Read the full judgment text of CACC 214/2014 on BabelCite. This Court of Appeal judgment was delivered on 2 September 2015 before Lunn VP, Macrae JA, McWalters JA.
Criminal law – drug trafficking – forfeiture of money – Dangerous Drugs Ordinance (Cap 134) s.56(1) – meaning of 'has been used in the commission of or in connection with' an offence – whether judge must identify which limb of s.56(1) is satisfied – sufficiency of evidence linking cash to drug trafficking offence – appellant a Tanzanian national intercepted at Hong Kong International Airport with 380 grammes of heroin hydrochloride concealed in his body and US$4,500 in cash – appellant sentenced to 10 years and 4 months' imprisonment after guilty plea – order for forfeiture of US$4,500 made by Patrick Li J – whether s.56(1) entitled judge to make forfeiture order without specifying which subsection or alternative applied – Held (Lunn VP and Macrae JA): following HKSAR v Chan Chi Wai Jimmy [2011] 4 HKLRD 302, a judge is not normally required to identify which aspect or permutation of s.56(1) is engaged; if the inference is that at least one of the statutory alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pinpointed – Held (McWalters JA, dissenting on this point): adequate reasons require the judge to identify the particular limb or limbs of s.56(1) found proven, both to inform the losing party and to enable the appellate process – On the question of sufficiency, the court followed R v Lai Chin Hung [1980] HKC 283, holding that a prima facie connection between the seized money and an offence justifies the inference of a connection with the offence, and drew on R v Osei (1988) 10 Cr App R (S) 289 for the proposition that a foreign visitor must be in a position to demonstrate means to immigration authorities – On the construction of s.56(1), the words 'has been used' import the past tense so far as the use of the money is concerned, but do not require the offence itself to be completed; 'used' is given a wide meaning encompassing possession of the money as part of a trafficker's disguise – Applied: the appellant, a Tanzanian earning US$100 per month, had flown from Africa with HK$560,000 worth of heroin in his body and admitted that part of the US$4,500 was to fund his travel to Guangzhou and to pay for his hotel, making the money plainly connected with the offence – Appeal dismissed; forfeiture order upheld.
Legal issues: Whether the judge was required to identify which limb of s.56(1) DDO was satisfied · Whether there was sufficient evidence the US$4,500 fell within s.56(1) DDO · Construction of 'has been used' in s.56(1) DDO
Outcome: Appeal against forfeiture order dismissed
Cited by 4 cases