HKSAR v. Sitoe Claudio Marcelino

DCCC 407/2018

[2018] HKDC 1454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 407 OF 2018

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RULING

1.The prosecution apply to forfeit the Nokia mobile phone, the iPhone and the battery and SIM cards[1] found on the defendant pursuant to section 56(1) of the Dangerous Drugs Ordinance[2].

2.The defendant applies for return of his iPhone.  The defendant has no objection to forfeiture of the Nokia phone, the battery or the SIM cards.

3.Forfeiture proceedings are civil in character and do not involve the determination of a criminal charge.  The burden of proof is on the prosecution to establish on the balance of probabilities that the iPhone is liable for forfeiture.  

4.If there is prima facie evidence the iPhone was used in the commission or in connection with the drug trafficking, the defendant bears the legal burden to persuade the court, on the balance of probabilities, why the iPhone should not be forfeited[3].

5.The defendant pleaded guilty to one charge of trafficking in 8.18 kilogrammes of cannabis in herbal form, contrary to section 4 of the Dangerous Drugs Ordinance and was sentenced earlier today to 2 years and 4 months’ imprisonment.

6.The prosecution case is that the iPhone was used in connection with the offence. 

7.No oral evidence was called by the prosecution.  The prosecution relies on the admitted fact that the iPhone contained a WhatsApp voice message on 30 November 2017 in which Ugo told the defendant that the tobacco from the south could arrive in this country tomorrow or next tomorrow[4].

8.Mr Chan submits that is exactly what happened.  The cannabis arrived the next day and was collected by the defendant the day after.

9.Mr Chan also relies on the fact that during mitigation reference was made to using the iPhone to try call Ugo and was therefore the means of communication with Ugo. 

10.The reference to making the calls to Ugo is contained in paragraph 5 of the witness statement of Inspector Lam.  The witness statement however does not specify which phone was used, the Nokia phone or the iPhone.  The WhatsApp voice message however shows that the iPhone was used in communication between Ugo and the defendant. 

11.The defendant elects not to give evidence in support of his application that the iPhone should not be forfeited and instead returned to him. 

12.Mr Nasir submits that the voice message is insufficient to show a link with the importation of the cannabis.  There being no other evidence concerning the iPhone Mr Nasir submits the iPhone should be returned to the defendant. 

13.I have carefully considered the submissions of Mr Chan and Mr Nasir.  I am satisfied the only inference to draw from the WhatsApp voice message is that the message was referring to the cannabis which arrived in Hong Kong the next day and was collected by the defendant the following day.    

14.The prosecution has satisfied the court on the balance of probabilities that the requirements of section 56 have been met.  I find no grounds to exercise my discretion not to order forfeiture.  Accordingly, I order the iPhone to be forfeited. 

15.I am also satisfied that the Nokia phone was used in connection with the offence[5].  I order that the Nokia phone, the battery and the SIM cards are also forfeited.  An order in terms is also made with regard to the disposal of all other exhibits in the application for disposal of exhibits dated 1 November 2018.