HKSAR v. Irumah Ibe Ben

HCCC 155/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 155 OF 2016

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REASONS FOR FORFEITURE APPLICATION

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1.On 8 June 2016, the defendant, having pleaded guilty to drug trafficking, was sentenced to 12 years and 4 months’ imprisonment. Following the pronouncement of sentence, the defendant took issue with an application by the prosecution to forfeit the sum of US$3,250 which he had in his possession at the time of the offence.

2.Mr John Dunn, for the defendant, submitted that the monies in question were not connected to the drug trafficking offence to which he had pleaded guilty but were monies that he borrowed from his brother-in-law.  The defendant gave evidence and produced various documents to show that he had previously visited Hong Kong on many occasions to buy used mobile phones for his business in Nigeria. 

3.Part of the agreed facts were that on 10 October 2015, the defendant departed from Cadjehoun, Benin (a country located in West Africa) and arrived in Hong Kong on 11 October 2015 having travelled from Nairobi, Kenya and Dubai, United Arab Emirates.  It is not in dispute that the air ticket was purchased by the person who he claimed asked him to bring the drugs to Hong Kong.  The drugs were transported by him digesting 73 pellets which contained the quantity of cocaine to which he had pleaded guilty.  The street value of the drugs at the time of the offence was $1,332,500. 

4.When the defendant was arrested, two mobile phones and cash of various currencies, including US$3,250, were seized from him.

5.As part of the defendant’s mitigation it was submitted that he worked as a mobile phone merchant, earning several hundred US dollars per month and as a result of his business he had travelled frequently to Hong Kong to purchase goods.  Between 2008 and 2015, he had travelled to Hong Kong on 45 occasions.  It was submitted that he committed this crime because of financial difficulties, largely due to the fact that his elderly father, who is 95 years of age, needed an operation. 

Statutory provisions

6.This application for forfeiture is made pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap 134.  Section 56 reads:

“(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.”

Relevant principles

7.The Court of Appeal in HKSAR v Rawe Waikama Magarya, CACC 215/2014, 25 November 2014, unreported, emphasised that forfeiture proceedings must be formally decided on the basis of evidence and the Court should alert a defendant in respect of the position it takes and in order to afford him the opportunity to give or call evidence on the issue.

8.When addressing different forfeiture provisions in the Import and Export Ordinance, Cap 60, the Court of Final Appeal in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, made these general statements of principle that would apply to section 56(1), namely, that forfeiture proceedings were civil in nature and that the applicant or claimant bore the onus of establishing according to the balance of probabilities that the seized item was either liable to forfeiture or belonged to the claimant. 

9.The Court has discretion as to whether or not to make an order for an item to be forfeited to the Government.  Normally, where forfeiture is sought by the applicant (the prosecution) the onus is on it to show on a balance of probabilities that the item should be forfeited (sometimes referred to as a prima facie case).  If a claimant asserts that the item belongs to him then the onus would pass onto him to show on a balance of probabilities that the item should not be forfeited and should be returned to him.

10.Under section 56(1), the Court has to be satisfied that either (a) the money or thing has been used in the commission of or in connection with a drug trafficking offence; or (b) the money or the other property was received or possessed by a person as a result or product of a drug trafficking offence.

11.If the prosecution have not shown on a balance of probabilities that the item seized comes within one or both of the limbs under section 56(1) then the item would normally be returned to the defendant unless there is some other claim or reason.  

12.Section 56(1) was addressed by the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57.  The provision was extensively considered in the majority judgment of Macrae JA who at §26 said:

“26.  ... In the vast majority of cases, a prima facie connection between the money or other property, the subject of the application for forfeiture, and the commission of an offence under the Ordinance or with a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance, will be obvious from the evidence, admissions and other information properly adduced at the trial or hearing (including, for example, the Summary of Facts, antecedent statements, mitigation, etc) and will, in the language of Lai Chin Hung, “justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence”.  In those circumstances, it would not be necessary for a judge to state the obvious, any more than it would be necessary for him to hear evidence all over again on the issue of forfeiture.  The onus will in those circumstances shift to the one claiming his money or other property back to satisfy the court on the balance of probabilities that he is entitled to have it.”

13.Macrae JA went on to discuss the facts of that case, which he noted involved a Tanzanian national, earning approximately US$100 per month, having flown from Dar es Salaam via Addis Ababa to Hong Kong International Airport with the intention to go to mainland China with a short detour to Tsim Sha Tsui with more than HK$560,000 worth of heroin secreted inside his body.  He said that the evidence and information before the court was more than sufficient to ground an inference that the sizeable amount of US$4,500 on his person was, at the very least, used in connection with an offence under the Ordinance.  He noted at §29:

“29.  The fact that he had made an assertion to Customs Officers when interviewed that the money was related to his mobile telephone business did not prevent such an inference being drawn, any more than it obliged the court to accept the truth of the assertion. The assertion might have supported his evidence to that effect in as much as it was given when first interviewed, just as a defendant charged with trafficking might persuade a judge or jury that his initial reaction or response upon arrest that he had the drugs for his own consumption lent strength and support to his defence that he was not trafficking. However, a judge or jury is not obliged to accept such an assertion, nor does it prevent the prosecution from making out a prima facie case for forfeiture on the basis of the evidence and other information properly before the court.”

14.Macrae JA reiterated at §33 that:

“33.  ... No international drug trafficker, especially a foreigner from another continent, could conceivably expect to carry out his purpose of trafficking a valuable consignment of dangerous drugs into and through Hong Kong without the means to achieve it and support himself in the process.  Even if none of the money was to be spent until the appellant had left Hong Kong, it was still money “which has been used in the commission of or in connection with” a drug trafficking offence if given to, or possessed by, him for that purpose. ...”

15.In a generally concurring judgment (differing on the basis that the court has to be satisfied under a particular limb of section 56(1) for the forfeiture order to be made), McWalters JA stated at §40 that:

“40.  Should the court decide that on the basis of that evidence the property, the subject of the order that is sought, is prima facie liable to forfeiture, then the burden passes to the respondent to the application to persuade the court why an order should not be made against him. In the present case the respondent testified on the application but called no other evidence.”

16.He went on to explain at §41 the court’s function after the presentation of evidence and submissions as follows:

“41.  ... At this stage the court has to decide whether a forfeiture order should be made and if so whether it should be made in respect of the whole of the property. This engages the discretion of the judicial officer, for the mere fact that property is liable for forfeiture does not mean a forfeiture order has to be made or has to be made in respect of the whole of the property. Although the discretion under s.56(1) is unfettered, it must be exercised judicially, and in a way which furthers the objects of the Ordinance.”

A prima facie case

17.I was satisfied that there was a prima facie case that the monies in question were used in the commission of or in connection with, or were received or possessed by the defendant as a result of the drug trafficking offence. 

18.Briefly, the basis of my decision is centred on the fact that the defendant got involved in trafficking the drugs because he was in financial difficulties and needed the money and that he sought to smuggle the drugs into Hong Kong as part of an elaborate plan which involved him digesting a large quantity of pellets containing the drugs.

Defendant’s case

19.The defendant gave evidence in support of his claim.  He testified that whilst he came to Hong Kong on this occasion to smuggle the drugs in question, he was also going to purchase items to take back to Nigeria to sell.  He said that the items that he was going to buy was clothing that he would give to his wife to sell.  He said he got his wife to speak to her brother and he provided the sum of US$3,250 for the purpose of purchasing clothing. 

20.The defendant produced various documents to support his account that he trades in second hand mobile phones and that he has come to Hong Kong regularly in the past to purchase such goods.  From February 2008 to October 2015, he had come to Hong Kong for short trips on 46 occasions (including the occasion of this offence).  He produced a wad of Kenya Airlines vouchers for excess baggage but as he testified they were all issued in Lagos, Nigeria.  It emerged when he testified that he would bring items to Hong Kong for Nigerian overstayers for which he would be paid a commission and for every seven trips he made he would receive a free ticket. 

21.An electronic airline ticket was shown to him and he confirmed that the ticket had been purchased by the drug trafficker in this case.  The ticket was with Kenya Airways and recorded that he was to arrive in Hong Kong on 11 October and leave on 19 October 2015.

22.He produced a foreign exchange voucher dated 25 October 2010 which evidenced a transaction he did on that day in Hong Kong where he exchanged into Hong Kong currency the sum of US$32,360.  This was a large sum of money and he was questioned about it.  He said that the money came from his father who helped him fund his business to buy goods. 

23.He also produced two invoices, both dated 25 July 2015, which related to two transactions during his last trip to Hong Kong before this offence.  He explained that the invoices recorded the purchase of a large quantity of telephones where he paid about US$12,000 in relation to one and about US$16,000 in relation to the other.  He said the monies came partly from his savings and the remaining from his father’s money.

24.He was asked that given he was doing quite well in July 2015 what had happened afterwards that he suddenly needed money.  He said that the shop that he operated had been burgled and all his goods had been stolen, and that also his father was sick.  He said he tried to raise money with people and it was then that he was approached to smuggle drugs to Hong Kong.  He said he was going to get a financial reward.  When asked how this was to be paid, he said that the drug trafficker told him that he would look after his father who was to have bypass surgery and his wife who was pregnant. 

25.The defendant testified that his father was sick and he needed money to pay for an operation.  He said that the operation would cost around US$4,000. 

26.When he was asked by Mr Dunn regarding the origin of the US$3,250 that was in his possession at the time of the offence, he said that it came from his wife’s brother.  He said it was to buy clothing for is wife to sell.  It is worth noting that if the defendant needed around US$4,000 for his father’s operation on his own evidence he was able to obtain US$3,250 from his brother-in-law. 

27.He was also questioned as to how he was going to sustain himself for eight days while he was in Hong Kong and he said that he was to be contacted the day after he got here and he could sustain himself for a night.  He confirmed that at the time of the offence he had no funds and it was then that he said he was given US$3,000 from his brother-in-law and that US$250 was his money. 

28.I am not prepared to accept his evidence as I did not find it credible.  He acknowledged that he had no funds and was in dire financial difficulties at the time of the offence and he got involved in smuggling the drugs because he needed money.  He clearly did this for financial reward and it would seem that the US dollars were part of his reward and also monies that he could use in furtherance of smuggling the drugs into Hong Kong.

Findings

29.On the evidence before me, and bearing in mind the nature and relevant principles of the application, I make the following findings:

1.  The defendant was in financial difficulties and without funds at the time of the offence.  (On the defendant’s own testimony the only funds he had at the time of the offence were US$250.)

2.  The defendant agreed to bring the drugs to Hong Kong at serious risks to himself in that (a) he digested the drugs which could have caused him serious physical harm; and (b) he knew that if he was caught he would face serious consequences for his conduct.

3.  The defendant agreed to bring the drugs to Hong Kong for an unspecified reward.  Given the serious consequences of smuggling the drugs, the defendant would have done so for some form of financial reward. (The defendant testified that the drug trafficker would pay for his father’s surgery and look after his wife and yet he was able to obtain US$3,000 from his brother-in-law.)

4.  The defendant had in his possession at the time of the offence the amount of US$3,250 cash. 

5.  The money was not given to him by his brother-in-law.  (The defendant initially said that his brother-in-law gave him US$3,250 but later changed his evidence and said that he gave him US$3,000 and US$250 was his.  The explanation proffered by the defendant is rejected.)

6.  The defendant’s evidence and the invoices he produced that he was a trader in second hand mobile phones and in the past frequently came to Hong Kong to buy such goods for sale back in Nigeria shows no more than that on other occasions in the past he came to Hong Kong and according to the records he produced with substantial sums of US dollars purchased second hand mobile phones which he took back to Nigeria. 

7.  The US$3,250 cash was the defendant’s reward for acting as a drug courier and/or to fund his travels in the course of his drug trafficking or to demonstrate his means of sustaining himself as a visitor in Hong Kong if asked. 

30.For the avoidance of any doubt, I did not accept the evidence of the defendant as to the nature and provenance of the monies, even though in the past as he has claimed he has come to Hong Kong and purchased goods.  The fact remains that on this occasion he was part of an elaborate plan to smuggle drugs into Hong Kong (with a street value of $1,332,500) for which I find that he would have received a substantial reward.  This was at the time when he was experiencing financial difficulties and on his own admission only had US$250 to his name.  Found in his possession at the time of this offence was US$3,250.  

31.I am satisfied on the balance of probabilities that the monies in question were used in the commission of or in connection with, and received or possessed by him as a result of the drug trafficking offence.  The monies therefore come within the terms of both limbs of section 56(1). 

32.Accordingly, I order that the monies in question be forfeited to the Government.

Ms Sabra Lo, SPP (Ag) of Department of Justice, for HKSAR

Mr John Christie Dunn, instructed by Massie & Clement, assigned by Director of Legal Aid, for the defendant