MULTI-SOLID LTD. v. SECRETARY FOR JUSTICE

IN THE COURT OF APPEAL

1993, No.601

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter $2,000,000 worth of diamonds which belonged to the applicant company were stolen in a robbery. The diamonds were, it appeared, sold by the robbers who then distributed the proceeds of the sale among themselves. They were tried before Deputy Judge Evans and at the trial, which concluded in September 1993, three of them were convicted.

2. The police upon apprehending the robbers had recovered $143,000 which was part of the proceeds of the sale of diamonds.

3. At the end of the trial Crown Counsel handed up to the judge a document which was headed "Goods forfeited to the Crown by order". This document does not give any indication under what Ordinance the application was being made. The judge dealt with the application in a somewhat perfunctory way saying:

"There is no contest it is part of the proceeds of the sale of the diamonds, all right. Does anybody want to say anything about any of that. I order then for forfeiture in terms of the draft that has been handed up."

4. The application, it seems to us, must have been made under s.102 of the Criminal Procedure Ordinance which provides that where property has come into the possession of the court, the court may, upon application, make an order for the delivery of such property to the person who appears to be entitled thereto or, if that person is unknown, order that the property be forfeited. The money here clearly should have been ordered to have been delivered to the appellant company. It was the proceeds of the sale of diamonds which had been stolen from it. No consideration was given to this aspect of the matter at all. The company was never asked whether they wished to appear to make any application. Indeed that would hardly have been necessary as the court should, in our view, of its own motion, have ordered that the money be delivered to the company. Prosecuting Counsel was wrong to make the application in the way in which she did and the trial judge was wrong to have made the order which he did.

5. Mr. Chan, who appears for the appellant company, comes before us today appealing against that order. Mr. Saw, who appears for the Director of Public Prosecutions, with reluctance opposes the application. He argues that there is no power to make such an application under the Criminal Procedure Ordinance. It seems to us clear, having examined s.83Q of that Ordinance, and s.83X which deal with the procedure in relation to appeals and the restitution of property and, having examined the relevant criminal appeal rules, that Mr. Saw is correct and that there is no right to institute an appeal in circumstances such as apply here. There is, however, no doubt that the applicant should have been heard at the trial below, that the applicant was entitled to have had an order made in his favour, that the order which was made was clearly wrongly made and that the money has been held since the time of the order in consequence of an ultra vires order. It is the concluded view of this court that the entitlement to the money lies with the appellant company and that this entitlement should be recognized by the return of the money to that company without its being put to the trouble and expense of further proceedings. We also, with respect, suggest that the return should include an award of interest and that consideration should be given to an ex gratia payment to cover the expense to which the appellant company has been put in the years since the ultra vires order was made. We can do no more than give these indications. The appeal must be dismissed.