HKSAR v. Chow Wai Kwok

HCCC 161/2024

[2025] HKCFI 526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 161 OF 2024

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REASONS FOR RULING ON FORFEITURE

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Introduction

1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (“DDO”), and was sentenced to 9 years and 9 months’ imprisonment on 8 October 2024.

2.The prosecution applied for forfeiture of, inter alia, cash of HK$48,000 [1] (“P22”) pursuant to section 56(1) of the DDO. The defence opposed the application on the basis that the prosecution failed to prove that P22 had been used in the commission of or in connection with the drug trafficking offence to which the defendant had pleaded guilty.

3.Upon hearing the respective submissions of the prosecution and the defence, on 31 October 2024 I ordered P22 be forfeited to the Government. I will now give my reasons.

The facts

4.According to the Summary of Facts admitted by the defendant upon his plea, the police intercepted a private vehicle driven by the defendant in Mong Kok at about 1 a.m. on 15 August 2023. Upon search of the vehicle, the police found 6 bags containing a total of 260.4 grammes of a crystalline solid containing 252.7 grammes of methamphetamine hydrochloride (“ICE”) with an estimated street value of HK$119,524. Two mobile phones and cash in the sum of HK$48,500 and RMB¥800 were also found in the vehicle. Cash of HK$18,531.10 and two other mobile phones were found on the person of the defendant.

5.After his arrest, the defendant stated in the subsequent video-recorded interview that he was instructed by ‘Chan Chai’ to deliver the ICE to someone in Mong Kok. The vehicle was borrowed from his brother on 14 August 2023. He said all the money and mobile phones found in the vehicle and on his person belonged to him. He kept the money separately because he was worried that he would lose the money altogether.

Legal principles

6.The prosecution’s application for forfeiture was made pursuant to section 56(1)(a) and (b) of the DDO which provides:

“(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).”

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 other property was received or possessed by a person as the result or product of a drug trafficking offence.

8.Forfeiture proceedings are civil in nature. In Wong Hon Sun v HKSAR [2], Sir Anthony Mason NPJ, giving the principal judgment of the Court of Final Appeal, said in respect of an application for forfeiture pursuant to the Import and Export Ordinance (Cap. 60):

“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.” [3]

9.As pointed out by the Court of Appeal in HKSAR v Ngoma Juma Shabani [4], it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the DDO 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. [5]

10.In Ngoma Juma Shabani, Macrae JA (as he then was) had rejected the argument that, in order for money to be successfully forfeited under section 56(1)(a), it would have to be shown to have been used for some purpose connected to drug trafficking in Hong Kong, since “[i]f that were the law, there would invariably be no money to forfeit (unless perhaps paid over to a law enforcement agent in Hong Kong) and, far from casting the net as widely as possible, s.56(1)(a) would be rendered almost useless”. [6]

11.In the recent case of HKSAR v Chan Chun Hei [7], the Court of Appeal laid down the steps to be taken in an application for forfeiture [8]:

“36. In an application for forfeiture, the first question a court must ask is pursuant to what statutory provision is the application being made? The relevant statutory provision determines the jurisdiction of the court, sets the parameters of the court’s power and identifies the matters of which the court must be satisfied in the exercise of its power. The second question the court must ask is on what evidence are the parties relying on in order to satisfy the court that the application should or should not be granted? Furthermore, a forfeiture application must be formally decided on the basis of evidence, and the court should alert an aggrieved party if it has taken a position against them on the available evidence in order to afford them the opportunity to give or call evidence on the issue. However, it would usually be obvious from the evidence in a contested trial, or from the agreed facts and other information presented to the court upon the hearing of a plea of guilty, as to what is the basis of an application for forfeiture, but an aggrieved party should be given the opportunity to address the court on the matter.

37. In considering an application pursuant to subsection 56(1), a court has discretion as to whether or not to make an order for the property to be forfeited to the Government. Where the prosecution has shown on a balance of probabilities that there is a prima facie case that the property comes within one or both of the limbs under section 56(1), then the burden will pass on to the defendant to show otherwise. If the defendant has not discharged this burden, an order will be made for the property to be forfeited. If, however, the prosecution has not shown on a balance of probabilities that there is a prima facie case for the forfeiture order, the property should be returned to the defendant if it belongs or should be given to him and there is no other reason not to do so.”

Submission of the prosecution

12.Miss Ma for the prosecution submitted that there was a prima facie case that P22 was liable to forfeiture for the following reasons:

(a)  The defendant was a person of limited financial means. It was agreed that he was unemployed at the time of his arrest. In mitigation, it was said that the defendant was in need of money to repair his damaged lights good vehicle (“LGV”) and therefore committed the offence in question [9].

(b)  At the time of arrest at 1 a.m. on 15 August 2023, he was in possession of substantial quantity of drug and cash totaling about HK$67,000. He admitted that he was awaiting instruction to deliver the drug in Mong Kok. It would be implausible that he would carry P22 with him when he was running the risk of being caught.

(c)  P22 was found inside the bottom compartment of the driver’s seat of the vehicle which he had borrowed from his brother the day before the offence. He lived with his brother together in a public housing estate unit in Tuen Mun. The assertion that he carried a substantial sum of cash with him on the vehicle whilst committing a serious offence simply beggared belief.

13.The prosecution submitted that the defendant’s assertion that P22 was borrowed from his friend for the purpose of repairing the LGV remained a bare assertion on his part. No credible innocent explanation was proffered by the defendant in connection to the provenance and purpose of the money seized from him.

14.On the other hand, Miss Ma confirmed that the defendant’s LGV was involved in a traffic accident on 3 July 2023.[10] The Brief Facts of that case stated that all three vehicles involved in the accident (including the defendant’s LGV) sustained minor damage as a result.

Submissions of the defendant

15.Mr Fong for the defendant opposed the application for forfeiture of P22 (but not the forfeiture of the remaining money seized from the vehicle and the person of the defendant)[11] on the basis that the prosecution failed to discharged its onus to prove that P22 has been used in the commission of or in connection with the trafficking dangerous drug offence. He contended that the defendant borrowed the money in P22 from his friend for payment of repair expenses of his LGV which was damaged in a traffic accident on 3 July 2023, around one and a half month before he committed the drug trafficking offence on 15 August 2023. Mr Fong said as a result of the traffic accident, the defendant could not continue his job as a LGV driver and was in financial difficulty.

16.Mr Fong submitted that the prosecution failed to prove that P22 was liable to forfeiture under the DDO for the following reasons:

(a)  The defendant’s role as a courier in the present case did not need to bring any money to commit the drug offence.

(b)  Since the defendant kept the P22 separately in the bottom compartment box of the driver’s seat so that it would not mix up with the money involved in the present offence, there was no evidence at all for the defendant to show that the said $48,000 in P22 was in connection of the drug offence.

(c)  In the video recorded interview, the defendant mentioned that the said $48,000 in P22 was his saving and belonged to him, and he kept the money separately because he was worried that he would lose the money altogether.

(d)  The letter from Police and the Social Welfare Department could prove that the defendant was involved in a traffic accident about a month before the drug offence.

Consideration

17.According to the Summary of Facts accepted by the defendant, the 6 bags of drug were found on the carpet of the front passenger’s seat of the vehicle. P22 was found inside the bottom compartment box of the driver’s seat, and cash of HK$500 and RMB¥800 were found inside the compartment of the front centre console near the driver’s seat. The remaining cash of HK$18,531.10 was found on his person. So the total amount of cash seized from the vehicle and on his person was HK$67,031.10 and RMB¥800.

18.After his arrest, the defendant told the police in a video-recorded interview that “P22 was his savings; HK$500 and RMB¥800 also belonged to him” whereas “HK$18,531.10 was his own savings and loans” (underline added). He said he kept the money separately because he was worried that he would lost the money altogether. He also told police that the vehicle was borrowed from his elder brother on 14 August 2023, the day before he was arrested for the drug offence.

19.At the hearing I had looking at the physical exhibit of P22. It consisted of 96 pieces of HK$500 paper notes being tied together in one lot by a rubber band.

20.The defendant was unemployed at the time of arrest. In his written mitigation dated 23 September 2024, Mr Fong stated that “On or around 2 months before the happening of the offence on June 2023, the Defendant was involved in a traffic accident and his light goods vehicle was damaged as a result. The Defendant therefore could not continue to work as self-employed light goods vehicle driver and the Defendant was in urgent need of money to pay for the repair expenses of his light goods vehicle so that the Defendant could resume to work as soon as possible. The Defendant thereby has wrongfully committed the present offence in order to get the quick money to solve his own financial difficulties.” (underline added)

21.Mr Fong repeated the above reason in his oral mitigation before me on 8 October 2024. He said that the defendant worked as a LGV driver earning an average income of around $20,000 per month before the traffic accident on 3 July 2023.

22.The defendant was found in possession of a large quantity of drug and a substantial sum of money in the early hours of the morning on the street in Mong Kok. Bearing in mind that the vehicle was not borrowed from his brother until 14 August 2023, there was no reason for him to carry such a huge sum of his own money on the vehicle when he was acting a courier for ‘Chan Chai’. Most importantly, in his video-recorded interview with the police, the defendant said that P22 was his savings, whereas $18,531.10 was his savings and loans. There was no mention whatsoever about P22 being a loan or loans.

23.The defendant’s recent assertion that P22 was a loan/loans from his friend/friends was in contradiction with counsel’s mitigation that he committed the offence because he was in urgent need of money to repair the LGV to resume work. If he had already obtained the loan from his friend(s) for the repair of the vehicle, how come he was in urgent need of the money for the repair again on 15 August 2023?

24.On the other hand, Mr Fong for the defendant conceded that all the remaining money in the vehicle and on his the person (the remaining HK$19,031.10 and RMB¥800) was drug money that was liable to be forfeited. There was simply no reason for him to carry such a substantial amount of money with him at that time. It begged the question why the defendant would run the risk of mixing his own with the drug money when he was carrying out the job of a courier that night.

25.Taking into account the fact that the defendant had been unemployed for almost 2 months, the proximity of P22 with the seized drug, the fact that P22 was not kept on his person, the huge sum of P22 which amounted to 70% of the total cash found in the vehicle and on his person, I was satisfied that the prosecution had proved on the balance of probability that P22 was prima facie liable for forfeiture under section 56(1) of the DDO.

26.The defendant did not seek to give or call evidence to support his case against forfeiture, but relied on further submissions made by Mr Fong on his behalf.

27.Mr Fong said there was undisputed documentary evidence to prove that the defendant’s LGV had a traffic accident on 3 July 2023. He also submitted a letter from the Social Welfare Department dated 15 August 2023 showing that the defendant had applied for traffic accident financial assistance. Mr Fong said the document supported the allegation that the defendant was in financial difficulties after the traffic accident, therefore he was in need of money to repair the vehicle.

28.Mr Fong submitted that it was inherently improbable for the sum of $48,000 in P22 to be drug money. He said it was unproportional as a reward for a drug courier, bearing in mind that the estimated street value of the seized drug was only HK$119,524. I have difficulty in understanding Mr Fong’s submission in this regard. There was no dispute that all the money other than P22 was drug money that was liable to forfeiture. Clearing the defendant was entrusted to keep the drug money at the time. Whether any part of P22 would become the defendant’s reward was unclear on the evidence.

29.Mr Fong said that the defendant borrowed the sum of $48,000 in P22 from several friends. However, he was unable to inform the Court the number of friends involved; whether they were male or female; when were the loans given; nor the individual amount contributed by each of those friends.

30.In addition, Mr Fong said the repair fee of HK$48,000 was only an estimated on the part of the defendant. Despite the fact that the traffic accident occurred about one and a half month ago, the defendant had ever obtained any quotation as to the amount of money required for the repair. Mr Fong was also unable to explain why the defendant estimated the repair costs as HK$48,000 instead of any other amount such as HK$40,000 or HK$50,000.

31.In the video-recorded interview the defendant had never said P22 included any loan or loans. Instead he said the $18,531.10 found on his person consisted of his own savings and loans. Mr Fong simply said that the defendant had made a mistake in the interview.

32.Three batches of money were respectively seized from the vehicle and on the person of the defendant. Mr Fong also relied on the fact that all three batches of money were kept separately from each other. In particular, all the paper notes in P22 were tied up by a rubber band, but the other two batches of money were loosely packed. Mr Fong adopted the defendant’s explanation in the video-recorded interview that he kept the money separately out of the worry that he would lose the money altogether. However, there was no explanation as to why he chose to put his own money in the vehicle together with part of the drug money.

33.Mr Fong was unable to tell whether the defendant obtained $48,000 from his friends in one go or on different occasion. He said the defendant kept on borrowing the money, and his friends gave him the money on various days. He said the lump sum of $48,000 was accumulated as the defendant borrowed money from his friends continuously. As for the reasons why the defendant carried the whole lump sum with him that night, Mr Fong said the defendant did not make any particular effort to put P22 elsewhere because the size of the money was not huge.

34.In sum, Mr Fong was unable to prove that the any part of the money in P22 was borrowed from any body. Mr Fong was unable to say whether all those friends happened to provide the loan in $500 denomination, and he could not tell whether the defendant was the person who tie up the money in a rubber band. There was also no explanation as to why the loans were all given in $500 denomination by the friends on various occasion instead of bank transfer etc.

35.The traffic accident occurred 3 July 2023, about one and a half month before the defendant’s arrest. Mr Fong admitted that no repair work had been carried out on the LGV in this period, and no quotation of the repair work had been obtained from any garage. There was no apparent reason as to why the defendant was suddenly in urgent need of money for the repair on 15 August 2023. To this regard, Mr Fong explained that by this time the defendant had used up his savings. If that was the case, then he should have sent the LGV to repair after obtaining the loan from his friend instead of keeping it idle.

36.In any event, there was no explanation as to why on 15 August 2023 the defendant was in urgent need of money for the repair of his LGV if he had already obtained a loan of $48,000 from his friends earlier for the same purpose.

Conclusion

37.The defendant’s assertion that P22 consisted of loans obtained from different friends on various occasions was totally unsupported by any oral or documentary evidence. The evidence showed that the defendant had little financial means at the material time. He was out of job since early July 2023 and had no income. He agreed to collect and deliver drug for ‘Chan Chai’, and borrowed a private car from his brother on 14 August 2023 for that purpose. In the early hours of 15 August 2023, he was found on the street of Mong Kok with a large quantity of drug and a substantial amount of cash. Both the drug and P22 were found in the vehicle. There was no sensible reason for him to bring along a huge sum of his own money when he was trafficking in the drug.

38.In the circumstances, I did not accept the bare assertion of the defendant that P22 was unrelated to his drug trafficking. On the evidence before me, I found to the requisite standard that P22 came within the term of either or both limbs of section 56(1) DDO. Accordingly, I exercise my discretion and ordered that the whole sum of P22 be forfeited to the Government.

Miss Ma Ka Na, Clara, SPP of Department of Justice, for HKSAR

Mr Fong Hon Kuen, Stephen, instructed by Yu Sun Yau Mak & Lawyers, assigned by Director of Legal Aid, for the Defendant