COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (GIBBS J)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE JACOB
| IN THE MATTER OF MAY YOONG FORWELL
|IN THE MATTER OF THE DRUG TRAFFICKING OFFENCES ACT 1986
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London EC4A 2AG
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Miss Saunt (instructed by Crown Prosecution Service) for the Defendant
Crown Copyright ©
Lord Justice Schiemann :
The broad scheme of the Act
Enforcement in cases where there is no certificate of inadequacy
33. There is a separate question which will have to be considered if matters, as I expect, are taken further in connection with enforcement. Whilst I regret that, having weighed the various factors, I have felt it just to disregard the inadequacy, equally my findings disclose that, on the balance of probability, the sum of £228,000 odd is not available to the claimant, and that she is currently suffering hardship. Those are matters which, no doubt, will be considered by the court which is given the task of enforcing the confiscation order.
Certificates of inadequacy: Change since the making of the Confiscation Order
14 (1) If, on an application by the defendant, in respect of a confiscation order, the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order the court shall issue a certificate to that effect, giving the court's reasons.
(2) For the purposes of subsection (1) above-
(a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors, and
(b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.
(3) Where a certificate has been issued under subsection (1) above, the defendant may apply to the Crown Court for the amount to be recovered under the order to be reduced.
(4) The Crown Court shall, on an application under subsection (3) above-
(a) substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case, and
(b) substitute for the term of imprisonment or of detention fixed under subsection (2) of section 31 of the Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section (as it has effect by virtue of section 6 of this Act) in respect of the lesser amount.
i) where there is not to hand in the High Court any new evidence which would have been relevant to the decision of the sentencing court had it been adduced in time;
ii) where there is such new evidence available to the High Court.
Where there has been a change since the making of the Confiscation Order
i) The defendant, before the making of the Confiscation Order, made a gift of £100 caught by the Act which was thus realisable property within the definition in section 5
ii) The defendant had other realisable property of £500
iii) A Confiscation Order was thereupon made for £600,
iv) The defendant does something in relation to the £100 which falls within s.14(2)(b)
v) the defendant has no assets whatever.
The Judgment under appeal
7. Time has passed and the claimant has now been released from her prison sentence some substantial time ago. On 12 March 1996 she swore her first affidavit in connection with proceedings to demonstrate the inadequacy of resources. At paragraph 11 of that affidavit she said:
"I accept that prior to my arrest monies were taken out of an account in the Ing Bank in the Far East by my family but I am informed and verily believe that monies have been used to look after and care for my three children: their educational and other needs. I do not have any bank account other than the National Westminster Bank account referred to heretofore. I have no other assets either in this country or abroad and I survive on state benefits as aforesaid."
14. … It is common ground between the claimant and the defendant in this matter that the transfer of £228,554 is to be regarded as a gift for the purposes of the Act.
23. The final and most problematical point in this application is the issue of whether the claimant's evidence, as a whole, is sufficient to prove that the sum, or what remains of the sum, is now inadequate for the payment of any amount remaining to be recovered under the confiscation order, and, indeed, that nothing remains of that sum. It is agreed that the proof required is the balance of probabilities. Reference has been made to a number of useful decisions illustrating the application of section 14 of the Act in particular cases, for example: Re C, DTOA/114/97, a decision in this court of 18 November 1997 by Dyson J, as he then was; R v Liverpool Magistrates' Court, ex parte Ansen, Divisional Court  1 All England Reports 692; In the matter of Ali, an unreported application for permission dated 4 October 2002. It emerges from those decisions that the fact that the burden of proof is difficult or even impossible to discharge does not assist the claimant; it is whether it has been discharged that matters.
24. The first point which I raised with counsel, and which has been the subject of anxious consideration in the course of the hearing, is this: if I were to find that the sum of £228,554 had, in fact, been spent and/or otherwise dissipated with the collusion of, or even at the direction of, the claimant, would I, nevertheless, be compelled to grant the certificate on the basis that the asset was no longer realisable? The answer with which I was provided, after the matter had been carefully considered and additional submissions made, was that I would be compelled to grant such a certificate, but subject to a discretion under section 1 subsection (2) to disregard any inadequacy as defined by that subsection.
25. I now turn to the submissions on the facts. I summarise these briefly. There were more extensive and helpful submissions from each counsel. Miss Saunt submits that the burden of proof of the inadequacy is not discharged. …
26. Mr Del Fabbro [who appeared for the claimant] relies upon the fact that the claimant is divorced now from her husband who, on any view, is a substantial international drug-dealer and the driving force behind the transactions. He points to the fact that the evidence demonstrates that the claimant has lived in poverty since release from prison. She has tried to get back to Singapore but failed to gain entry. He says that it is certain and, at the very least probable, that her children must have had money spent on their upbringing and education in Singapore, and that this confirms the probability that her family, and her sister in particular, will not have made sacrifices in order to look after those children without recompense from the sum in question, which is, effectively, the claimant's sole major asset in Singapore. He points to the lack of resources of the claimant and the hostility of her family to explain the absence of more detailed information. He says that there is no reason to disbelieve the sums in the schedules which relate to the expenditure claimed because, in the light of the background evidence, they are far from exorbitant and they are the sort of expenditure that one would expect in the social context of the family in Singapore. He relies on the claimant's dire financial circumstances in the United Kingdom over a period to support the view that the sums in question have been depleted.
27. The starting point for consideration of these matters is that the sum in question was held to be realisable at the time of the confiscation order. That implies that, at that time, the sum was within at least the claimant's control, if not her possession. It therefore would seem to follow, as a matter of probability, that any disposition of that money thereafter was also probably within the claimant's control.
28. Disregarding that aspect of it, I find also, specifically on the material before me, that she probably did have control, at least in substantial part, over how that money she had acquired was spent. Even if her family had the physical means of disposing of it, she is likely to have cooperated with them over what happened. Having carefully considered the situation, I am of the view that it is probable that costs in relation to the children were discharged from the sum in question broadly in the manner alleged. …
29. However, I do find force in the submission that the poor state of the claimant, who has been physically ill or unwell from time to time, and the state of her finances over a period of years, are inconsistent with the whole or any significant part of that sum any more being realisable. I also consider it probable, however, that she must, at least in substantial part, have been responsible for those assets ceasing to be realisable. She wanted her children brought up and paid for in Singapore.
30. Mr Del Fabbro submits that the hostility of the family in Singapore and the sense of shame which the claimant's conviction has brought explains why she has not been able to influence events there. I would only accept that submission to a limited extent, in that it may be that, once events were set in train in Singapore, they would not have been easy to reverse, even if the claimant had wished that they could be. But I am not persuaded that the claimant played an insignificant part in what happened to the fund. At the very least, she stood by whilst it was applied for purposes which, as I find, she either approved of or condoned.
31. Had that not been the case, I would have expected some steps to have been taken, once the confiscation order was made, to identify the accounts in which the sum was held. At that stage, as the Crown Court held, the sum was realisable property of hers. It would have been apparent to her that she was responsible for that sum under the confiscation order. Further, it would have been clear that failure to comply with the order, which had a six month time limit after all, may result in the default sentence. The explanations in her affidavit, which are to the effect that she had no influence and that her family, who were honourable, were simply doing the best they could with the money, is, in my judgment, unimpressive. It is implausible, in my judgment, that her family, as well as she, would not have realised that the funds being used had been held by a court in the United Kingdom to be the proceeds of drugs trafficking. As I have said, it is common ground that the transfer of the sum into the account constituted a gift caught by the Act.
32. Having regard to the facts which I have found, I have also come to the conclusion that, for the purposes of the section 14 subsection (b) the inadequacy is attributable, at least in substantial part to the claimant's actions. The question therefore arises as to whether I should exercise my discretion to disregard the inadequacy which I have found to have eventuated. Of course, the court can only have sympathy for the claimant in her current circumstances. She lacks money, apparently, and she has a family, in part at least, dependent on her. Further, there is the fact that some, at least, of the funds were probably used on the education and upbringing of her children in Singapore. Nevertheless, the court is driven inescapably to the conclusion that, following the making of the confiscation order and in the full knowledge that the court had held the sum in question to be the proceeds of drugs trafficking, she did substantially contribute to those funds being placed beyond the reach of the confiscation order. In my judgment, under those circumstances and despite the hardship she is now suffering, I am unable to exercise my discretion in favour of the claimant in this matter, and I find myself constrained to disregard the inadequacy in the realisable property insofar as it relates to the sum of £228,554. In the result, this application must fail.
Postscript on Jurisdiction
"Essentially the issue in such cases as this is whether the order sought to be appealed was a judgment in a criminal cause or matter or merely a judgment collateral to a criminal cause or matter. If it is in the former category the court has no jurisdiction. If it is in the latter category there is jurisdiction."