HKSAR v. Wong Man Hon

CACC000088A/2000

CACC 88/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2000

(ON APPEAL FROM HCCC 414 OF 1999)

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Coram: Hon Wong JA, Keith JA and Hartmann J in Court

Date of Hearing: 25 August 2000

Date of Judgment: 25 August 2000

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J U D G M E N T

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Hartmann J:

1. On 18 February of this year, having pleaded guilty in the Magistrate's Court, the Applicant was sentenced in the Court of First Instance by Deputy Judge Longley to a term of imprisonment of 11 years and 6 months for the offence of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap.134. The Applicant was at the same time sentenced to terms of imprisonment for 2 other offences but they are not of relevance in this application.

2. Before sentence was passed, the prosecution made an application in terms of section 3 of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap.405, for the confiscation of a sum of HK$137,000.00 which had been found in the Applicant's possession. It was agreed, however, that this application would be adjourned to a suitable date for the hearing of evidence. On 24 May of this year, that hearing having concluded, Deputy Judge Longley ordered the confiscation of the full sum of $137,000.00.

3. The Applicant now seeks leave to appeal against that order on the basis that $80,000.00 of that sum was not and indeed never had been his money but constituted funds entrusted to him by his 2 sisters. It is his contention that each sister owned half of that money and that, when the Applicant had secured sufficient funds himself, all the moneys would be used to renovate an ancestral home in the Mainland.

4. The facts of the case are as follows. In June of last year, the Applicant, a lorry driver, was stopped by customs officers at the Lok Ma Chau Control Point. Inside his vehicle a quantity of smuggled cigarettes was discovered. When the Applicant was searched, 2 blocks of heroin were found secreted in his clothing. He admitted to customs officers that he was acting as a courier. Customs officers went to his home and, in a wardrobe in the Applicant's bedroom where he kept his underwear they discovered the money which is the subject of this application. The money was contained in 3 envelopes. These envelopes contained $100,000.00, $20,000.00 and $17,000.00.

5. When originally asked about the source of these funds, the Applicant said they were the joint savings of himself and his wife. This was an averment, however, that the wife herself denied. Several months later the Applicant told customs officers that $80,000.00 of the money represented the savings of his 2 sisters while the balance represented his savings earned lawfully as a lorry driver. As for his earlier story, the Applicant said that at the time he had been suffering from drug withdrawal symptoms and in addition did not wish to say anything which might cause trouble for his sisters.

6. At the confiscation hearing, the Applicant gave evidence. So did both sisters. The sisters supported the Applicant's evidence that, having saved $40,000.00 each out of their housekeeping money, they had entrusted those moneys to the Applicant to be kept for renovation of the ancestral home. The moneys had not been placed into a savings account even though, in the final analysis, they amounted to a sum of $80,000.00. The funds had been given to the Applicant, said the sisters, so that their existence would be kept secret from their husbands.

7. In a detailed and well-reasoned judgment, the judge found that the accounts given by the Applicant and by both sisters were, to use his phrase, 'totally implausible'.

8. All the matters raised by the Applicant before us today, either in his written or oral submissions, were raised at the confiscation hearing. Nothing in those submissions gives us any reason to believe that the judge may have been wrong in his findings.

9. As to his particular grounds of appeal, the Applicant re-iterated that while his first explanation as to source of the moneys was false, it was given at a time when he was suffering withdrawal symptoms. The judge, however, accepted the evidence of the customs officer who said that, when that statement was made, the Applicant appeared to be showing no signs of discomfort and made no complaint of a lack of medication to alleviate his withdrawal symptoms.

10. As to the moneys obtained from the sisters, the judge dealt with this at some length and found that there were a number of disturbing inconsistencies in the evidence given by the sisters and the Applicant. In this regard, inter alia, he said the following:-

"The evidence of the two sisters was inconsistent with that of the Defendant as to the quotations obtained to effect the work on the house. On their accounts the quotation was for around $100,000 and there had only been one quotation. On the Defendant's account he had originally been told by one or both of his sisters that it would cost $120,000 and had later been given by them a second figure of $130,000-$140,000. It is hard to understand if the Defendant's account was true why he did not tell his sisters at the time they gave him the money that they already collectively had enough money to effect the redecoration work as jointly they would have had $137,000."

11. As to the question of the loans from the Applicant's employer, we have heard the Applicant's complaint that his employer changed his evidence but find nothing to concern us in that inconsistency. The employer may have said initially that he gave the Applicant 3 loans but he later corrected that at the hearing and said he gave him 4 loans, a figure which the Applicant himself confirms as being correct.

12. In respect of these loans, in his grounds of appeal the Applicant said the loans were made to him because he had had a traffic accident in the Mainland and had lost his travel documents there. They were both work-related matters and therefore should have been dealt with by using funds from his employer. However, the judge accepted the evidence of the employer that he had been approached by the Applicant for the loans on another basis entirely, because he needed the money for his family.

13. In the circumstances, nothing has been placed before us to suggest that the complaints as to the judge's findings of fact have any merit. The application for leave to appeal is dismissed.

Representation:

Mr Issac Tam, SGC, of the Department of Justice, for the Respondent

Applicant, in person