Hong Kong Case Law: Decisions & Judgments

Topic

Confiscation orders

Legal area

Court

16 Aug 2023

THE SECRETARY FOR JUSTICE v. TAM KIT-I

Citation

[2023] HKCFA 24
Court

Court of Final Appeal
Case number

FACC4/2022

The Court held the principal dispute was the civil question concerning discharge of the restraint order (Question 1) and the procedural classification (Question 2) was secondary; accordingly the costs order nisi in FACV 12/2022 was varied so the respondent pays 80% of the appellant's costs of that appeal plus costs of the proceedings below, taxed if not agreed, and the no‑order as to costs in FACC 4/2022, FACC 1/2023 and FACV 2/2023 was confirmed, with a modest 20% deduction reflecting the SJ's lack of complete success on all issues.
16 Aug 2023

THE SECRETARY FOR JUSTICE v. TAM KIT-I

Citation

[2023] HKCFA 24
Court

Court of Final Appeal
Case number

FACV2/2023

The Court held the principal dispute was the substantive civil issue (Question 1) about discharge of the restraint order; the criminal/civil classification (Question 2) was procedural and secondary. Accordingly the costs nisi in FACV12/2022 was varied so that the respondent (Tam) pays 80% of the appellant's (SJ) costs of that appeal plus costs of the proceedings below, taxed if not agreed; the no-order costs nisi in FACC4/2022, FACC1/2023 and FACV2/2023 was confirmed.
29 Mar 2023

THE SECRETARY FOR JUSTICE v. TAM KIT-I

Citation

[2023] HKCFA 7
Court

Court of Final Appeal
Case number

FACV2/2023

The Court held that a judge's refusal to make a confiscation order on a basis that does not eliminate the prospect of a confiscation order (eg finding s8(1)(a)(ii)(B) not applicable) does not, as a matter of law, conclude the confiscation application under s2(16A)(a) and therefore does not trigger automatic discharge of a restraint order under s15(5)(b); further, appeals against refusals to discharge restraint orders under OSCO are civil in nature and lie to the Court of Appeal under HCO s13(2)(a).
8 Dec 2022

SECRETARY FOR JUSTICE v. TAM KIT-I

Citation

[2022] HKCFI 3658
Court

Court of First Instance
Case number

HCMP54/2011

Leave to issue a certificate under s32(2) Cap 484 was granted because the Appeal Committee had already granted leave to appeal on two substantive legal questions and found it reasonably arguable that the appeal concerning refusal to discharge a restraint order may be criminal in nature, a conclusion that could render the Court of Appeal's civil-judgment exercise of jurisdiction a nullity; the Court therefore certified the questions to enable the Court of Final Appeal to determine them.
3 Nov 2016

SECRETARY FOR JUSTICE v. ALI CHREIF AND ANOTHER

Citation

SECRETARY FOR JUSTICE v. ALI CHREIF AND ANOTHER
Court

Court of First Instance
Case number

HCMP2817/2016

The court found the statutory conditions for a confiscation order under s.8 of OSCO were satisfied: the respondent had benefited (approx HK$1,400,000), the benefit exceeded the statutory minimum (HK$100,000), and the value of realisable property (HK$268,940.50) was established; accordingly a confiscation order was made against those funds.
22 Aug 2016

HKSAR v. LIN KEI TAT

Citation

HKSAR v. LIN KEI TAT
Court

Court of Appeal
Case number

CACC11/2013

The application for a certificate was dismissed because the questions raised lacked merit: the law is settled that 'proceeds of crime' is not confined to reward and, on the facts, bets received by the appellant from illegal bookmaking constituted proceeds of crime and were liable to confiscation under OSCO.
19 Nov 2013

HKSAR v. NG CHUN TO RAYMOND AND ANOTHER

Citation

HKSAR v. NG CHUN TO RAYMOND AND ANOTHER
Court

Court of Appeal
Case number

CACC178/2010

Given the gravity, scale and sophistication of the warrant‑pushing scheme, the substantial sums involved, the strength of the circumstantial evidence and the plausible lead role of D1, the interests of justice required a retrial of D1 on Charges 1‑4; by contrast retrial of D4 was refused because she had served her sentence (with remission), the delay and prejudice of re‑trial would be oppressive and confiscation issues could be addressed without a new conviction for property in her possession under s102 CPO.
23 Jan 2013

LUAN GANG AND OTHERS v. CAL DIVE OFFSHORE CONTRACTORS (MAURITIUS) LTD

Citation

LUAN GANG AND OTHERS v. CAL DIVE OFFSHORE CONTRACTORS (MAURITIUS) LTD
Court

Court of First Instance
Case number

HCMP409/2011

The court held that variation of a restraint order at the interlocutory stage to pay unsecured creditors or to release funds for legal costs is permissible only where there are ample assets such that the variation will not frustrate the purpose of any future confiscation order; the SJ’s material (including the PRC expert report and account flows) provided reasonable cause to believe the respondents benefited from specified offences and no inordinate delay was shown; the applications by the 5th respondent and Intervener to vary the order to pay the arbitration award and legal costs were refuse…
3 Dec 1998

SECRETARY FOR JUSTICE v. LEE CHAU PING AND ANOTHER

Citation

SECRETARY FOR JUSTICE v. LEE CHAU PING AND ANOTHER
Court

Court of First Instance
Case number

HCMP4412/1996

For absconded defendants whose whereabouts are unknown the court may rely on a s.5 statement to satisfy s.3(2)(c)(iii) that the person could have been convicted; the appropriate standard for that factual satisfaction is the civil standard (balance of probabilities); third parties have no standing to oppose the confiscation application itself but have rights to challenge realization under s.12, and where evidence and statutory assumptions show benefit and control the court may assess proceeds and order confiscation and certificates accordingly.
20 Oct 1998

HKSAR v. CHAI MAN FONG

Citation

HKSAR v. CHAI MAN FONG
Court

Court of Appeal
Case number

CACC433/1997

The Court held that the statutory word 'order' in s.80 includes confiscation orders under s.102 and that s.83G gives a right of appeal; further, the trial judge legitimately rejected the accused's account and was entitled to infer the seized property was obtained unlawfully, so the confiscation order was properly made and the appeal failed.