HKSAR v. Ezeh Christian Ifeanyi

HCCC 474/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO HCCC 474 OF 2015

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J U D G M E N T

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1.On 23 June 2016 defendant was found guilty after trial of trafficking in a dangerous drug. He was sentenced to 15 years and 3 months’ imprisonment.

2.Ms Grace Chan Senior Public Prosecutor for the prosecution applied for the forfeiture of US$5,000 seized from the defendant in the captioned drug trafficking case pursuant to s 56 of the Dangerous Drugs Ordinance cap 314 (the Ordinance).  The defendant opposes the application.  Mr Andrew Bullett counsel for the defendant submitted that the money was not connected to the drug trafficking offence but was partly the defendant’s savings and on the other part money given to him by a friend to purchase clothing in Hong Kong.  Alternatively, if the court considered that any part of the cash was liable to forfeiture it was only a small amount to be used for some travel and accommodation expenses.  The balance of the money should be returned to the defendant.

Statutory provisions

3.The application for forfeiture is made pursuant to s 56(1) of the Dangerous Drugs Ordinance (“the Ordinance”).  Section 56 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).”

4.The court has to be satisfied that either :

(a)  the money has been used in the commission of or in connection with the offence of drug trafficking; or

(b)  the money was received or possessed by the defendant as a result or product of a drug trafficking offence.

5.The prosecution must show on a balance of probabilities that the money seized comes within one or both limbs of s 56(1).  If the prosecution establishes the money is liable to forfeiture there is a prima facie case for forfeiture, the burden then shifts to the defendant who is claiming his money back to satisfy the court on the balance of probabilities that he is entitled to have it. 

6.In the present case Mr Bullett accepted that on the facts the prosecution had established there was a prima facie case of forfeiture of the money. 

The relevant facts

7.On 13 June 2015 the defendant, a 29 year old Nigerian arrived at Hong Kong International Airport on a flight originating from Nigeria. At the time concealed inside his body were 55 pellets containing cocaine.  The estimated value of the cocaine was HK$853,305.

8.At the time of arrest by customs officers at the airport he was in possession of US$5,000, 5550 Nigerian Naira (equivalent to HK$136.78) and 500 Central African CFA Franc (equivalent to HK$6.60).  No hotel booking receipt or invoice was found on him.  He was only carrying a black handbag and had no check in luggage. 

9.His flight itinerary showed that he was to stay in Hong Kong for 9 days from 13 to 22 June 2016. 

The defendant’s case

10.The defendant elected to give evidence in support of his claim.  He testified was a businessman trading in used auto parts.  His annual income was between US$1,000 to $1,500. 

11.He had come to Hong Kong on four previous occasions before he was arrested on this occasion.  For each of those occasions it was to purchase used car parts from traders in the Kam Tin area.  He produced a number of receipts in support of his purchases.  After purchasing the parts he sent the parts back to Nigeria by sharing a container and the costs of shipping with other businessmen who also shipped goods back but not necessarily car parts. 

12.In Nigeria he had his own business.  His company was called Mexo Feeler International Corporation which sold the used car parts.  He produced his name card and business identity card. 

13.He stated that his primary purpose for returning to Hong Kong this time was for the same reason as the previous occasions and that was to purchase used car parts.  However this time a trafficker in Nigeria heard he was coming to Hong Kong on business and requested him to take the drugs to Hong Kong so he agreed as he was coming to Hong Kong anyway.  He stressed that whether the drugs were taken by him or not, he would have still come to Hong Kong to purchase used car parts. 

14.He agreed to deliver the drugs to Hong Kong as he needed more funds.  Prior to this visit he realized he was dipping into his capital to run his business and with this extra fund, he would not need to resort to using his capital.  He emphasized that he was not in need of money.  He denied having any debts nor was his business at risk of failure.  He reiterated that as he did not want to draw on his capital he took the risk to deliver these drugs to Hong Kong in exchange for payment. 

15.Upon successful delivery of the drugs he would have been paid US$2,500 which he would have used to boost his capital. 

16.He was not paid a cent by the trafficker before he came to Hong Kong.  He funded his own expenses.  He paid for his air ticket to Hong Kong at the cost of 208,000 Nigerian Naira (approximately US$600 at today’s exchange rate although the defendant disagreed and said it was approximately US$400).  He stated of the US$5,000 cash found in his possession, US$2,000 was his savings and US$3,000 was from a friend who requested him to buy clothing samples in Sham Shui Po. 

17.The defendant produced five items of female clothing which he said were samples given by his friend.  He had carried these in his bag and said that his friend told him to go to a shop in Sham Shui Po (the address of which he knew) to order more of the same to the amount of US$3,000.

18.The source of US$2,000 was his savings from the proceeds of trading of car parts in Nigeria.  His income of US$1,000 to US$1,500 per annum was net of expenses.  He had no financial difficulties despite having to support his retired mother, younger sister and brother who were still at school. 

19.His accommodation expense in Hong Kong was going to be inexpensive.  He had intended on staying at Chung King Mansions sharing a room with others paying about HK$50-HK$70 a night, which for 9 days stay, would have been about HK$500-HK$600. 

20.He had with him two debit cards which was his Visa and Master card which he would use to withdraw money from the ATM in Hong Kong to cover his living expenses.  The US$2,000 would principally be used for purchasing the used car parts but a very minimal part would if necessary have been used to show the immigration officers his ability to support himself during his stay in Hong Kong.

Discussion

21.The defendant testified at the present hearing his net income (after living and business expenses) was between US$1,000 to US$1,500 per annum.  In mitigation, before sentence on 23 June 2016, Mr Bullet submitted that the defendant’s income was the above figures (without mentioning it was net of expenses).  The defendant was searchingly cross-examined by Ms Chan.  In cross-examination he said he could save about US$200 per month, on that figure his net income would therefore amount to US$2,400 per annum.  The defendant has given three inconsistent amounts purporting to be his annual income, in view of the material and significant discrepancy in these three figures I reject the defendant’s evidence as to the amount of his income. 

22.It was the defendant’s evidence that he agreed to take the drugs (the defendant stated that he did not know they were dangerous drugs but knew they were some sort of drugs) for a reward of US$2,500 upon successful delivery of the drugs.  He was not paid anything nor was his travel expenses paid for.  Astonishingly, the defendant said he funded from his own pocket Nigerian Naira 208,000 (approximately US$600) for his air fare.  The estimated street value of the drugs was HK$853,305, I found it implausible that the defendant a courier of drugs of that value would have used his own monies to fund or facilitate his air fare or expenses in importing the drugs.

23.I further do not believe that the defendant would have taken the risk of ingesting these drugs and agreeing to deliver these drugs without even part payment of the reward.

24.Although I am unable to make any finding of what the defendant’s income was, and even if accepting that the defendant’s income per annum was US$1,500, the US$5,000 in cash was almost three times his annual income.  I found it implausible that the defendant would have carried approximately his year’s savings in cash particularly as defendant testified he had access to cash at the ATM’s in Hong Kong and it was his intention to withdraw cash whilst here. 

25.The receipts and invoices that the defendant produced in support of his past purchases of used car parts on his previous jaunts to Hong Kong show that he may have come here in the past for those purposes. However I do not accept that that the money was for the same purpose on this occasion.  I found it most unusual and curious that the defendant would still keep these worn and out-dated receipts.  Further I do not believe the defendant’s account that he kept those receipts for ease of relocating those sellers when he returned to Hong Kong.  As can be seen in one exhibit produced by the defendant, a business card from the sellers would have sufficed to relocate the sellers.

26.If as the defendant alleges, he is a used auto parts seller, this trade has no similarity to or connection to garments.  I reject the defendant’s claim that someone would incidentally give the defendant cash of US$3,000, which sum was almost double his alleged annual income, and five pieces of clothing samples to purchase clothes from a shop in Sham Shui Po. 

27.After careful evaluation of the defendant’s evidence, I reject his evidence that the source of the money was partly his savings and partly from another businessman to purchase garments. 

28.The defendant entered Hong Kong as a visitor with the US$5,000 cash on his person, on his own admission he would have used the monies to demonstrate to the immigration officer if he had been requested, his ability to support himself during his stay in Hong Kong.  He also agreed that he would have used some of the money for his expenses in Hong Kong. 

Conclusion

29.I was satisfied on the balance of probabilities that the US$5,000 was to be used in the commission of or in the connection with the offence of drug trafficking and or was a reward received by him for the trafficking of drugs.  In the circumstances I order that the US$5,000 be forfeited.

Ms Grace Chan, SPP of the Department of Justice, for the respondent

Mr Andrew Bullett, instructed by Massive & Clement, assigned by DLA for the accused