HKSAR v. Chai Man Fong

CACC000433/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.433
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. & Liu, J.A.

Date of Hearing: 20 October 1998

Date of Judgment: 20 October 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

Preliminary Ruling

1. A preliminary application has been made in this matter in which Mr. Wesley Wong, who appears for the Secretary for Justice, submits that there is no right of appeal against a confiscation order made under s.102 of the Criminal Procedure Ordinance. His submission was that the word "order" in s.80 did not encompass such an order under s.102. We cannot agree. We are satisfied that the word "order" in s.80 includes an order made under s.102 and that by virtue of s.83G, there is a right of appeal against such an order. We have been referred to the case of Multi Solid Ltd. v. Secretary for Justice, [1997] 3 HKC 253, it being suggested that this matter may have some application to the present appeal. We are satisfied that the circumstances in that case were very different from those that obtained here. The appellant there was not the defendant at trial and had no locus standi, either at trial or on appeal. That authority does not assist in any way in the consideration of the circumstances before us. We are satisfied that there is a right of appeal against the confiscation order made under s.102 and will proceed to hear the argument of the applicant.

Ruling on the Appeal

2. The applicant in this matter pleaded guilty to 11 charges of burglary and to one of remaining in Hong Kong without authority. The offences occurred on 10th April 1997 at Yiu Ming House, Wah Ming Estate, Fanling. Cash and goods, the subject matter of the charges, were found on the applicant at the time of his arrest. Two days later on 12th April, at Lai Chi Kok Reception Centre, $90,500 cash and four gold ornaments were found in the hollow soles of the applicant's sport shoes.

3. After apprehension, at the police station, the applicant had admitted that he was an illegal immigrant and that he had sneaked into Hong Kong on the night of 9th April with only a watch and a small amount of renmenbi.

4. The trial judge ordered that the items found at the time of arrest be returned to the owners thereof and that the articles found at the time of the search at Lai Chi Kok be confiscated. The application to confiscate was made under s.102 of the Criminal Procedure Ordinance. The trial judge, having heard evidence, ruled as follows:

"The accused gave evidence and told the court how the money had been his savings in China and the gold ornaments had belonged to his wife, although he had purchased them for her. He told the court how he had hollowed out his shoes and had placed the money and the gold ornaments in the hollows of the shoes. He then glued the inner soles of the shoes so as to secure the items. He told the court why he had done this and also the reason he had left his wife and had then illegally entered Hong Kong.

It's really a matter of credibility. Without going into detail, having seen and heard the accused give his evidence and bearing in mind all the circumstances, I just did not believe that the $90,500 cash belonged to the accused nor his wife, and nor do I for that matter believe that the gold ornaments found in the accused's shoes belonged to his wife. When I consider all the evidence before the court, including that of the accused, I have no doubt whatsoever that an offence or offences have been committed in respect of the $90,500 cash and the three gold ornaments. I am not prepared to make a finding, however, whether the offence or offences were committed in Hong Kong or in China.

In all the circumstances, I make an order pursuant to section 102(2)(a)(ii) of the Criminal Procedure Ordinance that the four items in question be retained in the possession of the police."

5. The grounds that have been argued by Mr. Delaney can be set out shortly as follows:

(i) that the trial judge made no proper findings of fact;

(ii) that he failed to state with sufficient particularity the evidence upon which he relied to reject the evidence of the applicant;

(iii) that he failed properly to appreciate the evidence, in particular, to appreciate that no nexus had been shown between the items recovered at Lai Chi Kok and any offence.

We find no merit in these submissions. The trial judge disbelieved the applicant, wholly rejecting his evidence as to the origin of the articles found. Given the circumstances, and he made it plain that he was taking them all into consideration, he was entitled to conclude inferentially that the property had been obtained unlawfully, i.e. in connection with an offence, and to make the order which he did pursuant to s.102 of the Criminal Procedure Ordinance.

6. We are satisfied that there is no merit in this appeal and it is, therefore, dismissed.

Representation:

Mr. Wesley Wong (D.P.P.) for the Respondent.

Mr. Michael Delaney assigned by D.L.A. for the Applicant.