HKSAR v. Zhou Guifen

HCMA 751/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 751 OF 2015

(ON APPEAL FROM FLCC 5778 OF 2015)

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J U D G M E N T

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1.On 18 November 2015 the appellant pleaded guilty before Mr Raymond Wong, Magistrate to one charge of entering Lok Ma Chau Spur Line Control Point, a closed area, without a permit, contrary to section 38(1)(a) of the Public Order Ordinance[1].

2.On 3 December 2015 the appellant was sentenced to serve 80 hours community service.  At the same hearing all exhibits, including nine iPhones[2], were ordered to be forfeited.  The appellant appeals against the order for forfeiture of the nine iPhones. 

3.The facts admitted by the appellant were that at 16:23 hours the same day the appellant was seen by the police standing alone at the Departure Hall of the Lok Ma Chau Spur Line Control Point.  The appellant was holding a red bag inside which were a number of iPhones.  No permit had been issued by the police allowing the appellant to enter the closed area.  The police warned the appellant to leave for the Mainland via the boundary check point. 

4.The appellant however remained for thirty five minutes during which she was observed to have stayed in the closed area for the purpose of conducting general merchandise operation activities.  The appellant was approached by three females and handed over a red bag and three black plastic bags to the females. 

5.The police arrested and seized from the appellant a plastic bag inside which were the nine iPhones.  Under caution and in a later record of interview the appellant said, “I just helped my friend to hold the phones and handed over them to others.  I did not receive any money.” 

6.In a later record of interview the appellant claimed she was waiting to take her daughter, who was a cross-boundary student, back to the Mainland; that she was asked by a male called Ah On to distribute the phones without any reward; and that she had distributed mobile phones to three females.   

7.The prosecution applied for forfeiture of the nine iPhones pursuant to section 102(1)(b) and (2) of the Criminal Procedure Ordinance[3].

8.On the facts admitted by the appellant the magistrate found that by remaining in the closed area for a further 35 minutes after being warned to leave, the appellant had entered the closed area to deliver the iPhones to other persons[4]. The magistrate was therefore satisfied that the offence had been committed in respect of the iPhones and ordered that they be forfeited.

9.Yesterday a fax was received from the appellant wishing to abandon the appeal.  Upon receipt of the fax my clerk contacted the appellant on the mobile phone number provided by the appellant to confirm she had sent the fax.  The appellant confirmed she had sent the fax and said she would not appear in court today.  Mr Brook also informs the court the police contacted the appellant this morning and she said she would not come to court.  The appellant has not appeared today.   

10.Section 117 of the Magistrates Ordinance[5] provides that an appellant may abandon the appeal at any time provided that this is not less than 2 clear days before the hearing of the appeal.  The notice of abandonment having been received yesterday section 117 does not apply.  To comply with the provisions of the Magistrates Ordinance the court is required to dismiss the appeal[6].

11.Having considered the appeal papers and the submissions made by counsel who appeared for the appellant in the magistracy[7], I am satisfied that the nine iPhones were liable to forfeiture and thatthe magistrate was correct in exercising his discretion to order forfeiture of the nine iPhones. On the papers before me I would have made the same order.  The appeal is accordingly dismissed. 

Mr Edward J Brook, SPP of the Department of Justice, for the respondent

The appellant in person did not appear