HKSAR v. Wong Kwok Kwan

DCCC 92/2018

[2018] HKDC 1430

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 92 OF 2018

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Reasons for Verdict

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1.The defendant faces a single charge of trafficking in a dangerous drug. I have decided he will be convicted of possession of those drugs.

2.The facts are that the defendant was stopped by police in Sham Shui Po, where the police say they seized heroin and methamphetamine from his person.  They say the quantity of the drug and the defendant’s lack of means would cause the conclusion the defendant was trafficking in those drugs he was found in possession of.

3.The defendant says he pickpocketed the bag containing the drugs and was unaware of their contents.  He later admitted to possession of drugs to police, but he said that he only did that as a result of threats and inducement.

4.The issues presented are whether the defendant was actually in possession of drugs in the sense did he know the contents of the bag and did he voluntarily make the admissions that were attributed to him; and, if he did so, can they be relied upon; and if it is found the defendant was in possession of drugs, did his possession of those drugs lead to the irresistible inference and conclusion that he trafficked in them?

5.The seizure of the drugs was evidenced by PC18243, PW1, who was patrolling with a sergeant, who was PW3.  PW1 saw the defendant behave suspiciously and moved to intercept him.  He did so, searched him, and recovered a black mesh bag that contained a resealable plastic bag that contained two further plastic bags that contained the drugs particularised in the indictment.

6.The defendant, under caution, said the drugs were for his own consumption.  The drugs were labelled with “Big Meth” and “No 7”.

7.The defendant was taken to Sham Shui Po Police Station, where later his cautioned admission was recorded and a video-recorded interview was taken in which the defendant said he was, firstly, a CSSA recipient, receiving some $3,500 per month; that he bought the drugs for $3,000 for “Ah Keung” at a public toilet in Sham Shui Po; he placed the drugs in the black mesh bag; he was a drug addict - he inhaled heroin and methamphetamine in quantities of $500 to $600 worth of the drug each day.

8.In total, the defendant was found in possession of 5.02 grammes of heroin and 6.82 grammes of methamphetamine.

9.Other police officers were called for the prosecution who were present.  Evidence was called in relation to the items seized from the defendant and also the Chemist’s certificate in relation to the drugs seized.

10.As far as the defence case is concerned, the defendant challenged the admissibility of the admissions that the prosecution were trying to put into evidence.  Although he admitted that he was in physical possession of the drugs at the time of arrest, he said he was unaware of their contents because he had stolen the bag.

11.The defendant gave evidence on the special issue.  His evidence naturally covered both the special and general issues, which was necessary due to the way in which the defendant said the threats and inducements arose.

12.The defendant said he had pickpocketed the black mesh bag and its contents from a backpack.  There was also a notebook that had been taken.  He said he had been arrested for theft by Sergeant 58179, who had taken the black mesh bag, looked into it, and he had been made to stand against a wall, and another police officer, PW1, 18293, had arrived and told him that drugs had been found in the bag.  The defendant said the drugs were not his and the other officer had seen him pickpocket.  He said he did not know the drugs were inside the bag.  Another sergeant, 34923, had asked the defendant where the person he had pickpocketed from had gone, and the defendant said he had gone towards the Golden Computer Centre.

13.The defendant was taken to Sham Shui Po Police Station.  He had not seen the drugs weighed, and there were no markings, he said, on the plastic bags.  The defendant said he had not signed Pol 143 forms that the first prosecution witness had said he had signed at 1626 and 1751 and the post‑record at 1801 onwards.  He said they had all been signed together much later before the video-recorded interview was taken that evening.

14.He said that at 2154, before the video-recorded interview was taken, he was brought to a toilet in the police station where Sergeant 58179 and PC18293 were inside.  The sergeant 58179 had told him he had two options.  One, he could admit possession of the dangerous drugs and then not be charged with theft, but if he did not admit, then he would be charged with possession of dangerous drugs and theft; and if did not co‑operate, then at his house search drugs would be found and his son would be arrested.  He was given 10 minutes to think about it, and after eight to nine minutes the first prosecution witness, 18293, asked of his decision, said if he admitted possession, then, as the quantity was small, he would only be dealt with in what was described as the small court, which is the Magistracy.

15.The defendant said after he agreed, he was taught what to say in the video-recorded interview by the first prosecution witness.  Later, he was taken to the video-recorded interview, where he signed the Pol 153s and the post-record and he answered the questions in the video-recorded interview along the lines that PW1 had taught him.

16.The first issue to be resolved is whether the video‑recorded interview and the answers to caution and their accompanying documents should be admitted into evidence.  The defendant had evidenced that his answers as recorded on these occasions were obtained by threats and inducements offered by more than one officer, namely that he would be charged with possession of dangerous drugs and would only be tried in the Magistracy, and that if he did not co‑operate, he would be charged with both possession of dangerous drugs and theft, and furthermore, his house would be searched and drugs would be found there and his son arrested.

17.Naturally, all of the defendant’s version of how he came to be arrested, threatened, offered inducements and made to co‑operate in signing the answers to caution and participate in the video-recorded interview were denied by the four police officers concerned.

18.Therefore, the issue to be resolved in the special procedure investigation was a simple one of credibility.  In order to admit evidence of an admission against interest, the court must be satisfied to a criminal standard - that is, beyond reasonable doubt - that it was given voluntarily, by which is meant not obtained, in this case, by hope of advantage or fear of oppression and also not obtained unfairly.

19.Were the defendant’s account to raise a reasonable doubt that any of these things had occurred, then the challenge to evidence could not be admitted.

20.The defence pointed out aspects of the defence case that they say should cause the court to have misgivings about the prosecution evidence.  They pointed out that Exhibit PP20, a Pol 153, the officer, PW1, had not signed that document.  They said this supported their evidence that all the documents had been signed together; that in respect of the document PP17, Sergeant 3766 said he was taking photographs of the defendant at the time when that Pol 153 was said to be being given to the defendant; that it was agreed the defendant had been taken to the toilet by PW1 and the sergeant, which was unnecessary, given that both water and toilet facilities were available in the cell in the report room where the defendant was being detained.

21.It was said the defendant’s conduct in the video‑recorded interview showed brief monosyllabic answers, and also that the officers concerned notebooks were compiled very late, which led to a greater likelihood of fabrication and collusion.

22.I bore all these submissions in mind in making my decision.  However, the officers concerned did not appear to be inconsistent or lacking in credibility.  They simply denied any allegations of impropriety. PW1 said he simply forgot to sign the relevant Pol 153, which is perfectly credible.  I also found that the fact that other police activities were recorded as taking place during the period that a Pol 153 was being recorded is not a basis for supposing the activity did not take place at that time.  More than one process can occur at a time.

23.Both officers agreed they took the defendant to the toilet at 2154.  They said it was at his request and was not unusual.  I saw nothing particularly remarkable about that.

24.However, I did consider that the defendant’s account of what occurred was simply inherently suspect, untruthful, and, frankly, unbelievable.  The major illogicality in his evidence was his insistence that PW1 had taught or coached him in the way the video-recorded answers should be given.  I found this to be wholly inherently incredible. That this defendant could absorb this kind of information and retell it in a coherent way in a 30-minute-plus interview was simply not believable.  I found it to be an obvious and clear lie; never happened; could not have happened.

25.I also found the defendant’s account of the alleged inducement to be wholly unbelievable.  He had in fact been arrested for trafficking in dangerous drugs.  The station sergeant, in the presence of the defendant, had been told that the defendant was arrested for trafficking in dangerous drugs, yet he says he believed he would only be charged with possession of a dangerous drug, and also that he could be threatened to be charged with possession of a dangerous drug and theft, which would appear to say that the police were accepting that he had stolen the drugs.  I found it wholly incredible.

26.Overall, as I have made clear, I found the defendant’s account to be an obvious fabrication designed to provide an explanation as to how he came to be in possession of the drugs.  I reject his evidence in its entirety.

27.I found clearly the defendant was arrested in the manner described by the police officers concerned.  He was arrested, handled, searched and interviewed in the manner they described.  I found the defendant provided a voluntary and admissible account to the police in P20 and the VRI as to how he came upon the drugs.

28.I found all this to a criminal standard.  I admitted all the challenged exhibits into evidence.

29.I had also to decide to a criminal standard - as said, a question of proof beyond reasonable doubt - whether the defendant was in fact in possession of the drugs, and if so, was his possession of the drugs for the purpose of trafficking in them.

30.There was clear and unassailable evidence that the defendant was in possession of the dangerous drugs which were seized from him by the police.  I had the evidence of the defendant’s arrest and the seizure of drugs from police officers that I found to be reliable and admissible, and these were supported by the defendant’s admissions of possession of the drugs for his own personal consumption which are found in his answers to caution and also in the video-recorded interview.

31.My conclusion was from this the defendant clearly was in possession of those drugs.  I rejected his evidence that he had recently stolen the black mesh bag with the drugs in it.  There was ample evidence to show he knew what he possessed was dangerous drugs and had admitted to that both, as I said, in his caution and video-recorded interview.

32.The second question is having resolved the issue that the defendant was in possession of those drugs, was his possession of those drugs for the purpose of trafficking in them; was he going to distribute them?

33.The prosecution say that the possession of this quantity of drugs was more than could be managed for his own personal consumption, and secondly, that the value of the drugs, which was admitted to have been about some seven and a half thousand dollars street value of the drugs, was more than the defendant could possibly afford, being a person on CSSA.

34.I can deal with this matter quite simply.  As far as quantity is concerned, I have been pointed to clear authorities of the Court of Appeal in Hong Kong such as HKSAR v Cheng Kong Sang 371/2008, where quantities of drugs up to 14 grammes of the drug heroin hydrochloride was found to be insufficient to establish that the defendant was trafficking in it.

35.In this case, the quantity of heroin was 5.02 grammes, and even with average consumption at around about 0.25 grammes of pure heroin a day, I do not believe that that quantity is sufficient to establish beyond reasonable doubt that the defendant must have only possessed the heroin for the purpose of trafficking in it.  This is not a case where the quantity of the drug provides a clear indication of a trafficking purpose.

36.The quantity of methamphetamine hydrochloride is 6.82 grammes.  The only Court of Appeal decision in relation to consumption of that particular drug can be found in Attorney‑General v Ching Kwok Hung [1991] 2 HKLR 131, where it was said that 10 to 15 hits, which were doses, could be obtained from 1 gramme of the drug.

37.However, I do take into account the observations made by Judge Dufton in the case of Tse Chi Wai which I agree with, which is DCCC 842/2012, which points out the information assumed in that case is quite old and seemed to be based on a rather limited sample, and in some cases it has been said that chronic abusers can consume between a quarter to 1 gramme per day.

38.And so in respect of both the quantity of heroin and the quantity of methamphetamine, there is insufficient evidence on quantity alone to provide a clear indication for evidence of trafficking in them by the defendant.

39.Also, the drugs were not divided into doses for ease of trafficking, and there was no packaging or other paraphernalia for distribution found on the defendant or at his home.

40.As far as the value is concerned, the defendant said he bought the drugs for $3,000.  He had just been given his $3,500 from CSSA, and agreed values are only averages and must contain within them considerable price fluctuations.

41.So as I have already said, I do not find in this case that the inference of trafficking can be drawn from the evidence I have, and the defendant will be convicted then of possession of the drugs in the charge.

(T Casewell) District Judge