CPD Course:
Forfeiture Hearing:
Property Seized
Connected
with Criminal Activities

Ms Cherry HUI was admitted to practice as a Barrister of Hong Kong High Court in 1999.  In her private practice, she was involved in a wide variety of criminal cases.

Cherry has taught Company Law, Commercial Law, Land Law, Legal Issues in Nursing, Criminal Law and Trial Advocacy at different institutions, e.g. the Chinese University of Hong Kong, City University of Hong Kong, Hong Kong Baptist University, Lingnan University, Hong Kong Institute of Vocational Education and the Hong Kong Management Association, for over ten years.  She has been a speaker on different legal issues at the Hong Kong Trade Development Council and Hong Kong Productivity Council.  She has also participated in different continuing legal education events as a speaker in criminal procedure.

In 2008, Cherry started an entirely new role when she was appointed as a Deputy Special Magistrate.  This gave her the opportunity to gain valuable experience, and from 2011 she was appointed as a Deputy Magistrate.  Cherry successfully handled thousands of court cases as a Deputy Judicial Officer until she finished that appointment in November 2014 and resumed her practice.  The experience gained will definitely be beneficial to her coming challenges.

In Hong Kong, forfeiture occurs when the court decides to seize a person's property because it was believed to be connected with a crime.  Applicant has to prove the articles in question are liable to forfeiture.  Claimant has to prove he is a person who is/would have been entitled to make a claim.  Claimant "has the evidential burden to try and satisfy the Court that he is an innocent party and is not a party to the wrong-doing which led to the contravention."  Both parties are "with the onus of proving on balance of probability".

In Dah Sing Bank Limited’s case (HCMA 54/2014), the court cited Cherry's judgment: "...... 31. In my view, the appellant company, being a well-established bank, should have been aware of the seriousness of using a goods vehicle for the purpose of smuggling, but it simply did not care about the use and purpose to which the hired-out vehicle would be put.  If the appellant merely relied on the contractual provisions, it has in my view not taken reasonable precautions to prevent smuggling activities.  The appellant did not testify or call any witness, and there is no evidence to show that it had carried out regular inspections or examinations to prevent smuggling activities from taking place.  The vehicle was altered as a result of the appellant's negligence.  In my view, even though the appellant has had clauses in the hire purchase agreement which govern National Express International Limited, it has still failed to prove on a balance of probabilities that it is wholly innocent."

• Part 1, will be a talk on the law and procedure relating to the Forfeiture Proceedings;
• Part 2, to share her experiences and explain our case development.