HKSAR v. Kofi Frimpong

HCCC 104/2020

[2020] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 104 OF 2020

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RULING

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Introduction

1.On 28 July 2020, the defendant, having been convicted on his own plea for drug trafficking, was sentenced to imprisonment for 8 years and 10 months.

2.Prior to and following the pronouncement of sentence, Mr Philip Ross, counsel for the defendant, objected to an application by the prosecution for a forfeiture order in respect of HK$9,580 (items 13 of the ‘Application for Order of Disposal of Exhibits’).  He made an application for the return of the money on the basis that it was unrelated to the offence of drug trafficking to which the defendant had pleaded guilty.

Statutory provisions

3.The application for forfeiture by the prosecution is made pursuant to section 56(1)(a) and (b) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”).  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

4.In Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, Sir Anthony Mason NPJ, when addressing the forfeiture provisions in the Import and Export Ordinance, Cap 60, made the following general statements of principle, namely that forfeiture proceedings are civil in character, and that the applicant bore the onus of establishing on a balance of probabilities that the seized item was liable to forfeiture or belonged to the claimant:

“65. ...the Commissioner bears the onus of establishing that the seized article is liable to forfeiture. …Once this is established the Commissioner makes out a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the discretion to order delivery of the seized article to the claimant, the court will make an order for forfeiture.”[1]

5.Of the burden on the party opposing the forfeiture order, Sir Anthony Mason NPJ said:

“He may do this by proving facts to the satisfaction of the court, according to the balance of probabilities...”[2]

6.In considering an application under section 56(1), a court has a discretion as to whether or not to make an order for money or other property to be forfeited to the Government.  The onus in forfeiture applications is on the applicant to show on a balance of probabilities that there is a prima facie case that the money or other property comes within one or both of the limbs under section 56(1).  Once the item is liable to forfeiture, the onus will in those circumstances shift to the one claiming the money or other property to satisfy the court, on a balance of probabilities, that he is entitled to have it.  If the defendant has not discharged this burden, then an order will be made for the item to be forfeited.  If, however, the prosecution have not shown on a balance of probabilities that there is a prima facie case for the order of forfeiture, the item should be returned to the defendant if it belongs.

7.Under section 56(1), for a court to make a forfeiture order to the Government it must 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.

8.When addressing section 56, the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57 stated at paragraphs 23 and 25 that it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the Ordinance is engaged when deciding whether to make an order of forfeiture.  The various alternatives are set out in section 56(1) so as to cast the net as widely as possible.

9.It has been held by Zervos J (as he then was) at first instance in HKSAR v OKPO Stanley Igwebike, unreported, HCCC 90/2016 that:

“In most cases, the property which is the subject of forfeiture proceedings would have been seized by law enforcement officers from a person who either is in possession of it or has used it in respect of a drug trafficking offence. A few examples of such property would be, a sum of cash that was used for or derived from drug dealing, drug taking equipment, such as equipment for the inhalation or injection of drugs, drug paraphernalia, such as electronic scales and plastic bags for the packaging of drugs, items or devices used for the concealment or transportation of drugs, and the drugs themselves. …The point is that if it cannot be shown that the property had been used in the commission of or in connection with or received or possessed by a person as a result or product of a drug trafficking offence then the property would revert back to its owner which if it was seized from and belongs to the defendant would revert back to him.”

Submissions

10.Mr Leung for the prosecution submitted that there is a prima facie case for the following reasons:

(1) The defendant is a Form 8 recognizance holder.  Given his status as a Form 8 holder, he was not lawfully employable and could not earn any legitimate income.  He became a torture claimant in 2005.  In July 2012, he was convicted of two counts of drug trafficking offences and was sentenced to 8 years’ imprisonment.  He was released in April 2017. On 28 February 2019, he was arrested for the present offence.

(2) The defendant received monthly assistance from the International Social Service, consisting of a food credit of HK$1,200 on a card (not in the form of cash), and a rental subsidy of HK$1,800 payable directly to the landlord.  The defendant in the video-recorded interview claimed that from the time he was released in 2017 until 28 February 2019, his monthly rent was HK$4,700.  The rent was shared by him and his friend who is also a fellow torture claimant.  Each has HK$1,800 rental subsidy.  However, they were still HK$1,100 short of monthly rental payment.  The prosecution contended that the defendant should have been in debt because of the shortfall in rental payment.

(3) At the time of arrest at 00.44 hours on 28 February 2019, the defendant was in possession of, amongst other items, two bags of drugs, 3 mobile phones, HK$9,580 in cash.  With the defendant’s background, he could not have legitimate means to be in possession of this sum of cash.  He admitted that he was delivering drugs for reward.  The estimated street value of the drugs was about HK$81,721.18.

11.The prosecution contended that it has satisfied on balance of probabilities that there is a prima facie case that the defendant was in possession of HK$9,580 under the circumstances of either one or both limbs of section 56(1)(a) and (b) of the Ordinance.  The prosecution submitted that the defendant was in possession of the money either as a reward for his drug trafficking activity or because it was to be used to facilitate drug trades which would include giving change to drug purchasers or obtaining future drugs or passing the money to the person who instructed him to traffic in the drugs.

12.On the other hand, Mr Ross for the defendant opposed the application for forfeiture.  Mr Ross initially submitted on 28 July 2020 that even if a Form 8 holder were not allowed to work legally in Hong Kong, the prosecution has not excluded the possibility that a Form 8 holder might in fact work illegally for money; and that a Form 8 holder might in fact be given money from relatives and friends.  He claimed that the defendant received gifts of monies from overseas to enable him to survive in Hong Kong.  Mr Ross also referred to the defendant’s video recorded interview and submitted that the shortfall in rent was paid by his friend.  Mr Ross further argued that there is no prima facie case and that on the materials presented before this Court, both by way of Summary of Facts and the defendant’s video recorded interview, it is more likely than not that the money is unrelated to drug trafficking.

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

14.On 13 August 2020, upon my indication that I will not accept bare assertion from the Bar table, Mr Ross requested a short adjournment and called the defendant to testify in support of his claim.  Before addressing his evidence, it is convenient to set out the relevant facts.

Relevant facts

15.In the agreed facts, the defendant accepted he was in possession of 149.4g of a crystalline solid containing 146.4g of methamphetamine hydrochloride.  The street value of the drugs was HK$81,721.8. The defendant accepted that he was trafficking unlawfully in dangerous drugs for a reward.  The defendant said in his cautioned interview that he would be paid a reward of HK$1,000.  Mr Ross submitted that the defendant did not receive any reward as he was intercepted prior to the successful delivery of the drugs.

16.When the defendant was interviewed under caution, the following exchange took place:

“626 Q     Why did he give this bag of thing to you?

627     A     I – I – I already told you before.  He give it to me to give someone.  Give me one thousand. Yeah.”

“697 Q     Ah Hung gave those things to you and asked you to give them to Peter. And after you give them to Peter did Ah Hung say whether he would give you any money or any other reward?

698     A     Ah Hung?

699     Q     Ah Hung.

700     A     No, no, he didn’t say give any money.

702     A     Money for give the – for give money?

703     Q     Ah Hung gave those things to you and ask you to give that things to Peter. If you have given those things to Peter would Ah Hung give you any money or reward?

704     A     Yeah, he give me money, yeah.

707     Q     How much money would Ah Hung give you?

708     A     I don’t know exactly the money …

711     Q     If you have given the thing to Peter and Peter had paid you how would you handle those money?

712     A     Give it Ah Hung

714     A     And they give me some more money.

717     Q     If you had given those things to Peter and Peter had paid you. If you had given those money back to Ah Hung, how much money would Ah Hung give you?

718     A     One Thousand.

721     Q     If you have received those money how would you give those money back to Ah Hung?

722     A     Sorry, ah Sir?

723     Q     If you have received those money how would you give those money to Ah Hung?

724     A     I meet him again. I

727     Q     Before that did you help Ah Hung to deliver anything to anyone and for reward of money? Before that did you try to help Ah Hung to give anything to anybody for the reward of money?

728     A     No. I don’t understand.

729     Q     Before this case. Before this case did you ever help Ah Hung to deliver anything to anybody for the reward of money?

730     A     No, only Peter. No, no other…

733     Q     Was this time the first time?

734     A     Sorry?

735     Q     Was this time the first time?

736     A     The second time or something.  I couldn’t remember.”

17.As noted, Mr Ross referred to the defendant’s video recorded interview (at entries 254 to 256) and submitted that the shortfall in rent was paid by his friend.  However, the defendant also said (at entries 342-343, 384-385 and 387-413) that the balance of the rent was shared by him and his friend called “Ernest Stantial”.

The defendant’s evidence

18.As noted, the defendant testified in support of his application.  He said that the sum of HK$9,580 found in his possession at the time of the offence belonged to him.  He said it had nothing to do with the trafficking of the drugs as it was given to him by a friend.  He said he was to receive a reward of HK$1,000 for bringing the drugs to a person called Peter.  However, he was intercepted and therefore he did not receive the reward.  He testified that:

(1) the money came from his childhood friend in Canada called Alice Ochere.  He said that Alice has been working in Canada for over 20 years and is a Canadian resident.  He said that following his release from prison in April 2017, she had been supporting him and she knew his mother.  Sometimes she would send money to him to enable him to buy medicines in Hong Kong for the defendant’s mother in Ghana.  He received HK$10,000 from Alice one month before his arrest.  He spent HK$420 to buy some medicines for waist pain for his mother and thus the remaining sum of HK$9,580.  The defendant claimed he was trying to save the money because he would buy medicines for his mother from time to time.  He said that Alice would give him money whenever he called and asked for it.  It would happen one and a half month or two months or when he was in need of money.

(2) Alice would send the money to Abacha.  Given his status, the defendant would pick up the money from Abacha who is a businessman running a shop in Chungking Mansions, Tsim Sha Tsui. Abacha travelled from Africa to Hong Kong and China to trade.  The defendant claimed that Abacha is now in Ghana.

(3) He was in possession of the cash because he did not trust the person he was living with and he had to carry the money with him.

19.Under cross-examination, the defendant was queried why he did not know what Alice was doing for a living in Canada or Alice’s financial circumstances. The defendant admitted he had not seen her for more than 20 years, yet they spoke on the telephone or WhatsApp videocall regularly.  After his release from prison, he said that Alice had given him money on four occasions, totalling more than HK$20,000.  Apart from the HK$9,580 found on him, he had spent the rest.

20.He said that Alice would inform him by telephone about the amount she transmitted but he did not have any written record.  Later, he said he wrote everything on paper as a record in his room but he did not know where it was after the arrest.  He said he received a small receipt of money from Abacha but he did not know where it was placed.

21.The defendant said he received money from Alice whenever he asked, and she would try her best to help him.  It was suggested to him that if he had received that kind of money gratuitously from his friend and in that frequency, he would not need to commit the present offence.  He was questioned why he would risk committing the present offence if he had been given money from Alice whenever he asked and when he said that no money was paid to him upfront by the drug traffickers.  When he was questioned about his dealings with Alice and Abacha, he was somewhat vague in his answers but it may be that he either could not remember correctly or was not being truthful about these matters.

22.Mr Ross submitted that the money belongs to the defendant.  He submitted that the money was given to the defendant from his friend who was in constant contact, and was to be used to support his family and his living in Hong Kong.

23.On the other hand, Mr Leung for the prosecution submitted that the defendant’s evidence is not credible because the person from whom the defendant received the money was simply described as a childhood friend, whom he had not seen for more than 20 years.  Although the defendant claimed he had maintained constant contact, the defendant was unable to give any details about her or as to the source of her money.  The defendant could not even provide details of Alice’s occupation.  The prosecution submitted it was not reasonable for the defendant to show no interest in finding out Alice’s financial circumstances.  The sum involved is not trivial.  The prosecution submitted that the defendant’s evidence that the HK$9,580 was given to him by his friend as a gift and that the drug trafficker did not give him any money for his drug trafficking activity should be rejected.  The prosecution contended that it is not only unreasonable but improbable for someone to be so generously remitting money to someone whom she had not seen for many years. 

Findings

24.I did not believe the defendant’s evidence.  The defendant testified that he had no source of income.  He was bringing the drugs to another person for the purpose of unlawful trafficking.  He was doing it at great risk to himself and yet no payment of expenses or reward was made to him by the drug traffickers.  The notion that his friend whom he had not seen for over 20 years paid him a substantial sum of money whenever he asked and as a gift in such circumstances is simply not believable.

25.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 had little financial means at the material time. He had no income and no job.  He comes from a poor background.

(2) The defendant agreed to bring the drugs to a person called Peter at great risk to himself in that given his previous conviction, he must have known that if he was caught, he would face a long term of imprisonment.

(3) The defendant must be in need of money when he participated in unlawful trafficking of a dangerous drug.

(4) The defendant had in his possession at the time of the offence the amount of HK$9,580 in cash.

(5) The money was not given to the defendant by his friend to buy medicine for his mother (the explanation proffered by the defendant is rejected).

(6) The HK$9,580 cash was the defendant’s reward for acting as a drug courier in the course of his drug trafficking or money used in connection with an offence under the Ordinance, and received or possessed by him as the result or product of the drug trafficking offence.

26.I did not accept the evidence or explanation of the defendant as to the provenance of the monies.  The fact remains that on this occasion he participated in the unlawful trafficking of dangerous drugs and must be in exchange for a reward.

27.I should stress that I do not accept his evidence that the monies were not connected to the drug trafficking offence and that they were obtained from a separate source from his friend Alice Ochere or from Abacha.  It beggars belief that he could obtain HK$9,580 from his friend as a gift, and yet at the same time, for an unpaid reward of HK$1,000 he trafficked drugs at great personal risk to himself criminally.

28.I find that the only reasonable inference is that the HK$9,580 cash was in connection with, and received or possessed by him as a result of the drug trafficking offence.  I am satisfied to the requisite standard that it comes within the two limbs of section 56(1).

Conclusion

29.For the above reasons, I found to the requisite standard that the prosecution had established on the evidence before me that the monies in question came within the terms of both limbs of section 56(1) and accordingly I ordered that HK$9,580 (ie items 13) be forfeited to the Government.

Mr Gary Leung, SPP of the Department of Justice, for HKSAR

Mr Philip Ross, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the defendant