HKSAR v. Xi Tao

DCCC 986/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 986 OF 2015

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REASONS FOR VERDICT

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CHARGE

1.The defendant pleads not guilty to one count of trafficking in dangerous drugs.

INTRODUCTION

2.Police went to Room 1107 of Fu Man House, Tai Wo Hau Estate (“the premises”).  Inside, they found the defendant and a four-year old boy in the bedroom.  On a table in the living room, police found the dangerous drugs specified in the charge, i.e. 0.01 gramme of a powder containing methamphetamine and heroin hydrochloride, 17.98 grammes of a mixture containing 14.02 grammes of heroin hydrochloride and 4.04 grammes of a crystalline solid containing 4.02 grammes of methamphetamine hydrochloride. There were also some paraphernalia for consuming dangerous drugs and sixty plastic bags plus three electronic scales.

3.Before and after caution, the defendant told police that the drugs were for her consumption.  The arresting officer PC 11154 reduced the defendant’s after-caution admission and further answers into a contemporaneous record written by the officer in the premises.  The defendant signed on the record in the officer’s notebook.

4.At the police station, PC  11154 transposed the contents of the contemporaneous record to a post-record in the same notebook.  The defendant also signed on it.

5.The next day, another officer DSPC 34775 conducted a video interview with the defendant.  The defendant made further admission.

DISPUTE

6.The defendant denies possession of the drugs and all the paraphernalia. The flat was not hers. It belonged to one Kwan Siu Lun.  The defendant says she was there to look after the children of Kwan’s. She was acquainted with Kwan and his wife (Habi); she was also the godmother of Kwan’s two sons. 

7.The defendant says the drugs and the paraphernalia were Kwan’s.  Kwan came back after police had arrived. He in the presence of the officers induced her to admit temporarily possessing those things. Kwan told the defendant that he needed time to arrange for the custody of his children.  He promised her that he would confess to police once he had settled the children, who otherwise would have to go into foster care.  It is said Kwan and Habi, as the defendant, were all drug addicts. At that time, Habi was in DATC but due to come out in ten odd days’ time.

8.The defendant alleges police condoned Kwan to induce her as aforesaid. Out of concern for her godsons, she complied with Kwan’s request to admit guilt for the time being.  She made ‘confession’ to PC 11154 at the police station but not in the premises.  She knew the officer wrote in his notebook to the effect that she had the drugs for her consumption but he did not read the content to her. Nor let her read it.

9.The defendant also accuses DSPC 34775 of coaching her on what to say in the video interview the next day.

10.Alternative procedure is adopted to decide whether any post-caution admission of the defendant’s can be admitted as evidence. [Prosecution do not rely on the pre-caution admission.] After special issue hearing, all the post-caution admissions are ruled inadmissible.  There is no further evidence to incriminate the defendant.  She has no case to answer on the single charge and is acquitted.

THE PROSECUTION CASE

11.There are five prosecution witnesses: PW1 PC 11154, PW2 PC 17878, PW3 Sgt 51727, PW4 DSPC 34775 and PW5 Fireman Wong Kam Fai.

12.There are exhibits P1 to P18 and PP19 to PP22A-E (PP19 to PP22A-E are ruled inadmissible after special issue hearing).

AT THE PREMISES

PW1

13.PW1 (PC 11154) and his partner PC 53394 (not called as witness) were patrol officers.  Around 10:25 am on 9 September 2015, they were summoned to the premises as a result of an anonymous call that a child had taken dangerous drugs there.

14.The two officers met three other officers from a patrol car outside the building.  All five went up to Room 1107.  They banged on the wooden door and called out loudly that they were police. Nobody answered the door.  After twenty odd minutes, at 10:52 am, fireman broke into the premises.  PW1 followed the firemen and the paramedics.  In the only bedroom, PW1 found the defendant and a four-year old boy on the bed.  PW1 says the two were still sleeping and had to be woken up.  He asked for the defendant’s identity and found out she was not the mother of the child.  Nor was she the owner of the flat.  The owner Kwan had gone out. The defendant was asked why she did not answer the door.  She just replied she did not hear noises. 

15.PW1 noticed some items of suspected dangerous drugs and paraphernalia on a table in the living room.  [In court, he marks them as Items 1-8 and A-E on photo P 17A(5).]  They are a large ice pot (Item 1; Exhibit P2) containing 10 millilitres of a liquid containing traces of methamphetamine (Exhibit P3), a small ice pot (Item 2; Exhibit P4) containing 63 millilitres of liquid containing 0.10 gramme of methamphetamine (Exhibit P5), one blue plastic box (Item 6; Exhibit P6) containing three plastic bags and seven plastic/tissue paper wrappings enclosing 17.98 grammes of a mixture containing 14.02 grammes of heroin hydrochloride (Exhibit P7), one plastic box (Item 3; Exhibit P8) containing four plastic bags containing 4.04 grammes of a crystalline solid containing 4.02 grammes of methamphetamine hydrochloride (Exhibit P9) and six plastic bags containing a total of 0.01 gramme of a powder containing methamphetamine and heroin hydrochloride (Exhibit P10). On the table, there were also five pieces of dangerous drugs smoking apparatus (Item D; Exhibit P11), ten drinking straws (Item A), one bag containing white paper (Item E), one bag containing two silver foils (Item C) and one bag containing four silver foils (Item B); Items A, E, C and B together are Exhibit P12), three sets of electronic scales (Items 4, 5 and 7; together as Exhibit P13), and one pink plastic box containing sixty transparent bags (Item 8; Exhibit P14). 

16.PW1 knew what those things were but he wanted to find out who owned them. Without caution, he asked the defendant whether they were hers.  She answered yes.  PW1 then arrested and cautioned the defendant for what he called a packing dangerous drugs centre offence.  The defendant said the scales and plastic bags belonged to her for dividing the drugs for her convenience so that she could take the drugs with her when going out.  At 11:07 am, PW1 cautioned the defendant for possession of dangerous drugs. The defendant further said all the drugs belonged to her.  She bought them for her consumption.  At 11:14 am, PW1 further cautioned the defendant for smoking dangerous drugs. The defendant said the pots (referring to the two ice bottles Items 1 and 2) were for her consumption of dangerous drugs.

17.PW1 says he recorded the defendant’s words there and then in his notebook.  He asked the defendant further questions to which she answered.  He recorded those questions and answers in his notebook as well.  In those answers, the defendant said she spent $7,000 to buy all the drugs the previous day in a park near Shang Tung Street in Mongkok.  The scales and plastic bags were hers.  And she now lived with her male friend in the premises. PW1 says the defendant signed against each answer and also at the end of such contemporaneous record. (This record is on Pages 94-99 of PW1’s notebook PP20.)

18.At the police station, around 2:09 pm, PW1 post-recorded the defendant’s three pieces of admission after caution and the eight answers  she gave in the premises.  PW1 read out to the defendant and let her read the content too. She then copied a declaration to state that she voluntarily made that statement; she was aware she could make correction, etc; and that the statement was true.  (This post-record is on Pages 99-110 of PP 20.)

19.PW1 agrees that the registered tenant Kwan Siu Lun came back to the premises soon after police had arrived. The officer denies Kwan scolded the defendant or induced her to admit possession of the drugs and the paraphernalia. Defence Counsel alleges the defendant and Kwan sat on the bench and talked there. PW1 says police forbade them talking. He did not notice the two ever sitting on the bench.

20.Defence Counsel alleges there was no caution administered to the defendant at scene. She did not make any admission there.  Everything in the notebook was recorded at the police station. And the defendant complained to police of feeling unwell due to drugs withdrawal symptoms.  PW1 answers that the defendant looked normal to him at all material times. He had not heard any complaint from her.

PW2

21.PW2 (PC 17878) was one of the three officers from the patrol car that attended the scene.  He entered the premises some minutes after PW1 and others had gone in.  When PW2 walked into the flat, he saw the defendant in the living room near a table.  His colleague PW1 asked him to guard the table with Items 1-8 and A-E on it.  PW2 says he then stood guard nearby and did not pay much attention to what was said between PW1 and the defendant.  Later, PW2 seized those things on the table and brought them back to the police station.   He processed them and handed them to the duty officer for custody.

22.PW2 says he did not see the defendant or Kwan sitting on the bench.  Nor did he hear Kwan scold the defendant or the two argue.

PW3

23.PW3 (Sgt 51727) was the officer in charge of the patrol car.  He entered the premises with PW2 but thereafter he spent much time outside to look after the boy.  PW3 says he did not have to supervise his colleagues in the premises. He was later informed of what had happened inside.

24.PW3 admits he had seen the defendant sitting on the bench. Initially, this officer says he did not see Kwan also sitting there but later he changes to say Kwan had also sat on the bench. Yet the two did not sit there at the same time.  PW3 denies he and his colleagues condoned Kwan’s inducing the defendant to admit possessing the dangerous drugs and the paraphernalia.

PW5

25.PW5 Mr. Wong Kam Fai is a fireman. He says he was the first one to enter the premises.  He found a woman (the defendant) and a child awake on the bed. The woman looked alright.  PW5 cannot remember his conversation with her.

AT THE POLICE STATION

PW4

26.PW4 (DSPC 34775) had attended the scene on 9 September 2015.  He once saw Kwan sitting on the bench but he did not see the same of the defendant. Later that day at Kwai Chung Police Station, PW4 took a background statement from the defendant. The defendant was later transferred to Tsing Yi Police Station for overnight detention. 

27.The next day (10 September 2015), WDSPC 15488 brought the defendant back to Kwai Chung Police Station.  At 17:00 hr, PW4 issued Pol. 153 (PP 21) to the defendant.  It was to inform her of her rights as PW4 was going to take a video recorded statement from her.  The interview took place between 17:33 - 17:45 hr (Exh P22A – the main disc; P22B – working disc; P22C – the Chinese transcript; P22D – the English translation; P22E – close-up disc showing the defendant’s face during the interview). 

28.PW4 says the defendant looked well to him during those two days (i.e. 9 - 10 September 2016).  He did not at any time find her suffering from drugs withdrawal symptoms. He denies any officer had acted improperly towards the defendant. 

THE DEFENDANT’S EVIDENCE ON SPECIAL ISSUE

29.Defence Counsel has no mid-stage submission to make on the special issue.  I rule the defendant has a case to answer.  She elects to give evidence.

30.The defendant says she came to know Kwan and his wife Habi in November 2014.  She was very fond of Kwan’s two sons.  One to two months later, she became their godmother.

31.The defendant admits she was a drugs addict.  Kwan and his wife Habi were too.  Habi had been recalled to DATC but was due to come out on 21 September 2015. On the night of 8 September 2015, the defendant went to Kwan’s home to take care of the boys (aged 9 and 4 respectively).  She stayed there overnight and slept with the boys in the only bedroom.  Kwan slept in the living room.  Kwan had told him that he would go to the Immigration Department to process ID card application the next morning.

32.On 9 September 2015, the defendant was woken up by the four-year-old boy. Kwan and the elder child were nowhere to be seen then.  The defendant heard someone banging on the door and calling out loud that they were police.  She did not know what the matter was and dared not open the door.  She expected Kwan would come back soon.

33.Later, firemen broke in.  Police also entered.  The defendant was taken out to the living room.  Someone asked her if those things on the table were hers.  She denied.  Soon, Kwan came back.  Initially, he told police those things were his.

34.The defendant says she and Kwan were made to sit on the bench in the living room.  Kwan blamed her for not throwing away those things on the table. She retorted by saying she did not know they were there.  Kwan asked the defendant to admit possession of the drugs and the paraphernalia for the time being.  He feared if he was taken into custody, the boys would be committed to foster care and it would be very difficult for him and his wife to get them back due to their addiction history.  Kwan promised that once his wife Habi came out of DATC, he would go to police to confess.  It was only ten odd days away as Habi was expected to come out of DATC on 21 September 2015.

35.The defendant says she was concerned about her godsons. She finally agreed to Kwan’s suggestion.  The police officers were around and knew what was going on. But no one intervened.  One officer even asked her and Kwan to talk it out.  PW3 also told Kwan to stop nagging her as she had already promised to take the blame.

36.The defendant says no officer cautioned her in the premises. She did not sign any record there.  The whole of Pages 94-110 in PP 20 was written out by PW1 only at the police station.  She understood it was written she had the drugs for own consumption.  But PW1 did not read the content to her. Nor was she made to read the record. She was merely told to sign at various places in one go, including signing the notice to detained persons (PP19).

37.The defendant says she in the premises had started feeling unwell due to drugs withdrawal symptoms.  She requested to be given ‘syrup’ (methadone) but police ignored her.  At Kwai Chung Police Station, PW4 once told her that she would be taken to have ‘syrup’ after PW1 had finished the statement in PP20. However, the defendant was only taken to the Princess Margaret Hospital after mid-night. Kwan was taken there too.  The doctor merely issued them a certificate.  They were detained in Tsing Yi Police Station overnight.  The next morning, the defendant was taken to Lady Trench Clinic where she was merely given 30 mililitres of methadone. That was not enough for her.  She still felt unwell.

38.That afternoon, the defendant was taken back to Kwai Chung Police Station. At the corridor, PW4 took her to one side and coached her on what to say later in the video interview. The officer also told the defendant that she should bang the table at some point to express she would answer no more questions.  She acted accordingly in the interview.

39.The defendant also says she felt cold.  She was given a blanket but PW4 told her to put it on her naps because wrapping round the body would not look good.

40.Later that evening, well after the interview, PW4 brought Kwan to her. Kwan reassured her that he would come back to confess once his wife would come out of DATC.  The defendant requested PW4 to give Kwan a phone number for contact.  The officer did. The defendant also wrote down a phone number for Kwan to inform her mother of the situation.

41.The defendant says Kwan visited her only once in October 2015.  He said he would like to confess as promised but PW4 warned him he would get into the trouble of perverting justice. 

42.The defendant says Kwan subsequently breached the law and was remanded in DATC.  In early 2016, he sent her two letters from DATC (Exhs D1 and D2; translation being D1A and D2A).  As a result, the defendant asked her lawyer to go to see Kwan. But Kwan refused to give a statement when he knew that would require him to testify in court.

43.The defendant says she signed PW1’s notebook PP20 and gave the video statement PP22A to the effect of admitting possession of the drugs and the paraphernalia only because of Kwan’s promise.  She loved her godsons so she agreed to take the blame temporarily for Kwan.  However, Kwan has reneged on his promise.

FINAL SUBMISSION ON SPECIAL ISSUE

44.Both counsel have prepared written submission. They recount the evidence in detail. Basically and quite rightly, both say the issue is one of credibility.

DISCUSSION

45.The evidence of PW1 to PW5 is relevant to the special issue.  The defendant also gives evidence.

46.The defendant has many complaints: she was not cautioned at scene; she felt unwell due to drugs withdrawal symptoms; PW1 did not read out to her the notice of rights and the notebook record, nor let her read the contents; PW4 coached her on what to say in the video statement; and most of all Kwan induced her to admit possession of the drugs plus the paraphernalia for the time being and the police officers condoned that.

47.The defendant’s allegation that police condoned Kwan to induce her to admit guilt temporarily is rather startling.  It is a daring effort by the defendant which can be easily defeated if Prosecution summon Kwan to testify that was not the case. Kwan is not alleged as an accomplice or co-accused so he is a competent and compellable witness. The defendant claims Kwan has reneged on his promise. Then one would expect Kwan to give favourable evidence for Prosecution to rebut the defendant’s allegation. However, Kwan is not called as a prosecution witness in the first instance, or as an additional witness after the defendant’s allegation has come to light at the beginning of the trial. The court is not told why. Of course, Prosecution can merely rely on the police officers to refute the defendant’s accusation but the calling of Kwan by Prosecution would be a most sensible act in the circumstance.  It is the duty of Prosecution to prove beyond reasonable doubts.  Unfortunately, the court has not the benefit of hearing Kwan’s version.

PP20

48.Prosecution say the defendant promptly and frankly admitted the drugs and the paraphernalia in the premises.  That was soon after police had entered the flat. It is alleged she confessed as soon as PW1 questioned her of those illicit items placed on the table.

49.Police had been banging the door and shouting outside for over twenty minutes. The defendant, however asleep, would have been woken up during that time. PW5 was the first one to enter the premises. He found the defendant being awake, contrary to PW1’s evidence. I am sure PW5 is right.  I also accept the defendant’s evidence that she actually heard police calling and banging but she chose not to open the door to let them in. It is not difficult to envisage a person with that mindset would hardly cooperate with police and give straight admission only minutes later. Why would the defendant, when she could easily deny knowledge of those illicit items found not on her person but merely on the table? The defendant was not a registered tenant of the place. She could conveniently attribute the responsibility to others. The flat owner Kwan had not returned by that time. It was up to the defendant to say anything to exculpate herself rather than making straight admission.

50.This is a case that requires vigilant assessment. Kwan’s evidence would be significant.  Without that, it is simply the police version against the defendant’s.

51.PW1 says he did everything proper in the premises for the contemporaneous record, and performed the same at the police station in relation to the post record. The defendant, however, says she was made to sign in one go and only at the police station. She complains that PW1 merely asked her to sign at various places without letting her read the content.

52.If everything were done as PW1 testifies, one would expect the defendant appended her various signatures in more or less the same manner at all places. Her signatures on the two Pol. 153s (PP19 and PP21) suggest she normally signed in a vertical manner. The inclination of these signed characters was negligible. That was also the case for her signature on Line 3 of Page 99 in PP20. The defendant says that was the first signature she made in the notebook. She was then asked to sign at other places. She signed in her normal way. But due to the way the notebook was laid before her, her vertical signature finally came out as lying horizontally. [The defendant is talking about her last signature on the notebook and that appeared on Line 6 of Page 110 in PP20.]

53.It is not just one signature that calls for attention. The defendant’s other signatures in PP20 (save that one on Line 3 of Page 99, which the defendant describes as her first signature) appeared increasingly slanting so much so that the last two (the one on Page 104 and the other on Page 110 respectively) were almost horizontally oriented.  

54.PW1 is not able to explain why the defendant’s vertical signature would turn anticlockwise by as much as nearly 90 degrees at some places. The defendant could not have twisted her arm that much to sign horizontally. Therefore, the only inference is that PW1 had not placed the notebook properly before the defendant for her to sign, contrary to his claim in court. This taints the rest of PW1’s evidence.  I have to doubt whether the defendant made those admissions in the way as the officer says.

PP22A

55.The defendant’s next piece of admission is in the video statement PP22A.  It is a very short statement. The whole length is about 13 minutes.  The first part was merely formality; the substantive investigation only lasted for about 8 minutes starting from 17:37 hr (para. 21 of the statement).

56.In the interview, the defendant spoke coherently but dispiritedly. She was in a rather shoddy state despite PW4 tells the court that she looked quite well to him. The defendant had a blanket on her naps rather than wrapping round her upper body. She tells the court that she complained of feeling cold. She was given a blanket but PW4 told her to put it on her naps. He said wrapping the blanket round the body did not look good.

57.In the interview, the defendant at first answered promptly what PW4 asked of her.  She appeared to be cooperative until 17:45 hr (para. 108) when she suddenly slammed on the table and announced she had no more to say. The defendant testifies in court that the interview was a coached act, which PW4 had taught her beforehand including the slamming.  The officer promised her the process would be quick.

58.Defence Counsel submits that PP22A does not look like a serious statement; PW4 failed to ask many pertinent questions, e.g. the defendant’s relation with Kwan, what she was doing in the premises and so on.

59.I agree. The defendant was found in Kwan’s home. The illicit items were merely placed on the table. Why would she not put away those things to avoid detection by Kwan or police, who had been shouting and banging outside for over 20 minutes before they could come in? Why was she there in the first place? How long had she been staying and how much longer did she plan to stay? Why would she place all the drugs and the paraphernalia on the table when she was with a child of Kwan’s?  Did Kwan allow her to stock those things there or to take drugs at his home even in the presence of the children? Did Kwan have a share of the large quantity of drugs and the many pieces of paraphernalia? These questions were basic for the current investigation. In fact, a lot more could have been asked to establish who owned the drugs and the paraphernalia. The quantities of them suggest use or ownership by more than one person.

60.I also agree with Defence Counsel that PW4 must have read from PW1’s record that the defendant had admitted earlier that she bought the drugs in a park near Shang Tung Street.  Now, in para. 36 of the video statement she said it was Fa Yuen Street. The two streets were very long ones perpendicular to each other with one intersection. It would be pertinent for PW4 to ask the defendant why she had told PW1 a different street. Apparently, a CID officer would like to obtain exact information not only for the investigation of one case but also for future crime prevention. PW4, however, did not appear to have serious concern here.

61.In para. 104, the defendant said the drugs were for her consumption in one month. PW4 only asked why she would buy a month’s stock. He failed to elicit information about her daily dosage of heroin (nearly 18 grammes of mixture seized) and ice (over 4 grammes). That would be essential for the officer to analyse if the defendant really had that much drugs for own consumption in one month. PW4 also failed to question the defendant about the many plastic bags (60 in number) found together with the drugs.

62.One might say PW4 could have asked more questions if the defendant had not stopped the interview. But those questions were all basic inquiries. If they would ever be asked, they should have well been asked before 17:45 hr (para. 108) when the defendant slammed the table and announced she had no more to say. That moment was a pretty awkward scene. And it is interesting to note PW4 appeared quite ready to comply with the defendant’s wish; he started to wind up the interview within 30 seconds (para. 111). One really has to give thought to the defendant’s allegation that the interview was just a design of short play.

RULING ON SPEICAL ISSUE

63.The defendant’s evidence is full of details.  I would not accept all her words but I have to say there is a ring of truth in her version.

64.I find Prosecution fail to prove beyond reasonable doubts that the defendant’s admissions to PW1 and PW4 were voluntary. They are inadmissible. PP19 to PP22A-E are all rejected and returned to Prosecution.

PRE- CAUTION ADMISSION

65.PW1 knew what the things on the table were as soon as he saw them. The defendant was the only adult in the premises at that time. She had refused/delayed police entry for over 20 minutes. The circumstances were enough for the officer to form reasonable suspicion of the defendant that the drugs and the paraphernalia were hers. However, PW1 chose to question the defendant without caution about the ownership of those illicit items. If Prosecution should rely on the purported pre-caution admission, I would rule it inadmissible. But Prosecutor fairly and rightly indicates she would not rely on it.

NO CASE TO ANSWER

66.The disputed post-caution admissions are all ruled inadmissible. Still, Ms Whitfort for Prosecutor argues there is a case for the defendant to answer. She says the defendant was the only adult in the small flat when police came. She had not let police in. The court can infer the defendant knew of the presence of the drugs and the paraphernalia. The court can further hold she was in possession/custody/control of those illicit items.

67.Ms Tsang on the other side contends there is no case for the defendant to answer. I agree. Although the defendant was the only adult in the premises when police entered, she was not a formal or registered tenant there. There is no evidence to show how long she had been there. More significantly, there is no evidence to reveal she ever had had contact with the drugs or the paraphernalia. The drugs were actually inside in a closed box, though next to the paraphernalia. Even if the defendant knew there were illicit items in the flat and she was reluctant to let police in, that would not constitute possession/custody/control on her part. No jury properly directed would find her guilty of the charge of trafficking (or any lesser charge of simple possession or smoking). I thus rule the defendant has no case to answer on the charge. She is acquitted.