Lai Chin-hung v. The Queen
Read the full judgment text of CACC 835/1979 on BabelCite. This Court of Appeal judgment was delivered on 6 March 1980.
1. The appellant pleaded guilty to two charges of possession of dangerous drugs for the purpose of trafficking. He received sentences of eight years upon each count the sentences to run concurrently.
Cited by 11 cases
|
CACC000835/1979
----------------- Coram: McMullin, J.A., Leonard & Li, JJ. Date of Judgment: 6 March 1980 ----------------- JUDGMENT ----------------- McMullin, J.A.: 1. The appellant pleaded guilty to two charges of possession of dangerous drugs for the purpose of trafficking. He received sentences of eight years upon each count the sentences to run concurrently. 2. On the 21st of February, on the hearing of the appeal, we dismissed the appeal against the sentences but reserved our decision on the appeal against the order of forfeiture of some $33,000 which was made by the trial judge on the Crown's application subsequent to the imposition of sentence. 3. The facts to which the appellant pleaded guilty show that the appellant was the tenant of two flats in which dangerous drugs were discovered upon police investigation. 4. In Flat A on the 21st Floor of the Tung Yu Building in Yaumatei, in various containers and other articles, was found a total of 467.53 grammes of a mixture containing 138.98 grammes of salts of esters of morphine. In a flat on the 18th Floor of the Hong King Building in San Po Kong the police in the presence of the defendant discovered a cardboard box containing two parcels which upon examination were shown to contain a total weight of 992.5 grammes of a mixture containing 233.5 grammes of salts of esters of morphine. In a wardrobe in the same room the police found a sum of $33,690 in cash. This was seized by the police and after the appellant had pleaded guilty to the two charges counsel for the Crown applied under section 56 of the Dangerous Drugs Ordinance for the forfeiture of that money. At that point the court suggested that the application might also lie under section 102 of the Criminal Procedure Ordinance. It is not clear from the from which the ruling eventually took whether the order for forfeiture was made under section 56 or section 102 and it would seem that the Crown was relying upon both previsions. 5. The point is not of importance on the present proceedings. We do not think that any material distinction is to be made based on the difference between the wording of the two sections which would be relevant to the issues raised by Mr. CHENG Huan for the appellant in opposing that order. 6. The Crown having thus signified its intention in respect of this money counsel who then appeared for the defendant told the court that he was not in a position to argue the matter because of the absence of two persons who it was hoped would testify in favour of the defendant. They were expected to say that $30,000 of the $33,000 odd had been given to the defendant for the purpose of investing in a money lending business known as the Four Seas Finance Co. The judge deferred consideration of this application for forfeiture and proceeded to sentence the defendant. 7. Some four days later on the 7th of September Mr. Cheng appeared on behalf of the defendant to oppose the application. The Crown relied upon the circumstances disclosed in the agreed facts and no further evidence was adduced by the prosecution. The defendant was called and he gave evidence to rebut the inference which the Crown asked the learned judge to draw from the agreed facts. 8. His story was that he had borrowed $30,000 from a certain CHAN Chung-kai a licensed money-lender. This money was to be used for lending at interest to ballroom hostesses. It was given to the defendant partly in cash and partly by cheque in the office of a company known as the Four Seas Finance Co. The remaining $30,000 odd which had been found in his possession was, he said, interest collected by him on money previously lent to him by Chan for the same purpose. He denied that there was any connection between the money and the dangerous drugs found in his flat. No other evidence was called for the defendant. 9. Before the court at first instance Mr. Cheng relied upon two contentions which, effectively, constitute his first and second grounds of appeal before us now. The first ground, which found no more favour before this court than it did before the learned judge, was to the effect that there was no jurisdiction for the court to make such an order for confiscation in view of the fact that the money had not been produced "as an exhibit" in the case before the order was made. There is no merit in the point. The facts were agreed and it was never in dispute that money to that value had been seized in cash from the appellant's premises. Counsel relied upon a decision of Trainor J. in Criminal Appeal 500 of 1979. That was a case taken before a magistrate under the Objectionable Publications Ordinance. Out of 139 magazines seized by the police only 19 were exhibited in the course of the trial. The court made an order for forfeiture of all 139. The bulk of the magazines were conceded to be in police custody and were admitted to be identical with those produced but the learned judge, upon appeal, regarded the procedure as incorrect. He set aside the order insofar as it related to the 120 not exhibited at the trial. It does not appear that the provisions of paragraph (b) of subsection 1 of section 102 were drawn to the attention of the court. It is there provided that if:
may make an order. One would, with respect, have thought that the provisions of that section might have empowered the making of the order irrespective of whether the application for forfeiture had been advanced under section 9 of the Objectionable Publications Ordinance or under section 102 of the Criminal Procedure Ordinance. In any event in the present case the note of the proceedings upon appeal before the judge prior to the taking of the defendant's evidence make it clear that the money seized was available in court to answer the objection that it had not been exhibited in the court below. It was never suggested that this was not the cash seized and referred to in the agreed facts. 10. The second ground of appeal raises the only matter of substance. Mr. Cheng points out that in an ordinance which is replete with wide-ranging presumptions in law, there is no provision that cash seized under such circumstances as were disclosed in the present case is presumed to have been connected with the offence of trafficking. The learned judge, he says, was wrong to impose upon the appellant the burden of showing that the money was from an innocent source. 11. The cases of R. v. Lucas(1) and R. v. Lidster(2) upon which counsel relied are not of any material assistance, those cases concerned the exercise of powers of forfeiture under the Powers of Criminal Courts Act 1973 Section 43(1). Those powers become available on it being shown that the property in question was used for the purpose of committing the offence. The comment by the Court of Appeal in each case was that it must be shown that the use of the property was an integral part of the offence. In Lucas the car in which the girl complainant had driven with some young men was said to be only an incidental feature of the event. It had not been used to abduct and drive her to the place where she was raped. That offence had arisen out of familiarities which she permitted while travelling with them in the car, and there was, apparently, no original intent to commit such an offence. 12. In Lidster an order forfeiting a motor car was found to be proper because it had been used to transport stolen goods at the request of the thieves. 13. The point at issue in the present case was whether the trial judge was justified in inferring from the fact that the money was found in close proximity to where the drugs were found, that it must have been connected with the offence of possession for the purpose of trafficking. We drew to counsel's attention another decision of the English Court of Appeal which seems considerably closer to the facts of the present case and counsel was happy to adopt it in support of his second ground. The case is R. v. Morgan(3). In that case the defendant pleaded guilty to two counts of possessing a controlled drug with intent to supply it to another, and to a third count of possessing a controlled drug. The facts were agreed and they disclosed that he was on his way to a cross-road to sell coccaine and cannabis to two Americans when he was pursued and arrested by the police after a chase and struggle. He was found to have a considerable quantity of coccaine and cannabis resin in his possession upon arrest. He had also two cylinder scales and a sum of £393 in cash. The court at first instance made an order under section 27 of the Misuse of Drugs Act 1971 forfeiting the scales and the money. The brief note of the decision of the Court of Appeal as to the order of forfeiture is to the following effect:
Section 27(1) of the English Act is in the following terms:
The decision in Morgan makes it clear that what must be shown is a connection with the particular offence charged and not merely with a possible future offence of the same kind. 14. If the legislative position in Hong Kong were identical with that in England it would be difficult - assuming that we felt obliged to follow the principle thus briefly reported - to distinguish Morgan on its facts from the present case. 15. The relevant part of section 56 of the Dangerous Drugs Ordinance is as follows:
Comparing that with the English provision a significant difference is apparent. Section 56(1) clearly envisages that an order may be made even when the particular charge in connection with which the money etc. has been seized has failed. The power given to the court can therefore scarcely be thought to be circumscribed by any necessity to find an established connection between the money seized and the drugs which are the subject of the charge. By contrast, the English act expressly relates the power of forfeiture to the offence charged. A similar amplitude of intention would seem to underlie the very wide words of section 102 of the Criminal Procedure Ordinance. 16. Although, therefore the Ordinance gives the prosecution no assistance by way of presumption on this matter, the intention of the forfeiture provisions seems plain enough. Whenever the court has evidence before it sufficient to justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence, then, whether or not it finds that the offence charged has been proved it may, nevertheless make the order. If there is prima facie evidence of such a criminal connection then if no innocent explanation is offered the court may - though it would not necessarily do so - find that the connection with an offence has been established. 17. Although the prosecution were unable to produce a witness who could directly testify that the money came from the sale of drugs, the circumstances surrounding its discovery and the lies told by the defendant as to how he had come by it are, we think, ample justification for the order of forfeiture. The application in respect of that order is also refused. Representation: Cheng Huan (D.L.A.) for appellant. C.W. Reid for Crown/respondent. (1) (1976) Criminal Law Review 79. (2) (1976) Criminal Law Review 80. (3) (1977) Criminal Law Review 488. |