HKSAR v. CHAN CHI WAI, JIMMY

HCCC 300/2010

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H E A D N O T E

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(1) The onus of proof in an application for forfeiture under s. 56(1) of the Dangerous Drugs Ordinance, Cap. 134, is to be approached on the general principle that whoever alleges must prove, but bearing in mind Lord Reid’s observation in Dorman Long (Steel) Ltd v Bell [1964] 1 WLR 333 at p. 335 that “after all the evidence has been led the initial onus of proof is rarely of importance.”

(2) The standard of proof in such an application is proof on a preponderance of probability, but bearing in mind that the strength of the evidence needed to prove an allegation on a preponderance of probability must be commensurate with the seriousness of the allegation to be proved.

(3) Cases like these will often depend on the drawing of inferences from proved or admitted circumstances.

(4) Section 56(1) does not require any specific connection between the money, thing or property to be forfeited and the accused’s offence or offences. Nor does it even require a conviction. It involves alternatives, namely: use in the commission of an offence under the Dangerous Drugs Ordinance or a drug trafficking offence within the meaning of the Drugs Trafficking (Recovery of Proceeds) Ordinance, Cap. 405; use in connection with any such offence; receipt as the result of any such offence; receipt as the product of any such offence; possession as the result of any such offence; or possession as the product of any such offence. If the inference is that at least one of these alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pinpointed.

(5) The circumstantial evidence in this case, viewed as a whole as circumstantial evidence should be viewed, was sufficiently strong to prove, on a preponderance of probability, that the $90,380 in question comes within s. 56(1) as the proceeds of, or working capital in the drug trade so that a discretion to order the forfeiture of that money to the Government arises. No greater precision than that is required. Requiring greater precision would run counter to the language of the statute and to its obvious purpose, which is to ensure as far as possible that crime does not pay, especially not when the crime involves dangerous drugs. It is to be borne in mind that the drug trade does not involve ledgers and accounts of the kind one can expect to find where legitimate trade is concerned.

HCCC 300/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 300 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is an application by the prosecution, opposed by the accused, for forfeiture under s. 56(1) of the Dangerous Drugs Ordinance, Cap. 134, which provides that:

“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).”

The word “may” being used, s. 56(1) confers on the court a discretion to order forfeiture where what the court is asked to order forfeiture of comes within the subsection.

2.  I have heard rival arguments on the onus and standard of proof in proceedings like these.  As to the onus of proof, I proceed on the general principle that whoever alleges must prove, but bear in mind Lord Reid’s observation in Dorman Long (Steel) Ltd v Bell [1964] 1 WLR 333 at p. 335 that “after all the evidence has been led the initial onus of proof is rarely of importance.”  As to the standard of proof, I consider it to be proof on a preponderance of probability.  But I bear in mind that the strength of the evidence needed to prove an allegation on a preponderance of probability must be commensurate with the seriousness of the allegation to be proved.

3.  Cases like the present one will often depend on the drawing of inferences from proved or admitted circumstances.  That is so in the present case.

4.  Section 56(1) does not require any specific connection between the money, thing or property to be forfeited and the accused’s offence or offences.  Nor does it even require a conviction.  It involves alternatives, namely: use in the commission of an offence under the Dangerous Drugs Ordinance or a drug trafficking offence within the meaning of the Drugs Trafficking (Recovery of Proceeds) Ordinance, Cap. 405; use in connection with any such offence; receipt as the result of any such offence; receipt as the product of any such offence; possession as the result of any such offence; or possession as the product of any such offence.  If the inference is that at least one of these alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pinpointed.  After all, even when it comes to convicting a person of an offence, juries are commonly and correctly directed to the effect that they do not have to be able to say to themselves that they know everything about the case.  As they are commonly and correctly directed, they can convict provided that they are sure of guilt even though they cannot say to themselves that they know everything about the case.

5.  On 5 May 2011 the accused appeared before me on an indictment containing three counts laid under the Dangerous Drugs Ordinance.  No evidence was offered against him on Count 1, which was of unlawful manufacture of dangerous drugs.  He pleaded guilty to Counts 2 and 3, each of unlawful trafficking in dangerous drugs.  The particulars of Count 2 are that he, on 19 March 2010 inside a private car at the car park of a building in the New Territories, unlawfully trafficked in 0.69 gms of a solid containing 0.67 gms of cocaine hydrochloride and 0.62 gms of a solid containing 0.49 gms of cocaine.  The partiaculars of Count 3 are that he, on that day inside a flat in that building, unlawfully trafficked in 219.66 gms of a solid containing 201.51 gms of cocaine hydrochloride and 23.49 gms of a solid containing 22.54 gms of cocaine.

6.  This application for forfeiture is for the forfeiture of $90,380 in cash which, it is not disputed, was found inside the accused’s shoulder bag in the flat where the dangerous drugs the subject-matter of Count 2 were found on 19 March 2010, the date of the two offences to which he pleaded guilty before me on 5 May 2011.  He was on that date sentenced by me to a total of 8 years’ imprisonment by way of concurrent terms of one year on Count 2 and 8 years on Count 3.  The application for the forfeiture of the $90,380 in cash which I have just mentioned was adjourned for hearing on a date to be fixed.  It was heard by me on 26 July 2011. This is my judgment on it.

7.  It is not in dispute that the accused has been unemployed since his last release from prison on 29 October 2008.  Nor is it in dispute that the retail value of the dangerous drugs the subject-matter of Counts 2 and 3 totalled $226,674.

8.  The accused chose, as he was entitled to choose, not to testify in the forfeiture application.  He places reliance on his having told the police in a video-recorded interview held on 19 March 2010, the date of his arrest, that the $90,380 in question was part of a large sum of money which he had won gambling in Macao.  His travel record showed that he had been to Macao at the time he says.  But whether he gambled there is another matter. And so is whether he won or lost.  Persons can, and no doubt sometimes do, win large sums through gambling in Macao.  But I do not feel able to say that their winning rather than losing money doing that is inherently probable.  I find the circumstantial evidence in this case, viewed as a whole as circumstantial evidence should be viewed, sufficiently strong to prove, on a preponderance of probability, that the $90,380 in question comes within s. 56(1) as the proceeds of, or working capital in the drug trade so that a discretion to order the forfeiture of that money to the Government arises.  No greater precision than that is required. Requiring greater precision would run counter to the language of the statute and to its obvious purpose, which is to ensure as far as possible that crime does not pay, especially not when the crime involves dangerous drugs.  It is to be borne in mind that the drug trade does not involve ledgers and accounts of the kind one can expect to find where legitimate trade is concerned. 

9.  In all the circumstances, a discretion to order forfeiture arises.  I consider it appropriate, in the exercise of that discretion, to order such forfeiture.  I order that the $90,380 in question be forfeited to the Government.