HKSAR v. Rawe Waikama Magarya

CACC 215/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2014

(ON APPEAL FROM HCCC NO. 446 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.The appellant, who appears in person, was given leave on 30 September 2014 by Yeung VP to appeal out of time against the order made on 16 January 2014 by M. Poon J, following his plea of guilty in the Magistracy and his Committal for Sentence to the Court of First Instance in respect of a single charge of trafficking in 0.38 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The judge ordered that only half of the US$3,000 found in the possession of the appellant be returned to the appellant and that the remainder “be confiscated”.

Facts

2.The appellant accepted, in the Summary of Facts, that having been detained on his arrival at Hong Kong International Airport from Addis Ababa on 18 April 2013, whilst at Queen Elizabeth Hospital he discharged 56 pellets containing a total of 0.38 kilogrammes of heroin hydrochloride.  The retail value of the drug was estimated to be HK$652,860.

Sentence

3.Having regard to the quantity of the dangerous drug, the judge stipulated 15 years’ imprisonment as the appropriate starting point for sentence.  To reflect the aggravating circumstances of the commission of the offence, namely the international element involved in importation of the dangerous drugs into Hong Kong, the judge stated that she enhanced the starting point by 1 year’s imprisonment.  Accordingly the overall starting point for sentence was 16 years’ imprisonment.  For his plea of guilty the judge afforded the appellant a discount of one third from that starting point and imposed a sentence of 10 years and 8 months’ imprisonment.

4.In addition to the sentence of imprisonment, the judge stated that she made an ‘Order in Terms’ in respect of the application made by the prosecution in a Schedule for the disposal of property, save in respect of item 15 of the Schedule.  In respect of item 15, namely US$3,000 found on the appellant at the time of arrest, the judge ordered that half of the money be returned to the appellant and half “be confiscated”.  Nowhere, did the judge stipulate the power pursuant to which she made the order.

Mitigation

5.In mitigation advanced on behalf of the appellant, Mr John Dunn, asserted that although the appellant accepted that he had had been offered a reward of US$6,000 for acting as a courier of the dangerous drugs, he had not been paid anything at the time of his arrest.  Of the US$3,000 found in his possession at the time of his arrest, Mr Dunn submitted :[1]

“ He does instruct me, your Ladyship, that the US$3,000 which was found on him is not connected to the drug smuggling. It was capital for investing in his clothing business in China, as I say, for buying clothes in China to take back to Tanzania to continue his business.”

During and after mitigation the judge did not indicate in any way that she did not accept the submission, or state that in the absence of evidence she was not prepared to accept that submission.

Grounds of appeal against the order

6.In his home-made grounds of appeal against the order, the appellant admitted that he accepted an offer to make “easy money” by smuggling the dangerous drugs into Hong Kong.  He repeated the concession made in mitigation that he was to be paid a reward of US$6,000 upon successful delivery of the dangerous drugs and his denial that he had received any of that money.  Similarly, he repeated the assertion that the US$3,000 found in his possession was his money which he intended to use to buy clothing and shoes in the Mainland with which to resume the trading business he had operated previously in Tanzania.  The US$3,000 was not connected with his unlawful trafficking in dangerous drugs.  Further, he complained that he was given no reason for the judge’s order.  He submitted that the judge erred in making the order that US$1,500 of the money be confiscated.

The respondent’s submissions

7.Mr Raymond Cheng, for the respondent acknowledged that the judge had failed to stipulate the power by which she made the impugned order.  However, he suggested that the order must have been made pursuant to either section 102(1) of the Criminal Procedure Ordinance, Cap. 221 or section 56(1) of the Dangerous Drugs Ordinance, Cap. 134.  He submitted that, given that the appellant was a self-confessed unlawful trafficker in dangerous drugs for reward, the only reasonable inference was that the US$3,000 was part of the US$6,000 that the appellant admitted was to be his reward.  On that basis, he contended that the judge was entitled to make the order that she did.

A consideration of the submissions

8.Surprisingly, the written ‘Application for Order for Disposal of Exhibits’ to which the judge clearly referred was not in the Appeal Bundle.  However, the Court obtained it from the lower court file.  Item 15, to which the judge made specific reference, was identified as being US$3,000 in respect of which the “Ways of disposal” was identified as being “To be forfeited”.  Nowhere, does the written application identify the basis on which that order was sought.

9.Section 102 of the Criminal Procedure Ordinance provides :

“ (1) Where–

(a) any property has come into the possession of a court, the police or the Customs and Excise Service in connection with any offence;

(b) it appears to a court that an offence has been committed in respect of any property in the possession of the court, the police or the Customs and Excise Service; or

(c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2) Of its own motion or upon application, a court may–

(a) in respect of property to which subsection (1)(a) applies-

(i) make an order for the delivery of any such property to the person who appears to the court to be entitled thereto;

(ii) where the person so entitled is unknown or cannot be found, make an order that the property be sold or retained in the possession of the court, the police or the Customs and Excise Service; or

(iii) if the property is of no value, order that the property be destroyed; and

(b) in respect of property to which subsection (1)(b) or (c) applies-

(i) deal with such property under paragraph (a) in the like manner as property to which subsection (1)(a) applies; or

(ii) make an order for the forfeiture of the property.”

10.Section 56 of Dangerous Drugs Ordinance provides :

“ (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). ”

11.As is apparent, the two provisions enable the Court to make orders of forfeiture of property in a variety of factual circumstances.  The first difficulty that lies in the way of the respondent’s submissions is obvious: given her apparent rejection of the submission made on behalf of the appellant, the judge failed to alert the appellant in respect of the position she took or to afford him the opportunity to give or call evidence on the issue.  Secondly, the judge did not condescend to make any factual findings.  Thirdly, given the most peremptory and perfunctory manner in which she made her order, it is not known on what basis she determined to forfeit any, let alone half, of the monies or any other proportion.  Forfeiture proceedings must be formally decided on the basis of evidence and the reasons given.

Conclusion

12.We are satisfied that in all those circumstances the judge’s order cannot stand.  We allow the appeal and quash the order of forfeiture of US$1,500 made against the appellant.

Raymand Cheng, SADPP(Ag) of the Department of Justice, for the respondent

Appellant appeared in person

[1] Appeal Bundle, page 8 D-G.