms Wong pointed out that the prosecution did not seek to forfeit the money in Renminbi and Malaysian currency and submitted that such inconsistent approach supports exercise of the discretion.

20.  I did not agree to this submission.  As regards the Renminbi, there was evidence that the Renminbi was exchanged to facilitate the intended tour of the defendant to the mainland and there was objective evidence to support this assertion.  The Malaysian currency was only of a small amount of $60 and I did not consider the decision of the prosecution of not applying for forfeiture of this sum could be said to be an inconsistent approach and in any case I did not think it was a material factor which might affect my decision of whether or not to exercise the discretion.

21.  Having considered the whole of the circumstances, in my judgment the conditions for forfeiting the sum of money had been met and there were insufficient reasons for me to exercise the discretion not to order forfeiture.

22.  I have considered whether there were reasons not to forfeit the whole sum and came to the conclusion that there were insufficient reasons to do so.  I therefore made the order as mentioned in paragraph 1 above.