Hong Kong Case Law: Decisions & Judgments

Topic

External confiscation order

Legal area

Court

20 Jun 2018

CHAN THAO PHOUMY also known as CHAN SUM AND ANOTHER v. SECRETARY FOR JUSTICE

Citation

[2018] HKCFI 1394
Court

Court of First Instance
Case number

HCMP1895/2007

The IPC confiscation order falls within the Ordinance's definition because its purpose, as evidenced by admissible HPC/SPC certificates and the IPC judgment, is to confiscate proceeds and deprive the defendant of means to commit drug offences; the evidence permitted the court to infer the Hong Kong assets were proceeds of drug trafficking; the Hong Kong court will not re‑litigate the merits of the foreign conviction once final, and registration under s29(1) is therefore appropriate and should be maintained.
16 May 2014

SECRETARY FOR JUSTICE v. RAFAT ALI RIZVI AND OTHERS

Citation

SECRETARY FOR JUSTICE v. RAFAT ALI RIZVI AND OTHERS
Court

Court of First Instance
Case number

HCMP2557/2010

The application to adjourn sine die was granted because ongoing Indonesian investigations and a realistic prospect of prosecution and further confiscation orders involving D4 were directly connected to the Hong Kong assets; the anticipated delay was not unreasonable, there was no unfair prejudice to D4, D17 and D18, and it was therefore appropriate to keep the Hong Kong restraint order in force pending the outcome; parties have liberty to apply to restore the hearing.
9 Mar 2012

SECRETARY FOR JUSTICE on behalf of the GOVERNMENT OF THE UNITED MEXICAN STATES v. ZHENLY YE GON AND ANOTHER

Citation

SECRETARY FOR JUSTICE on behalf of the GOVERNMENT OF THE UNITED MEXICAN STATES v. ZHENLY YE GON AND ANOTHER
Court

Court of Appeal
Case number

CACV174/2011

Because Mexican law (Art.4) treats all property of a convicted person as potentially forfeitable unless the defendant proves lawful origin, the requesting state was not required to produce a quantitative sufficiency analysis of assets restrained elsewhere and the Hong Kong court was not obliged to make a contrary finding; furthermore the appellants failed to make full and frank disclosure to justify release of funds, so the restraint order was properly continued and the variation refused.
15 Nov 2010

SECRETARY FOR JUSTICE v. CHAN THAO PHOUMY AND ANOTHER

Citation

SECRETARY FOR JUSTICE v. CHAN THAO PHOUMY AND ANOTHER
Court

Court of First Instance
Case number

HCMP1895/2007

The Court exercised its case management discretion and adjourned the High Court registration proceedings generally until after the outcome of the related District Court prosecution because the potential findings in the criminal trial are relevant to the evaluation of evidence and the exercise of the discretionary 'interests of justice' test under s29(1)(c) Cap 405, and to avoid an undesirable indefinite part-heard situation.
19 Nov 1998

SECRETARY FOR JUSTICE v. MING WAH TRADING CO. AND ANOTHER

Citation

SECRETARY FOR JUSTICE v. MING WAH TRADING CO. AND ANOTHER
Court

Court of First Instance
Case number

HCMP4979/1998

Statutory prerequisites in s.9(1) were met (proceedings in designated country instituted, not concluded, reasonable grounds for external confiscation) and the affidavit evidence linked the funds to a known laundering broker; therefore the restraint order should stand and the 2nd Respondent failed to discharge the burden on balance to justify discharge or variation.
15 Apr 1996

Re LAW KIN MAN AND 38 OTHERS, INCLUDING: CHEUK WAI-MAN , SUNG TIN-BIU and TRAINWELL COMPANY LIMITED

Citation

Re LAW KIN MAN AND 38 OTHERS, INCLUDING: CHEUK WAI-MAN , SUNG TIN-BIU and TRAINWELL COMPANY LIMITED
Court

Court of First Instance
Case number

HCMP1711/1991

The court refused the Attorney-General's declarations because (1) issue estoppel and the principle that litigation must end bar re-opening matters decided or available to have been raised at the hearing before Deputy Judge Daniell; and (2) the statutory scheme and authorities establish that pre-existing equitable interests (security, lien, rights of set-off/consolidation) survive registration of external confiscation orders and are not defeated by such orders, so the Attorney-General could not show the Crown acquired title to the deposits to the exclusion of the bank/liquidator.
15 Apr 1996

Re LAW KIN MAN AND 48 OTHERS, INCLUDING: CHEUK WAI MAN , SUNG TIN BIU and TRAINWELL COMPANY LIMITED

Citation

Re LAW KIN MAN AND 48 OTHERS, INCLUDING: CHEUK WAI MAN , SUNG TIN BIU and TRAINWELL COMPANY LIMITED
Court

Court of First Instance
Case number

HCMP3419/1989

The Attorney-General's declarations were refused because (1) issue estoppel and the prior orders (Barnett J and Deputy Judge Daniell) preclude the Attorney-General reopening matters already determined or effectively consented to, and (2) the Bank had pre-existing equitable rights (security, set-off and consolidation) which survive the registration of restraint and external confiscation orders and cannot be defeated by those orders; accordingly relief in paragraphs 1, 1A and 2 was refused and costs were ordered in favour of the Bank.
26 May 1995

ANWIDE CO. LTD. v. LAW KIN MAN and Others

Citation

ANWIDE CO. LTD. v. LAW KIN MAN and Others
Court

Court of Appeal
Case number

CACV188/1994

The appeal was dismissed for failure to comply with the consent order to provide security; the Ordinance establishes a statutory scheme displacing common law in relation to registration of external confiscation orders; and the trial judge properly refused to exercise discretion to allow an out-of-time application so costs follow the event and Anwide must pay the Attorney General's costs.
11 Aug 1994

CHEANG KUOK SAM v. CHUI KIN WING

Citation

CHEANG KUOK SAM v. CHUI KIN WING
Court

Court of First Instance
Case number

HCA1366/1993

The Court found on the evidence that the transaction constituted an unconditional agreement for sale and purchase, not an equitable mortgage or charge; although the loan was not proved to be a sham on the balance of probabilities, the Plaintiff and his solicitors knowingly failed to draw the Attorney General's prior restraint interest to the master's attention when obtaining the charging order ex parte, constituting material and deliberate non-disclosure; accordingly both the charging order nisi and absolute were discharged and the sale proceeds were ordered paid into general revenue under th…
3 Mar 1992

ATTORNEY GENERAL v. KO SAI MAN AND OTHERS

Citation

ATTORNEY GENERAL v. KO SAI MAN AND OTHERS
Court

Court of First Instance
Case number

HCMP2607/1991

The application for partial release was refused because there was no apparent breach of natural justice in the US proceedings and, consistent with Hong Kong legislation and reciprocity with the United States, the Hong Kong court will not order release of restrained assets to fund litigation that the US courts would not permit; costs awarded to the Attorney General.