HKSAR v. Kwambaza Elizabeth Yoram

HCCC 455/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 455 OF 2013

____________

____________

______________

J U D G M E N T

______________

1.This is an application by the prosecution, resisted by the defendant, for the forfeiture of US$2,587 in cash which the defendant had on her when she, having come to Hong Kong on a flight from Tanzania via Qatar, was intercepted at the airport here on the occasion of her trafficking in 69 pellets of dangerous drugs consisting of 0.8 kilogramme of a mixture containing 0.66 kilogramme of heroin hydrochloride, which pellets she had swallowed. She pleaded guilty in the Magistrates' Court to trafficking in those dangerous drugs, and was committed to the High Court for sentence. I sentenced her to 14 years' imprisonment.

2.Section 56 of the Dangerous Drugs Ordinance, Cap. 134, under which this application is made, provides that:

“(1) A court may (whether or not any person has been convicted of such offence) order to be forfeited to the Government –

(a) any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft or a train) which has been used in the commission of or in connection with;

(b) any money or other property received or possessed by any person as the result or product of,

an offence under this Ordinance or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405).”

3.As I said in HKSAR v. Chan Chi Wai Jimmy [2011] HKLRD 302 at para. 4:

“Section 56(1) does not require any specific connection between the money, thing or property to be forfeited and the accused’s offence or offences. Nor does it even require a conviction. It involves alternatives, namely: use in the commission of an offence under the Dangerous Drugs Ordinance or a drug trafficking offence within the meaning of the Drugs Trafficking (Recovery of Proceeds) Ordinance, Cap. 405; use in connection with any such offence; receipt as the result of any such offence; receipt as the product of any such offence; possession as the result of any such offence; or possession as the product of any such offence. If the inference is that at least one of these alternatives represents the truth, forfeiture can be ordered even though no particular alternative can be pinpointed. After all, even when it comes to convicting a person of an offence, juries are commonly and correctly directed to the effect that they do not have to be able to say to themselves that they know everything about the case. As they are commonly and correctly directed, they can convict provided that they are sure of guilt even though they cannot say to themselves that they know everything about the case.”

4.The defendant gave evidence. Her account is of the money having been handed to her by two friends for the purpose of her buying things in Hong Kong for them. Having given the defendant's evidence due consideration and having observed her giving such evidence, I do not believe her account.

5.Having considered all the evidence before the court and having weighed the rival submissions, I find that the prosecution has shown on a preponderance of probability that the money sought to be forfeited in the present case falls within one of the alternatives provided for by s. 56(1) of the Dangerous Drugs Ordinance. Of those alternatives, the most probable one is, in my view, that the money had been used in connection with the commission of an offence under the Dangerous Drugs Ordinance, namely the offence of trafficking in dangerous drugs of which the defendant stands convicted on her own plea. The objective for which that offence was committed could not be attained if the defendant did not clear immigration here, and it is only common sense that her clearing immigration could well involve her being able to demonstrate that she had the means of supporting herself while in Hong Kong. The US$2,587 could assist her in demonstrating that. That is, in my view, most probably why she carried that money on her. Although I disbelieve the defendant's account, I would observe that even if the money was for the purpose of doing some shopping as she asserted, that too would be a cover for her presence in Hong Kong, and the money could be regarded on that basis as having been used in connection with an offence under the Dangerous Drugs Ordinance, namely the offence of trafficking in dangerous drugs of which the defendant stands convicted on her own plea. I mention that for the sake of completeness. As it happens, I reject the defendant's account.

6.A discretion to forfeit arises. Inwhat I consider to be the most appropriate exercise of that discretion in the circumstances, I order that the US$2,587 found on the defendant be forfeited to the Government.

Mr Lenny Cheng, of the Department of Justice, for the Prosecution

Mr Phil Chau, instructed by Boase, Cohen & Collins, assigned by the Legal Aid Department, for the accused