HKSAR v. Javid Kamran

HCCC 331/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 331 OF 2003

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BETWEEN

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 25 October 2006

Date of Handing Down of Reasons for Judgment: 1 November 2006

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REASONS  FOR  JUDGMENT

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1.On 25 October 2006 I made an order confiscating certain realisable property of the respondent, affording him a period of six months within which to effect payment and directing that he serve 18 months imprisonment consecutive to the present sentence being served by him in default of such payment.  These are my reasons for making that order.

2.During the period February to May 2003 the police conducted a covert operation in connection with drug trafficking activities.  On 20 May 2003 the Respondent and four other persons were arrested in respect of drug trafficking and related offences.

3.Subsequent to his arrest the Respondent’s residence was searched during which passbooks relating to two bank accounts operated in his own name and one bank account operated in the name of JAVED Zeeshan (“the Zeeshan account”) were located.  On 28 August 2003 an ex parte restraint order was granted in respect of those three accounts which, between them, were $637,124.85 in credit: the bulk of those moneys was in the Zeeshan account.  On 22 October 2003 there was an inter partes hearing in which the Respondent appeared as the First Respondent:  JAVED Zeeshan was cited as the Second Respondent but did not appear.  The restraint order was continued until further order.

4.The Respondent was charged, in the High Court, with a number of offences to three of which he entered pleas of guilty and was duly convicted on 23 August 2004: two counts related to trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134 whilst the third related to dealing with property knowing or having reasonable grounds to believe the property to be the proceeds of an indictable offence contrary to section 25 of the Organised and Serious Crimes Ordinance, Cap. 455 (“the Ordinance”).  Each of those offences is a specified offence pursuant to section 2 of the Ordinance.

5.The amount with which the Respondent admitted dealing was $1,190,264.00.  This was the amount which the Respondent acknowledged had been paid in cash into his two bank accounts in the period October 2001 to May 2003.  Prior to sentence the Secretary for Justice made application for a confiscation order pursuant to the provisions of section 8 of the Ordinance.

6.A statement dated 6 October 2004 by Detective Senior Inspector TSANG Chiu-fo was filed in support of the application pursuant to the provisions of section 10 of the Ordinance.  The Respondent, by affirmation dated 30 May 2006, responded to a number of the issues in the that statement.  An answering statement dated 26 July 2006 by Detective Senior Inspector CHOW Chi-kwan was then filed on behalf of the applicant.  After a number of adjournments the application was listed for hearing on 25 October 2006.

7.At the hearing the Respondent accepted that he had benefited from the specified offences and that the proceeds of the offences were not less than $1,190,264.00.  He further accepted that the moneys standing to the credit of the two bank accounts operated in his name were realisable property as set forth in section 12 of the Ordinance and were liable to confiscation. 

8.The sole issue that remained for determination was whether the moneys standing to the credit of the Zeeshan account were realisable property in the hands of the Respondent and similarly liable to be confiscated and, thereafter, the actual amount to be realised.

9.It is the prosecution’s case that the irresistible inference to be drawn is that the Respondent had effective control over the bank account and that moneys which he deposited were the proceeds of the offences.

10.JAVED Zeeshan is the Respondent’s younger brother. Records of the Immigration Department show that he first arrived in Hong Kong on 18 July 2002 and departed for China on 10 September 2002.  There is no record of his having returned to Hong Kong since.  The Respondent testified that he is resident in Pakistan.

11.The Zeeshan account was opened on 25 July 2002.  Between the time that account was opened and JAVED Zeeshan left Hong Kong $49,000.00 had been deposited into the account and $46,298.00 had been withdrawn from it: there were seven deposits and five withdrawals during that period. 

12.Subsequent to the departure of JAVED Zeeshan from Hong Kong on 10 September 2002 an amount of $681,100 was deposited into the Zeeshan account on 19 occasions, the last occasion being 20 May 2003, the day the Respondent was arrested.  There were but three withdrawals, to which I shall refer later.

13.In his affirmation the Respondent acknowledges that he made nine of the deposits and says that the moneys which he deposited had been given to him by three business partners of his brother, one of whom was a person by the name of Khaled.  Khaled was one of the three persons arrested with him at the time the police operation went overt: he, too, was found in possession of dangerous drugs on that occasion.  The remaining deposits into the Zeeshan account were made, the Respondent asserted, by his brother’s business partners.

14.In paragraph 8 of his affirmation the Respondent states

“These three persons do business with my brother and they told me that I was to deposit the money into my brother (sic) account on their behalf”. 

He contradicted this most fundamental of issues when he gave evidence by saying that when the Zeeshan account was opened his brother proposed travelling to China on business and had asked him to keep his bank book, his brother telling him that his partners would deposit money and he should update the bank book to check whether they had done so or that they may themselves give him money for him to deposit into the account.

15.When he gave evidence the Respondent said that on nine occasions it was he who had effected deposits into the Zeeshan account.  That number coincides with the number of occasions he is identifiable on closed-circuit television effecting a deposit.  There are further occasions when persons are seen making a deposit into the Zeeshan account but the quality of the recording is insufficient to provide identification.  The Respondent denies that it was he who is depicted in those instances.  I reject that:  the Respondent was an entirely unconvincing witness who contradicted both his affirmation and his oral testimony.

16.The nine deposits which the Respondent acknowledges having made resulted in an aggregate amount of $406,000.00 being credited to the Zeeshan account.  During that same period, 10 September 2002 to 20 May 2003, the Respondent withdrew $510,500.00 in cash from the two bank accounts operated in his name. 

17.I am satisfied that the irresistible inference to be drawn in the circumstances of this matter is that all of the moneys which the Respondent withdrew from the two bank accounts operated in his name found their way into the Zeeshan account.  As a result those moneys constitute realisable property under section 12 (1) of the Ordinance.

18.It was the Respondent’s evidence that his brother has been aware of the restraint order since soon after his, the Respondent’s, arrest.  He testified further that his brother is also aware of these proceedings having received communications from the “prosecution”.  The statement of Detective Senior Inspector TSANG confirms that a copy of the restraint order and summons was sent to JAVED Zeeshan on 8 September 2003 and 31 October 2003 but no response had been received to either.

19.There were three withdrawals from the Zeeshan account: a transfer of $20,000.00 on 6 December 2002, and two cash withdrawals of $20,000.00 each on 6 June and 11 July 2003.  The Respondent points to the latter two withdrawals as having occurred when he was already incarcerated:  he points out, also, that when his residence was searched no card affording access to an automatic teller machine relative to the Zeeshan account was located. Each of these assertions is factually correct but neither singly nor combined in any way detract from the inference that the moneys withdrawn from the Respondent’s own accounts were paid into the Zeeshan account. 

20.They do, conversely, give rise to other possibilities the most obvious of which is that others in addition to the Respondent had access to or were using the Zeeshan account: such a situation would not preclude the moneys deposited by him being held by the Respondent in that account or being subject to his effective, albeit joint, control.  A further factor of interest is the Respondent’s assertion in his evidence that the ATM card for the Zeeshan account is with his brother in Pakistan.  These issues effectively preclude the drawing of the irresistible inference that all of the moneys in the Zeeshan account emanated from the Respondent.

21.As a consequence I determined that the Respondent has benefited from the specified offences; that the value of the proceeds of the specified offences is $1,190,264; that the amount that might be realised is less than that amount.  I consequently certified that the amount to be recovered from the Respondent be the sum of $523,831.20 being the realisable property of the Respondent comprised of the full amounts standing to the credit of the two accounts operated in his own name as well as the sum of $510,500.00 standing to the credit of the Zeeshan account.

Ms Vivien Chan, GC, for Prosecution

Mr Loftus Patrick, instructed by Messrs Francis Kong & Co., assigned by DLA, for the Accused