HKSAR v. Chan Sau Mui

HCCC 136/2019

[2021] HKCFI 737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 136 OF 2019

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BETWEEN

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R U L I N G

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Introduction

1.The defendant was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (“DDO”).  She was acquitted after trial of the charge of trafficking but was convicted of the alternative offence of possession of a dangerous drug.  On 28 November 2019, she was sentenced to a term of 20 months’ imprisonment.

2.After sentence, Mr Shaun Kelly, for the prosecution, made an application under s.56(1) of the DDO to forfeit the sum of HK$74,483.50 cash seized from the defendant upon her arrest.  It was submitted that the money was liable to be forfeited as there was prima facie evidence that the cash found on the defendant was “in connection with the commission of the drug offence” or “the product of trafficking to sustain [the defendant’s] addiction”[1].

3.Mr Whitehouse, for the defendant, opposed the application. He argued that the money (nearly all in large denominations, consisting mostly of HK$1,000 and HK$500 banknotes) found on the defendant’s person at the time of her arrest was unrelated to any drug offence and that taking all relevant circumstances into account the court could not be satisfied that “there is an inescapable inference that this money was/is ‘possessed’ as ‘result or product’ of DD trafficking”[2]. Mr Whitehouse made clear, both in his skeleton submission and when specifically asked to confirm his position at the hearing, that no evidence would be called by the defendant to support her case against forfeiture.  He was content to rely on evidence received at the trial, including what the defendant said under caution in the video recorded interview (“VRI”) taken from her by the police after arrest.

The case at trial

4.To put the application in context, it is convenient to briefly set out the relevant factual background and the respective cases for the prosecution and the defence in the trial.

5.It was the prosecution’s case at trial that the defendant was intercepted by the police in the early morning at around 5 am of 17 July 2018 at the roadside outside a Wellcome Supermarket at Shanghai Street in Mongkok.  Upon search, the police found the dangerous drugs, the subject matter of the charge, in her left front trousers’ pocket.  The drugs were packaged separately in 1 resealable plastic bag of ICE, 2 resealable plastic bags of heroin and 1 small pellet of heroin in plastic wrappings.

6.The officer then arrested the defendant for trafficking in dangerous drugs and cautioned her.  Under caution at the scene, the defendant claimed that the drugs were all for her own consumption.  She maintained the same explanation in her VRI taken later the same day at the police station. In gist, she said under caution that she had purchased the drugs from an acquaintance called “Ming Chai” whom she had bumped into at a park on Tai Nan Street shortly before her arrest.  Ming Chai offered to sell her the drugs, ICE and heroin, and there were about 14 grammes of each type of the drugs.  She bought the whole lot in bulk as she wanted to take them home and save them for her own consumption slowly.  She had been a drug addict consuming ICE and heroin for over 30 years.  She paid Ming Chai $20,000 for the drugs which was all her own savings.  She said she kept the large sum of money with her on her person which was what she had always done.  After purchasing the drugs from Ming Chai, she walked to Mongkok intending to go to the 24-hour Wellcome Supermarket to buy something.  She was intercepted by the police there.

7.As regards her drug habit, she described in her VRI how she would consume the ICE and heroin once or twice a day and that although she was not too certain about the quantity of drugs she would take each time, the quantity of drugs found in her possession would last her several months if she was to consume them “slowly and frugally”.

8.Upon analysis, the drugs seized were confirmed to be 13.50 grammes of a solid containing 13.10 grammes of methamphetamine hydrochloride (ICE) and a total of 16.06 grammes of a mixture containing 10.13 grammes of heroin hydrochloride.  The estimated street value of the drugs at around the time of the offence was $7,304 for the ICE and $14,165 for the heroin – totalling $21,469 for the whole lot.

9.According to Dr Mak, an expert in toxicology and substances of abuse, the quantity of each type of the drugs seized in this case would be good enough for consumption for about 20 days for one user.

10.At trial, most of the prosecution case was agreed.  Two prosecution witnesses were called to testify – the Ag. SGT Choi (PW1) who made the arrest and a DPC Leung (PW2) who participated in the VRI with the defendant and who went to her residence to conduct a house search subsequently.  DPC Leung confirmed in his evidence that at the time of the house search, the defendant’s 11-year-old daughter was there inside the premises, as well as a man (who the defence claimed to be a Mr Luk with whom the defendant got married subsequently during her remand for this case).  The officer also confirmed that there was no drug trafficking paraphernalia found inside the premises, such as weighing scales, plastic bags or account books.  Nor was there any equipment for consuming drugs.

11.The defendant chose not to give evidence in the trial.  She relied on her account given in the redacted VRI which was admitted into evidence by way of Admitted Facts.  She relied also on the admitted facts that she had been receiving Comprehensive Social Security Assistance (“CSSA”) of around $10,000 per month for a whole year[3] before her arrest, that she was married to a man called Mr Luk, and that she was tested positive for amphetamine and opiate on a urine test conducted two days after her arrest during her remand in the Tai Lam Centre for Women.  A medical report dated 29 January 2019 was also produced by agreement setting out the defendant’s substance abuse and addiction history and stating that she had been taking heroin since she was aged 14 and ICE since her twenties.

12.In short, the defence case was that the defendant was a long-term addict in both ICE and heroin and that she had all the drugs found on her for her own consumption only.  It was suggested that she was able to fund her drug habit given her CSSA income and that in any event she was not on her own and had Mr Luk behind to support her.

13.As it turned out, the defendant’s claim of possession of the drugs for self-consumption was consistent with the verdict returned by the jury. 

14.As regards the HK$74,483.50 cash seized from her, the defendant gave the following explanation in her VRI:

“259.	Q	No. Well, after the police had searched you, seventy four thousand four hundred eighty three and a half Hong Kong dollars was seized on your person.  Well, we, the police, listed (it) as Exhibit Number [7].  What do you want to say regarding this money?
260.	A	I saved it myself.
261.	Q	You saved the money yourself?
262.	A	Right.
263.	Q	What is the use of this money?
264.	A	(It is) needed for the living of my … my whole family.
265.	Q	Needed for the living of the whole family, OK.  Well, how did you save this money?
266.	A	I kept it on myself all along.
267.	Q	Right, you kept in on your person all along?
268.	A	Yes.
269.	Q	(‘) Kept it on yourself (’) means?
270.	A	Including the salary of my husband.
271.	Q	Right.
272.	A	Or my CSSA.
273.	Q	Right.
274.	A	Well, it was kept on myself for saving.
275.	Q	Kept (it) on yourself for saving.  Well, how did you … kept on yourself means, where was it kept on yourself for saving?
276.	A	Kept in my own purse.
277.	Q	Kept in (your) own purse for saving, OK. Well, is there anything else that you want to say regarding the seventy-odd thousand dollars?
278.	A	No.”  (Emphasis in italics supplied)

15.These entries were however not placed before the jury as they had been redacted from the VRI pursuant to my ruling[4] at the outset of the trial.  That said, for the purpose of the forfeiture application, it is common ground that I am entitled to take into consideration the explanation proffered by the defendant during the VRI as contained in these entries.

The law

16.The relevant statutory provision is section 56 of the DDO which 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.”

17.There are thus two bases under section 56(1) upon which a forfeiture order can be made – namely, either that (a) the money or thing has been used in the commission of or in connection with a drug offence; or (b) the money or the other property was received or possessed by a person as a result or product of a drug offence.

18.As the Court of Appeal observed in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57[5], it is not normally necessary for a judge to identify which aspect or permutation of s.56(1) is engaged when deciding whether to make an order of forfeiture.  The section does not require any specific connection between the money to be forfeited and the conviction of the defendant or, for that matter, of anybody else.  The various alternatives set out in s.56(1) serve to “cast the net as widely as possible”.  

19.The above reasoning of the majority in Ngoma Juma Shabani was reaffirmed recently by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 (see in particular the discussion at §§118 to 121).  It is thus established that it is not necessary to identify the specific limb of s.56(1) under which a forfeiture order is made as long as the terms of the provision are met on the evidence.  The net is meant to be cast as widely as possible.

20.In HKSAR v Herry Jan Yusuph [2021] HKCA 210 (unreported, 25 February 2021), following upon the dismissal of the substantive appeal, and in refusing a subsequent application to certify a point of law for final appeal, the Court of Appeal referred to the common sense approach applied in authorities such as Chalmers v The Queen (2011) 215 A Crim R 275 where the Supreme Court of Victoria gave a wide construction to the phrase “used in connection with the commission of the offence” in the context of applications to forfeit “tainted property”.  The Australian Court identified the following propositions which are also pertinent in the context of our own forfeiture regime under s.56(1), in particular the basis under limb (a):

“1.  The word “used” should be given its ordinary meaning of “employed, or made use of, for a particular end or purpose”.

2.  The statutory phrase is of wide scope. The inclusion of the words “in connection with” was plainly intended to extend the scope of the definition of “tainted property” beyond circumstances where the property could be said to have been “used in the commission of” the offence.

3.  Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a “substantial” connection, or that the crime could not have been committed without using the property.

4.  The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the court’s discretion whether or not to order forfeiture of the property.

Very often, the decisive issue will be whether the relevant property can be said to have been “used”, since “use” is (by definition) employment for a purpose. Once it is concluded that the offender “used” the property at or around the time of the commission of the offence, it will usually follow that there was the requisite connection between the use of the property and the commission of the offence. Put differently, if the offender (or some other person) “employed or made use of” the property for a purpose associated with the offending, then it would follow that the property was “used in connection with the commission” of the offence.” (Emphasis in underline supplied)

21.In terms of procedure and burden of proof, the general principles are as laid down in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, namely that forfeiture proceedings are civil in character, and that the applicant or claimant bears the onus of establishing on a balance of probabilities that the seized item was either liable to forfeiture or belonged to the claimant.  As Sir Anthony Mason NPJ put it when addressing the different forfeiture provisions in the Import and Export Ordinance, Cap. 60:

“65.  On a hearing under s.28(7) 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.

66.  It is therefore for the claimant, in order to avoid this outcome, to make out a case for an exercise of the discretion to order delivery of the article to him. He may do this by proving facts to the satisfaction of the court, according to the balance of probabilities... To say this is to say no more than that a party who seeks to have a judicial discretion exercised in his favour bears the burden of establishing his case. It is not for his opponent to negative the existence of such a case[6].”

22.Accordingly, in the context of 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 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 it is established that the item is liable to forfeiture, the onus will in those circumstances shift to the one claiming the money or other property (in this case, the defendant) to satisfy the court, on a balance of probabilities, that he or she 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 has 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 or should be given to him or her and there is no other reason not to do so.

23.As Zervos J (as he then was) remarked in HKSAR v OKPO Stanley Igwebuike, HCCC 90/2016, 8 August 2016, unreported, at §14:

“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. It could depending on the circumstances of the case extend to other property such as a motor vehicle or vessel that was used to transport or smuggle drugs. 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”. (Emphasis in italic supplied)

Prosecution’s submissions on forfeiture

24.Mr Kelly for the prosecution submitted that there was a prima facie case that the cash found on the defendant was liable to forfeiture under s.56(1)(b) of the DDO.  Mr Kelly relied on the following matters in support of his contention:

(1)  The defendant was in possession of a relatively large quantity of drugs, namely 13.10 grammes of ICE and 10.13 grammes of heroin.

(2)  The time and location of the defendant’s arrest – The defendant was apprehended at 5 am in early morning acting furtively at the roadside outside the Wellcome Supermarket in question in Mongkok.

(3)  The defendant was a CSSA recipient for some 12 months from 1 July 2017 to 30 June 2018 and was apparently not a person of much means.

(4)  As regards the defendant’s claim under caution that the cash found on her was all the savings needed for the whole family including her husband’s salary which she kept in her purse all the time, Mr Kelly submitted that such an explanation was not plausible.  In any case, as Mr Kelly pointed out, that portion of her VRI had been redacted and was thus not before the jury in the trial.  As such, it cannot be said that the jury verdict of possession of dangerous drugs necessarily included an acceptance of the defendant’s assertion in respect of the cash.

(5)  It was not within the means of the defendant to save such a large amount of money given that she was supporting herself and her daughter at the material time.

(6)  Her assertion of a husband’s salary at a time when she was unmarried is inconsistent with her declaration of no income or no job made to the CSSA.

(7)  She had a bank account at the material time which she could have kept such a substantial sum of money.

25.Mr Kelly submitted that in all the circumstances of the case there was a prima facie case that the cash found on the defendant was the product of trafficking to sustain her addiction which would have been unsustainable either on the consumption rates put forward by the defendant herself in her VRI[7] or on the consumption rates provided by the prosecution expert Dr Mak as agreed under the Admitted Facts produced at trial.  

Defendant’s submissions on forfeiture

26.On the other hand, Mr Whitehouse for the defendant opposed the application for forfeiture.  He contended that the money found on the defendant at the time of her arrest was unrelated to any drug offence and that the evidence available was not sufficient to even raise a prima facie case against the defendant on forfeiture.  He prayed in aid the fact that the defendant was acquitted of trafficking and that there was no evidence of her involvement in any trafficking activities at all – there being no trafficking paraphernalia (such as mobile phones, weighing scales, etc.) found either on her person or in her residence by the police.

27.As regards the defendant’s claim that the money was all saved by her, Mr Whitehouse argued that it was quite possible for her to slowly save this amount over a long period of time, especially as she had a partner (now husband) to support her, there being no evidence of how long a period she had saved.  In this connection, he emphasised that the cash found on the defendant was all in large denominations of HK$500 and HK$1,000 notes which was consistent with the claim that it was her savings and not what would be expected from the proceeds of small-time trafficking.

28.Finally, Mr Whitehouse pointed out that despite being addicted to drugs since a teenager the defendant had never been convicted of trafficking.  He maintained that taking all relevant circumstances into account, the court could not be satisfied that “there is an inescapable inference that this money was/is ‘possessed’ as ‘result or product’ of DD trafficking”.

Discussion

29.Section 56(1) clearly envisages that an order may be made even when the particular charge in connection with which the money has been seized has failed.  As McMullin JA said in Lai Chin Hung v The Queen [1980] HKLR 115, 119, “[w]henever the court has evidence before it sufficient to justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence, then, whether or not it finds that the offence charged has been proved it may, nevertheless make the order.  If there is prima facie evidence of such a criminal connection, then if no innocent explanation is offered the court may – though it would not necessarily do so – find that the connection with an offence has been established.”

30.In the circumstances of the present case, I am satisfied on the balance of probabilities that notwithstanding the defendant’s acquittal of the trafficking charge and conviction of the alternative offence of possession of dangerous drugs, there is indeed prima facie evidence of such a criminal connection falling within the terms of section 56(1).

31.The defendant was found in possession of a large quantity of drugs in two different types (with an estimated street value of HK$21,469 in total[8]) and a substantial sum of money (HK$74,483.50) in early hours of the morning on the street in Mongkok.  According to the expert, that lot of drugs could have lasted a regular user about 20 days of consumption, whereas the defendant herself claimed under caution that the quantity would last her several months.  On any account, the quantity of drugs was significant for the defendant a person of limited financial means.

32.On her own admission, the defendant was a long-term drug addict and a regular abuser of both ICE and heroin.  She would need to fund her addiction.  It is not unknown, and may well be said to be common knowledge, that drug addicts would engage in peddling drugs on the street when the chance arises in order to earn money to fund their addiction.  In the circumstances of the present case, such an inference is clearly justified on the evidence and can also be drawn in support of a prima facie case for forfeiture against the defendant.

33.I am accordingly satisfied to the required standard that the prosecution has established a prima facie case for forfeiture.  The burden thus shifts to the defendant.

34.As noted above, the defendant did not seek to give or call evidence to support her case against forfeiture.  I do not accept her bare assertion in the VRI that the cash found on her person was all the savings of hers and her family’s and had nothing to do with drug activities.  It was indeed very odd that she would be carrying such a large sum of money around alone on the street in Mongkok in such early hours of the morning.

35.The evidence shows that the defendant had little financial means at the material time.  She was on CSSA and had no income and no job.  She had to support both herself and her daughter at the time, in addition to funding her own drug addiction.  Yet she was found on the street in early hours of the morning in possession of a large quantity of drugs and the substantial amount of cash, which according to her, was all her savings needed for the whole family.

36.As pointed out by Mr Kelly, the defendant had a bank account at the material time in which she could have safely kept her money, yet she chose to carry such a large amount of cash around in her purse – all the time, as she claimed.  No credible innocent explanation was proffered and I can detect no sensible reason for her to do so at all.  In addition, her claim that the money found on her included the salary of her husband[9], at a time when she was still unmarried, is indeed, as Mr Kelly submitted, contradictory and in any case inconsistent with the declaration she made to the CSSA that she had no income or job.  I reject the defendant’s account in all these respects.

37.In sum, I do not accept the explanation of the defendant as to the provenance and purpose of the money seized from her. I do not accept her claim that the money was not connected to any drug offence and that it was all merely her own savings for the whole family which she carried around all the time.  The prosecution having made out a prima facie case for forfeiture, it falls upon the defendant to satisfy me on the balance of probabilities that she is entitled to have the money.  She fails to discharge that burden to the required standard.

38.On the evidence before me, and bearing in mind the nature of the application and all relevant principles governing the determination of such proceedings, I am satisfied to the requisite standard that the HK$74,483.50 cash seized from defendant comes within either or both of the two limbs under section 56(1) – namely, the money was used in connection with, and/or received or possessed by the defendant as a result of an offence under the DDO.

Conclusion

39.For the above reasons, I find to the requisite standard that the prosecution has established on the evidence before me that the money in question came within the terms of section 56(1).  Accordingly, I would exercise my discretion and order that the whole sum of HK$74,483.50 seized from the defendant be forfeited to the Government.

Mr Shaun Kelly, counsel on fiat, for HKSAR

Mr Frederic Whitehouse, instructed by Messrs Sam Fu & Co, assigned by Director of Legal Aid, for the defendant