British Columbia (Director of Civil Forfeiture) v. Lam, 2013 BCSC 1877 – Court Places Onus on Defendant to Resist Interim Preservation Order

In the course of investigating an alleged drug trafficking network, the Vancouver Police Department raided a penthouse condominium owned by Louise Ching Man Kwok.

Inside the residence (which Ms. Kwok had rented to Mr. Hoang Nam Lam and Ms. Lisa Bui), police discovered “2.03 kilograms of cocaine, 1 gram of heroin, 2 grams of marijuana and 13.2 kilograms of caffeine anhydrous, a known cutting agent for cocaine,” along with $41,825 in cash.

The Director of Civil Forfeiture applied for an Interim Preservation Order on the property, despite the fact that Ms. Kwok had no criminal record and was not directly implicated in any unlawful activity.

The Director alleged that Ms. Kwok did not have sufficient legitimate income to have purchased the residence in question, and was a “nominee owner” for other individuals who were using it to facilitate drug trafficking. To support this proposition, the Director pointed to circumstantial evidence tying Ms. Kwok with an individual “known to the police as an associate of gang members connected to Asian organized crime.”

Although Kwok denied any knowledge of the drug activity taking place in her apartment, Justice Greyell of the BC Supreme Court noted that she had not provided a detailed accounting of the funds used to purchase the apartment, nor had she explained her past “relationship” with an individual who was “known to police”:

“[43] I accept the defendant Mr. Lam was only under a written lease agreement with Ms. Kwok for a short period of time. However, Ms. Kwok, notwithstanding her knowledge of the Director’s position that she did not have the means to finance the purchase of the Property because of her “modest” income, made no attempt in her affidavit material in response to the application to either disclose her source of funding when she purchased the Property or to explain how she raised the difference between the mortgage amount and the balance of the purchase price.

[44] Ms. Kwok made no effort to explain how she was able to pay out the amount owing on her Mercedes SUV or how she purchased or leased her new Mercedes. She did not try to explain her relationship with Bryan Pang.”

This decision demonstrates the remarkably low onus that the Director must meet in order to qualify for an Interim Preservation Order. Even where the Defendant is not implicated in unlawful activity, a mere failure to respond in detail to circumstantial allegations can be sufficient to establish a “serious issue to be tried” under the Civil Forfeiture Act.

Decided by the BC Supreme Court on October 16, 2013.
Click here for the full text of the decision.

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