HKSAR v. Celestin Hensley Franco

HCCC 411/2024

[2026] HKCFI 1947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 411 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 10 years and 4 months’ imprisonment by me on 1 September 2025.

2.The prosecution applied for forfeiture of, inter alia, cash of HK$309.50 (exhibit no. 15) and EUR425 (exhibits no. 16-20) (collectively “the Cash”) possessed by the defendant at the time of his arrest. The application was made pursuant to section 56(1) of the DDO. The defendant opposed the application on the basis that the prosecution was unable to show a prima facie case that the Cash had been used in the commission of, in connection with, received or possessed as a result of the commission of an offence under the DDO.

3.Upon hearing the respective submissions of the prosecution and the defence as well as the testimony of the defendant on 13 January 2026 [1], I ordered that the Cash be forfeited to the Government. I now give my reasons.

Legal Principles

4.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).”

5.An application for forfeiture is civil in nature, and it must be formally decided on the basis of evidence. The applicant bears the burden of establishing a prima facie case on the balance of probabilities that the seized item is liable to forfeiture. Once the applicant has discharged this burden, then the burden will pass on to the claimant to prove on a balance of probabilities that the seized item should not be forfeited.[2]

6.The Court of Appeal set out the proper approach to an application for forfeiture in the case of HKSAR v Chan Chun Hei [3]:

“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? [4] 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. [5] 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[6].

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.”

7.Under section 56(1) of the DDO, 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. As the Court of Appeal emphasized in HKSAR v Ngoma Juma Shabani [7] and re-affirmed in HKSAR v Herry Jane Yusuph [8], it is not normally necessary for a judge to identify which aspect or permutation of section 56(1) of the DDO is engaged. The various alternatives are set out in section 56(1) so as to cast the net as widely as possible.

Relevant Facts

8.According to the Summary of Facts admitted by the defendant, on 24 September 2023 he arrived at the Hong Kong International Airport by direct flight from Paris, France with 58 pellets of dangerous drug concealed inside his body. The total quantity of drug subsequently discharged by him was 707.4 grammes of a solid containing 426.95 grammes of cocaine with a street value of HK$470,071.

Prima Facie Case for Forfeiture

9.Senior Public Prosecutor Mr Marcus Lee, on behalf of the HKSAR, submitted that the defendant came to Hong Kong as a drug mule and there was nothing to suggest otherwise. The Cash was carried by the him while he trafficked in the drug by importing it into Hong Kong. Apparently the money was to facilitate his travel to Hong Kong either by way of supporting his stay in Hong Kong, or as a means to convince the immigration officers, if inquired by them, that he was a legitimate traveller. Furthermore, the amount was not insignificant and it was more likely than not the Cash was received or possessed as a result of the defendant’s commission of the offence. In the circumstances, the prosecution had discharged the burden of proving a prima facie case that the Cash was liable to be forfeited.       

10.Mr James Sherry, counsel for the defendant, relied on the case of HKSAR v Shoki Fatuma Ramadhani [9] to emphasize that there must be sufficient and credible evidence to enable the court to conclude that, prima facie, the property was liable to forfeiture. In the present case, there was no mention of the Cash at all in the Summary of Facts. There was no evidence that the defendant ever received any remuneration in advance for his offending. There was no evidence that the defendant carried the money to persuade the Immigration Department that he was a legitimate traveller. The mere possession of this modest amount of mixed-currency was consistent with an international traveller. In the absence of evidence linking the Cash to the offence under the DDO, the court should exercise its discretion in favour of the defendant and dismissed the prosecution ’s application.

11.I bore in mind the relevant legal principles and burden of proof in my consideration of whether the prosecution had established a prima facie case for forfeiture. Although there was no mention at all of the Cash in the Summary of Facts, it was an irresistible inference that the defendant was in possession of the Cash when he arrived at Hong Kong on 24 September 2023 with the cocaine pellets concealed inside his body. Indeed this was not a matter in dispute between both parties. The only issue was whether it came within the terms of section 56(1) of the DDO.

12.Having considered the evidence as revealed by the Summary of Facts and the submissions made by parties, I was satisfied that the prosecution had established a prima facie case that the Cash was liable for forfeiture. Clearly the defendant was acting as a drug mule when he brought the drug into Hong Kong, and the Cash was possessed by him to facilitate his travel to Hong Kong either by way of supporting his stay here, or as a means to convince the immigration authorities that he was a legitimate traveller. The burden thus shifted to the defendant to prove otherwise.

Defendant’s Evidence

13.The defendant elected to give evidence without calling any defence witnesses. In his evidence-in-chief, the defendant said he lived in the city of Arnhem in Netherlands. He had been receiving social security from the government in Netherlands for about 23 years. It was his only source of income. He used to work as a truck driver but he could not drive anymore after an accident.

14.The local government in Netherlands paid him 1,390 euros per month through a bank account around the 20^th of each month. He would pay the monthly rental of 559 euros, electricity bill of 26 euros and water bill of 105 euros by using the money in the account. It was his usual practice to leave the money on the bank account. He was also in receipt of a monthly travel allowance at 100 euros for local travel.

15.Before coming to Hong Kong, he withdrew 450 euros from the ATM machine in France because he was concerned that otherwise the government would take the money from his account. He made the withdrawal by using an ABN-AMRO debit card (exhibit no. 38). He changed 20 euros at the Hong Kong Airport into HK$304 to buy food and drinks here.

16.The defendant said the person who supplied him with the dangerous drug was Tony who lived in Amsterdam. Tony did not give him any money. He was supplied with a T-shirt and a pair of jeans so that he could be recognized in Hong Kong. Those were the clothing that he wore from the Netherlands via Paris to Hong Kong. Tony said he would stay in Hong Kong for 2 weeks, and somebody would come to look for him. The defendant got sick at the airport and was sent directly to the hospital.

17.He was promised a reward of 4,000 euros. A small part of the money would be given to him when he gave the drug to the people in Hong Kong. The rest of the money would be given to him in the Netherlands. He did not know how much money would be paid to him in Hong Kong.

18.In cross-examination, the defendant said 100 capsules were offered to him, but he could not manage to swallow so many. He asked for a down payment but Tony refused, saying that he needed to deliver the drug first. He committed the offence because he was handicapped and needed the money to buy a mobility scooter which costed 3,000 euros.

19.The defendant had a diploma for car mechanic and an official certificate as a professional cook. He taught other people cooking as a hobby. Prior to the accident, he worked as a waiter in the city of Tilburg for 17 years. He used to have a debt but it was repaid by the local government. A monthly repayment of 52 euros was deducted from his monthly allowance. He had been repaying the government for a very long time.

20.The defendant said his only purpose of coming to Hong Kong in September 2023 was to bring the drug. That was his first visit to Hong Kong. From the ticket and return ticket provided by Tony, he noticed that the length of stay in Hong Kong was about 2 weeks. He took out the money in France because he wanted to buy drinks. He saw all that money was on the bank account, and then he decided to take all that money from the bank account.

21.The defendant denied that the money found on him was used to facilitate his travel to Hong Kong, nor for the purpose of convincing the immigration officers in Hong Kong, if needed, that he was a legitimate traveller. He said the immigration officers in Hong Kong did not ask him anything about the money when he was at the immigration.

22.There was no re-examination of the defendant.

Parties’ Submissions    

23.Mr Lee pointed out that the defendant, in his evidence, confirmed that the sole purpose of his travel to Hong Kong was for trafficking in the dangerous drug, and he withdrew the money to meet his needs during this travel, namely, to buy drinks and food. The Cash could also be used for convincing the immigration officers, if required, that he was a legitimate traveller.

24.Furthermore, Mr Lee submitted that the defendant’s denial of having received any money from Tony was simply unreasonable given his life experience and the vast number of capsules that he had swallowed. Also the reason that the defendant put forward for clearing his bank account was simply unbelievable because that money was substantial in term of his monthly social security income.

25.On the other hand, Mr Sherry submitted that there was no evidence that Tony had given any cash to the defendant whatsoever. In trafficking operation like this, it would make sense for the defendant to get pay after the delivery. The defendant did not have strong bargaining position where he was able to simply demand money first.

26.Mr Sherry said the evidence showed the defendant had an independent means of earning money by receiving Social Security, and the bank card exhibit no. 38 was the one he used while in France to withdraw that sum of money. The amount of money he withdrew in France was consistent with the balance he had at the time. It was a modest sum of money. He took the money out to cover food and drinks which was daily needs of simply eating and drinking. They were not exclusive to this trip to Hong Kong. He urged this court to exercise its discretion in favour of the defendant and decline the prosecution application for forfeiture.       

Consideration                              

27.In the case of HKSAR v NGOMA Juma Shabani [10], the appellant, a Tanzanian national, was convicted on his own plea of unlawfully trafficking in a dangerous drug. He was intercepted at the Hong Kong International Airport upon his arrival on a flight from Tanzania with the dangerous drug concealed inside his body. At the time of his interception, the appellant had, among his other belongings, USD4,500 cash on him. He stated under caution that he had come to Hong Kong on business and was planning to go to Guangzhou where someone would collect the drug he had swallowed and give him a reward of USD5,000. He claimed that the money found on his person was related to his mobile telephone business. The Judge did not accept his evidence that the money was unconnected with dangerous drug and made the order of forfeiture accordingly.    

28.In his judgment in NGOMA Juma Shabani, Lunn V-P observed (emphasis added): [11]

“7. As noted earlier, the appellant was detained trying to enter Hong Kong. He was unlawfully trafficking in dangerous drugs. There was no dispute that he was not a resident. In those circumstances, clearly he needed to be in a position, if called upon to do so, to establish to the satisfaction of the immigration authorities that he had the means to sustain himself whilst in Hong Kong.

8. The necessity of being in a position to establish possession of, or access to, sufficient means to sustain oneself as a visitor was addressed, in the context of confiscation proceedings in a drug trafficking case, in the judgment of the Court of Appeal of England and Wales in R v Osei.[12] In that case, the appellant was found in possession of dangerous drugs and £2,550 in cash on her arrival at Heathrow airport from Ghana. Of the possession of money, Glidewell LJ said, at 291:

“…if a person wishes to enter this country as a visitor, broadly speaking, he or she has to satisfy the immigration officers that he or she has either in his or her possession or available to him or her somewhere in this country from somebody else, sufficient funds to enable him or her to stay here without charge to the United Kingdom during the period for which he or she wishes to remain here.”

Those requirements apply in most countries, and certainly apply in Hong Kong. The appellant’s possession of the US$4,500 enabled him to address that need.

…

12. In the instant case, even if the money was the appellant’s reward for acting as a drug courier, so that section 56(1)(b) of the Ordinance applied, the money could have been “used … in connection with” the offence, so that section 56(1)(a) also would have applied, if the appellant was in possession of the money to facilitate his travels in the course of his drug trafficking, or so that he could demonstrate his means to an immigration office.”

29.Macrae JA (as he then was) also reached the same conclusion (emphasis added): [13]

“28. In this particular case, however, a Tanzanian national, earning, according to the information disclosed to the court in his antecedent statement, US$100 per month (which figure was not disputed by his counsel in mitigation), had flown from Dar es Salaam via Addis Ababa to Hong Kong International Airport and was intending to go on to Guangzhou in the mainland, after a short detour to Tsim Sha Tsui, with more than HK$560,000 worth of heroin secreted inside his body.

29. That evidence and information before the court was more than sufficient to ground an inference that the sizeable amount of US$4,500 on his person was, at the very least, used in connection with an offence under the Ordinance. The fact that he had made an assertion to Customs Officers when interviewed that the money was related to his mobile telephone business did not prevent such an inference being drawn, any more than it obliged the court to accept the truth of the assertion …

…

31. In cross-examination, the appellant had admitted that part of the US$4,500 would be used to fund his journey to Shenzhen and then on to Guangzhou, and also to pay for his hotel in Guangzhou pending collection of the drugs. Plainly, on that admission alone, his objective of trafficking the dangerous drugs across the world from Tanzania to Guangzhou could not have been realised without this money. The appellant had arrived in Hong Kong from another continent and was on his way to the mainland (apparently, according to his evidence, by way of Chung King Mansions in Tsim Sha Tsui) to deliver a very valuable consignment of dangerous drugs, which were secreted in his person. It would defy logic and common sense if he were to carry out his purpose without being accompanied by the means to achieve it. He would hardly have arrived in Hong Kong destitute: indeed, any would-be trafficker or organisation controlling such a trafficker would know that he would need to be in possession of sufficient means upon arrival at Immigration in any foreign country. This was not in fact the appellant’s first visit to Hong Kong. He had been to Hong Kong two months previously.

…

33. In relation to the second ground advanced by Mr Ross, I have substantially answered the point in addressing the first ground of appeal. No international drug trafficker, especially a foreigner from another continent, could conceivably expect to carry out his purpose of trafficking a valuable consignment of dangerous drugs into and through Hong Kong without the means to achieve it and support himself in the process. Even if none of the money was to be spent until the appellant had left Hong Kong, it was still money “which has been used in the commission of or in connection with” a drug trafficking offence if given to, or possessed by, him for that purpose. It would be absurd to suggest that only when the money was actually used, in the sense of paid out for some specific purpose connected with drug trafficking within this jurisdiction, could it be forfeited…”

30.I respectfully adopted the above remarks. On the evidence before me, I made the following findings:

-  The defendant was a person of little financial means and his only source of income was the social security provided by the local government.

-  He participated in the smuggling of the dangerous drug into Hong Kong because he was in need of money. He agreed to bring the drug to Hong Kong for a reward of 4,000 euros.

-  The defendant had with him the Cash at the time of the offence. It was to be used to fund his stay in Hong Kong especially for the period before the payment of the partial reward.

-  The only purpose of his coming to Hong Kong was drug smuggling. Irrespective of the source of the money, it was to be used to fund his travel in the course of his drug trafficker or to demonstrate the means of sustaining himself as a visitor in Hong Kong if asked.

31.As such, I was satisfied that the Cash possessed by the defendant at the time of the offence was money “which has been used in the commission of or in connection with” his drug trafficking. I was not satisfied that the defendant had established otherwise on a balance of probability. As such, I declined to exercise my discretion in favour of the defendant.  

Consideration

32.For the above reasons, I found to the requisite standard that the prosecution had established on the evidence before me that the Cash came within the terms of section 56(1). Accordingly, I ordered that the Cash be forfeited to the Government.  

Mr LEE Cheuk Wing, Marcus, SPP of the Department of Justice, for HKSAR

Mr Anthony James SHERRY, instructed by Robertsons, assigned by Director of Legal Aid, for the defendant