HKSAR v. Leung Ming Chung

DCCC 483/2018

[2019] HKDC 489

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 483 OF 2018

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of trafficking in 30.29 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

Introduction

2.In summary at around 11:15 p.m. on 27 March 2018 plain clothes police officers including DPC 12507 were conducting an anti-narcotics operation at the outdoor carpark outside the ground floor of San Shui House, Shui Pin Wai Estate in Yuen Long when they saw the defendant drive private car VE 9273 into the carpark. 

3.The prosecution case is that the defendant alighted from the driver’s seat and walked towards another private car VJ 4057 which was parked in the carpark.  The defendant looked around as he approached VJ 4057.  When the defendant was about one meter from VJ 4057 he used the electronic car key to unlock the car.

4.At this stage the police found the conduct of the defendant suspicious and approached the defendant.  When the defendant saw DPC 12507 approach he immediately locked VJ 4057 and ran back towards VE 9273.   The police intercepted the defendant as he was about to get into VE 9273.

5.The police searched VJ 4057 with the key found on the defendant and found inside the storage compartment between the driver and passenger seats a white plastic bag containing 160 transparent re-sealable plastic bags inside which was cocaine.  With the assistance of a police drug detector dog the police found a further 51 transparent re-sealable plastic bags containing cocaine underneath the electric window control on the driver door panel. 

6.The prosecution submits that the only inference to draw is that the defendant was in possession of the cocaine knowing it was a dangerous drug and that from the quantity, packaging and value of the drugs the defendant possessed the cocaine for the purpose of trafficking. 

7.The defence case as put in cross-examination is that the defendant did not run when DPC 12507 approached and that the defendant walked back to VE 9273 naturally.  The defence submit that the evidence is insufficient for the court to draw the inference that the defendant possessed the cocaine knowing it was a dangerous drug.

Evidence

8.The prosecution called DPC 12507 (PW1), the arresting officer and tendered for cross-examination DPC 11000 (PW2) who was part of the same team conducting the anti-narcotics operation at the outdoor carpark.

9.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including the finding of the drugs[3]; the arrest of the defendant[4]; photographs[5]; a sketch[6]; the street value of the drugs[7] and that the car was registered in the name of Chan King Lung[8].  I will refer to the admitted facts as I review the evidence. 

10.The defendant elected not to give evidence.  No witnesses were called on his behalf.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.   On the other hand, this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution. 

11.Admitted in evidence is that the defendant has a clear criminal record in Hong Kong[9].  I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[10].

12.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

13.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

Prosecution evidence

14.Most of the prosecution case has been admitted including the finding of the drugs in VJ 4057 which was parked in carpark space No. F7.  The only area of dispute concerns what happened between the time the defendant alighted from VE 9273 in the carpark, walking to VJ 4057 and returning to VE 9273 where he was intercepted by the police. 

15.I will first set out a summary of the evidence.

16.Admitted in evidence is that at around 10:50 p.m. on 27 March 2018 DPC 12507 and his teammates arrived at the outdoor carpark outside the ground floor of San Shui House, Shui Pin Wai Estate in Yuen Long for an anti-narcotics operation[11].  In cross-examination DPC 12507 said all team members were in plain clothes. 

17.DPC 12507 testified that he conducted observation together with DSgt 51286.  In cross-examination with reference to the sketch (exhibit P16) DPC 12507 pointed out his position as being to the right of the Chinese characters for San Shui House[12]. DPC 12507 explained this position was a sitting out area and that he was sitting on a bench together with DSgt 51286.  DPC 12507 agreed he was pretending to be a resident of San Shui House and therefore there was no need to conceal himself. 

18.DPC 11000 (PW2), who was tendered for cross-examination, pointed out on the sketch that his observation point was in the bottom right hand corner on Ma Miu Road just before the entrance to the carpark.

19.Admitted in evidence is that at around 11:15 p.m. DPC 12507 saw private car VE 9273 entering the carpark and stop inside the carpark on the roadside [13].  In cross-examination with reference to photograph 10, exhibit P10 DPC 12507 confirmed the position where VE 9273 was parked was not a carpark space[14].

20.DPC 12507 said at the time the carpark was not full.  In cross-examination DPC 12507 said there were vacant carpark spaces both in the area F1-F7 shown in the sketch and in other parts of the carpark. 

21.The driver immediately got out of VE 9273 and walked towards car park space F7 where VJ 4057 was parked.  DPC 12507 observed the driver walking to VJ 4057 for about ten to fifteen seconds from a distance of about fifteen meters.  DPC 12507 testified that it was a clear night, the street lights were on and he could clearly see the driver and that nothing obstructed his view. 

22.DPC 12507 identified the driver as the defendant.

23.While walking towards car park space F7 the defendant was looking around but the target of his line of vision was VJ 4057. 

24.In cross-examination DPC 12507 agreed that he had a clear unobstructed view of the defendant walking towards VJ 4057 and agreed that if the defendant had looked in the direction where he was sitting the defendant would have been able to see him and DSgt 51286 sitting there.  DPC 12507 also agreed there were other people in the vicinity[15]. Later in cross-examination DPC 12507 said that the defendant did turn his head in his direction but only for a very brief moment[16].  

25.DPC 12507 disagreed that when the defendant looked around he was looking for VJ 4057.  DPC 12507 explained that when the defendant drove VE 9273 into the carpark he would have passed VJ 4057 and therefore seen where VJ 4057 was parked[17].

26.In answer to the court DPC 12507 demonstrated with reference to the sketch (exhibit P16) that the defendant drove into the carpark and went straight ahead passing parking spaces F1-F7; turned right and went past where he and DSgt 51286 were sitting and then turned right and parked in the position shown on the sketch[18].

27.When the defendant was about one meter from VJ 4057 DPC 12507 saw the defendant holding in his right hand a car key together with the remote (exhibit P19)[19].  The defendant pointed the remote at VJ 4057 and unlocked VJ 4057.  DPC 12507 heard a beep sound when the defendant pointed the remote at VJ 4057. 

28.In cross-examination DPC 12507 agreed that he was looking at the right side of the defendant as he walked towards VJ 4057.  DPC 12507 disagreed that he was unable to see what was in the defendant’s right hand when the defendant pointed towards VJ 4057 and explained that part of the remote was sticking out of the defendant’s hand and therefore he could see the defendant was holding a car key. 

29.DPC 12507 also disagreed that he could not be sure if the defendant was pointing at VJ 4057 or the grey van which was parked in the next parking space as shown in photograph 1, exhibit P10 or that the beep sound came from VJ 4057 or the grey van.

30.DPC 12507 thought what the defendant was doing was suspicious and walked forward to intercept him. 

31.When DPC 12507 was five meters from the defendant, the defendant noticed his presence and used the remote to lock VJ 4057.  The defendant then turned round and ran towards VE 9273. 

32.DPC 12507 immediately ran after the defendant.  DPC 12507 stopped the defendant next to the driver’s seat just after the defendant had opened the driver’s door and was about to sit on the driver’s seat.  Part of the defendant’s body was inside the car and part was outside the car. 

33.In cross-examination DPC 11000 said from his observation point he saw VE 9273 enter the carpark but could not see where the car parked or the driver being intercepted by his colleagues. 

34.DPC 12507 then disclosed his identity and showed his warrant card.  The defendant was very nervous at the time.  When DPC 12507 intercepted the defendant, the defendant was still holding the car key and remote, exhibit P19.  Another police officer seized the car key and remote. 

35.DPC 12507 said the defendant took about five seconds to return to VE 9273 which was about five meters from VJ 4057.

Finding of the cocaine

36.Admitted in evidence is that with the car key for VJ 4057 found on the defendant the police searched VJ 4057.  The police found inside the storage compartment a white plastic bag containing 160 transparent re-sealable plastic bags containing cocaine[20]. Later with the assistance of a police drug detector dog a further 51 transparent re-sealable plastic bags containing cocaine were found underneath the electric window control in the driver door panel[21].

37.Admitted in evidence is that the retail price of the cocaine was HKD54,382[22].

38.Also admitted in evidence is human DNA was found inside VJ 4057 but was poor in quality and deemed unsuitable for comparison purposes[23]; two fingerprints were found on the outside of VJ 4057 belonging to two other persons[24]; and that at all material times VJ 4057 was registered in the name of Chan King Lung[25].

39.The arrest of the defendant is admitted and that the police found in the defendant’s possession HKD10,057; CNY 376 and two mobile phones[26].

40.Also admitted in evidence is that nothing suspicious was found on a search of VE 9273[27] or in a house search of the defendant’s residence[28]; and that on admission to Lai Chi Kok Reception Centre urine specimens collected from the defendant revealed negative for all drugs including cocaine[29].

Discussion

41.I have carefully considered all the evidence and the submissions made by Mr Lau and Mr Khosa. 

42.In final submissions Mr Khosa adopted the submissions he made in asking the court to rule no case to answer and made further submissions on the quality of the evidence and whether the prosecution had proved beyond reasonable doubt that the defendant possessed the cocaine knowing it was a dangerous drug[30]. 

Credibility of DPC 12507

43.Mr Khosa submits that DPC 12507’s observations are unreliable, in particular whether the defendant ran after he turned round and whether the defendant was inside or outside the car when he was intercepted. 

Did the defendant run?

44.As summarised earlier DPC 12507 testified that after the defendant turned round he ran towards VE 9273[31]. In cross-examination when Mr Khosa asked if the defendant was running very fast DPC 12507 replied that it was between quick paces and running. 

45.DPC 12507 confirmed that in his witness statement he said the defendant walked hurriedly back to his car.  Asked by Mr Khosa if the defendant walked hurriedly or was running DPC 12507 replied that when the defendant saw him he started to walk hurriedly wanting to be out of their line of vision as quickly as possible. DPC 12507 described the defendant’s speed as between walking and running and said it was hard to describe whether that was hurriedly walking or running.  DPC 12507 disagreed that the defendant walked naturally back to VE 9273. 

46.Mr Khosa submits DPC 12507 was exaggerating his evidence to bolster the prosecution case and build suspicion on the part of the defendant.  Mr Khosa further submits that the defendant had absolutely no reason to act in this way as DPC 12507 was in plain clothes and did not shout “Police, stop”.  

47.I have no hesitation in rejecting this submission.  In my view the difference between walking hurriedly, in quick paces and running is more apparent than real and not material. 

Was the defendant intercepted inside VE 9273 or outside?

48.As summarised earlier DPC 12507 testified that he stopped the defendant just after the defendant opened the driver’s door of VE 9273 and was about to sit on the driver’s seat with part of his body inside the car and part outside the car[32]. 

49.Mr Khosa submits this evidence is inconsistent with the evidence of DPC 11000.  In cross-examination DPC 11000 agreed that he prepared the “Police Investigation Diary” (Pol. 155) in which he described how the defendant was intercepted.  DPC 11000 read out his description: “Turn around.  Went back to the car VE 9273 and entered the driver’s seat.  At this time, we intercepted AP and took him out of the car”.  DPC 11000 said he obtained this information from DPC 12507.   

50.Mr Khosa submits the discrepancy between DPC 12507 and DPC 11000 about whether the defendant was inside or outside the car is incurable. 

51.I have no hesitation in rejecting this submission.  In my view the difference between about to sit on the driver’s seat with part of the body inside the car and part outside the car and entering the driver’s seat and taking him out of the car is again more apparent than real and not material. 

52.In cross-examination DPC 12507 agreed that it was DSgt 51286 who grabbed hold of the driver’s door.  This Mr Khosa also submits is a discrepancy.  I disagree. At no time in examination-in-chief did DPC 12507 say he grabbed the door.  DPC 12507 said he stopped the defendant next to the driver’s seat[33].  In examination-in-chief DPC 12507 was not asked who grabbed the door or what DSgt 51286 did.

Reasons to suspect the defendant

53.As summarised earlier DPC 12507 testified that what the defendant was doing was suspicious and that he walked forward to intercept the defendant[34].  Mr Khosa submits that the reasons why DPC 12507 suspected the defendant are not credible. 

54.In cross-examination DPC 12507 disagreed that there was nothing suspicious in the defendant activating an electronic car key.  DPC 12507 explained that the defendant was suspicious, firstly because the defendant did not park VE 9273 in an appropriate parking space and secondly that when the defendant was looking around his expression was a bit nervous. 

55.DPC 12507 was therefore of the view that the defendant was anxious or in a hurry to open the door or drive away VJ 4057.  In answer to the court DPC 12507 said he did not know whether the defendant wanted to drive VJ 4057 or just open the door, only that the defendant wanted to be in touch with the car[35].  Clearly the defendant did not want to drive VJ 4057 otherwise he would have parked VE 9273 in one of the empty designated parking spaces[36].

56.DPC 12507 disagreed VE 9273 was neatly and properly parked.  DPC 12507 said where the defendant parked VE 9273 caused an obstruction to big vehicles such as very large dump trucks which collected garbage and that in his experience from regularly patrolling the estate the collection time was in the middle of the night. 

57.Mr Khosa points to the fact that there was no evidence of any obstruction caused by VE 9273 that night and that photograph 21, exhibit P11 shows that VE 9273 was properly parked and not causing an obstruction.  Mr Khosa submits that DPC 12507 is a classic unreliable witness who keeps on saying in his experience this happens and that happens when on that night nothing happened and DPC 12507 saw nothing.  

58.I have no hesitation in rejecting this submission.  Whether or not VE 9273 caused an actual obstruction the fact remains VE 9273 was not parked in a proper parking space.  The fact VE 9273 was not parked in a proper parking space is what gave rise to suspicion on the part of DPC 12507 and not whether parking there caused an obstruction.

59.Saying the defendant was looking around and was therefore suspicious Mr Khosa submits is a classic statement said by any police officer.  Mr Khosa submits that everyone looks around; there is nothing wrong in looking around and that DPC 12507 failed to demonstrate looking around was suspicious.  

60.Mr Khosa submits that DPC 12507 tried to bolster the prosecution case by saying from where he was sitting fifteen meters away he could see that the defendant was anxious.  Mr Khosa submits this was a bald statement made by DPC 12507 without any basis to say how he was able to read the mind of the defendant.  Mr Khosa further submits that the observation was made in difficult circumstances from fifteen meters away and that it would have been difficult for DPC 12507 to see the facial expressions of the defendant and that he was anxious. 

61.I have no hesitation in rejecting this submission.  DPC 12507 testified that it was a clear night, the street lights were on and he could clearly see the defendant and nothing obstructed his view.[37]. Although it was night time I accept the evidence of DPC 12507 that he could clearly see the defendant.

62.Having carefully considered all the evidence I am satisfied so I am sure DPC 12507 is a credible and reliable witness.  I accept the evidence of DPC 12507 that he became suspicious and went forward to intercept the defendant because the defendant did not park VE 9273 in a proper parking space and that when the defendant was looking around his expression appeared a bit nervous. 

63.I accept DPC 12507’s evidence that the defendant walked towards VJ 4057 and unlocked VJ 4057 and that when the defendant saw DPC 12507 approach the defendant immediately locked VJ 4057, turned round and hurriedly went back to VE 9273 where he was stopped as he was about to sit on the driver’s seat. 

Possession and knowledge

64.Mr Lau submits that taking into account that VE 9273 was parked on the roadside and not in a parking place; the defendant looked around while walking towards VJ 4057; around one meter away the defendant used the car key to unlock VJ 4057; upon seeing the police he suddenly changed course by immediately locking VJ 4057, turning round and returning to VE 9273; and he was nervous when intercepted by the police, the only inference to draw is that by acting in this way the defendant knew drugs were in VJ 4057.

65.By using the car key to unlock VJ 4057 Mr Lau submits that the defendant was in control of the cocaine inside the car and was going to collect the cocaine.  Mr Lau further submits that it is unthinkable that if the cocaine, valued at over $50,000, belonged to someone else that person would leave the cocaine in the car and allow the defendant to access the car.     

66.Mr Khosa submits that the fact the car was not parked in a parking place and that the defendant looked around does not assist in drawing the inference the defendant possessed the cocaine.  Nothing the defendant did Mr Khosa submits was illegal.  Taking into account VJ 4057 was not registered in the defendant’s name; no drugs were found in VE 9273 or the defendant’s home; and that on admission to Lai Chi Kok Reception Centre urine specimens were negative for all drugs showing the defendant had no connection with dangerous drugs, Mr Khosa submits that the evidence is insufficient for the court to draw the inference that the defendant was in possession of the cocaine. 

67.Taking into account the defendant did not park VE 9273 in a proper parking space; he looked around after alighting the car; he was in possession of the car key to VJ 4057 which he used to unlock VJ 4057; he immediately locked VJ 4057 when DPC 12507 approached him; he turned round and hurriedly returned to VE 9273, I am satisfied so I am sure the only inference to draw is that the defendant was in custody and control of the cocaine, knowing it was cocaine and had gone to the carpark to collect the cocaine or part of the cocaine[38].

68.In addition, I agree with Mr Lau that if the cocaine belonged to someone else it is unthinkable the defendant would be given the key to the car.  I find inherently improbable that if the cocaine belonged to someone else the defendant would be given the key to the car inside which was cocaine valued at over $50,000 thereby running the risk the drugs would be discovered and might very well be disposed of. 

69.In drawing the inference that the defendant was in custody and control of the cocaine, knowing it was cocaine and had gone to the carpark to collect the cocaine or part of the cocaine I have taken into account that DPC 12507 was in plain clothes and did not shout “Police stop”; the defendant never entered VJ 4057; that anyone being arrested, in particular a person with a clear record, would be nervous and no DNA or fingerprint evidence was found connecting the defendant to the cocaine.  These matters do not cause me to doubt the findings I have made. 

70.I have also considered Mr Khosa’s submission there could have been many other reasons why the defendant used the car key, for example he could have been testing whether the car key was working or he could have been collecting an umbrella or a pair of shoes.  I find inherently improbable at 11:15 at night the defendant would drive to a carpark just to test keys or collect an umbrella or a pair of shoes.  This submission does not cause me to doubt the findings I have made. 

Trafficking

71.There being no direct evidence of actual trafficking I have examined the circumstances surrounding the arrest of the defendant to determine whether the only inference to draw is that the defendant was trafficking in a dangerous drug. 

72.In determining whether the only inference to draw is that the defendant was trafficking in a dangerous drug I have not taken into account that the defendant was found in possession of $10,057 and two mobile phones.  Although $10,057 is not an insignificant sum of money and raises suspicion why that sum was carried at night it is not a large sum either.  Without any evidence of the defendant’s income or lack of income, I am not satisfied the money was in the defendant’s possession for drug dealing[39]. Similarly, without any evidence of the content of either phone I am not satisfied the mobile phones were related to drug trafficking. 

73.Taking into account the quantity of the cocaine, just over 30 grammes; the packaging of the cocaine in 211 transparent re-sealable plastic bags and that the drugs were found in a car and not in the residence of the defendant, I am satisfied so I am sure the only inference to draw is that the defendant possessed the cocaine for the purpose of trafficking.

74.I also note there is no evidence to suggest that the defendant is a consumer of drugs[40].  Further, the urine samples collected on admission to Lai Chi Kok Reception Centre also indicate the defendant was not a consumer of drugs at the time of his arrest. 

75.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Khosa both individually and collectively.  Nothing said by Mr Khosa causes me to doubt the findings I have made. 

76.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted of trafficking in a dangerous drug.