HKSAR v. Fung Lin Cheong

HCMA000156/2003

HCMA156/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.156 OF 2003

(ON APPEAL FROM TWCC 1914 OF 2002)

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 25 April 2003

Date of Judgment: 25 April 2003

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J U D G M E N T

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1.This appellant faced three charges in the magistrates' court alleged that :

(1) he dealt with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap.455;

(2) he possessed a dangerous drug, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134; and

(3) he possessed apparatus fit and intended for the smoking of dangerous drugs, contrary to sections 36(1) and (2) of Cap.134.

He denied them all, but was convicted of the second and third offences and was sent to prison for a total of eight months. The magistrate acquitted him of the first charge but, nevertheless, declined to return the $532,000, referred to in the charge, to him. Instead, he ordered that it be placed with the police pending a claim by its lawful owner. It is against this order that this appeal has been launched.

2.The grounds of appeal complain that the order was wrong in law, that it was wrong in the light of the evidence adduced at the trial, that certain findings made by the magistrate were not supported by the evidence, that the magistrate failed to particularize the offence which led to the order and that he erred in law in deciding how he should dispose of the money by requiring the appellant to prove his claim on the balance of probabilities.

3.Very briefly the facts of the case were that the police arrested the appellant after he left his flat. He was searched and $532,000 in cash was found on him. It was in two bundles of notes and he was carrying them in two carrier bags. A search of the flat led to the drugs charges, nos.2 and 3. When the money was found, he told the police :

"The paper bag on him had $400,000 something and he was now going to deposit it."

and later :

"They were two instalments of off course horse betting money and he had collected the money and was about to deposit it."

and when asked whose money it was, the appellant said :

"It belongs to my boss [Ah Keung], I am merely working for him."

4.The learned magistrate acquitted the appellant of the first charge. In paragraph 5 of his statement, he explains why :

"I found the defendant not guilty of charge 1 because I found the prosecution had not been able to reach the high criminal standard of satisfying me beyond reasonable doubt that the defendant knew or believed the proceeds in whole or in part, either directly or indirectly, represented the proceeds of an indictable offence, namely bookmaking. I found the admissions to PW1 together with the little other evidence available on this charge was insufficient to prove the necessary knowledge that the proceeds (or even part thereof) originated from the indictable offence, even if the indictable offence had not been committed."

5.The order he made, disposing of $532,000 was made under section 102 of the Criminal Procedure Ordinance, Cap.221. In its relevant parts it reads as follows :

"(1) Where-

(a) any property has come into the possession of a court, the police or the Customs and Excise Service in connection with any offence;

(b) it appears to a court that an offence has been committed in respect of any property in the possession of the court, the police or the Customs and Excise Service; or

(c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2) Of its own motion or upon application, a court may-

(a) in respect of property to which subsection (1)(a) applies-

(i) make an order for the delivery of any such property to the person who appears to the court to be entitled thereto;

(ii) where the person so entitled is unknown or cannot be found, make an order that the property be sold or retained in the possession of the court, the police or the Customs and Excise Service; or

...

(4) Where under subsection (2) a court orders the sale or retention of property, and no person establishes a claim to the property or the proceeds of sale thereof within 6 months from the date such order is made, the property or the proceeds of sale shall become the property of the Government."

6.The $532,000 had plainly come into the possession of the court in connection with an offence as envisaged in section 102(1)(a) and the court had jurisdiction to order its disposal as provided in section 102(2). The question is : should the magistrate have returned the money to the appellant under section 102(2)(a)(i) or should he have ordered the police to retain it under section 102(2)(a)(ii)?

7.I have been referred extensively by counsel today the two cases : Chan Hoi v. The Commissioner of Police and The Attorney General [1968] HKLR 126 and Chan Nam & Anor v. The Attorney General [1975] HKLR 233. Both were civil cases. In Chan Hoi, the police had taken property from Mr Chan upon his apprehension. They later disposed of the property to a third party without a court order but purportedly under the Police Force Ordinance, Cap.232. They were wrong to do so, the court found. In Chan Nam, an order had been made pursuant to section 102(2) of the Criminal Procedure Ordinance after criminal charges had been dismissed. The plaintiffs claimed the return of the property seized but were unable on the facts of that case to prove their proprietary interest in the property. Neither case is on all fours with the present appeal and neither are, in my view, particularly helpful. The magistrate's order to deliver the money to the police pending claim was made under section 102(2)(a)(ii). He made that order in the exercise of his discretion, a discretion clearly founded in the section and he made it because he did not believe the appellant appeared to him to be entitled to the money. And he explained why very clearly at paragraphs 17, 18 and 19. In those paragraphs, he noted that the appellant had a long list of previous convictions, that he had just convicted the appellant for drugs offences, that he lived in a public housing estate and that his most recent employment earned him $8,000 a month. Seven findings were made in paragraph 18 about the appellant's possession of the money and at paragraph 19, he found that appellant had not lawfully obtained the money. He inferred from all the evidence before him that the money had been obtained unlawfully. It is perhaps not surprising in the light of such findings that the magistrate exercised his discretion on the way he did and concluded that the appellant did not appear to him to be entitled to the money.

8.The appellant contends that a number of the findings made by the magistrate were not supported by the evidence. On the contrary, the magistrate has, it seems to me, made sensible findings from highly suspicious evidence.

9.The appellant complains that the magistrate :

"Fail to particularise the alleged offence."

I have some difficulty understanding this. The offence the appellant faced was plain from the charge sheet and the magistrate was entitled to make his order by section 102(1)(a) because the property had come into the possession of the court in connection with that offence. He made such a finding at paragraph 14 of the Statement of Findings. His later reference at paragraph 20 to section 102(1)(c) is clearly a slip.

10.The final ground of the appeal is the fact that the magistrate was wrong in requiring the appellant to justify his claim to the money on the balance of probabilities. The appellant maintains that in doing so, the magistrate had reversed the burden of proof. With respect, I disagree. If the appellant claims he is entitled to the property, he must say why and the magistrate was entirely right to refer to the civil standard in asking him to do this.

11.This appeal is dismissed.

Representation:

Miss Mary Sin, GC of Department of Justice, for HKSAR

Mr David Ma, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Appellant