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Hksar v Willan Mustapha

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date31 December 2020
Neutral Citation[2020] HKDC 934
Year2020
Judgement NumberDCCC353/2020
Subject MatterCriminal Case
CourtDistrict Court (Hong Kong)
DCCC353A/2020 HKSAR v. WILLAN MUSTAPHA

DCCC 353/2020

[2020] HKDC 934

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2020

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HKSAR
v
WILLAN Mustapha

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Before: His Honour Judge W.K. Kwok

Date of Hearing: 15 October 2020

Date of Ruling: 31 December 2020

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RULING

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1. The defendant was convicted of one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (“DDO”) upon his own plea and admission of facts. He was sentenced to imprisonment for 29 months and 10 days.

2. At the time of the offence, the defendant had with him cash in the sum of HK$19,000. The prosecution now applies for the money to be forfeited while the defendant asks for return of the money.

3. At the request of this Court and without objection from Mr. John McNamara, Counsel for the defendant, Miss Sabrina See, Counsel on fiat for the prosecution, produced the cash seized from the defendant for inspection by this Court. Upon inspection, it is found that this sum of HK$19,000 is made up of a pile of banknotes of various denominations, including one piece of HK$1,000 banknote, 35 pieces of HK$500 banknotes, and 5 pieces of HK$100 banknotes.

4. Both Miss See and Mr. McNamara have not addressed this Court on the statutory provision under which this forfeiture application is made. However, since the defendant was convicted of an offence under the DDO, it is implicit that this application is made by the prosecution under section 56(1) of the same Ordinance, and that Mr. McNamara must be contesting this application for the defendant on this basis.

5. Section 56(1) reads as follows:

“(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).”

6. It is not necessary to recite the other subsections of section 56 of DDO as they are not relevant to this application.

The applicable legal principles

7. The legal principles governing applications for forfeiture under section 56(1) of the DDO have been enunciated in many cases including HKSAR v Ngoma Juma Shabani[1], HKSAR v Shoki Fatuma Ramadhani (by Court of Appeal[2] & by Court of Final Appeal[3]), HKSAR v Herry Jane Yusuph[4]. These principles are the same as those laid down by the Court of Final Appeal in Wong Hon Sun v HKSAR[5] in relation to forfeiture applications under the Import and Export Ordinance, Cap 60.

8. According to these established principles, this application by the prosecution to forfeit the said sum of HK$19,000 is civil in character even though it is made at the end of the criminal proceedings in which the defendant was convicted of one charge of trafficking in a dangerous drug and sentenced to serve a term of imprisonment.

9. Upon application by the prosecution, this Court has a discretion to order the said sum of HK$19,000 to be forfeited to the Government, or to return the money to the defendant. This Court will exercise its discretion judiciously according to the following factors.

10. First, the prosecution must prove on balance of probabilities that the said sum of HK$19,000 is liable to be forfeited under section 56(1) of the DDO.

11. It has already been admitted by the defendant that he had committed the offence of trafficking in a dangerous drug, which is an offence under the DDO. Hence, if it is further proved by the prosecution on balance of probabilities that the said sum of HK$19,000 falls within the ambits of sections 56(1)(a) and/or 56(1)(b) of the DDO, i.e. the money has been used in the commission of, or in connection with, the defendant’s drug offence, and/or the money is received or possessed by him as the result or product of his drug offence, the money will be forfeited. Hence, if the prosecution adduces evidence that may lead to such a factual finding, it will make out a prima facie case that the money is liable to be forfeited under section 56(1). If it fails to make out a prima facie case, the money shall be ordered to be returned to the defendant.

12. On the other hand, once the prosecution has made out a prima facie case for forfeiture of the money, the burden will shift to the defendant to prove on balance of probabilities that the money falls outside the relevant forfeiture provisions if he wants the Court to exercise its discretion in his favour. If he discharges his burden of proof, the Court shall order the money to be returned to him. If he fails to do so, the Court shall order the money to be forfeited.

Prima facie case

13. The prosecution has not called any witnesses to testify in court to support this forfeiture application. It relies entirely upon the summary of facts admitted by the defendant when he pleaded guilty, as well as the defendant’s antecedent statement and his mitigation through counsel, and asks this Court to draw the necessary inference.

14. It is open to the prosecution to prove its case in this manner. In Ngoma Juma Shabani, Macrae JA (as he then was) stated in paragraph 26 of the judgment the following:

“… In the vast majority of cases, a prima facie connection between the money or other property, the subject of the application for forfeiture, and the commission of an offence under the Ordinance or with a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance, will be obvious from the evidence, admissions and other information properly adduced at the trial or hearing (including, for example, the Summary of Facts, antecedent statements, mitigation, etc) and will, in the language of Lai Chin Hung, “justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence”. In those circumstances, it would not be necessary for a judge to state the obvious, any more than it would be necessary for him to hear evidence all over again on the issue of forfeiture. The onus will in those circumstances shift to the one claiming his money or other property back to satisfy the court on the balance of probabilities that he is entitled to have it.”

15. The facts admitted by the defendant when he pleaded guilty, his antecedent statement and mitigation reveal the following:

(a) On 6 March 2020 at about 9:37 p.m., a police officer in plain clothes (PC16847) intercepted the defendant outside No. 52 Wyndham Street for enquires when he found the defendant acting suspiciously.

(b) PC16847 later searched the defendant inside the Central Police Services Centre in Hollywood Road, and found a transparent re-sealable plastic bag containing 13 small transparent re-sealable plastic bags containing a total of 9.38 grammes of a solid containing 3.11 grammes of cocaine (“the Drugs”) inside the defendant’s underpants.

(c) The defendant had also with him the said sum of HK$19,000, an Octopus card and one mobile phone.

(d) The defendant admitted under caution that the Drugs belonged to him. He also admitted that he purchased 4 grammes of cocaine from an unknown Pakistani male in Tsim Sha Tsui on the day before his arrest. He and his friends then mixed the drugs he had purchased with other white solids to inflate its quantity. When he was stopped by PC16847, he was trying to take a taxi to go to Tuen Mun. He had put the Drugs inside his underpants, and he intended to share the Drugs with his friends there.

(e) The estimated retail value of the Drugs was about HK$10,618 at the time of the offence.

(f) The defendant was born on 22 May 1982 in Gambia. He came to Hong Kong upon a tourist visa in 2014. All his family members were and are still living in Gambia.

(g) The defendant filed his non-refoulement claim with the Immigration Department in January 2017. Since then, he has been released upon immigration recognizance Form 8.

(h) At the time of the offence, the defendant lived in Sai Ying Pun with his intended fiancée. He was still a Form 8 recognizance holder and was not allowed to take up any lawful employment in Hong Kong. He received social welfare allowance in the sum of HK$1,500 each month.

(i) It was submitted in mitigation that the defendant intended to sell some of the Drugs to his friends and use some himself. He committed the offence to supplement his income.

(j) At the time of the offence, the defendant abused cocaine occasionally and cannabis more frequently. He was tested positive for cannabis but negative for cocaine when he was admitted into Lai Chi Kok Reception Centre.

16. The admitted facts prove that at the time of the offence when the defendant was intercepted by PC16847, he had with him cash in the form of 41 pieces of banknotes for the total sum of HK$19,000. The admitted facts are silent on the source of this sum of money, apparently for the reason that the defendant had said nothing about it during police investigation. This Court shall therefore consider whether an inference may be drawn from all the facts admitted or undisputed by the defendant that this sum of money had been (a) used in the commission of or in connection with, and/or (b) received or possessed by him as the result or product of his drug trafficking activities so as to justify forfeiture under section 56(1) of the DDO. The following facts are noteworthy.

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