HKSAR v. Wong Ka Fai and Others

HCCC 266 & 354/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 & 354 OF 2014

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Decision on Disposal of Exhibits

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1.Following the conviction and sentence of the defendants after trial, Mr Phil Chau, counsel for the prosecution, made an application for the disposal of exhibits which included an order for the confiscation of the Rolex watch (Items 241 and 242) which was seized in connection with the offence of handling stolen goods for which the 2^nd defendant had been convicted. He made the application pursuant to section 102 of the Criminal Procedure Ordinance, Cap 227.

2.Mr Patrick Cheung, counsel for the 2^nd defendant, opposed the application on the basis that the section did not apply to the Rolex watch. 

3.The Rolex watch featured in the case because on 6 November 2013, two days after the robbery of the stolen goods that were the subject of the handling charge, the 2^nd defendant had purchased the Rolex watch in the sum of $52,000.  The prosecution led this evidence on the basis that the unexplained cash that was used to purchase the watch was a payment to the 2^nd defendant for his involvement in the handling of the stolen goods.  The defence argued that the cash belong to the 2^nd defendant’s father and that the watch was purchased for him.  They said that there was no link between the cash and the charge that the 2^nd defendant faced.  The 2^nd defendant’s father gave evidence in relation to the purchase of the watch and testified that he gave the cash to his son for him to purchase the watch for himself.  The jury were asked to consider whether the cash belonged to the 2^nd defendant and whether it was linked to the offence with which he was charged.  By its verdict, it would appear that the jury had concluded that the cash belonged to the 2^nd defendant and that it was in relation to his involvement in the handling of the stolen goods the subject of the charge he faced.

4.As far as material section 102 reads:

“(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.

…”

5.“Property” as defined under the Ordinance “includes goods, chattels, money, valuable securities, and every other matter or thing, whether real or personal, upon or with reference to which any offence may be committed.”

6.Section 102(1) provides that any property that has come into the possession of the court, police or customs may be disposed by the court as provided by the section as long as (a) the property has come into possession in connection with any offence, or (b) it appears to the court that an offence has been committed in respect of the property, or (c) it appears to the court that the property has been used in the commission of an offence.  Section 102(2) distinguishes property to which subsection (1)(a),(b) and (c) applies in relation to the terms of the order a court may make for the disposal of the property.  The court in relation to each subsection can make an order returning the property to its owner, and if the owner is unknown, make an order to sell or retain it. An order as to forfeiture of the property can only be made in respect of property to which subsection (1)(b) or (c) applies. 

7.As I understand Mr Cheung’s argument he is saying that because the cash has been used to buy a Rolex watch that this section does not provide the appropriate power by which this item of property can be the subject of forfeiture.  He submits that section 102(1)(b) and (c) are not applicable because the offence was not committed in respect of the Rolex watch (section 102(1)(b)) and the Rolex watch was not used in the commission of the offence (section 102(1)(c)).  It appears that he does not take issue that section 102(1)(a) applies because the Rolex watch came into possession of the police in connection with the offence of handling stolen goods.  He therefore submits that the court only has power to deal with the Rolex watch under section 102(2)(a) which does not include the power to order forfeiture of it.  It does include, however, the power to make an order to return the property to the person who appears to the court to be entitled to it. 

8.The issue as I see it turns on whether the Rolex watch falls within the terms of section 102(1).  The offence for which the Rolex watch was relevant was the handling of stolen property by the 2^nd defendant.  It was relied upon by the prosecution to evidence that the 2^nd defendant had come into substantial funds in the sum of $52,000 and that the funds were a payment to him for his involvement in the handling of the stolen goods. 

9.In these circumstances, it cannot be said that the Rolex watch was the subject of or used in the commission of the offence of handling stolen goods.  It was not a stolen item that was the subject of the handling charge and it was not used in the commission of handling the stolen goods.  There is a question as to whether or not the original funds of $52,000 were used in the commission of the offence but this will depend on an interpretation of “used in” in the context of the section.  However, for present purposes, it suffices me to decide whether the Rolex watch comes within the terms of section 102(1)(a) and subject to a disposal order under section 102(2)(a). 

10.On the basis of the evidence presented at trial and by the verdict of the jury, I am satisfied that the $52,000 cash to purchase the Rolex watch were monies received by the 2^nd defendant as payment for his involvement in the handling of the stolen goods.  It appears to me that the monies came from the sale of the proceeds of the goods stolen in the case.  The goods stolen were valued at about $4 million, of which only goods to the value of $1.15 million were recovered.  I therefore find that the monies that purchased the Rolex watch came from the proceeds of the sale of the stolen goods that were not recovered and the person entitled to the monies and hence the Rolex watch is the victim of the crime, Yang Gengjie. 

11.Accordingly, I make an order under section 102(2)(a) that the Rolex watch be delivered to Yang Gengjie. 

Mr Phil Chau and Ms Ella Liang, counsel on fiat, for HKSAR

Mr Cheung Wai-sun Patrick, instructed by James W.L. Li & Co., assigned by Director of Legal Aid, for the 2^nd defendant