The Court of Appeal recently again visited the issue of forfeiture following a drug trafficking conviction. McWalters JA (in a dissenting judgement) set out the principles for forfeiture applications as follows:
- applications for forfeiture are civil in nature;
- the applicant making the forfeiture application bears the burden of establishing that the seized article is liable to forfeiture;
- this burden of proof is discharged to the civil standard of the balance of probabilities;
- once this has been done then there is a prima facie case for an order of forfeiture in respect of the seized article; and
- once the property is prima facie liable to forfeiture the burden passes to the property owner to make out a case as to why the judicial discretion should not be exercised adversely to him i.e why the court should not accede to the application and order the property to be forfeited.
His Lordship examined the constitutional safeguards outlined by Bokhary PJ in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 determining that the Court which hears the Prosecution must first establish a prima facie case for forfeiture, and if that burden is satisfied to the required standard, the Court should hear evidence (rather than submissions from the Bar alone) before determining the application.
For the full judgement please navigate to: HKSAR v SHOKI Fatuma Ramadhani CACC 187/2014