Case Document

100%Judiciary

CACC 239/2019

[2021] HKCA 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 239 OF 2019

(ON APPEAL FROM DCCC NO 807 OF 2018)

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	HKSAR	Respondent
	v
	NGAI TAI MING	Applicant

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Before: Hon Zervos JA in Court

Date of Hearing: 26 May 2021

Date of Judgment: 26 May 2021

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J U D G M E N T

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1.On 24 June 2019, the applicant was convicted on his own plea before District Judge Dufton (the judge) of a single charge of trafficking in a dangerous drug, namely 16.50 grammes of a solid containing 15 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 143.

2.On 9 August 2019, the judge sentenced the applicant to 3 years and 6 months’ imprisonment, and by virtue of section 56(1)(a) and (b) of the Dangerous Drugs Ordinance he ordered the forfeiture of $55,000 cash and the conditional return of a car to the OCBC Wing Hang Bank Limited, pursuant to a hire purchase agreement.

3.On 13 August 2019, the applicant filed a notice of application for leave to appeal in respect of the forfeiture order for “money and car”. He set out no grounds for the basis of his application and has provided no further information since he filed his application. At the hearing of the application, the applicant appears in person, having served his sentence and having had legal aid refused.

4.The prosecution applied for forfeiture of these items on the basis that the car was being used by the applicant to carry out his drug trafficking activities and the money was found in a bag that he was carrying at the time of the offence.

5.In respect of the forfeiture order the judge applied the principles laid out in HKSAR v Shoki Fatuma Ramadhani, FAMC 34/2018, 12 November 2018; [2018] HKCFA 51, at [5]; Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877; HKSAR v Okpo Stanley Igwebuike unrep., HCCC 92/2016, 8 August 2016, at [8] to [14]. Since the judge handed down his decision the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 has reaffirmed its jurisdiction to consider an order of forfeiture as part of an appeal against sentence.

6.In a detailed decision, the judge found that the money and the car were used in the commission of or a result of the drug trafficking offence. He explained that the applicant had failed to persuade him, on a balance of probabilities, why the money should not be forfeited. He further found no grounds to exercise his discretion not to order forfeiture of the money. Similarly, the judge found that the applicant failed to persuade him, on a balance of probabilities, why the car should not be forfeited. The bank was legally represented before the judge when he heard the application for forfeiture. He accepted that the bank was the legal owner of the vehicle under a hire purchase agreement which had no knowledge of the applicant’s criminal activities and decided in the circumstances of the case to order the return of the car to the bank.

7.The applicant was legally represented at the hearing of the forfeiture application. He and his brother gave evidence contesting the application. He applied for the return of the car and the money, except for $11,000 to $12,000, which he said was for “drug”.

8.In support of his application, the applicant submitted a written submission in which he complains that the police officers gave inconsistent evidence as to the finding and handling of the money in question and yet the judge accepted their evidence. He repeats the argument that was advanced before the judge that not all the money was found in the bag and that the two police officers gave inconsistent evidence on this issue. He also refers to the photographs of the exhibits to suggest that not all the money was found in the applicant’s bag. He also repeats that one of the police officers wrongly remembered that the applicant had signed the exhibit envelopes to support his argument that the judge should not have accepted their evidence.

9.However, the judge addressed these issues and found that the police officers were honest and credible,[1] while the applicant and his elder brother, who gave evidence, were not.[2] He found that the mistake made by the police officer in respect of the applicant’s signing the exhibit envelopes and where the money was seized did not cause him to doubt the evidence that all the money was found in the applicant’s bag.[3] It is highly significant that in the summary of facts, which the applicant agreed when he pleaded guilty, it was admitted that the money was found inside the bag the applicant was carrying.[4]

10.The applicant also complains that his account that $40,000 was to pay for his mother’s dental treatment should not have been rejected by the judge. Again, the judge fully addressed this matter and rejected his evidence.[5]

11.The applicant finally complains that the judge’s order returning the car to the bank as legal owner meant that if there was any balance under the hire purchase agreement due to the bank he would have to pay such sum and this was further punishment against him in the form of a fine. There is no substance to this complaint because it is a contractual issue between him and the bank under the terms and conditions of the hire purchase agreement.

12.The applicant mentions a number of cases, without providing the case citations, to illustrate that there have been cases where a car or money involved in the commission of the offence have not been the subject of forfeiture. This comparison is of no assistance as it is not only bereft of relevant details but also ignores the question of whether in the particular circumstances of this case, and applying the relevant legal principles, the judge was correct to order the forfeiture that he did.

13.As I have already indicated the judge gave a very detailed decision, setting out the relevant legal principles and addressing the evidence and the issues before him. I can find no fault in the judge’s reasoning in relation to the forfeiture application and accordingly leave to appeal is refused.

14.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for renewal of his application.