HKSAR v. Lee Chi Hang

DCCC 117/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 117 OF 2016

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Reasons for Verdict

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1.Defendant, you have pleaded not guilty to the two charges that you face, namely charge 1 of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and charge 2 of resisting a police officer in the due execution of his duty, contrary to Section 36(b) of the Offences against the Person Ordinance, Cap. 212.

Introduction

2.In summary, the Prosecution case was that at about 9.50 p.m. on 31^st May, 2015, while SPC 34703 (PW1) and other police officers including PC 10758 (PW2) were on anti-crime patrol near the junction of Ho Pui Street and Chuen Lung Street, PW1 saw you walking towards a private car with registration number MK2911 which was parked at Ho Pui Street in a suspicious manner. Upon approaching the car, you unlocked the car with a remote car key. At this juncture, PW1 approached you and declared his police identity.  You used the remote car key to lock the car and attempted to walk away. PW1 warned you he would arrest you for obstructing if you did not co-operate. You immediately ran towards Wo Tik Street, chased by PW1, who caught you some 10 metres away outside Shop G01B of Optimall. You continued to put up a struggle, and he finally subdued you with the assistance of PW2 and PC12605.   You were arrested and cautioned, but said nothing after caution.  You were subsequently brought back to the car MK2911 wherein the dangerous drugs the subject matter of charge 1 were found in the car. When arrested and cautioned in respect of these dangerous drugs, you said nothing.

3.The prosecution case is that the only inference to be drawn from the evidence is that you possessed the dangerous drugs that were subsequently found in the car, and that you possessed these for the purpose of trafficking. The prosecution also says that the struggle you put up amounts to resisting PW1.

4.Trafficking in relation to dangerous drugs is defined in Section 2 of the Dangerous Drugs Ordinance, Cap. 134 and includes “…supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking”.  Section 36(b) of the Offences against the Person Ordinance, Cap. 212, provides that any person who assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer shall be guilty of an offence triable either summarily or upon indictment.

Evidence

Prosecution evidence

5.At the outset,  facts admitted by the Prosecution and Defence under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were read into the record and marked Exhibit P17.  This disclosed that:

a. At 2155 hours on 31^st May, 2015, PW1 seized one plastic bag, Exhibit P1, which contained 1 paper packet and 5 plastic bags containing suspected dangerous drugs, collectively marked Exhibit P2;

b. At 0923 hours on 1^st June 2015, DDPC 54801 delivered Exhibit P2 to the Government Chemist for analysis. At 1025 hours on 17 June, 2015, he collected Exhibit P2 together with the Government Chemist’s Certificate, Exhibit P3, from the Government Chemist.

c. At 2300 hours on 31^st May, 2015, PW1 searched you inside the Report Room of the Tsuen Wan Police Station, and seized from you Exhibits P4 to P13, as set out in Paragraph 5 of the Admitted Facts, Exhibit P17.

d. Between 0020 hours of 31^st May, 2015 and 0105 hours of 1^st June, 2015, at the junction of Chuen Lung Street and Ho Pui Street, DPC 10035 took 14 photographs, Exhibit P14 (1) to (14);

e. Between 2355 hours on 31^st May, 2015 and 0105 hours on 1 June, 2015, Sgt 4060 obtained samples for the purpose of human DNA analysis from the steering wheel and gear lever of MK2911. At 0130 hours on 2^nd June, 2015, PC13548 took 2 buccal swabs from your mouth cavity. On 5^th June, 2015, DPC 13548 delivered these to the Government Chemist for analysis. The DNA found on the steering wheel of MK2911 matched your DNA.

f. The estimated street value of the dangerous drugs, Exhibit P2, was HK$4,822.

6.Further admitted facts were submitted before the Prosecution closed its case, and marked Exhibit P19. This disclosed that:

a. At the material time, the registered owner of MK2911 was a Mr. Kwong Lam-kiu;

b. Fingerprint impressions were lifted from the private car MK2911, but had insufficient characteristics for identification purposes;

c. No fingerprints were found on Exhibits 1 and 2.

7.The exhibits referred to as Exhibits P1 to P16 on the Admitted Facts Exhibit P17 were produced by agreement and marked accordingly.

8.There were 2 Prosecution witnesses. At the end of the Prosecution case, there were no submissions made by the Defendant.  I found that there was a case to answer on both charges. Having had his rights explained to him by his Counsel, the Defendant elected not to give evidence, and called no witnesses.  The prosecution had no closing submissions, save to submit the authority HKSAR v. So Tsz Kon [2015] 3 HKLRD 169 in relation to the directions to be given to the jury in respect of flight by an arrested person when confronted by the police.  The Defence submitted its closing submission in writing.

9.In reaching my verdict, I have carefully considered all the evidence adduced before me, as well as the submissions made on your behalf by Mr. Boyton.  I bear in mind that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt – you do not have to prove anything.  You elected not to give evidence and called no defence witnesses – that is your right and no adverse inference can be drawn against you for exercising your right to remain silent.

10.I was told by your Counsel from the outset that your identity was not in dispute. Nor was it disputed that the dangerous drugs the subject matter of charge 1 were contained inside the paper packet and 5 resealable plastic bags, Exhibit P2, which was contained inside the plastic bag Exhibit P1 and found by PW1 during his search of the vehicle MK2911 in your presence. These were found tucked inside the storage compartment on the driver’s door of the car MK2911, which was depicted in Exhibit P14 photo 2.  PW1 marked on Photo 2 with a cross the position of the storage compartment wherein he found the dangerous drugs. The chain of evidence in respect of the dangerous drugs was not disputed, nor was it disputed that these dangerous drugs were examined by the Government Chemist, and the result of the analysis was contained in the Government Chemist’s Certificate, Exhibit P3.

11.PW1 testified that at the material time, he was on duty on plainclothes anti-crime patrol at Ho Pui Street and Chuen Lung Street.  Whilst patrolling, at about 2155 hours, he saw you walking towards him towards the direction of Wo Tik Street – he found that you appeared suspicious as you looked scared and kept looking around and wore an evasive expression. PW1 marked on photo1 your position when he first saw you, being on the road just near the red awning depicted on the photograph. MK2911 was stopped in the position as depicted on photo 1.   He was about 1 metre from the front of the car.  When you were about 2 metres from the car, he saw the indicator lights of the car light up once and heard what he described as a ‘tak’ sound which he believed was the anti-theft alarm of the car being deactivated and the car being opened/shut with a remote key.  He went forward and revealed his police identity and said he suspected you were in possession of dangerous drugs and he needed to search you.  You paid him no heed – you were approaching the vehicle as he said this whilst he was walking towards you and there was a distance of about ½ to 1 metre between you. You continued to walk, but not towards the vehicle - you did not stop nor did not pay any heed to PW1.  PW1 then told you that if you did not co-operate, he, i.e. PW1, might arrest you for the offence of obstructing the police from carrying out its duty. At the same time, PW1 heard the ‘tak’ sound and the indicator light of the car flashed. You started to run along Ho Pui Street, past PW1, towards Wo Tik Street and PW1 gave chase. PW1 chased after you for about 10 metres and caught you outside Shop G01B of Optimall.  You kept struggling, swinging your arms/hands and attempted to run away. PW1 described that you were trying to swing him off as he had caught hold of your left wrist.  During his struggle with you, PW2 and a uniformed police officer PC12605 approached and helped him to subdue you, pressing you to sit on the ground.  He declared arrest on you for the offence of obstructing a police officer in the due execution of his duty – you made no reply. You continued to struggle and strived to escape – PW1 thus took out his handcuffs and handcuffed your hands to your back. This struggle and resistance is the Prosecution evidence in respect of Charge 2.  He then checked for injuries on himself and his colleagues and on you, as well as the surroundings, before he used his mobile phone to call the officer-in-charge of his police vehicle EU65, which arrived within one minute.  PW1 and PW2 brought you onto EU65, wherein PW1searched you, and in the right front pocket of your shorts, he found a car key, Exhibit P18. Nothing else of a suspicious nature was found.   He told you that he had to search the car, and he and PW2 escorted you on foot back to MK2911, where in your presence,   he used the car key, Exhibit P18, to unlock the car and searched it – he found the dangerous drugs the subject matter of charge 1 contained in the paper packet and 5 resealable plastic bags, Exhibit P2, and these were contained inside Exhibit P1, and tucked into the compartment on the driver’s door of the car.  PW1 confirmed that just by looking at Exhibit P1, one could not see the contents inside.  He also confirmed that Exhibit P1 was tucked into the compartment on the driver’s door and one had to actually look into the compartment to be able to see Exhibit P1. He showed the items he had found to you and cautioned you in respect of the suspected dangerous drugs he had found – you said nothing after you were cautioned. It was suggested to PW1 that he raced up to you without saying anything and as you were scared you ran – he never disclosed his police identity and he caught you around your body with his arm and only when he or the other police officers said they were police officers did you stop struggling – PW1 disagreed,

12.PW2’s account of events that evening differed somewhat from that of PW1.  He said that at the material time, he was at the junction of Ho Pui Street and Chuen Lung Street outside the Yeung UK Road Market and marked his position on photo 7 of Exhibit 14.  He also marked on photo 7 the position of PW1 as being near the front of the car, whilst he said a male was beside the car, at the right side of the car. The male, whom he subsequently identified to be you, walked to near the driver’s seat and at that point he saw the indicator lights of the car flash on once. When you were outside the driver’s door, he saw PW1 go forward and speak to you but he could not hear what was said - the distance between PW1 and you was about 1 metre and both of you were stationary. Then he saw the indicator light of the car flash once more. PW1 continued to speak to you, whilst you were both stationary.  Suddenly you started running towards Wo Tik Street, chased by PW1 and he immediately went over to help in the chase. PW1 intercepted you at outside Shop G01B of Optimall – he was about 1 metre away. You continued to struggle.  PC 12605, a uniformed police officer, arrived at about that time and the 3 of them pressed you to sit on the ground. PW1 declared arrest on you and handcuffed you and they brought you back to the police vehicle where PW1 searched you and the car key was found from you.  He and PW1 took you back to MK 2911 where PW1 used the key to unlock the car and searched it.  PW2 said that when he first saw PW1 talking to you, he did not notice anything suspicious about you.  It was whilst PW1 was talking to you that you looked a bit scared and that attracted his attention. PW2 was questioned about how PW1 caught hold of you – he said he saw this and described PW1 catching hold of your left forearm just below your elbow with his right hand.

Consideration of the evidence

13.Clearly there are discrepancies in the accounts of the two police officers as to how and where you were approached and how you were intercepted. But as Mr. Boyton rightly said, in paragraph 10 of his final submissions, any discrepancy as to the location where you and PW1 encountered each other and the interception itself on these facts are not really that material, in particular in respect of charge 1.

14.Your identity was not in issue – nor was it in issue that the car key, Exhibit P18, was found from your shorts pocket when you were searched by PW1 on the police vehicle, and you were taken by PW1 and PW2 back to where the car MK2911 was parked, and in your presence the car was unlocked using the car key, Exhibit P18, found from you, and in your presence the car was searched  and the dangerous drugs the subject matter of charge 1, namely Exhibit P2, was found contained inside Exhibit P1, which was tucked into the storage compartment in the driver’s door of the vehicle.

15.It was admitted that Exhibit P2, consisting of a paper packet and 5 resealable plastic bags, was examined by the government chemist and the Government Chemist’s Certificate, Exhibit P3, confirmed that it was dangerous drugs as particularized in Charge 1. Exhibit P2 was contained in Exhibit P1 - a yellow plastic bag that clearly was not transparent – unless one actually looked into the plastic bag, one would not be able to see the contents.

16.It was also admitted that no fingerprints were found on the plastic bags and paper packet that comprised Exhibits P1 and P2, although these were analyzed for fingerprints. Although the car MK2911 was dusted for fingerprints, and fingerprint impressions lifted, there were insufficient characteristics for identification purposes. Your DNA was found on the steering wheel and gear level of the car MK 2911, but there was no evidence as to when and how these got there.  It was also admitted that you were not the registered owner of the vehicle at the material time.

17.In respect of charge 1, the Prosecution must satisfy the Court to the requisite standard of proof beyond all reasonable doubt that firstly you were in possession of the dangerous drugs in question, Exhibit P2, and therefore you unlawfully trafficked in them.

18.There is no evidence of your physical possession of the dangerous drugs in question. The Court is asked to infer that you were in possession of these dangerous drugs and therefore unlawfully trafficked in them by virtue of the fact that you had the key to the car in which the dangerous drugs were found and your DNA was found inside the car, although there is no evidence as to when and how your DNA came to be in the car.  As Mr. Boyton has pointed out in his final submissions, referring to the case of Kwan Ping-pong v R [1979] 1 HKLR at page 5, it is well established ‘…that proof must be “beyond all reasonable doubt”, which calls for a degree of certainty higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling – one (and the only one) that no reasonable man could fail to draw from the direct facts proved’.

19.It was admitted that the car in question where the dangerous drugs were found was not your car. It was also admitted that no fingerprints were found from Exhibit P1 or from the paper packet and 5 resealable plastic bags that contained the dangerous drugs, Exhibit P2.  It was PW1’s testimony that Exhibit P1 containing Exhibit P2 was tucked inside the compartment of the driver’s door of the car and one had to look into Exhibit P1 to actually see its contents.  He also said that Exhibit P1 was tucked inside the compartment and one had to actually look into the compartment to actually see Exhibit P1.  Apart from possession of the key to the car, there is no other evidence that directly links you to the dangerous drugs.   The Prosecution did not call the owner of the car in question to testify – so there is no evidence as to when you came into possession of the car key and the circumstances under which you came into possession of it and whether anyone else had a key to the car.   Were you the only one who had possession of the car.? There was no evidence as to when the car was parked at Ho Pui Street and by whom, nor evidence as to whether anyone accessed the car from the time it was alleged you ran from the car chased by PW1 and PW2 till you were escorted back to the car and it was searched and the dangerous drugs found.  There is no evidence as to whether you were in possession of the car itself or only of the car key, apart from the evidence that you were seen by PW1 walking towards the car and PW2 that you and PW1 were beside the car and the indicator light of the car had flashed when you were near the car.  Can one draw the irrefutable inference in those circumstances that possession of the car key amounts to possession of the car and its contents and therefore possession of Exhibits 1 and 2 and the requisite knowledge that Exhibit P2 was dangerous drugs and therefore you had unlawfully trafficked in the said dangerous drugs?

20.The Prosecution seeks to rely on the decision of the Court of Appeal in HKSAR v So Tsz Kon [2015] 3 HKLRD 169 to support its contention that your attempted flight when confronted by PW1 was evidence that you had knowledge of the dangerous drugs in the car and so sought to escape arrest.  As the Court of Appeal said, “The mere fact that a defendant attempts to flee is not itself evidence of guilt. There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to the commission of an offence unrelated to the present one or of some other disgraceful act. If the jury thinks that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight.  It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.” In order for flight to be capable of providing support for the prosecution’s case, there must be some evidence to establish a connection between the flight and the offence in question.

21.On the evidence adduced before me, I am not satisfied to the requisite standard of proof beyond all reasonable doubt that the Prosecution has discharged its burden to prove that you were in possession of the dangerous drugs in question.  The inference I am asked to draw in my view is not the only inference possible in the circumstances - I do have doubt, and the benefit of that doubt must go to you and you are acquitted on Charge 1.

22.In respect of Charge 2, the Prosecution must prove to the requisite standard that you resisted the arrest of PW1 who was at the material in the due execution of his duty. The evidence in respect of this charge comes from the evidence of PW1 and PW2.  There were discrepancies in the accounts of the two police officers, in particular in respect of the manner in which you were stopped by PW1, the place where you stopped and the description of events leading to your fleeing. I find myself unable to resolve the discrepancies in the two accounts.  The benefit of the doubt must go to you – accordingly you are acquitted of charge 2.