HKSAR v. Willan Mustapha

DCCC 353/2020

[2020] HKDC 934

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2020

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Before: His Honour Judge W.K. Kwok

Date of Hearing: 15 October 2020

Date of Ruling: 31 December 2020

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RULING

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1.The defendant was convicted of one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (“DDO”) upon his own plea and admission of facts. He was sentenced to imprisonment for 29 months and 10 days.

2.At the time of the offence, the defendant had with him cash in the sum of HK$19,000.  The prosecution now applies for the money to be forfeited while the defendant asks for return of the money.

3.At the request of this Court and without objection from Mr. John McNamara, Counsel for the defendant, Miss Sabrina See, Counsel on fiat for the prosecution, produced the cash seized from the defendant for inspection by this Court.  Upon inspection, it is found that this sum of HK$19,000 is made up of a pile of banknotes of various denominations, including one piece of HK$1,000 banknote, 35 pieces of HK$500 banknotes, and 5 pieces of HK$100 banknotes.

4.Both Miss See and Mr. McNamara have not addressed this Court on the statutory provision under which this forfeiture application is made.  However, since the defendant was convicted of an offence under the DDO, it is implicit that this application is made by the prosecution under section 56(1) of the same Ordinance, and that Mr. McNamara must be contesting this application for the defendant on this basis.

5.Section 56(1) reads as follows:

“(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).”

6.It is not necessary to recite the other subsections of section 56 of DDO as they are not relevant to this application.

The applicable legal principles

7.The legal principles governing applications for forfeiture under section 56(1) of the DDO have been enunciated in many cases including HKSAR v Ngoma Juma Shabani[1], HKSAR v Shoki Fatuma Ramadhani (by Court of Appeal[2] & by Court of Final Appeal[3]), HKSAR v Herry Jane Yusuph[4].  These principles are the same as those laid down by the Court of Final Appeal in Wong Hon Sun v HKSAR[5] in relation to forfeiture applications under the Import and Export Ordinance, Cap 60. 

8.According to these established principles, this application by the prosecution to forfeit the said sum of HK$19,000 is civil in character even though it is made at the end of the criminal proceedings in which the defendant was convicted of one charge of trafficking in a dangerous drug and sentenced to serve a term of imprisonment.

9.Upon application by the prosecution, this Court has a discretion to order the said sum of HK$19,000 to be forfeited to the Government, or to return the money to the defendant.  This Court will exercise its discretion judiciously according to the following factors.

10.First, the prosecution must prove on balance of probabilities that the said sum of HK$19,000 is liable to be forfeited under section 56(1) of the DDO.

11.It has already been admitted by the defendant that he had committed the offence of trafficking in a dangerous drug, which is an offence under the DDO.  Hence, if it is further proved by the prosecution on balance of probabilities that the said sum of HK$19,000 falls within the ambits of sections 56(1)(a) and/or 56(1)(b) of the DDO, i.e. the money has been used in the commission of, or in connection with, the defendant’s drug offence, and/or the money is received or possessed by him as the result or product of his drug offence, the money will be forfeited.  Hence, if the prosecution adduces evidence that may lead to such a factual finding, it will make out a prima facie case that the money is liable to be forfeited under section 56(1).  If it fails to make out a prima facie case, the money shall be ordered to be returned to the defendant.

12.On the other hand, once the prosecution has made out a prima facie case for forfeiture of the money, the burden will shift to the defendant to prove on balance of probabilities that the money falls outside the relevant forfeiture provisions if he wants the Court to exercise its discretion in his favour.  If he discharges his burden of proof, the Court shall order the money to be returned to him.  If he fails to do so, the Court shall order the money to be forfeited.

Prima facie case

13.The prosecution has not called any witnesses to testify in court to support this forfeiture application.  It relies entirely upon the summary of facts admitted by the defendant when he pleaded guilty, as well as the defendant’s antecedent statement and his mitigation through counsel, and asks this Court to draw the necessary inference.

14.It is open to the prosecution to prove its case in this manner.  In Ngoma Juma Shabani, Macrae JA (as he then was) stated in paragraph 26 of the judgment the following:

“… 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.”

15.The facts admitted by the defendant when he pleaded guilty, his antecedent statement and mitigation reveal the following:

(a)  On 6 March 2020 at about 9:37 p.m., a police officer in plain clothes (PC16847) intercepted the defendant outside No. 52 Wyndham Street for enquires when he found the defendant acting suspiciously.

(b)  PC16847 later searched the defendant inside the Central Police Services Centre in Hollywood Road, and found a transparent re-sealable plastic bag containing 13 small transparent re-sealable plastic bags containing a total of 9.38 grammes of a solid containing 3.11 grammes of cocaine (“the Drugs”) inside the defendant’s underpants.

(c)  The defendant had also with him the said sum of HK$19,000, an Octopus card and one mobile phone.

(d)  The defendant admitted under caution that the Drugs belonged to him.  He also admitted that he purchased 4 grammes of cocaine from an unknown Pakistani male in Tsim Sha Tsui on the day before his arrest.  He and his friends then mixed the drugs he had purchased with other white solids to inflate its quantity.  When he was stopped by PC16847, he was trying to take a taxi to go to Tuen Mun.  He had put the Drugs inside his underpants, and he intended to share the Drugs with his friends there.

(e)  The estimated retail value of the Drugs was about HK$10,618 at the time of the offence.

(f)  The defendant was born on 22 May 1982 in Gambia.  He came to Hong Kong upon a tourist visa in 2014.  All his family members were and are still living in Gambia.

(g)  The defendant filed his non-refoulement claim with the Immigration Department in January 2017.  Since then, he has been released upon immigration recognizance Form 8.

(h)  At the time of the offence, the defendant lived in Sai Ying Pun with his intended fiancée.  He was still a Form 8 recognizance holder and was not allowed to take up any lawful employment in Hong Kong.  He received social welfare allowance in the sum of HK$1,500 each month.

(i)  It was submitted in mitigation that the defendant intended to sell some of the Drugs to his friends and use some himself. He committed the offence to supplement his income.

(j)  At the time of the offence, the defendant abused cocaine occasionally and cannabis more frequently.  He was tested positive for cannabis but negative for cocaine when he was admitted into Lai Chi Kok Reception Centre.

16.The admitted facts prove that at the time of the offence when the defendant was intercepted by PC16847, he had with him cash in the form of 41 pieces of banknotes for the total sum of HK$19,000.  The admitted facts are silent on the source of this sum of money, apparently for the reason that the defendant had said nothing about it during police investigation.  This Court shall therefore consider whether an inference may be drawn from all the facts admitted or undisputed by the defendant that this sum of money had been (a) used in the commission of or in connection with, and/or (b) received or possessed by him as the result or product of his drug trafficking activities so as to justify forfeiture under section 56(1) of the DDO.  The following facts are noteworthy.

17.First, the defendant came to Hong Kong from Gambia in 2014 as a tourist.  He filed a non-refoulement claim in 2017 and became a Form 8 recognizance holder since then.  Between 2014 and the date of the offence, he had no family support in Hong Kong as his family members were in Gambia.  In addition, as a tourist and a Form 8 recognizance holder, he was not allowed to take up any gainful employment lawfully.  His only income was the monthly social welfare allowance in the sum of HK$1,500 which should all be used up to cover his daily expenses. It is therefore clear that the defendant could not have earned and/or saved up this sum of HK$19,000 by his own effort through lawful means.

18.Second, from the facts admitted by the defendant and the mitigation through his counsel, it is clear that at the time of the offence, the defendant intended to earn money through drug trafficking.  Towards this end, he was not acting just as a drug courier or storekeeper but as an actual trafficker.  He admitted that he had taken part in sourcing[6], preparing[7], and packing drugs[8] personally.  The fact that the drugs after adulteration were put inside at least[9] 13 re-sealable plastic bags leads to the only reasonable and irresistible inference that he did not intend to sell drugs to just one person.  In addition, the defendant would deliver drugs to his customers personally[10].  It is therefore just natural and indeed inevitable that, upon delivery of drugs to his customers, he would collect payment from his customers immediately, and upon receipt of payments, he would keep the money on his person until such time when he had the opportunity and the intention to put the money elsewhere.  In other words, the fact that he was in possession of a large sum of money that could not have derived from his lawful income leads strongly to the inference that he had just completed sales of drugs personally.

19.Third, the defendant admitted that he was carrying drugs with him and looking for customers when PC16847 stopped him.  It must be clarified at once that the defendant had not admitted that he had sold drugs to anyone before he was stopped. His admission was that he was on his way to Tuen Mun where he would sell some of the drugs in his possession to his friends.  I shall discuss this aspect later, but for the present purpose, it suffices to say that it is beyond doubt that at the time when the defendant was stopped by PC16847, he was on a mission to sell drugs and he was acting in the midst of his drug trafficking activities.

20.From the fact that when the defendant was stopped by PC16847, he had with him cash in the sum of HK$19,000 which could not possibly have come from his lawful income, but he was at that time acting in the course of his mission to sell drugs, and he would collect payment from his customers directly and immediately after sale, I find that the prosecution has adduced sufficient evidence to establish facts upon which an inference can be drawn on balance of probabilities that the said sum of HK$19,000 was used in connection with his drug trafficking activities, and/or was received or possessed by him as a result of his drug trafficking activities.  For this reason, the prosecution has made out a prima facie case that this sum of HK$19,000 is liable to be forfeited.

The defence evidence

21.As a result of this finding, the burden shifts to the defendant to prove on balance of probabilities that this sum of HK$19,000 falls outside the relevant forfeiture provisions.  The defendant seeks to do so by giving evidence himself and calling his fiancée as his witness.

22.The defendant’s fiancée is Miss AYU-ANITASARI (DW2).  She is an Indonesian, and has been working in Hong Kong as a domestic worker for the past 5 years.  She has a clear record.  She has known the defendant for 3 to 4 years.  They have entered into a romantic relationship.

23.The defendant’s case is that the HK$19,000 found on him at the time of his arrest was not proceeds of drug trafficking.  It is not disputed that the defendant did not earn this sum of money since he was not allowed to work in Hong Kong.  The defendant says that he obtained this sum of money from two sources: (1) DW2 gave him HK$14,000 for safekeeping in his wallet because they were saving up money for their marriage, and this sum of HK$14,000 belonged to DW2; and (2) his friends in Hong Kong gave him sums of money, and these sums of money made up the remaining HK$5,000.

24.In respect of the sum of HK$14,000, the evidence of the defendant and that of DW2 may be summarized as follows:

(a)  In January 2020, the defendant and DW2 decided to get married, but they could not do so at that time because they did not have the money to hold a party to celebrate their marriage with their friends.  They therefore decided to save up money, and when they had sufficient money, they would set the date, invite their friends and have their wedding.  They had not yet fixed the date.

(b)  The defendant had no income because he was not allowed to work, but DW2 worked as a domestic helper.  DW2 received salary in the sum of HK$5,200 a month from her current employer.  She was paid in cash. 

(c)  DW2 had a bank account with Heng Sang Bank which she had opened long before she worked for her current employer.  The defendant did not have a bank account.

(d) DW2 used to send money to her family members including her mother in Indonesia.  She had spent most of her wages because when her mother knew that she had money, her mother would ask her to send money home or make purchases.  As a result, she was left with very little money.  Her mother always asked her how much money she had in her bank account because her mother did not want her to hide from her.

(e)  In order to save money for their wedding party, the defendant advised DW2 not to put money into her bank account, but keep the money in cash.  He suggested to DW2 that she should pay over her money to him, and he would keep the money in his wallet and not to use it.  DW2 accepted his suggestion.

(f)  DW2 had paid cash in the total sum of HK$14,000 to the defendant.  The money was not given to the defendant but only for him to keep for her.  The money belonged to DW2, and was to be spent on their wedding party.   

25.The defendant and DW2 both testify that they communicated with each other from time to time through text messages.  Some of their text messages are produced in evidence as pages 1, 3 & 4 of Exhibit D1 to support their evidence. 

26.These text messages are recited as follows:

(A)   8 text messages on 20 February 2020 (Thursday)

From DW2 to defendant at 4:12 p.m.:

“Bbe this Sunday I need to go to bank and draw the money and give u 10k insyaallah.” (Message A1)

“But within 2 weeks at least u give me back some ok” (Message A2)

From defendant to DW2 at 4:13 p.m.:

“Ok bbe but Sunday bank will close you forget” (Message A3 in reply to Message A1)

“Less dan that bbe” (Message A4 in reply to Message A2)

From DW2 to defendant at 4:13 p.m.:

“And u forget that I had atm” (Message A5 in reply to Message A3)

“Good boy” (Message A6 in reply to Message A4)

From DW2 to defendant at 4:14 p.m.:

“I mean I go to atm bank for draw the mc” (Message A7 in further reply to Message A3)

From defendant to DW2 at 4:15 p.m.:

“Oh Alright bbe” (Message A8)

(B)    8 text Messages on 29 February 2020 (Saturday)

From defendant to DW2 at 11:18 p.m.:

“You come for your money please” (Message B1)

“Please tomorrow” (Message B2)

“And go your way ok” (Message B3)

From DW2 to defendant at 11:19 p.m.:

“Hmmmm is ok u keep first la” (Message B4 in reply to Message B1)

From defendant to DW2 at 11:19 p.m.:

“Am serious” (Message B5)

From DW2 to defendant between 11:19 p.m. and 11;20 p.m.:

“I have something to do” (Message B6)

“Keep first just keep in ur wallet” (Message B7)

“And don’t use it” (Message B8)

(C)    5 text Messages on 6 March 2020 (Friday)

From DW2 to defendant at 8:50 p.m.:

“Bbe at least give me 6K on Sunday ok” (Message C1)

“I need to pay the ring for Mom” (Message C2)

From defendant to DW2 at 8:51 p.m.:

“Yeah cool bbe” (Message C3)

“Insaallah” (Message C4)

“Sunday” (Message C5)

27.Statement of DW2’s Hong Kong Dollar Savings Account in Heng Seng Bank for the period between 19 February and 19 March 2020 is also produced as page 2 of Exhibit D1 to support the defence evidence.

28.The defendant further testifies on the source of the remaining sum of HK$5,000.  He says that he had friends in Hong Kong, and that after he had explained his situation to his friends, some of them gave him HK$1,000, and some gave him $500, and these sums of money made up the HK$5,000 which were not proceeds of drug trafficking.

Evaluation of the defence evidence

29.I remind myself that the defendant is only required to discharge his burden of proof on balance of probabilities.

30.Mr. McNamara submits that the defence evidence has been fully corroborated by the text messages between the defendant and DW2 as well as the bank statement of DW2 (i.e. Exhibit D1). 

31.The text messages exhibited are contemporaneous record of communication between the defendant and DW2 on the dates and at the hours as shown in the messages.  This Court can rely on them to assess the veracity of the evidence given by the defendant and DW2.

32.The first message exhibited is Message A1 sent by DW2 to the defendant.  It is not clear whether there were other oral conversation and/or text messages between them preceding Message A1, and if so, what the contents were.  It is however clear from Message A1 that DW2 told the defendant that she would give him HK$10,000 that Sunday (i.e. 23 February 2020), and that she needed to go to the bank to withdraw the money through ATM.  DW2’s evidence is that she gave HK$10,000 to the defendant on 23 February 2020, and this sum of money was made up of HK$6,500 cash that she had with her, and the remaining HK$3,500 cash was withdrawn from the bank through ATM on that day.  DW2’s bank statement had recorded this cash withdrawal.  Since the evidence of DW2 in this regard is supported by Message A1 and the bank statement, I find that it has been proved on balance of probabilities that DW2 had given the defendant HK$10,000 cash on 23 February 2020.

33.It was however not stated expressly in any of the messages as to why DW2 gave HK$10,000 to the defendant.  Both the defendant and DW2 testify that DW2 did not give the money to the defendant for him to spend but for him to keep for DW2, and that the defendant would keep the money in his wallet and would not use it because they wanted to get married, but before they could fix a date for the marriage, they had to save up sufficient money to hold a wedding party.  They explain that DW2 could not keep the money in her bank account because if her mother knew that she had money, her mother would ask her to send money home or make purchases, leaving only little money with her.

34.If the evidence given by the defendant and DW2 in this respect were true or probably true, it would have meant that the money given by DW2 to the defendant would be kept by the defendant until such time when they had saved up sufficient money for getting married, and that the money would not be returned to DW2 but would be kept by the defendant in his wallet in the interim.

35.However, Messages A1 and A2 sent to the defendant by DW2 both at 4:12 p.m. one after the other on 20 February 2020 depict a different picture.  They prove unequivocally that immediately after DW2 had agreed to give HK$10,000 to the defendant that Sunday in Message A1, she told the defendant right away in Message A2 that he should at least give her back some money within two weeks, which was the direct opposite of asking the defendant to keep the money for her, and asked the defendant whether it was “ok”.  The defendant then replied immediately to DW2 in message A4, saying “Less than that bbe”, thereby expressing his agreement as well as confidence that he could repay at least some of the money to DW2 in less than two weeks. The defendant then sent out Message A6 to praise the defendant for being a “good boy”.  All these messages lead to the only reasonable and irresistible inference that before DW2 handed over HK$10,000 to the defendant on 23 February 2020, they had already agreed on 20 February 2020 that (1) the defendant was to repay this sum of HK$10,000 to DW2, and (2) he should repay some if not all of HK$10,000 within two weeks.  The existence of this agreement flatly contradicts the evidence given by the defendant and DW2 that DW2 had upon the defendant’s advice agreed to leave her money with the defendant so that the money would be saved up for their intended marriage.  On the contrary, these messages show that DW2 always wanted to have her money back at least partly if not wholly within two weeks, and the defence evidence in this regard is totally inconsistent with DW2’s conduct at the material times.

36.The evidence given by the defendant and DW2 can also be analyzed from another angle.  According to their evidence, it had been either agreed or understood between them that the HK$10,000 given by DW2 to the defendant still belonged to DW2, and that the defendant would just keep the money in his wallet for DW2 and would not use it.  If so, DW2 who said that she loved and trusted the defendant must have the belief and confidence that she could call upon the defendant to return all the money to her at any time since she retained ownership of the money, and that the defendant would have no difficulty to return the money forthwith upon her demand because he should have kept all the money with him at all times.  However, Message A2 showed that DW2 did not in fact have such a belief at that time.

37.When DW2 asked the defendant in Message A2 that “But within 2 weeks at least u give me back some ok”, it clearly showed that at that time, she had the worries that the defendant might not have the money to repay her, hence she wished to obtain the agreement or assurance from the defendant that he would repay at least some of the money to her within two weeks.  It goes without saying that the only way that would make the defendant unable to repay DW2 was that he no longer had the money with him.  Hence, the only reason to account for DW2’s worries at that time must be that she knew full well even before she gave the HK$10,000 to the defendant that he was going to spend the money, and that he might use up the whole amount.  This is the only reasonable and irresistible inference to be drawn from Message A2 which flatly contradicts the defence evidence that DW2 believed as it was so promised to her by the defendant that the money given by DW2 to the defendant would not be used by the defendant at all, and the money would remain in his wallet.

38.In addition, the fact that DW2 had to ask the defendant whether it was “ok” to give back at least some of the money to her within two weeks, as opposed to directing him to do so, clearly exposed her state of mind at that time that she did not consider that she could retain control over the use of the HK$10,000 after she had given the money to the defendant.  She knew that she could only ask the defendant to repay the money to her, hence she sought to secure an agreement or assurance from him that he would give her back some money in two weeks. This state of mind of DW2 at that time refutes the defence evidence that after DW2 had given HK$10,000 to the defendant, the money still belonged to her.

39.In the deliberation process, I have not omitted the evidence of DW2 that she asked the defendant in Message A2 to return at least part of the HK$10,000 to her within two weeks because she had ordered two wedding rings (for her and the defendant) from Indonesia, and that she knew that the rings would be sent to Hong Kong in 2 to 3 weeks’ time when she had to pay for them.  In my view, the evidence of DW2 in this regard not credible.  First, she has not produced any invoice or document to prove that she had in fact made such a purchase, but document of this kind should be readily available because according to her, the rings were ordered from Indonesia.  Second, in none of the text messages did DW2 say anything about the wedding rings.  Instead, she told the defendant in Message C2 on 6 March 2020 that she needed to “pay the ring for Mom”, not two wedding rings for her and the defendant.  Third, if the evidence of DW2 were true, she would have already ordered the wedding rings by 20 February 2020.  It must follow that when she sent out Message A2, she would have already known how much she had to pay for the rings.  Hence, if the purpose of Message A2 was to ask the defendant to give her back some money to pay for the rings, she should have told the defendant how much she needed, just like what she had done in Message C2 saying that she needed HK$6,000, but she just asked the defendant to give her “some” money without specifying an amount.  Furthermore, when it was already within DW2’s knowledge or anticipation that she had to pay for the two wedding rings in 2 to 3 weeks’ time of the date when she sent out Message A1 and hence should have the money ready for payment by then, it simply does not make sense that she would have agreed to give the defendant HK$10,000 on 20 February 2020 and then handed over the money on 23 February 2020, but then asked the defendant to return some of the money to her by 6 March 2020 (i.e. two weeks from 20 February 2020) so that she could pay for the wedding rings, especially when according to the evidence of the defendant and DW2 if the evidence were true or probably true, the HK$10,000 given by DW2 to the defendant would simply lay idle with the defendant who would not use the money at all.  In these circumstances, why should they go through the trouble of handing over the money amongst themselves for no reason at all?  In conclusion, I do not find the defence evidence in this regard credible.  It is a failed attempt by DW2 to explain Message A2 which exposed the inconsistency between the contents of that message (that the defendant had to repay the HK$20,000 to DW2 at least partly if not wholly within two weeks) and the defence case (that DW2 gave the HK$10,000 to the defendant for him to keep and save for their intended marriage).

40.The defendant and DW2 also try to explain why they did not save money in DW2’s bank account which should have been the safest and the most convenient depository of the money if they had to save up money for their intended marriage.  Her bank account was the safest because the money would not be lost through any mishaps or accident.  It was the most convenient because DW2 could simply put her money there.  I note that the defendant and DW2 said that if they put the money into DW2’s bank account, DW2’s mother would know that DW2 had money and would ask DW2 to send money home and make purchases, leaving them with little money to save.  I find such evidence has no ring of truth.  First, it must be obvious to DW2, and indeed to any person, that if DW2 did not show her bank statement to her mother or tell her mother how much money she had in her bank account, her mother would simply know nothing about the status of her bank account.  Second, DW2 had worked as a domestic worker in Hong Kong for the past 5 years.  According to DW2, she had sent money home and made purchases as directed by her mother from time to time throughout the years.  If so, her mother must have a good idea of how much DW2 would earn each month, and she must also know that DW2 as a domestic helper in Hong Kong would earn a fixed amount of salary every month. Hence, whether or not DW2 told her mother anything about her bank account, or whether or not her mother would ask her for her bank statement, her mother would still expect the defendant would support the family in Indonesia in the same way as before.  In other words, her mother would not stop asking DW2 to send money home and make purchases even if DW2 did not deposit her monthly salary into her bank account.  Hence, even if DW2 saved her money in her bank account, the amount of money that she could possibly save would not be increased or decreased, and DW2 must know that this was the situation.  In my view, it is more probable than not that DW2 did not put her money into her bank account for the simple reason that she had to spend the money, either for herself or for some other purposes.  That DW2 did not put money into her account for saving in fact points to the direction that she was not saving money for her marriage at the material times.

41.I also note that when DW2 told the defendant in Message A1 that she was going to withdraw money from bank on Sunday so as to give HK$10,000 to him, the defendant immediately reminded DW2 that the bank would close on Sunday in Message A3.  When DW2 told her that she could obtain the money through ATM in Message A5 and A7, the defendant then replied in response “Oh Alright bbe” in Message A7.  This set of communication clearly indicates that the defendant was trying to ensure that DW2 would have the HK$10,000 available that Sunday so that the whole sum would be given to him without delay, thereby indicating that he needed money for his use at that time.  If giving money to the defendant were simply an exercise to save up money for their marriage, the same purpose would also be served by leaving the money in DW2’s bank account, and there was simply no need for the defendant to remind DW2 that she might not be able to obtain the money from the bank on Sunday when the bank would be closed for business.

42.Having considered the defence evidence carefully, I find that the contemporaneous text messages between the defendant and DW2 have depicted a very clear picture that at that time, the defendant needed money for his use, DW2 was willing to give him HK$10,000, knowing full well that the defendant was going to spend the money and might even use up all the money, but the defendant had to repay the money to DW2, and DW2 wanted the defendant to repay her at least some of the money within two weeks.  These arrangements as agreed between the defendant and DW2 lead irresistibly to the conclusion that DW2 agreed to lend HK$10,000 to the defendant upon his request on 20 February 2020, and then gave this sum of money to the defendant on 23 February 2020.  In other words, I find that the defendant has failed to prove on balance of probabilities that the HK$10,000 given to him by DW2 on 23 February 2020 was money given to him by DW2 for safekeeping or to be saved up for the purpose of their intended marriage.  Upon the basis of these factual findings, I find that once DW2 had lent the HK$10,000 to the defendant, DW2 no longer had any proprietary right over the banknotes that she had handed over to the defendant, but she had a right to recover the loan from the defendant.  Her right was that of a chose in action, rather than in the banknotes on the basis of action in rem.

43.Both the defendant and DW2 has also testified that DW2 had given a total of HK$14,000 to the defendant.  According to DW2, in addition to the HK$10,000 given to the defendant on 23 February 2020, she gave another HK$4,000 to the defendant on the day after the day when she received her salary in cash in the sum of HK$5,200 on 26 February 2020.  In other words, her evidence is that she gave another HK$4,000 to the defendant on 27 February which was a Thursday.

44.It is apparent from the bank statement of DW2 for the period between 19 February and 19 March 2020 that there was only one ATM transfer in the sum of HK$4,520 into her bank account on 29 February 2020 (and the record was entered on 2 March 2020).  DW2 says that this was repayment from her friend whom she considered to be her sister.  I have no reason to doubt her evidence in this regard.  It must also follow that the evidence of DW2 that she received her salary in cash rather than through her bank account is supported by the bank statement.  Hence, I accept that it has been proved on balance of probabilities that DW2 had received her salary in cash on 26 February 2020.  On this basis, I also accept that DW2 had given another HK$4,000 to the defendant the following day on 27 February 2020.

45.As far as this sum of HK$4,000 was concerned, both DW2 and the defendant testify that it was money given by DW2 to the defendant for him to keep and save up for their intended marriage.  For the same reasons that I have already explained regarding the payment of HK$10,000, I do not believe at all that this sum of HK$4,000 was given by DW2 to the defendant for this alleged purpose.  It must be noted that if the evidence of DW2 were true or probably true, 27 February 2020 would be even closer in time to the expected date when she would have to pay for the wedding rings from Indonesia; if so, it simply makes no sense that she would give another sum of HK$4,000 to the defendant at this point of time when the money given to the defendant would simply lay idle with him for a few days before returning to her.  In my view, the HK$4,000 given by DW2 to the defendant on 27 February 2020 was in fact another loan made by DW2 to the defendant.  Once the banknotes for this sum were handed over to the defendant, DW2 would have a chose in action to recover the debt from the defendant, but she would have no proprietary right over the banknotes that she had handed over.

46.In summary, I accept that DW2 had given the defendant HK$10,000 on 23 February 2020 and then HK$4,000 on 27 February 2020.  Of course, these two sums of money were given to the defendant in cash comprising of banknotes.  However, as to whether the banknotes representing these sums of money were the banknotes seized from the defendant at the time of his arrest, this is a matter to be discussed in the later part of this ruling.

47.The defendant also says that amongst the money found on him at the time of arrest, HK$5,000 came from his friends who gave him the money after learning of his situation.  He said some friends gave him HK$500, and some gave him HK$1,000.

48.I do not accept the defendant’s evidence in this regard.  He gave no particulars of his friends.  Nor has he particularized the number of occasions and the dates when he received these alleged sums of money from his friends.  He came from Gambia and was a Form 8 recognizance holder.  It is likely that his friends were persons of similar background and they were also Form 8 recognizance holders who could not work in Hong Kong.  It would be difficult for them to have spare money. Even if it were true that his friends gave him sums of money as he has testified, it was most likely that they gave him money for his daily needs and he had spent the money for this purpose.  It means that it is unlikely for him to accumulate money from this particular source up to HK$5,000 at the time of his arrest.  Bearing in mind that the burden lies upon the defendant to prove this source of money on balance of probabilities, I find that the defendant has failed to discharge his burden of proof.

49.Having found that DW2 had lent HK$10,000 to the defendant on 20 February 2020 and then HK$4,000 on 27 February 2020, I have to consider in what way if any these findings may affect the present forfeiture application.

50.For the following reasons, I find that the 41 pieces of banknotes (for the total sum of HK$19,000) found on the person of the defendant at the time of his arrest did not include the banknotes (for the total sum of $14,000) handed over to him by DW2 at the time when these two loans were advanced:

(a)  From the fact that the defendant obtained the first loan of HK$10,000 from DW2 on 23 February 2020 leads to the only reasonable and irresistible inference that he was in need of money.  After he had obtained the money, it was more probable than not that he had spent the money, especially in light of the fact that he obtained the second loan of HK$4,000 on 27 February 2020, indicating that the first loan was insufficient for his use and needs.

(b)  From the fact that the defendant obtained the second loan of HK$4,000 from DW2 on 23 February 2020 leads to the only reasonable and irresistible inference that he was in need of money.  After he had obtained the money, it was more probable than not that he had spent the money.

(c)  The defendant had to spend money to cover his daily expenses for food and travelling, etc.  Since the defendant obtained the second loan just 5 days after he had obtained the first loan, it was more probable than not that he had already spent all or most of the first loan by the time he obtained the second loan.  It means that he had to rely wholly or mainly on the second loan of HK$4,000 to support his daily living for 9 days from 27 February 2020 when he obtained the second loan until 6 March 2020 when he was arrested.

(d)  The defendant had to spend money for consuming drugs.  He was a frequent abuser of cannabis, and occasional abuser of cocaine. He was tested cannabis positive when he was first remanded into Lai Chi Kok Reception Centre.

(e)  The defendant purchased 4 grammes of cocaine on 5 March 2020.  While there is no specific evidence on the price of the drugs, it was more probable than not that he had paid several thousand dollars, since the estimated retail value of the drugs found on him (all or part of which were from this purchase) was about HK$10,618.

51.For the reasons that I have just explained, I find that the banknotes that DW2 had given the defendant at the time of the two loans had already been spent by the defendant, and that the banknotes in the defendant’s possession at the time of his arrest were not banknotes from DW2 but from other sources.  It therefore follows that even if DW2 can pursue an action in rem to get back the banknotes she had given the defendant, she must fail because her banknotes were no longer with the defendant.  In any event, I have found that DW2 has only the right to ask the defendant to repay the debt.

52.I have not lost sight of the fact that the defendant had asked DW2 to get back her money on 29 February 2020 and DW2 asked him to keep the money in his wallet and not to use them in their communication through Messages B1 to B8.  However, in my view, this text messages only further confirmed that the money that DW2 gave the defendant prior to 29 February 2020 were loans and that the defendant was liable to repay them.  The fact that the defendant asked DW2 to come for her money did not mean that he had already repaid her, and there is no evidence that he had earmarked certain pile of banknotes to be DW2’s money. 

53.I also note that according to Messages C1 to C5, DW2 asked the defendant to give her at least HK$6,000 and the defendant agreed to pay on Sunday.  These messages were exchanged between 8:50 to 8:51 p.m. on 6 March 2020 (Friday), i.e. just 46 minutes before the defendant was intercepted by PC16847.  Since the defendant said that he would give her the money on Sunday, there is no basis to find that the banknotes with the defendant at that time had become DW2’s money.

54.In my view, at the time when the defendant was arrested, he had with him 41 pieces of banknotes for the total sum of HK$19,000, and that he owed a debt of HK$14,000 to DW2.  However, it does not mean that DW2 is entitled to ask for HK$14,000 to be paid over to her.  As I have already explained, DW2 had no right over the specific banknotes and she had only a course of action to recover the debt from the defendant.  On the other hand, I find it as a fact as it was more probable than not that the defendant had already spent the two loans that were lent to him by DW2.  The question therefore is: from where did the defendant obtain the money found on his person?

55.In my view, in light of the fact that the defendant had no source of lawful income, that his social welfare assistance of HK$1,500 a month would not enable him to save up any or any substantial sum of money, that he had already spent the two loans advanced to him by DW2 before his arrest, but he had purchased cocaine the day before his arrest and adulterated them with white solids to inflate the quantity of drugs that he could sell, and he was carrying drugs on his person for the purpose of sale at the time when he was intercepted by PC16847, the fact that he had with him the said sum of HK$19,000 on his person enables the inference to be drawn on balance of probabilities that this sum of HK$19,000 possessed by him was the result or product of his drug trafficking activities. It was in fact unusual for an ordinary person to carry with him 41 pieces of banknotes at the same time.  This piece of undisputed fact strengthens further the finding that the defendant had just received payment from his customers of drug sales before he was intercepted.

56.I have not lost sight of the fact that the defendant had said under caution that when he was intercepted by PC16847 in Wyndham Street, he was trying to get a taxi to go to Tuen Mun to join a party with his friends, and he would sell some of the drugs on him to earn money.  However, even if what the defendant had said were true, he could sell drugs in or near the location where he was intercepted, and then go to Tuen Mun to sell drugs.  His statement under caution did not contradict the inference that he had sold drugs before he was intercepted.

57.Having considered all the evidence and the submissions of the parties, I find that the prosecution has proved on balance of probabilities that the HK$19,000 possessed by him at the time of his arrest were proceeds of drug trafficking.  It is true that the defendant owed DW2 a debt of HK$14,000.  However, even if the defendant intended to settle his debt by the money he earned through his drug offence, the money remains to be proceed of drugs and is liable to be forfeited.  DW2 can only take other action to recover her debt.

Order

58.For the reasons given, I order that the said sum of HK$19,000 seized from the defendant at the time of his arrest is to be forfeited to the Government of HKSAR.

Miss Sabrina See, counsel on fiat, for HKSAR

Mr. John Patrick McNamara, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the defendant