TNAG-1995-FCO40-2842-Drug-trafficking-in-Hong-Kong-1989 — Page 72

appears before the court for sentence, determine whether the

defendant has benefited from drug trafficking and, if he has so

benefited, shall make a confiscation order against him. In general,

the order is separate from and in addition to any other sentence

imposed. Clause 4 provides for the assessment of the value of the

proceeds of drug trafficking by the defendant for the purpose of

determining the amount of the confiscation order. The proceeds are

not limited to those in respect of the offence for which the

defendant was convicted, but may include proceeds of other drug

trafficking activities. The court may, for the purpose of

assessment, make certain rebuttable assumptions about property

received and expenditure incurred by the defendant. Clause 5 makes

provision for acceptance by the court of statements tendered by the

prosecution concerning the benefits of drug trafficking and

assessment of the proceeds. The acceptance of such statements is

subject to specified limitations and safeguards. Clause 6 provides

that the amount of a confiscation order shall be the value of the

defendant's proceeds of drug trafficking as assessed by the court, or

the amount which might be realised from the defendant's property, if

that is less. Clause 7 defines realisable property as property held

by the defendant together with property held by any person to whom

the defendant has made a gift in circumstances prescribed by the

clause. A confiscation order must be paid out of realisable

property. The clause contains additional provisions relating to the

valuation of realisable property and the calculation of the actual

amount available for realisation, taking into account the interests

of preferential creditors.