HKSAR v. Cheng Ka Kit

HCCC 362/2015

CRIMINAL CASE NO 362 OF 2015

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DECISION ON DISPOSAL OF EXHIBITS
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1.Having sentenced the defendant to a term of imprisonment of 6 years following his plea of guilty in respect of two counts of trafficking in a total quantity of 71.91 grammes of heroin hydrochloride, an application was made by the prosecution for an order for the disposal of property as specified in a Schedule submitted to the Court.

2.Mr Andrew Raffell, counsel for the prosecution, brought to the Court’s attention that items 24 to 37 of the Schedule consisted of beef knives and machetes that were found in the flat where the drugs as described in Count 2 were also found.  The issue was whether these items come within the terms of section 102 of the Criminal Procedure Ordinance, Cap 221, or section 56 of the Dangerous Drugs Ordinance, Cap 134, for an order that they be forfeited.

3.Section 102 of the Criminal Procedure Ordinance provides:

“(1) Where-

(a) any property has come into the possession of a court, the police or the Customs and Excise Service in connection with any offence;

(b) it appears to a court that an offence has been committed in respect of any property in the possession of the court, the police or the Customs and Excise Service; or

(c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2) Of its own motion or upon application, a court may-

(a) in respect of property to which subsection (1)(a) applies-

(i) make an order for the delivery of any such property to the person who appears to the court to be entitled thereto;

(ii) where the person so entitled is unknown or cannot be found, make an order that the property be sold or retained in the possession of the court, the police or the Customs and Excise Service; or

(iii) if the property is of no value, order that the property be destroyed; and

(b) in respect of property to which subsection (1)(b) or (c) applies-

(i) deal with such property under paragraph (a) in the like manner as property to which subsection (1)(a) applies; or

(ii) make an order for the forfeiture of the property.

(3) Save where the property is perishable, no order for the delivery, sale or forfeiture of property shall be made under subsection (2) unless the court is satisfied that the property will not be required as an exhibit in any proceedings before a court.

(4) Where under subsection (2) a court orders the sale or retention of property, and no person establishes a claim to the property or the proceeds of sale thereof within 6 months from the date such order is made, the property or the proceeds of sale shall become the property of the Government.

(5) An order made under subsection (2), other than an order for the retention of property, shall not, except when the property is a live animal, bird or fish or is perishable, be carried out until the period allowed for making an appeal against the order has expired or, where such an appeal is duly made, until the appeal has been finally determined or abandoned.

(6) Where by any other Ordinance it is provided that any particular property or class of property shall or may be forfeited, destroyed or disposed of, then the provisions of such Ordinance shall prevail.

(7) The power conferred on a court by subsection (2)(b)(ii) to order the forfeiture of property shall not apply in respect of immovable property or any aircraft, motor vehicle or ship.

(8) In this section court (法院、法庭) includes a magistrate.”

4.Section 56 of Dangerous Drugs 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).

(2) An order under subsection (1) for the forfeiture of a thing may include a term permitting a specified person or persons to redeem such thing on such conditions, including conditions as to the payment of the value or a proportion of the value thereof to the Government, as the court may think fit.

(3) The court may require that notice of an application for forfeiture under subsection (1) shall be given in such manner as it thinks fit.

(4) The Chief Executive in Council may, in his absolute discretion and after any proceedings under this Ordinance are concluded, entertain and give effect to any moral claim to or in respect of any money, thing or other property which has been forfeited to the Government.”

5.I have set out in full these two statutory provisions because an issue arose in oral argument before me as to whether section 102(6) of the Criminal Procedure Ordinance, meant that if there was a forfeiture power under another Ordinance that should prevail and an application should be made pursuant to that power only.  I do not have to decide this issue, as I am satisfied that under either of these sections the items in question can be forfeited by order of the Court.  See HKSAR v Rawe Waikama Magarya, CACC 215/2014, 25 November 2014, unreported. 

6.The items as already noted were found in the flat and the defendant when questioned about them said that he purchased them for “Ah Sang”.  Mr Richard Turnbull, for the defendant, took a neutral stance in relation to the application for forfeiture of these items as the position of the defendant was that the items did not belong to him. 

7.On the material before me, I make the following findings of fact.  The flat was used to package and distribute heroin, and to provide a venue for drug abusers to take heroin.  The operation of the flat was under the control of “Ah Sang”.  “Ah Sang” instructed the defendant who was “a runner” for the delivery of drugs to buy the items.  The items were stored in the flat.  The number and type of items would indicate that they were to be used as offensive weapons associated with the drug activities taking place at the flat. 

8.On the basis of these findings of fact, I am satisfied that the items can be forfeited under section 102(1)(b) and (c), and (2)(b)(ii) in that the items are offensive weapons in the possession of the occupier of the flat where drug activities were taking place; and section 56(1)(a) and (b) in that the items are offensive weapons used in connection with or possessed by a person as a result of drug trafficking activities. 

9.I therefore make an order in terms for the disposal of the exhibits, in particular the forfeiture of items 24 to 37 of the Schedule. 

Mr Andrew Raffell, counsel on fiat, for HKSAR

Mr Richard Grant Turnbull, instructed Eli K. K. Tsui & Co., assigned by Director of Legal Aid, for the defendant