HKSAR v. ABDALLAH TATU SAID

HCCC 539/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 539 OF 2014

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J U D G M E N T

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1. The defendant pleaded guilty to a single charge of trafficking in a dangerous drug contrary to s 4 (1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134 (the Ordinance) before Eastern Magistracy on 19 December 2014. She was committed to the High Court for sentence.

2. On 11 March 2015 the defendant confirmed her plea of guilty and her admission of the summary of facts which were in support of the charge.

3. After hearing mitigation by her solicitor Mr Jonathan Midgley I sentenced her to 14 years’ imprisonment.

4. After sentencing her, the prosecution applied for an order of the disposal of case exhibits. Amongst those exhibits was US$5,300 which the prosecution applied to be forfeited.  Having confirmed with Mr Midgley that he had no objection to the application I made an order (amongst others) that the US$5,300 be forfeited. 

5. The defendant appealed to the Court of Appeal out of time seeking for that order to be set aside on the basis that Mr. Midgley's lack of objection was a mistake.  The Court of Appeal set aside the order of forfeiture and remitted the matter back to myself for fresh determination: paragraph 1 of CACC218/2015 refers.

6. It is at this hearing with the benefit of argument, the question of the forfeiture of the US$5,300 is therefore determined.

7. Mr Bobby Cheung, Senior Public Prosecutor for the prosecution applies for the forfeiture of US$5,300 seized from the defendant in the captioned drug trafficking case pursuant to s 56 of the Ordinance.  The defendant through her counsel Mr Andrew Bullet opposes the application.

8. Section 56(1) of the Dangerous Drugs Ordinance (“the Ordinance”)  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).”

9. The relevant legal principles governing forfeiture applications are those laid down by the Court of Final Appeal in Wong Hon Sun v. HKSAR [2009] 12 HKCFAR.  They can be summarized as follows:

(i) applications for forfeiture are civil in nature;

(ii) the applicant making the forfeiture application bears the burden of establishing that the seized article is liable to forfeiture;

(iii) the burden of proof is discharged to the civil standard of the balance of probabilities; and

(iv) once this has been done then there is prima facie case for an order of forfeiture in respect of the seized article.

10. The Court of Appeal in HKSAR v Ngoma Juma Shabani CACC214/2014 further considered the topic of forfeiture.  The Court held that the first issue that arises is whether or not there was a prima facie connection between the money and the commission of an offence under the Ordinance or the Drug Trafficking (Recovery of Proceeds) Ordinance.  If there is a prima facie connection the onus will in those circumstances shift to the one (ie the defendant) claiming her money back to satisfy the court on the balance of probabilities that she is entitled to have it. 

11. Have the prosecution (the applicant) proved on a balance of probabilities that there is there a prima facie connection between the US$5,300 and the offence of trafficking in the dangerous drugs?

The relevant facts

12. The facts admitted by the defendant upon her plea of guilty was that upon her arrival in Hong Kong from Nairobi Kenya she was taken to the Queen Elizabeth Hospital (QEH) on 28 April 2014 for medical examination on suspicion that she had concealed dangerous drugs in her body.  During medical observation at the hospital she discharged one pellet of dangerous drugs in the accident and emergency ward.  Between 28 April 2014 to 1 May 2014 she discharged a total of 80 pellets of the dangerous drugs at the hospital which were in the amount as stated in the charge.

13. At the time of her interception the defendant had among her other belongings cash of US$5,300, Tanzanian shillings 6,000 (about US$2.7) and Kenyan shillings 1,700 (about US$16.8).

14. The drugs concealed in her body were at a value of approximately HK$500,000. 

Prosecution case

15. It was the prosecution’s case that the defendant admitted that she was a drug trafficker from Africa.  Upon her arrival in Hong Kong she was in possession of US$5,300.  The antecedent statement submitted to court stated that the defendant earned US$30 a month.  In mitigation it was said that she works to make ends meet and was in abject poverty and fighting to survive. Based on these points Mr Cheung submits that there is prima facie evidence that the funds are in connection with the offence of trafficking in dangerous drugs. 

Prima facie case

16. I was satisfied that the prosecution had established there was a prima facie case as to forfeiture.  I drew the irresistible inference that the US$5,300 were to be used in or connected with and were for the purpose of importing drugs into Hong Kong. 

17. Having ruled that there was a prima facie connection to the drug trafficking offence the defendant elected to give evidence. 

The defendant’s evidence

18. The defendant gave evidence.  She stated that she lived in Tanzania.  She ran a hair salon business.  She initially stated that she earned about 10,000 – 50,000 Tanzanian shillings per month.  Upon further questioning by her counsel Mr Bullet she then stated that she was unable to give any figure of her earning per month as she was not good at maths and in any event her income and expenditure were kept written in a book of which book she did not have with her. 

19. She said that sometimes she could earn 50,000 Tanzanian shillings in a day if she had clients from a wedding, thereafter however she may not earn anything for a few days.  Sometimes she only had a few haircuts to do a day and sometimes many.  In summary, her business was irregular and her income was variable. 

20. Apart from running her hair salon, she derived income from selling wood and renting out part of her home.  She was unable to say how much income she earned from either of those. 

21. She was the sole breadwinner of her family, which comprised of her seven siblings.  Her parents were deceased.  She had the sole responsibility to support them.  She was 31 years of age at the time of arrest and her youngest sibling was still at school and save for two of her sisters who were married the other siblings just stayed at home.

22. The US$5,300 found in her possession was partly her savings earned from her hair salon business and the other part was money given by her customers to buy wigs for them in Hong Kong. 

23. She had six customers and/or friends who had given her 350,000 Tanzanian shillings (about US$1,200) to buy wigs for them.  She was going to purchase them in Hong Kong then take them back to Tanzania. 

24. The remainder of the money (US$4,100) was her savings over the past 8 years, since starting her salon business in 2006.  She brought her savings to Hong Kong to purchase hair products for her business and other products such as watches to sell at her salon in Tanzania. 

25. She agreed to take the drugs to Hong Kong as she was to be rewarded with US$6,500.  That sum was attractive to her as it would have helped her business turn over and lessen the burden she had of looking after her family in Tanzania.  

26. She was not paid her reward for the delivery of the drugs nor was she given any money to facilitate the delivery.  The agreement was that once drugs were successfully delivered to Hong Kong she would receive her reward. 

Prosecution submissions

27. It is the prosecution’s case that the defendant was extremely poor.  She was in a desperate financial situation therefore she accepted this dangerous mission to traffick in the drugs.  She was the sole breadwinner supporting a large family with an income of US$30 a month. Her income was therefore insufficient to have any savings.  Mr Cheung submitted the money found in her possession was her reward or part of her reward she received for bringing the drugs to Hong Kong. 

Defence submissions

28. Mr Bullet submits the prosecution have not proved there is a case for forfeiture of the whole sum.  The defendant’s income would clearly allow her to build up the modest savings she claims.  The cash found on the defendant was far in excess of the amount needed by her for her subsistence during a brief stay in Hong Kong and was largely intended for the legitimate purpose of purchasing beauty products, so that the great majority of the cash is not liable to forfeiture being neither the result or product of the offence nor used in connection with it. 

Discussion

29. There was no dispute by Mr Cheung when Mr Bullet suggested that in April 2014 there 1648 Tanzanian shillings was equivalent to US$1.  I would therefore take that exchange rate for the purposes of this hearing. 

30. I found the defendant to be evasive as to her earnings.  When she was first asked about her income at the commencement of her evidence in chief she testified that she was earning about 10,000 to 50,000 Tanzania shillings, (US$30 = 50,000 Tanzanian shillings) however when asked to elaborate and give a more accurate account of her earnings she became evasive and said it depended on a number of things.  She said she was unable to say how much she earned because each month was different and on top of which she said she was not good at maths. 

31. Mr Midgely in mitigation accepted what was stated in the antecedent read by Mr Cheung that the defendant earned US$30 a month, however he then went on to say that her monthly income was HK$5,000 (about US$640).  US$30 a month is equivalent to HK$234, not HK$5,000.  50,000 Tanzanian shillings is equivalent to about US$30. 

32. Telling as to the defendant’s assessment of what was a significant amount of money was when she was asked by Mr Bullet if she earned 50,000 Tanzanian shillings a month, she looked astonished and expressed with surprise “that was a lot of money.”  Yet, she immediately went on to say she could sometimes earn that amount in a day if there were clients involved in a wedding.  Despite the defendant’s notion that US$30 was a large amount, I nevertheless accept that the defendant’s average monthly income was below or approximately US$30. 

33. The theme of the mitigation advanced by Mr Midgely was that the defendant lived in “abject poverty and was fighting to survive.”  The crux of the defendant’s evidence at this hearing was that she was burdened with the support of her family and her income was unstable.  Her evidence was however she could still make ends meet.  In making ends meet, I do not believe that the defendant would have had any savings at all given her income and heavy financial responsibilities in supporting her large family and running a business.  I do not accept that she would have been able to save any or any significant sums.  In any event, I reject her evidence that the US$5,300 was her 8 years of savings. 

34. I also reject her evidence that the balance of approximately US$1,200 was given to her by her friends to purchase wigs.  I do not believe that given her income of about US$30 that her friends or clients would have given her approximately 40 times her monthly income to take to Hong Kong to buy wigs. 

35. Further the defendant was on a drug run to Hong Kong and was to be rewarded a sum 176 times her monthly income, I do not accept her evidence that in the meantime she was going to incidentally purchase wigs for her clients on her stay here (which on the defendant’s evidence she did not know how long she was going to stay in Hong Kong). 

36. Further given the financial constraints faced by the defendant, I do not believe that the traffickers would not have provided her with any funds for her delivery of the drugs or at least given her part of her reward but wait till she arrived in Hong Kong to provide her with the expenses and her reward. 

37. Having carefully considered the defendant’s evidence I reject her evidence that this money was either her savings or money from her customers. 

38. The shillings that the defendant had in her possession amounted to about HK$150.  This was insufficient for any accommodation or living expenses for her stay in Hong Kong.  The significant sum was the US$5,300 in cash.  I was satisfied that was to be used to show to the immigration officers that she had sufficient funds to support herself upon her entry to Hong Kong. 

39. On the evidence before me I was satisfied that the money was used in the commission of or in connection with the offence of trafficking in dangerous drugs and or was money received as a result of the offence. 

40. In the circumstances I make an order forfeiting the US$5,300.