HKSAR v. Chukwuleta Sunday Freedaline

HCCC 523/2014

[2022] HKCFI 3759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 523OF 2014

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Before:  Hon Campbell‑Moffat J in Court

Date of Hearing:  14 December 2022

Date of Decision:  14 December 2022

Date of Reasons for Decision: 15 December 2022

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REASONS FOR

DECISION

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1.On 4 February 2017, the defendant was found guilty after trial of one count of conspiracy to traffic in a dangerous drug and was sentenced to a period of imprisonment of 16 years 3 months. Thereafter, he sought to appeal both that conviction and sentence, which was dismissed on 14 March 2022.

2.This is an application by the prosecution for the forfeiture of a total sum of US$4,260 and HK$1,024 (“the monies”) under s56(1) of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”) identified under items 54-57 of the exhibits disposal list.

3.Section 56(1) allows the court to forfeit any money which has been used in connection of an offence or in connection with it or any money received by a convicted person or possessed by him as a result of or product of an offence under the DDO or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405. This is an application which is civil in nature and the applicant bears the burden of establishing on a balance of probabilities that the monies in question are liable to forfeiture.  Once the applicant has established a prima facie case for forfeiture, the burden passes to the respondent on the same standard to show the court why it should exercise its discretion in the respondent’s favour and not make the order sought by the applicant.

4.In considering this application, I take into account the decision of the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57, which laid out the relevant principles to be applied and the procedure to be adopted.  As this is an application under the DDO, Cap 134, the Court’s power of forfeiture rests upon s56(1)(a) and/or (b).  The first issue which arises therefore is whether or not there is a prima facie connection between the monies and the commission of an offence under the Ordinance.  It is for the applicant to outline the evidence upon which it relies in support of the application to show the statutory pre-conditions have been met.  That has been satisfied by reason of the admissions made under s65C of the Criminal Procedure Ordinance, Cap 221, that the defendant was in possession of the monies at the time of his arrest.  It was the prosecution case in trial that the monies were necessary to satisfy Immigration enquiries at the time he entered Hong Kong and to pay for accommodation and subsistence until the defendant was in a position to pass the drugs.  It is the submission of the prosecution that the sums recovered from the defendant had already been used and would have been used in their totality for this purpose.  In the alternative, and in furtherance of the admissions made by the defendant, if the defendant were to receive US$100 per pellet swallowed and he swallowed 50 pellets then this represents a sum close to the reward he was due, and which he would require to meet his expenses in any event.  Accordingly, the monies fall under both s56(1)(a) and (b).

5.For the purpose of these proceedings, I find that the whole of the USD and the HKD would have been presented to the Immigration to show that the defendant had the means to support himself in Hong Kong and fall within the ambit of s56(1)(a).  If I were to be wrong in that, I find in the alternative that all the monies were provided to support the defendant during the period in which he was required to hand over the drugs to third parties and prior to returning to his home country and, in any event, form part of his admitted reward for trafficking in drugs under s56(1)(b).

6.It has been accepted by Mr Arthur, on behalf of the defendant, that the prosecution has met the burden placed upon it under s56 to show the monies are prima facie liable to forfeiture.  The burden of proof therefore shifts to the respondent to prove on a balance of probabilities that he is entitled to claim the monies in part or in whole: R v Lai Chin Hung [1980] HKLR 115; HKSAR v Chan Chi Wai Jimmy [2011] 4 HKLRD 302.

7.The respondent does not seek to adduce any evidence to support his claim to the monies.  Mr Arthur submits that since his incarceration the defendant’s wife and mother have died and he is concerned for his five children who are under 16 years of age.  He asks the court to exercise its discretion and not to forfeit the monies so that they can be used to support the children of the family.  That submission does not go to the legitimate source of the funds.  It was also suggested by Mr Arthur on 9 August 2017, that he wished to place evidence before the court of the defendant’s business activities through his Lufthansa card and asked for an adjournment on that basis.  No such evidence is forthcoming today.  The intervening period of five years has not been used to the defendant’s advantage if indeed he could show that he had come by these monies legitimately.  

8.The prosecution having satisfied the burden placed upon it and there being no evidence before the court to satisfy the burden placed upon the respondent, I order the forfeiture of these monies and make an order in terms of the exhibits disposal application.

Ms Grace Chan, SPP of the Department of Justice, for HKSAR

Mr Michael Arthur, instructed by Massie & Clement, assigned by the Director of Legal Aid, for the defendant