HKSAR v. Yip Chor Kwan

DCCC 100/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2016

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Reasons for Verdict

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1.Both the 1st and 2nd defendant in this case were charged with trafficking in a dangerous drug, Charge 1, as well as Charge 2, possession of apparatus fit and intended for the inhalation of dangerous drugs.

2.The particulars of Charge 1 are as follows.  On 5 November 2015, the 1st and 2nd defendant unlawfully trafficked in the following: 18.41 grammes of a powder containing 14.42 grammes of ketamine; 3.22 grammes of a crystalline solid containing 3.15 grammes of “Ice”; and 1.17 grammes of a solid containing 0.88 grammes of cocaine. 

3.On the same date, both defendants had in their possession apparatuses, three in total, fit and intended for the inhalation of dangerous drugs, namely “Ice” and cocaine. 

4.The 1st defendant pleaded guilty and the 2nd defendant pleaded not guilty. 

5.The 1st defendant gave evidence against the 2nd defendant as an accomplice and incriminated her. 

6.The issue is the credibility of the prosecution witnesses’ and the 2nd defendant’s evidence. 

The prosecution case

7.The admitted facts, Exhibit P112, set out many facts not challenged.  They include the fact that on 3 November 2015, the 2nd defendant rented a room at the Harbour Plaza 8 Degrees Hotel in To Kwa Wan, Kowloon.  She checked out at 1.08 pm on 5 November 2015.

8.On the same day, 5 November, at about 1.30 pm, two police officers stopped and searched the 1st defendant on Mok Cheong Street near Pau Chung Street, at a location almost directly opposite this hotel.  He was holding the 2nd defendant’s handbag as well as two paper bags.  The 1st defendant asked the officers to search him in a rear lane nearby and not on the street.

9.The sketch of the location of the hotel and roads is exhibited as P100 and 100A. 

10.In one of the paper bags, the police found in a container all the drugs of Charge 1.  In a plastic bag, they found the three pipes of Charge 2 also placed in that same paper bag.  One pipe had traces of “Ice” and two had traces of cocaine.

11.In the same paper bag, the police found a small electronic scale, many small empty resealable transparent plastic bags as well as a $100 note folded into a packet containing suspected dangerous drugs.

12.In the handbag also in the defendant’s possession, the police found three mobile phones and cash of $1,423.40.  The 1st defendant also had a mobile in his possession. 

13.After the search, the defendant was arrested and cautioned.  He replied under caution that those things were not his, they belonged to his friend Ah Kwan.  He was referring to the 2nd defendant. 

14.The 1st defendant was then taken to Kowloon City Police Station and later the police conducted a video-recorded interview, Exhibit D1, A, B and C.

15.A house search of the 1st defendant’s home was made later with nothing suspicious found.  

16.The 2nd defendant was later arrested based on information from the 1st defendant.  She was arrested on 23 November 2015 for Charges 1 and 2. 

17.She was interviewed by video and under caution, Exhibit P94, A and B.  This interview was not challenged.  During it she denied any knowledge of the dangerous drugs in the paper bags or any items in them. She agreed the 1st defendant did have her handbag.  She was shown CCTV of her walking down a corridor of the hotel from her rented room to the lift lobby and down to the entrance of the hotel.  But she did not recognise herself during that showing in the video-recorded interview.

18.The CCTV was shown in court and exhibited as P98A.  P98 are 13 stills taken from the CCTV footage.

Prosecution case

19.The prosecution called two witnesses.  PW1 (PC 1389) described how he and a colleague on anti-drug operation in the area saw the 1st defendant looking left and right.  They decided to stop and search him and all the bags he was carrying.  He described finding the dangerous drugs and the paraphernalia in a paper bag. 

20.He repeated what the 1st defendant had said under caution.  He denied ownership of the drugs and the inhaling devices, telling PW1 they belonged to his friend Ah Kwan.

21.Under cross-examination, this evidence was not challenged.  He was asked the 1st defendant’s reaction when the drugs were found and he described him as being a bit surprised and shocked.  It was put to him that the 2nd defendant was separately stopped and searched by the police that same day, but he had no knowledge of this.  He did not know if she was stopped after the 1st defendant nor did he know she was released when nothing was found on her. 

22.The only other prosecution witness was the 1st defendant himself.  He gave evidence as an accomplice.  He gave the police two non-prejudicial statements indicating he would be prepared to give evidence against the 2nd defendant and plead to the charges himself. 

23.His evidence was he had known the 2nd defendant for five to six years and called her Ah Kwan.  They used to live in the same estate in Yuen Long.  They became flatmates in May 2015 and were good friends. He rented the premises and she moved in.  He paid the rent except when he was in remand for about two months when the 2nd defendant paid the rent instead. 

24.On 4 November 2015, he had been released from police bail for a drug-related offence after their home had been searched. The 2nd defendant was not home at that time.  She had checked into the hotel on 3 November. 

25.At about midnight on the 4th she called his mobile and told him to meet her in her hotel room, Room 1941.  When he arrived, she was alone.  He saw drugs on her bedside table.  He saw about 30 packets of ketamine of which one was bigger than the rest.  He also saw eight to 10 bags of cocaine and four to five bags of “Ice”.  He recognised the drugs because he was a habitual user of drugs. 

26.He had previous convictions for possession of as well as trafficking dangerous drugs.  I have heard details and dates of convictions.  He said there was also two bongs or pipes on the bedside table. He then inhaled “Ice” and cocaine with bongs.

27.His evidence was the 2nd defendant gave him the drugs to take and she also consumed drugs with him.  Whilst he was in the hotel room, he consumed about one packet of cocaine and about half a packet of “Ice”.  The bags were roughly 1 gramme in weight each.  He chatted with the 2nd defendant until about 4 or 5 am and then he left the hotel.  He then went back later that morning at about midday.  The 2nd defendant had called him and asked him to come back to fetch her.

28.When he arrived at the hotel, he again saw drugs on the bedside table but not as many bags as before.  He said the bigger bag of ketamine was there but with less than 10 smaller bags.  There were three to four bags of cocaine and two to three bags of “Ice” left.  He did not know why there were less bags of drugs than there were earlier on. 

29.After he entered the room, he once again inhaled some drugs, “Ice” and cocaine.  He said he and the 2nd defendant chatted whilst both of them took drugs.  Then the 2nd defendant told him they needed to check out and leave the room.  She also said she needed to take ketamine to someone and asked the 1st defendant if he would help her deliver it.  In return he could keep the “Ice” and cocaine.  She would come with him but it was he who was to hand over the drugs.  They then left the room after the 1st defendant agreed. 

30.He carried her handbag while she carried two paper bags and a plastic bag.  By the time they reached the hotel lobby, the 2nd defendant had handed the 1st defendant all the bags.  He left the hotel to get a taxi and she went to the checkout desk.  When he left, he was carrying three bags, all belonging to the 2nd defendant.  They were going to meet up again, but when the 1st defendant went outside and crossed the road, he was intercepted by police officers. 

31.The 1st defendant gave evidence that everything the police found in the bags actually belonged to the 2nd defendant, including the three bongs or pipes and all the dangerous drugs.  It was the 2nd defendant who had packed all the drugs into a container.  It was the 2nd defendant who had packed the bags, not him.

32.He confirmed the CCTV footage of the 19th floor corridor, the lift and outside the lift in the hotel lobby depicted himself and the 2nd defendant.

33.In the corridor, from the footage, one can see the 2nd defendant carrying the paper bags.  In the lift, the 2nd defendant gives the 1st defendant one paper bag and outside the lift, she gives him the other paper bag.  He knew when he was carrying her handbag and two paper bags that he was carrying the drugs. 

34.From the photographs of the drugs in Exhibit P99, the photograph album, photographs 6 to 14, the 1st defendant identified what was ketamine to be delivered and then what was “Ice” and cocaine in small bags. 

35.Under cross-examination, the 1st defendant agreed they were very close, and she was his closest friend before he decided to give evidence against her.  He was asked questions about his drug addiction. He said he started taking drugs in 2008 and despite a drug addiction treatment centre order in that year he relapsed within two months of his release.  

36.He agreed he was arrested on 3 November 2015 after his house was searched with another person.  Ultimately, the police did not charge him with any offence nor his friend.  He said that arrest involved dangerous drugs found in his home.  He does not know why he was not charged.

37.It was put to him that he was not charged because he promised to give evidence against the 2nd defendant in this case. It was put to him he was lying about the 2nd defendant and framing her, so he could receive a bigger reduction in his sentence.  It was put to him he had turned on and betrayed his best friend to get a shorter sentence, a shorter term of imprisonment.  He denied all allegations. 

38.He also denied that he told the police the truth when he was arrested and interviewed under caution, Exhibit D1, but lied when he put the blame onto the 2nd defendant to get more than 30 per cent discount of his sentence.  He said he gave a non-prejudicial statement to tell the truth and the 2nd defendant needed to bear some responsibility as well.

39.He agreed his first cautioned statement was a bit different to the version of events he gave in the witness-box but not very different.  He was not telling the whole story then.  He omitted some details about the 2nd defendant’s involvement.  He did however under caution say the drugs and other things belonged to the 2nd defendant.  He denied he tailor-made his non-prejudicial statements to frame the 2nd defendant.

40.He denied meeting two girls in the hotel room, he was sure he was only there with the 2nd defendant and no one else.  He did say in his statement, Exhibit D1, there were two friends there but he just told the police that and it was not the truth.  He also denied the 2nd defendant and he had planned to meet his friend and his girlfriend who were coming to the hotel to pick them up to take them home.  It was put to him he was not going to find a taxi but wait for his friend who had a car.

41.The 1st defendant said he thought the plan was that he and the 2nd defendant would both deliver the ketamine but he would carry it.  He assumed the 2nd defendant did not want the risk of getting caught with the drugs on her person.  She had not yet before they left the hotel told him details of the delivery.  He said he did feel shocked when the drugs were found in the bag but not because he did not know he had the drugs on him but because he had been caught with them.

The defence case

42.The 2nd defendant elected to give evidence.  She is 24 years old, single and a substitute worker earning about $8,000 a month. She has known the 1st defendant a long time and moved into his home as a flatmate in mid-May 2015.  When he went to prison for a couple of months, her boyfriend lived there with her and she paid the rent. 

43.On 3 November 2015, she did book a hotel room in To Kwa Wan because she went to that district to find her friends.  It was more convenient to rent a room instead of go home.  She did this often.  She found out later that the police had actually searched her and the 1st defendant’s home on 3 November.

44.She denied she fled to a hotel because of the police raid.  She had many visitors to her hotel room, a total of 10 or so over two days.  She also explained that she had paid for the 1st defendant and two others to be bailed out of police station, costing her a total of $15,000.  A friend took her money to the police station. 

45.On 4 November, it was the 1st defendant that called her when he was released.  She told him as their home was a mess, he should sleep in her hotel room.  She was alone when he arrived there.  She did not see any dangerous drugs on her very small bedside table when he came over, that was the late evening of 4 November.

46.She said the 1st defendant left her room but came back on 5 November with two friends, one who had a car.  They were going to drive the 1st and 2nd defendant back home.  She needed to pack in a hurry because the hotel called telling her the checkout was 12 noon and it was gone 1 pm. 

47.Her evidence was she grabbed her belongings, clothes and handbag.  She looked around and saw two paper bags and took them with her.  She did not have time to examine their contents or even look inside. 

48.The 2nd defendant was shown the photographs of Exhibit P99, the album, and said none of the items in the photographs belonged to her.  They were the contents of the bag.  She said the contents of those two paper bags including the drugs, the bongs or pipes in a bag, the straws in a purse did not belong to her.  She did not know who had left the bags in her hotel room.  She suspected one of the 1st defendant’s friends had left it there. 

49.She confirmed she was the female in the CCTV footage walking behind the 1st defendant carrying the two paper bags.  She did then hand them both to the 1st defendant before he left the hotel alone.  She did deny this when first arrested and shown the images because she was feeling ill that day and was not wearing her contacts.

50.When she checked out of the hotel and left, she did not see the 1st defendant or his two friends in their car.  She did not see any police officers with the 1st defendant.  She was then stopped herself by police and searched.  She was released when they found nothing suspicious on her. 

51.In cross-examination she agreed the 1st defendant had come to her room and had taken drugs, but she did not know where they came from; they did not come from her.  She did not notice how he took drugs.  She said she saw ketamine.  She did not see the three bongs or pipes, scale, lighters, straws or any resealable small plastic bags.

52.She agreed that the 1st defendant when he came to her room, he was not carrying anything, he only had his mobile phone on him.  She did not know Ah Fu and Ah Fu’s girlfriend who came with the 1st defendant on his second visit.  It was not her that had called the 1st defendant to come to her hotel, he called and offered to pick her up. 

53.When asked about personal items in a paper bag, she agreed that the soap, toothpaste, a comb and wet wipes were the sort of items one would need for a short hotel stay.  However, she denied they belonged to her.   The pink drawstring shorts were also not hers.  She explained that she picked the bags up in a hurry and thought they may belong to a friend, so decided to take them with her as opposed to leave them in the room. 

54.In cross-examination, it was put to her that her evidence was contradictory.  At counter 125 of her video-recorded interview, P94A, she was asked by police where the paper bag came from and she had answered no.  She was also asked next if she knew why the 1st defendant was holding the paper bag and she replied no.  She told the police at counter 154 that she could not recognise the female in the still from the CCTV footage carrying two paper bags, one plastic bag in front of her wearing sunglasses.  At counter 162 she was asked again but said she could not see clearly.

55.In cross-examination, she was asked if she continued to think that P98, photograph 2, was still of such a poor quality she did not recognise herself, she said yes. 

56.The issue in this case is credibility of witnesses, in particular credibility of the 1st defendant, the accomplice.  There is no submission that what his evidence amounts to is not the ingredients of trafficking dangerous drugs.  In other words, if I believe him and reject the 2nd defendant’s evidence, then the defence do not submit his evidence does not amount to the 2nd defendant trafficking dangerous drugs with him. 

57.The 1st charge itself is that both the 1st and 2nd defendant unlawfully trafficked the drugs particularised.  The 2nd charge is that both of them possessed the three pipes or bongs used for inhaling drugs. If I find for the prosecution, then there is no challenge to the submission they were intended for just that purpose.

58.The prosecution has a duty to prove the charges against the 2nd defendant beyond a reasonable doubt.  The defendant has nothing to prove.

59.In final submissions, I heard from both prosecution and defence counsel, I have considered their submissions in full.

60.I have given careful thought to the fact the 1st defendant is an accomplice giving evidence against the 2nd defendant.  He is also a drug addict with criminal convictions.  He will benefit from this if his evidence is accepted.  He knows he will get a higher than usual discount to his term of imprisonment.  There is an inherent danger he may not be reliable or credible in such a situation.  I do not have to find there is evidence to corroborate his evidence, but I will look for supporting evidence.  That is evidence that is consistent with or supportive of the 1st defendant.   It may be evidence that makes his evidence more believable.   At the same time I must make myself aware of evidence which is inconsistent with or undermines his evidence, making him less believable, if any. 

61.I have carefully considered the 2nd defendant’s evidence and do not find her reliable or credible.  I do not believe her version of events, in particular in relation to the morning that she checked out.

62.I have considered the CCTV footage of the 2nd defendant leaving her hotel room and walking to the lift.  She is clearly on the crook of her arm and in her hand holding the paper bags searched by the police in the 1st defendant’s possession minutes after the 2nd defendant left her hotel room.  She clearly hands them both to the 1st defendant before he leaves the hotel in front of her.  This is not challenged or disputable. Although in her video-recorded interview, she denies any knowledge of the bags or their origin.

63.I however find the 2nd defendant’s evidence as to how she came to leave her room with both these bags unbelievable.  That is her explanation that she was in a hurry to check out and leave the room.  This led to her grabbing everything in the room and taking it with her.  She says the bags were not hers, but she had no idea who left them there, what was in them or who they belonged to.  She assumed they belonged to somebody else.  She did not look inside them because she was in a great hurry. 

64.I am sure this evidence was an attempt to distance herself from the bags and the items inside them.  As she is seen clearly on the CCTV footage holding them, she had to explain under what circumstances she had them in her arms.  Moreover, there were items in them consistent with a stay in a hotel; items for personal hygiene, clothing and snacks.  She is the only person who stayed there.  I am sure they were her bags and her belongings.

65.To support this finding, I find it very hard to believe someone would leave in her room drugs worth several thousand dollars as well as paraphernalia associated with taking and packing drugs such as “Ice”, pipes or bongs, straws, empty resealable plastic bag, lighters and a scale.  It is inherently improbable these items and drugs would be left alone by their owner to chance.

66.I have considered the admitted facts, the 2nd defendant’s fingerprints were not found on the exhibit that were examined, nor was any DNA.  However, that is not fatal to the prosecution’s case. 

67.The 2nd defendant’s evidence that she knew the 1st defendant took drugs in her hotel room when he visited but had no idea how he took the drugs or where he got them from is unlikely.  I do not believe she was in the same room as him but did not notice these details.  This is another attempt to distance herself from any drugs, but a weak attempt. 

68.Although I reject the 2nd defendant’s evidence and her version of events, I must still find the prosecution can prove beyond reasonable doubt on its own evidence the charges against her.  I am sure the 1st defendant as a drug user did take drugs as he said in the 2nd defendant’s hotel room.  I am sure he did not take drugs there nor any apparatus to inhale drugs having just been bailed out and released from a police station.  I am sure, as he said, he got the drugs from the 2nd defendant and used pipes already in the room.  Even the 2nd defendant said he came empty-handed except for his mobile phone.

69.The CCTV footage does support his evidence that he was to take the drugs out of the hotel and to somebody else.  It can be seen that the 2nd defendant carried the bags initially but passed them all to the 1st defendant before they entered the main hotel lobby. 

70.I take into account his first response was to tell the arresting officer the items belonged to Ah Kwan, the 2nd defendant, and not him.  He maintained the stance throughout his interview and beyond.  I accept, as did he, that in his video-recorded interview he did not tell the police that the 2nd defendant had asked him to take possession of the drugs to deliver to another, the ketamine, and that he could get the “Ice” and cocaine as a reward. 

71.When one compares his video-recorded interview to his evidence in court, there are no material lies but mainly denials; rather he omits to tell the police the whole truth.  He did tell the police that he did not know the drugs were inside the bag belonging to the 2nd defendant when in reality he knew.  He also told the police when he first visited the 2nd defendant there were two female friends there when in reality he saw no one but the 2nd defendant when he visited her on both occasions. 

72.Again, I reminded myself of the inherent dangers of an accomplice giving evidence against a co-accused.

73.However, in rejecting the 2nd defendant’s evidence, I found she lied about her total lack of knowledge of the paper bags and the contents.  I am sure they were her items given to the 1st defendant to carry.  The CCTV footage supports the 1st defendant’s evidence as far as the physical actions are concerned.  This evidence strengthens the 1st defendant’s evidence. 

74.I also take into account that his first utterance to the police under caution was to tell the police the items belonged to the 2nd defendant.  He maintained this, as I have said, in his video-recorded interview.  This points to his credibility. 

75.Having considered his evidence in its entirety and considered his utterance under caution, the CCTV footage and my certainty the other personal items in the paper bag with the drugs and drug taking paraphernalia belonged to the 2nd defendant for the purpose of her short stay in the hotel, I am sure the 1st defendant’s evidence is credible and reliable.

76.I am sure the ketamine was to be delivered to somebody else and the 2nd defendant did ask the 1st defendant to physically carry the ketamine and other drugs when they left the hotel.  However, before delivery could take place, the 1st defendant was intercepted by police officers.  The 1st defendant and the 2nd defendant lost contact with each other because he was arrested outside the hotel.  I am sure the 1st defendant agreed to carry the drugs to delivery because the 2nd defendant had offered him the remaining drugs as a reward.

77.I am satisfied the prosecution can rely on the 1st defendant’s testimony.  I believe the 2nd defendant did ask the 1st defendant to carry the drugs with the purpose of delivering the ketamine elsewhere.  I am sure under such circumstances the 2nd defendant was trafficking the drugs found in the bag carried by the 1st defendant with the 1st defendant jointly.  The prosecution can prove this beyond reasonable doubt.  Accordingly, the 2nd defendant is convicted of Charge 1.

78.I am also sure the items in the bag belonged to the 2nd defendant but in the 1st defendant’s possession including the three apparatuses fit and intended for the inhalation of dangerous drugs, namely “Ice” and cocaine.   All three were examined and contained traces of drugs. The prosecution can prove the 2nd defendant owned the items in the 1st defendant’s possession beyond reasonable doubt.  Accordingly, the 2nd defendant is convicted of Charge 2.