HKSAR v. Haque Aamir

DCCC 157/2019

[2020] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 157 OF 2019

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.The defendant pleads not guilty to one charge of trafficking in 9.84 grammes of a solid containing 2.90 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

Prosecution case

2.In summary at around 0234 hours on 4 October 2017 PC 19566 was patrolling in uniform together with his colleagues in Middle Road, Tsim Sha Tsui when he saw the defendant and another male called Mohammad Mohsan Fiaz leaning against a concrete barrier on the opposite side of the road.  On seeing the police officers the defendant and Fiaz turned away and walked in different directions.   

3.PC 19566 approached the defendant while PC 21352 approached Fiaz.  When PC 19566 was about two meters from the defendant, he saw the defendant take out a red and white Marlboro cigarette packet from his right front trouser pocket and drop the packet on the ground.  PC 19566 stopped the defendant and picked up the cigarette packet inside which was twenty re-sealable plastic bags containing the cocaine.  The defendant pointed to Fiaz and said Fiaz gave him the cocaine to sell to others.  PC 21352 stopped Fiaz who was found in possession of cannabis.

4.The defendant and Fiaz were then arrested for trafficking in a dangerous drug. Fiaz was also arrested for possession of cannabis. 

5.The prosecution case is that the defendant, a Form 8 holder, was in possession of the cocaine, which had a street value of $12,900, knowing the cigarette packet contained cocaine and that the only inference to draw from the evidence, including the quantity and packaging of the drugs was that the defendant possessed the cocaine for the purpose of trafficking[2]. 

Defence case

6.The defence case as put in cross-examination is that the defendant did not possess the cigarette packet; did not drop the cigarette packet on the ground and did not say Fiaz gave him the cocaine for sale to others.  The defence say that Fiaz was in possession of the cocaine and was the one who dropped the packet and that the police have falsely implicated the defendant to protect Fiaz, who is a police informer[3].

Disclosure

7.On the first day of trial (5 August 2020), before any evidence was called, Mr Donald applied for disclosure of whether Fiaz was a police informant together with the details of any connection Fiaz had with the police officers involved in the case.

8.In support of his oral application Mr Donald submitted the case of HKSAR v Agara[4] and referred the court to R v Turner and R v Reilly cited in Archbold Hong Kong 2020, paragraph 12-83.  Mr Donald referred only to the headnote in HKSAR v Agara and paragraph 12-83 of Archbold Hong Kong without providing the court with copies of R v Turner and R v Reilly[5].

9.The application was opposed by the prosecution.  

10.I adjourned my ruling to the following day (6 August 2020) with leave to the parties to make further submissions.  After reading the judgments in HKSAR v Agara and R v Turner and the report in the Criminal Law Review of R v Reilly together with other judgments from both Hong Kong and the United Kingdom[6], I was of the view I had not received the assistance to be expected from counsel in an application of this nature, in particular the courts having stressed that these applications must be scrutinized with great care[7].

11.I therefore directed that written submissions be prepared and adjourned the case to 10 August 2020 to give time for the parties to prepare their written submissions.  Mr Donald faxed to court his written submission: application for disclosure - informant information on the afternoon of 7 August 2020.  Mr McGowan faxed to court his written reply on the evening of 9 August 2020. 

12.On 10 August 2020 Mr McGowan submitted the chronology referred to in his written reply.  The chronology detailed the events post the arrest of the defendant.  Mr Donald had no further submissions to make and stated that he accepted the chronology there being nothing at that stage to suggest the chronology was incorrect.  Mr McGowan briefly went through his written reply and the chronology.

13.After seeking clarification of a number of matters in the written submissions, the application was further adjourned to 11 August 2020 for the prosecution to clarify some of the items particularised in the chronology.    

14.On 11 August 2020 Mr McGowan explained that because there had on more than one occasion been changes in both the officer in charge of the case and the investigation officer (the case having occurred in October 2017) he was having difficulties in obtaining the information and requested more time to complete the enquiries.

15.The application was adjourned to 20 August 2020 when Mr McGowan submitted a written report “Follow up investigations”, a copy of which had been served on the defence. Mr McGowan also answered further queries raised by the court.  On 20 August 2020 I refused the application.  The trial was then adjourned to resume on 24 September 2020.

16.These are my reasons for refusing the application.

Defence application

17.The defence case as summarised by Mr Donald in both his oral and written submissions was that the defendant met Fiaz to buy ‘weed’; was never in possession of the cocaine; did not drop the cigarette packet containing the cocaine and did not say that Fiaz had given him the drugs to sell to others[8].  This Mr Donald said was consistent with what the defendant told the police in a video recorded interview[9].

18.After his arrest the defendant was granted police bail[10].  On 14 November 2018 the bail money was refunded and the defendant released from bail[11].  On 29 January 2019, over fifteen months after his arrest, the defendant was re-arrested and charged with trafficking in a dangerous drug[12], whereas Fiaz, who was re-arrested on 9 February 2019, was simply prosecuted for possession of cannabis[13].

19.In the written application Mr Donald specifically asserted that the defendant’s belief was Fiaz was a drug dealer and a police informant and therefore the police did not charge Fiaz with trafficking but charged the defendant instead[14].

20.In his oral submission made on 5 August 2020 Mr Donald submitted that the defence being the defendant never threw the cigarette packet containing the cocaine on the ground someone must have been protecting Fiaz and therefore required disclosure of whether Fiaz was a police informant. 

21.In the written application Mr Donald submitted that the defence, in endeavouring to present its case, needed as much information as it could, about Fiaz, which included confirmation that Fiaz was an informant[15]. 

Prosecution reply

22.In both his oral and written submissions Mr McGowan stated that the arrest was not a case of the police acting on information and that the police officers were on “routine patrol”[16].

23.On 5 August 2020 Mr McGowan informed the court that the case was sent to the Department of Justice in November 2019 but was unable to say why legal advice was only sought over a year after the arrest.  In reply Mr Donald submitted in what was a straight forward stop and search it begged the question why it took thirteen months to obtain legal advice.

24.On 6 August after informing the parties I required written submissions Mr McGowan informed the court that there was quite a long delay in obtaining DNA samples from the defendant and Fiaz.  In his written reply Mr McGowan provided further information about the obtaining of DNA swabs from the defendant and Fiaz and attached a chronology setting out the actions of the police after the arrest[17].

25.In his oral submission made on 5 August 2020 Mr McGowan submitted that the information requested was not necessary to prove innocence and there being no suggestion the defendant was lured to the scene the police officers could be cross-examined without knowing whether Fiaz was a police informant.  In his written reply Mr McGowan submitted that insufficient basis had been provided and that the application was little more than a speculative fishing expedition[18].

The law

26.In HKSAR v Agara the Court of Appeal held that the common law position that the identity of informers should not be disclosed except where such disclosure was necessary or right to show the defendant’s innocence applied in Hong Kong[19].  This exception is known as the “innocence at stake” exception. 

27.I was satisfied the test to be applied was whether disclosure was necessary to demonstrate the defendant’s innocence and that the burden was on the defence to show that the information was necessary.  The courts have repeatedly stated that speculation that the information may assist must be resisted[20]. 

28.In determining what is necessary the Court of Appeal in HKSAR v Nayab Amin stated[21]:

“In the context of a PII claim based on informer immunity, if a defendant is deprived of something which is necessary for him to establish his innocence then he will be deprived of a fair trial. If he is deprived of something which is relevant to his trial but which is not necessary for him to establish his innocence then his trial may not be absolutely perfect but it will be fair. But, at the risk of appearing to go around in circles, how does a judge determine what is necessary.

Whether one uses words of the disclosure being of “substantial assistance” in combating the prosecution case or “likely to raise a reasonable doubt”, the task of the judge is to determine not just that there will be a forensic benefit, whether evidential or otherwise, flowing to a defendant from disclosure but that the benefit could have a significant impact on the outcome of the trial.

The standard is not as high as requiring the judge to find that the undisclosed information or material over which PII is being claimed will prove the innocence of the defendant or even that it will raise a reasonable doubt.

Nor is the standard so low that the judge need only be satisfied that the undisclosed information or material will be of assistance to the defendant.

Of course, it goes without saying, that the assistance the undisclosed information or material can provide must be clear. If it is not clear and requires the judge to speculate or make assumptions about it then it will not be capable of reaching the threshold needed to satisfy the judge.”

Discussion

29.I carefully considered the oral and written submissions of Mr Donald and Mr McGowan. 

30.Mr Donald confirmed in court on 10 August 2020 that the defence would not be calling any evidence in support of the application.  The application having been made before any evidence was called and the defendant having elected not to call any evidence, the application was determined on what the prosecution and the defence cases were expected to be[22]. The court was also aware of the facts to be admitted pursuant to section 65C of the Criminal Procedure Ordinance, a signed copy having been submitted to court. 

31.When Mr Donald first indicated that he would be making an application for disclosure Mr McGowan informed the court of the prosecution position that the arrest was not as a result of informer information and that this was a routine patrol. 

32.The court then asked Mr Donald when he proposed to make his application and whether the application affected the conduct of the case.  Mr Donald replied the application did not affect the actual arrest, only what flowed on subsequent to the arrest and that he could make the application at any time during the prosecution case.  Asked by the court if the application affected the cross-examination of the two police officers, Mr Donald replied “No” and said the defence accepted that this was not an informer case which gave rise to the arrest and so did not affect PW1 and PW2. 

33.In his oral submissions made on 5 August 2020 when first making the application Mr Donald again said that the defence accepted that this was not an informant arrest.  In his written application Mr Donald states that the two police officers were on routine patrol and would appear not to know at the time of arrest that Fiaz was an informant and only became aware of this later[23].

34.Mr Donald variously submitted in his oral submissions on 5 August 2020 that the court knowing whether Fiaz was a police informant would have some bearing on the court’s deliberation as to whether the defendant was telling the truth and whether the defendant had been set up and that confirmation Fiaz was a police informant would influence the decision of the court.

35.Asked by the court how knowledge of whether Fiaz was a police informant would influence the decision of the court when the defence accepted this was not an informer case and the issue of whether PC 19566 saw the defendant drop the packet of cigarettes containing the cocaine was one of credibility, Mr Donald replied that the police knowing that Fiaz was a police informant “could, may, have slightly amended their evidence accordingly to protect Fiaz, who is an informant, and throw the blame on the defendant”. 

36.In reply to the suggestion that the police officers had changed their evidence upon learning that Fiaz was a police informant Mr McGowan told the court that the arrest was at 02:34; PC 19566 made his notebook entry of the arrest at 03:34 and his witness statement at 06:00 the same morning.  In his written reply Mr McGowan confirms these times, save that the notebook entry was at 03:45 and added that the police officers reported to the Duty Officer at 03:00 and carried out the usual post-arrest duties thereafter[24].  

37.In his response Mr Donald, accepting that there was no evidence on the papers which indicated the defendant was set up, said “..but we are not saying that is in fact the situation and if we had confirmation that Fiaz was an informant then that would strengthen our case and perhaps would open up another avenue to establish or suggest that maybe Fiaz did in fact set the defendant up with the knowledge or lack of knowledge of these two police officers who may not have known what was going on.  It just opens up another avenue for the defence to explore.”

38.I was satisfied that the defence application was nothing more than speculation arising from the fact that the defendant was not charged for over fifteen months. 

39.The arrest was as a result of a routine patrol and not as a result of information received.  Shortly after the arrest PC 19566 reported to the Duty Officer, followed post-arrest procedure and recorded the details of the arrest in his notebook and later the same morning in his witness statement. 

DNA

40.As summarised earlier the prosecution explained the reason for the delay in charging the defendant was due to the obtaining of DNA samples from the defendant and Fiaz for DNA analysis[25].

41.The admitted facts were that there was no DNA examination of either the cigarette packet or the twenty re-sealable plastic bags containing the cocaine[26]whereas the chronology appeared to suggest samples were in fact taken from the twenty re-sealable plastic bags containing the cocaine and given the reference no. 17CD 3780/1S but only the cannabis was tested for DNA[27].

42.The “Follow up investigations” report submitted by Mr McGowan on 20 August 2020 shows that the twenty re-sealable plastic bags containing the cocaine were submitted to the Government Chemist with a request that the twenty plastic bags be tested for DNA and then repackaged for fingerprint examination; Mr Wong, the Government Chemist, was of the view that the twenty plastic bags could be tested for either DNA or fingerprints but not both; and that a decision was made to examine the twenty plastic bags for fingerprints[28].

43.In answer to the court Mr McGowan explained that the Government Chemist on receipt of the twenty plastic bags assigned the reference no. 17CD 3780/1S after which he formed the view that if the twenty plastic bags were swabbed for DNA fingerprint examination could not take place. 

44.The cannabis having been swabbed for DNA, DNA samples were required from the defendant and Fiaz.

45.Item 7 of the chronology states that between 5 February and 7 April 2018 repeated efforts were made to contact D1 and D2 with nil result.  Mr McGowan explained that nil result was written because during this period attempts were made to contact the defendant and Fiaz to give DNA samples but without success and that when the defendant and Fiaz reported on bail during this period they were not asked to give DNA samples[29].

46.DNA samples were taken from the defendant on 19 April 2018 and from Fiaz on 7 June 2018.  DNA analysis took place in May and  July 2018[30]. 

Fingerprints

47.For reasons unknown after the twenty plastic bags were returned for fingerprint examination the twenty plastic bags were not in fact sent for fingerprint examination and therefore the admitted facts required amendment[31].

48.Although not in the prosecution opening or the admitted facts Mr McGowan informed the court on 11 August 2020 that the cigarette packet was sent for fingerprint examination but no fingerprints were found.  Mr McGowan submitted a memo showing no fingerprint mark of value found (marked “A” for identification). 

49.The memo does not however state what exhibit(s) were submitted for examination. The cigarette packet together with the yellow exhibit label and police property bag were shown to court.  Nothing on the cigarette packet; exhibit label or property bag indicated that the cigarette packet had been sent for fingerprint examination. 

50.On 11 August and 20 August 2020 Mr McGowan explained that the only other record was the police investigation report (Pol. 155) which stated that the case exhibit, the cigarette packet, was sent for fingerprint examination on 16 November 2017 by DPC 54258 (PW3).  The case file of the IB Ref. on the memo (FP no. (K) 06334/17) was not checked.

Release of the defendant from bail on 14 November 2018.

51.Item 16 of the chronology states that D1 was temporarily released from bail on 14 November 2018.  On 11 August 2020 Mr McGowan explained that due to the time the defendant had been on bail, over one year, he was temporarily released pending the obtaining of legal advice.  Mr McGowan showed the court a copy of a form dated 14 November 2018 and signed by the defendant acknowledging that he was being temporarily released; the case was still under investigation; the police reserved the right to prosecute and that they might have arrest action later[32]. 

52.On 20 August 2020 Mr McGowan submitted a copy of the witness statement of DIP Tsui Tsun On, who was the OC case in November 2018[33]. The witness statement is dated 17 August 2020 and was made for this investigation.  A copy of the acknowledgment was annexed to the witness statement (marked “B” for identification). 

53.DIP Tsui states that he explained the acknowledgement (Notice of Temporary Release) to the defendant in English and that the defendant said he understood and signed to confirm receipt.  As commented by Mr Donald, I noted that no reason is given why the defendant was temporarily released on bail.

54.On 11 August 2020 Mr Donald said that the defendant was just told “This is a proforma, sign this, we are releasing you from bail”; that there was no interpreter and the defendant had no clue why he was released.  On 20 August Mr Donald repeated that there was no interpreter to translate and that the defendant did not speak English. 

55.On the material and information placed before the court I accepted the explanation given for the delay in charging the defendant. 

Ruling

56.I found that the defence had failed to show that the disclosure of whether Fiaz was a police informant was necessary to prove innocence.  I was satisfied that non-disclosure did not impact on the fairness of the trial.

57.I refused the application. I nevertheless bore in mind the duty to keep under review the fairness of the trial, in particular as the application was determined on what the prosecution and defence evidence was expected to be[34].  I noted that Mr McGowan had stated that he would make available any other witness requested by the defence not on the list of witnesses annexed to the prosecution opening. 

Evidence

58.The prosecution called two witnesses PC 19566 (PW1) and PC 21352 (PW2).  DPC 54258 (PW3) and DPC 12510 (PW4) who were attached to Yau Tsim District Investigation Team 1, which took over the investigation of the case, were tendered for cross-examination.  Mr Donald did not require any other police officers to be tendered for cross-examination.

59.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[35], including the chain of evidence and analysis of the dangerous drugs[36]; the street value of the cocaine[37]; a sketch plan[38]; forensic evidence[39]; photographs[40] and the arrest of Fiaz[41].  I will refer to the admitted facts as I review the evidence. 

60.The defendant elected not to give evidence or call witnesses.  Photographs taken by the defendant, which were shown in cross-examination to PC 19566 and PC 21352, were admitted in evidence[42]. No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt. 

61.Admitted in evidence is that in a video recorded interview under caution the defendant denied ownership and possession of the Marlboro packet and claimed the cigarette packet was picked up 10 steps away from his left side.  The interview was not however adduced in evidence[43]. In reaching my verdict I have considered what the defendant said under caution in accordance with the decision in R v Sharp[44].  

62.Admitted in evidence is that the defendant is a Form 8 holder and has no criminal convictions in Hong Kong[45]. I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[46] as applied in HKSAR v Mohammed Saleem (No.2)[47].

63.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.  If what the defendant says is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

64.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

65.Admitted in evidence is the chain of evidence from the finding of the Marlboro cigarette packet containing twenty bags of cocaine on the ground in Middle Road by PC 19566 (PW1) to its production in court, including the analysis of the twenty bags[48].  Photographs of the Marlboro cigarette packet and the twenty bags of cocaine have also been admitted[49].

66.The main issue in the case is who dropped the Marlboro cigarette packet containing the twenty bags of cocaine on the ground in Middle Road.  The defence contend that the police were protecting Fiaz and have wrongly blamed the defendant[50].  The only prosecution witness who testified that he saw the Marlboro cigarette packet containing the twenty bags of cocaine dropped on the ground in Middle Road was PC 19566.  I will therefore first summarise the evidence of PC 19566. 

Arrest

67.On 4 October 2017 PC 19566 was part of a unit patrolling in Tsim Sha Tsui in police car AM 7482, which was a marked police car[51]. At about 2:30 a.m. AM 7482 parked outside No. 10 Middle Road.  Led by a sergeant PC 19566 conducted anti-crime patrol in Middle Road and Middle Road Children’s Playground.  In cross-examination PC 19566 disagreed that after getting out of the police car he did not patrol in the direction of the playground.

68.At around 2:34 a.m. when PC 19566 patrolled in the vicinity of the exit/entrance L1 of the Tsim Sha Tsui MTR station he saw the defendant and another male, Mohammad Mohsan Fiaz (“Fiaz”) about four to five meters away on the opposite side of the road[52]. PC 19566 described the opposite side of the road, where the defendant and Fiaz were, as a construction site.

69.Admitted in evidence is a sketch of the scene of arrest (exhibit P7)[53].  PC 19566 testified that he drew the sketch and that the square on the sketch represented his position when he first saw the defendant and Fiaz; the octagon represented the position of PC 21352; and the  circle and triangle represented where the defendant and Fiaz were when he first saw them.

70.Admitted in evidence is that photographs 1-3, exhibit P11, show the scene of arrest[54].  PC 19566 said the street lights were on and described the lighting as sufficient.  PC 19566 said he had an unobstructed view of the defendant and Fiaz because no vehicles were passing by at that time.  When asked by Mr McGowan whether the lighting was lighter or darker than the photographs PC 19566 replied, “At the material time it was brighter or actually it was more or less the same”.

71.PC 19566 said that he could see the lower body of the defendant and Fiaz who were leaning against the middle of the three concrete barriers shown in photograph 2, facing the road[55]. PC 19566 said that the defendant and Fiaz were chatting to each other.  Asked by Mr McGowan if they were doing anything else, PC 19566 replied that they were constantly looking around. 

72.In cross-examination PC 19566 disagreed that the defendant and Fiaz were standing behind the concrete barrier and disagreed that he was embellishing his evidence by saying the defendant and Fiaz were looking around.

73.When PC 19566 was about to go up to the defendant and Fiaz they immediately turned round and left in opposite directions.  The defendant left in the direction of the children’s playground whereas Fiaz left in the direction of Nathan Road. Both the defendant and Fiaz walked in a normal pace.

74.Asked by Mr McGowan if he had any impression why they suddenly started to do that, PC 19566 replied “Yes.  Whilst the two arrested persons were chatting and when they looked towards my direction they then suddenly turned around and left.”   PC 19566 testified that he was in uniform but due to the long lapse of time could not be sure if he was also wearing a luminous vest.  PC 19566 immediately speed up to intercept the defendant and Fiaz and at the same time informed PC 21352 (PW2) that they were suspicious. 

75.In cross-examination PC 19566 said according to his recollection he did not say anything to PC 21352.  When asked how long he observed the defendant and Fiaz before deciding something was suspicious, PC 19566 replied, “Very quick.  It was around five to six seconds.  Because upon seeing me, they immediately turned around and left.”. 

76.Asked by the court to clarify whether or not he said anything to PC 21352, PC 19566 replied that he made a gesture with his hand but as the incident was over three years ago he could not remember if he uttered any words[56].  PC 19566 demonstrated in court the gesture by stretching out his right hand and using his fingers in a moving action.

77.PC 19566 was closer to the defendant therefore he moved towards the defendant.  When PC 19566 was about two meters from the defendant he saw the defendant put his right hand into his right front trouser pocket and take out a red and white Marlboro cigarette packet.  The defendant then threw the packet on the ground. PC 19566 demonstrated in court that the packet was dropped to the ground close to the defendant’s body.  PC 19566 said he had an unobstructed view of the defendant taking the cigarette packet out of his pocket and dropping the packet on the ground.

78.In cross-examination PC 19566 disagreed that the defendant never walked away; disagreed that the defendant did not drop the cigarette packet; disagreed that he was mistaken; disagreed that if he saw anyone drop the cigarette packet it was Fiaz; disagreed that the defendant was never in possession of the cigarette packet; disagreed that he was lying about this; disagreed that at the time of the incident the cigarette packet was in the possession of Fiaz and disagreed that it was advantageous for the police to say that the drugs were found in the possession of the defendant rather than Fiaz.

79.PC 19566 immediately intercepted the defendant and brought him to where he had dropped the cigarette packet.  PC 19566, in the presence of the defendant, put on a pair of gloves and picked up the cigarette packet.  PC 19566 opened the packet and found ten odd transparent re-sealable bags containing crystalline white powder suspected to be dangerous drugs.

80.The defendant immediately pointed to Fiaz and said in English “He give me this to selling other people”[57]. At the time Fiaz was about two to three meters away.  PC 19566 said the defendant spoke in a normal voice.  As he was responsible for intercepting the defendant and PC 21352 was responsible for intercepting Fiaz, PC 19566 did not pay attention to whether Fiaz reacted to what the defendant said.

81.In cross-examination PC 19566 said his English was not good and the defendant’s English also should not be good.  When asked whether due to his limited English and the limited English of the defendant he was confident that was exactly what the defendant said, PC 19566 replied that even with his limited English he was very certain he could understand what the defendant said and disagreed that the defendant said words to the effect the packet belonged to Fiaz.

82.PC 19566 confirmed the location where he stopped the defendant and PC 21352 stopped Fiaz were marked on his sketch, exhibit P7.  PC 19566 also marked in court on a copy of photograph 1 (exhibit P11(a)) the positions where the defendant and Fiaz were stopped.

83.PC 19566 then handed over the defendant to his plain clothes colleague PC 22637 for guarding.  PC 19566, holding the cigarette packet, went over to Fiaz for investigation.  When PC 19566 was about to start the investigation Fiaz immediately pointed at the defendant and said in English “It’s not me.  It’s him, it’s him”[58].   At the time the distance between the defendant and Fiaz was about two meters.  PC 19566 said Fiaz also spoke in a normal voice but a bit louder than the defendant because he was relatively emotional.  Due to the long time lapse PC 19566 had no recollection whether the defendant said anything in reply to what Fiaz said.

84.PC 19566 then arrested the defendant and Fiaz for trafficking in a dangerous drug.  Due to the language difference no caution was administered.  Admitted in evidence is that Fiaz was also arrested for possession of cannabis and that Fiaz pleaded guilty[59].

85.PC 19566 searched the defendant and seized one iPhone with sim card (exhibits P3 and P4); HK$831.50 (exhibit P5) and US$1 (exhibit P6).  No other suspicious items were found on the defendant or in the immediate vicinity.  As the defendant was looking around and appeared nervous PC 19566 handcuffed the defendant to avoid him from escaping.

Police station

86.The defendant and Fiaz were taken to the Tsim Sha Tsui Police station.  At 2:58 a.m. PC 19566 reported the arrest and showed the exhibits to the Duty Officer. PC 19566 then carried out post-arrest procedure, including the sealing of the dangerous drugs at 7:48 a.m. together with the defendant and Fiaz who signed on the tamper proof evident envelope.

87.Admitted in evidence is that the twenty plastic bags contained 9.84 grammes of a solid containing 2.90 grammes of cocaine and that the street value of the cocaine mixture was some $12,900[60].

88.No interview was conducted because there was no interpreter available.  

89.After handing over all the exhibits PC 19566 went off duty.  PC 19566 had nothing further to do with the defendant after that day.

90.In cross-examination PC 19566 said that he did not check the defendant’s mobile phone because further investigation was done by a detective police constable; the detective should be DPC 54258 (PW3) who he had worked with in the same Patrol Sub-unit for a few months; he did not discuss the case with DPC 54258; he handed over his witness statement to DPC 54258 at around 9 a.m. on 4 October 2017 after which he had no further dealings with DPC 54258; neither DPC 54258 nor any police officer asked him to make any amendments or alterations to his witness statement; that he had no previous dealings with Fiaz and disagreed that he encouraged the defendant to become an informant.

PC 21352 (PW2)

91.Unless otherwise stated the evidence of PC 21352 was largely consistent with the evidence of PC 19566. 

92.In summary PC 21352 testified that after AM 7482 parked in Middle Road he conducted anti-crime patrol in Middle Road and Middle Road Children’s Playground together with PC 19566 and PC 22637; that when returning to AM 7482 PC 19566 pointed with his finger to two persons sitting on the middle concrete barrier shown in photograph 2 (exhibit P11), saying they were suspicious and were to be intercepted but could not remember exactly what PC 19566 said[61]; the street lighting was sufficient to see their clothing and his view was unobstructed; Fiaz[62] walked in the direction of Nathan Road and the defendant walked in the direction of the playground; he intercepted Fiaz and PC 19566 intercepted the defendant; he saw PC 19566 picking up a red and white cigarette box from the ground; he could not recall if the defendant said anything; PC 19566 came over to display the cigarette box to Fiaz; Fiaz said something but he did not have any impression of what Fiaz said; PC 19566 arrested both the defendant and Fiaz; and he searched Fiaz and found dangerous drugs on him[63].

93.In cross-examination PC 21352 disagreed there was no patrolling; disagreed that when he saw the defendant and Fiaz they were behind the concrete barriers; disagreed that after alighting the police vehicle he went straight across the road to intercept the defendant and Fiaz; disagreed that Fiaz had possession of the Marlboro cigarette packet in which the dangerous drugs were found; disagreed that the dangerous drugs were found in the direction that Fiaz was walking; and disagreed that the cigarette packet containing the cocaine was under the control of Fiaz.

94.PC 21352 said he had no previous dealings with Fiaz; did not know whether Fiaz had contact or dealings with any other police officers and that after the arrest he was not sure whether other police officers who knew Fiaz had an interest in what was happening.  PC 21352 said no one made any suggestions to him how he should write his witness statement.

95.I will summarise the evidence of DPC 54258 (PW3) and DPC 12510 (PW4), who were tendered for cross-examination, when considering Mr Donald’s submission that the police placed the blame on the defendant to protect Fiaz. 

Discussion

96.I have carefully considered all the evidence and the submissions made by Mr McGowan and Mr Donald.  I have taken into account the prosecution witnesses were testifying about events which happened over three years earlier[64].

Video recorded interview

97.Admitted in evidence is that in a video recorded interview the defendant denied ownership and possession of the Marlboro cigarette packet and claimed that the cigarette packet was picked up 10 steps away from his left side[65]. 

98.I am satisfied no weight is to be attached to the defendant’s denials, which denials were not made on oath, have not been repeated on oath and have not been tested by cross-examination. 

99.I remind myself that the rejection of defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Credibility of PC 19566 and PC 21352

Arrest

100.Mr Donald submits that it would have been impossible for the defendant and Fiaz not to have seen the police arrive, alight from the police car and start patrolling and that if a drug transaction was taking place, as described by the police officers, the defendant and Fiaz would not have remained at the scene. This Mr Donald submits casts doubt on the credibility of the two police officers[66].

101.I have no hesitation in rejecting this submission.  Everybody reacts differently, for example some people may leave on seeing the police whereas some people may remain so as not to attract immediate attention.  Even on the defence case that Fiaz was in possession of the cocaine he remained at the scene after the arrival of the police.  This submission does not cause me to doubt the evidence of PC 19566 that when he was about to go up to the defendant and Fiaz they immediately turned round and left in opposite directions and the defendant dropped the cigarette packet containing the cocaine.

102.Mr Donald also submits that there are a number of contradictions in the evidence of the two police officers with regard to the location where the defendant was arrested and whether the defendant was leaning or sitting when the police officers first saw him[67].

103.In my view these differences are more apparent than real and not material.  In cross-examination PC 19566 said that all along he had been saying he arrested the defendant by the second concrete barrier and disagreed that his evidence of where he arrested the defendant was different to what he wrote in his witness statement. 

104.It is to be noted that Mr Donald cross-examined PC 19566 on the location of the arrest with reference to the position of the trees shown in the defence photographs, specifically photographs 2, 3, 4 & 9, exhibit D2.  While the photographs show the area where the defendant and Fiaz were seen and arrested the photographs were taken over seventeen months later by which time there was no concrete barriers and no construction site[68].

105.I accept the evidence of PC 19566 that he arrested the defendant by the second concrete barrier as marked on his sketch, exhibit P7 and on a copy of photograph 1, exhibit P11 (a). 

106.Both the defendant and Fiaz were seen by the concrete barrier.  Whether the defendant was leaning or sitting by the concrete barrier is, in my view, not material.  This submission does not cause me to doubt the evidence of the two police officers.

CCTV

107.Mr Donald submits that the failure by the investigating police officers to recover the CCTV footage of the area adds weight to the police having no intent in proving Fiaz and not the defendant had possession of the cigarette packet containing the cocaine[69].

108.I note neither investigating officer DPC 54258 (PW3) nor DPC 12510 (PW4) were asked any questions about CCTV by either Mr McGowan or Mr Donald. 

109.In cross-examination Mr Donald showed defence photographs, exhibit D1 to PC 19566 to identify the location of CCTV cameras[70]. The photographs were taken on 19 October 2020, over three years after the defendant was arrested[71].

110.All the CCTV cameras identified were on the opposite side of the road.  There is no evidence before the court that any of the CCTV cameras covered the area where the defendant and Fiaz were seen and arrested.  PC 19566 said he was unable to confirm whether any attempts were made to retrieve film from any of the CCTV cameras because he was not responsible for investigating the case.

111.PC 19566 said he believed that by law construction sites have to have CCTV cameras.  PC 19566 did not know whether any CCTV camera covered the spot where the defendant was arrested but believed other parts of the construction site would have had CCTV installed. 

112.PC 19566 agreed photograph 47, exhibit D1 showed a CCTV camera outside a construction site.  This photograph is one of the photographs taken on 19 October 2020.  No CCTV cameras can be seen on photographs 1-3, exhibit P11, photographs taken on the day of arrest[72].

113.I am satisfied the absence of CCTV footage has not deprived the defendant of a fair trial[73]. After careful consideration I find that the absence of CCTV footage does not cause me to doubt the evidence of PC 19566 and PC 21352.   I am satisfied no prejudice has been caused to the defendant by the absence of CCTV footage. 

Exhibits

114.Admitted in evidence is that the Marlboro cigarette packet was examined for fingerprints and that none were found; the twenty plastic bags containing the cocaine were not examined for fingerprints and that there was no DNA examination of either the Marlboro cigarette packet or the twenty plastic bags[74]. 

115.Mr Donald submits that the clear inference from the failure to examine the cigarette packet and the cocaine packaging for DNA is that the police deliberately withheld sending the exhibits to the government chemist for DNA as they were worried that the DNA of Fiaz would be found and the examination establish there was no DNA belonging to the defendant[75].

116.In making his submission Mr Donald refers to the cannabis found on Fiaz being tested for DNA and states that no explanation was ever provided why the Marlboro cigarette packet and the cocaine packaging were not tested for DNA and no explanation why the cocaine packaging was not tested for fingerprints. 

117.In the pre-trial application for disclosure Mr McGowan explained that the twenty plastic bags were sent to the Government Chemist with a request that they be tested for DNA and then re-packaged for fingerprinting; the Government Chemist was of the view that the twenty plastic bags could be tested for either DNA or fingerprints but not both; a decision was made to examine the twenty plastic bags for fingerprints and that the twenty plastic bags were returned for fingerprinting but for reasons unknown they were not in fact sent for fingerprinting[76].

118.No evidence of this explanation was however adduced during the trial.   I am satisfied I cannot therefore rely on this explanation.  I also note no evidence was adduced during the trial that the cannabis was tested for DNA.  This was only referred to by Mr McGowan during the pre-trial application for disclosure[77]. 

119.No explanation has ever been given why the Marlboro cigarette packet was not examined for DNA and why the twenty plastic bags were not sent for fingerprinting.

120.The only witness who was asked about obtaining DNA and fingerprint evidence was DPC 12510 (PW4) who said in cross-examination that the officer in charge of the case, who would be of inspector rank, was responsible for determining whether exhibits were sent for DNA analysis and fingerprinting and that he was not sure if that determination would be made on the advice of the investigating officer.  

121.The absence of fingerprints and DNA evidence has been described by the courts as a neutral factor[78]. After careful consideration I find that the absence of the defendant’s fingerprints and DNA on any of the exhibits does not cause me to doubt the evidence of PC 19566 and PC 21352.  I am satisfied no prejudice has been caused to the defendant by reason of the fact that the twenty plastic bags containing the cocaine were not tested either for DNA or fingerprints and that the Marlboro cigarette packet was not examined for DNA.    

Delay

122.Mr Donald submits that in what was a straight forward case there was no reason for a period of over two years to pass before the defendant was rearrested and charged.   Mr Donald submits this suggests that the case was not handled as a “normal’ search and arrest case.

123.In the pre-trial application for disclosure Mr McGowan submitted a chronology of the events post the arrest of the defendant which showed, inter alia, that after his arrest the defendant was granted police bail; released from bail on 14 November 2018 and re-arrested and charged with trafficking in a dangerous drug on 29 January 2019[79]. Mr McGowan also explained why there was a long delay and why the defendant was released from police bail[80].

124.Save that reference was made in the evidence to the defendant being released on bail, no evidence was adduced during the trial of the events particularised in the chronology or the explanation given by Mr McGowan for the delay.  

125.The defendant was not re-arrested after a period of over two years as submitted by Mr Donald.  The court record shows that the defendant first appeared in court on 28 February 2019, nearly seventeen months after his arrest.  This is still however a long time in what was a straight forward case. No explanation has been given for the delay.

126.After careful consideration I find that the delay in charging the defendant, whilst regrettable, does not cause me doubt the evidence of PC 19566 and PC 21352.  I am satisfied no prejudice has been caused to the defendant by this delay. 

Credibility of the police investigating officers

127.Taking into account the overall facts of this case including the submissions on DNA, fingerprinting and delay, which were the functions of the investigating police officer, Mr Donald submits that this is a case of, could, or maybe, that DPC 54258 (PW3) and Fiaz were known to each other and DPC 54258 was protecting Fiaz[81].  Mr Donald also relies on the difference in evidence between DPC 54258 and DPC 12510 (PW4) as to who was the lead or principal investigating officer. 

128.I will first summarise the evidence of DPC 54258 and DPC 12510 who were both tendered for cross-examination. 

The evidence of T. C. Chan (DPC 54258) (PW3)

129.Chan confirmed that in October 2017 he was a serving police officer, DPC 54258, attached to Yau Tsim District Investigation Team 1; since that date he had been convicted of possession of a dangerous drug and sentenced to DATC; he was convicted after trial but did not testify at trial; he remembered being asked to take over the investigation of a trafficking in dangerous drugs case involving two South Asian males but due to the long time lapse he could not remember the names of the suspects or the exact date he interviewed them. 

130.Chan was then tendered for cross-examination.  I will refer to Chan by his service number DPC 54258.  In summary DPC 54258 said he joined the police force in 1993 and as at 4 October 2017 he had been a DPC for half a year and in the Yau Tsim District Investigation Team 1 for less than a year.   

131.Asked what he remembered about the case DPC 54258 replied that he remembered dealing with one drug case involving two suspects who were South Asian males and that he assisted a colleague in conducting a video recorded interview with one of the suspects.  DPC 54258 said this was all he could recollect. 

132.Asked whether he was given any documents to refresh his memory after he was told he would be a witness in the case, DPC 54258 replied once a colleague did pay him a visit in Lai Chi Kok and gave him the relevant transcript of the video recorded interview in Chinese; he did not look in depth at the documents because he did not want other prisoners to know his police identity; he dare not keep the documents and threw them away immediately after his colleague left.

133.DPC 54258 said he could not be certain if he interviewed one or two suspects.  Mr Donald then showed DPC 54258 his Investigation Report, Pol 155[82] .  DPC 54258 identified his handwriting but could not recall if this was the only investigation report he made.

134.The first entry is at 2155 on 4 October 2017 which records “AP2 (Fiaz) was taken out from the DO/TST”.  DPC 54258 could not remember his involvement in the investigation prior to this or when he was told he would be involved in the investigation. 

135.Asked if he was instructed to be involved in the investigation or he volunteered to be involved, DPC 54258 replied, after looking at his investigation report, that all he could recall was that the main investigating officer was DPC 12510 and that he assisted him; that being a disciplinary force he was of course certainly instructed; if he wanted to volunteer he would have to get permission from his superior; he had not been involved in cases in which he was not originally assigned but wanted to be involved; and that each investigator, in particular in Yau Tsim District, had over one hundred files and would not have spare time to do such things.

136.DPC 54258 said the service number 19566 (PW1) sounded very familiar but he had no recollection whether 19566 was the arresting officer of the defendant; could not remember who arrested the defendant and could not recall if the arresting officer handed over the defendant to him.  DPC 54258 agreed that according to his investigation report the first time he had dealings with the defendant (AP1) was 0908 on 5 October 2017.  Mr Donald told DPC 54258 that the evidence of PC 19566 was that he handed over the case to a CID team at 3:39 a.m. on 4 October 2017[83].  DPC 54258 said this did not jog his memory of his involvement in the case.

137.Mr Donald then referred DPC 54258 to the Investigation Report of DPC 12510 which records that DPC 12510 left the police station at 4:30 a.m. on 4 October and arrived at the scene at 4:45 a.m. where he took three photographs[84].  DPC 54258 said this did not refresh his memory because it was really too long ago; he could not recall going to the scene; and could not remember being involved in the house search of the defendant (AP1).

138.Asked how generally an investigation report was compiled, DPC 54258 replied that after carrying out investigation a record would first be made in the police notebook and then the investigation report.  DPC 54258 said he could not be certain if he did anything before 2155 on 4 October 2017.  DPC 54258 explained that for the past year and a half he had his own case hence his recollection was based on the investigation report.

139.DPC 54258 was recalled after DPC 12510 gave evidence so he could be questioned about the content of his notebook.   DPC 54258  confirmed the first entry in his notebook for 4 October 2017, page 55, was at 2000 where it is recorded that he started his duty and was waiting for interpreters[85].

140.When asked by Mr Donald what he would have done if he had been appointed investigating officer when the case was handed over, DPC 54258 replied he could not remember what the case was about and therefore could not answer the question but did point out the particulars in his notebook were the same as in his investigation report.  DPC 54258 had no recollection of the exhibits in the case.

141.In re-examination Mr McGowan asked DPC 54258 to look at his notebook and tell the court what he did before 2000 hours on 4 October 2017.  DPC 54258 replied that from 30 September 2017 to 3 October 2017 he was on leave; T.O. was time off; the last entry on page 54 was Wednesday 4 October 2017; he started duty at 2000 that night; he had nothing to do with the case prior to that time; apart from DPC 12510 he could not remember if there was anybody else from his team handling the case before he began to investigate at 2000 and that what was written in his notebook and investigation report was his participation in the investigation of the case[86].

142.On being shown the photograph of Fiaz (AP2) DPC 54258 said he could not recall the face[87] and the name Mohammad Fiaz did not ring a bell.

143.DPC 54258 agreed that it was important for good police practice to protect police informants whether registered or unofficial informants; the police do their best within the limits of the law to protect informants; and that police informants are very important for police investigations.  When asked if the police would go as far as possible to protect informants DPC 54258 replied this depended on the circumstances.  When put the police may sometimes think of overstepping the law/bending the rules to protect a good informer, DPC 54258 replied that when he was a police officer he wouldn’t do that and no colleague did that.

144.DPC 54258 said that when the name of an arrested person is entered into the police data base he had never seen a ‘flashing light’ alerting him the arrested person was a registered informant[88]. Since he went to training school until he was suspended DPC 54258 had never come across a case where the person he arrested said he was a registered informant or heard of any colleague coming across such a case. 

145.Mr Donald then cross-examined DPC 54258 on his conviction for possession of a dangerous drug.  When Mr Donald asked Chan when he first started taking drugs the issue of whether DPC 54258 should be given a warning against self-incrimination arose.  DPC 54258 said he had not appealed the conviction but this was under consideration.  I accepted the submission of Mr McGowan that the answers might incriminate the defendant, in particular for the offence of misconduct in public office.  In the circumstances I gave the warning. 

146.DPC 54258 said the dangerous drug in question was ketamine and that he had never consumed cocaine.  DPC 54258 refused to answer when he started using dangerous drugs; whether he had a regular supplier; and whether he knew where to buy dangerous drugs. 

147.When Mr Donald put the defence case that the defendant was not the one who was trafficking in cocaine DPC 54258 disagreed that he and his colleagues were protecting AP2 (Fiaz) by blaming AP1 (the defendant).

The evidence of DPC 12510 (PW4)

148.After confirming he was attached to Yau Tsim District Investigation Team 1 in October 2017; that in the early hours of 4 October 2017 he was instructed to take over the investigation of a case of suspected trafficking in a dangerous drug involving two South Asian males and that he attended the scene where he took photographs 1-3, exhibit P11, DPC 12510 was tendered for cross-examination[89].

149.In summary DPC 12510 testified that he took over the investigation at around 4:18 a.m. on 4 October 2017.  Asked why he could remember the time after 3 years, DPC 12510 said he had recollection about the case occurring and that having found out he was asked to testify he looked at his notebook from where he obtained the time of 4:18.  Asked by Mr Donald what was recorded in his notebook for the entry 0418, DPC 12510 replied, “Headed for the Report Room and obtained the facts of the case from AO1 and AO2”[90].

150.DPC 12510 said DPC 54258 was mainly responsible for investigation and that he merely assisted DPC 54258.  DPC 12510 explained the procedure in assignment of cases.  DPC 12510 said that basically all detectives line up in order to pick up cases and when the Report Room refers a case for investigation the detective first in the queue would go to the Report Room to meet the police officer requesting investigation and pick up the case. 

151.DPC 12510 said that DPC 54258 was the first in the queue and that at 4:18 when he went to the Report Room he was with DPC 54258 but was not very sure whether they arrived at the same time and forgot whether DPC 54258 was in the Report Room at the same time he was there. 

152.DPC 12510 confirmed the next entry in his notebook was at 0430 when he recorded the taking of the photographs.

153.DPC 12510 said he had been a detective for one month.  DPC 12510 disagreed that DPC 54258 was his mentor and that he was answerable to DPC 54258.  DPC 12510 said he assisted DPC 54258 by taking photographs; bringing the arrested persons to conduct a search of their homes and assisted DPC 54258 in the video recorded interviews in which he only asked supplementary questions.

154.Mr Donald referred DPC 12510 to his Investigation Report[91].  DPC 12510 said according to the date on the report he compiled the report on 4 October 2017.   Mr Donald specifically referred DPC 12510 to his entries that he took over the investigation of the case; the taking of photographs and the search of the homes of the arrested persons.  DPC 12510 said he could not remember whose idea it was to search the home of AP2 (Fiaz) first and that DPC 54258 was not present during the search.  In answer to the court DPC 12510 said that the reason the investigating officer (DPC 54258) did not go on the house search was possibly because he had other cases he still had to deal with[92].

155.DPC 12510 confirmed the last entry in his notebook was at 0725, explaining that his usual practice was that if he had time he would complete the investigation report after he had completed a task.  After 0725 DPC 12510 was involved in the video recorded interviews and fingerprinting the arrested persons.  In answer to the court DPC 12510 said that he did not think of making another investigation report to record the details of the video recorded interviews because he knew DPC 54258 would record this in his investigation report[93].

156.After the video recorded interviews DPC 54258 continued on as the investigating officer.  

157.DPC 12510 said that in his investigation report the brief facts were obtained from the arresting officers.  DPC 12510 said he did not know if the arresting officers had spoken to DPC 54258 before they told him the brief facts. 

158.DPC 12510 explained that the dangerous drugs would be handed over to the Duty Officer and other exhibits kept by the investigating officer.  DPC 12510 did not know what exhibits the arresting officers handed over to DPC 54258.  DPC 12510 said that the officer in charge of the case, who would be of inspector rank, was responsible for determining whether exhibits were sent for DNA analysis and fingerprinting.  DPC 12510 was not sure if that determination would be made on the advice of the investigating officer.   

159.DPC 12510 said he could not recall DPC 54258 having a personal talk with Fiaz and was not sure if DPC 54258 talked to Fiaz prior to the video recorded interview.

160.DPC 12510 said he forgot how long he had been in the same team as DPC 54258.  DPC 12510 said he was aware DPC 54258 had been arrested for possession of a dangerous drug but said he did not suspect DPC 54258 was involved in dangerous drugs during the time he worked with him.

161.When Mr Donald put the defence case that AP2 (Fiaz) was the one who dropped the Marlboro Cigarette packet and not AP1 (the defendant) as DPC 12510 had recorded in his investigation report under brief facts, DPC 12510 disagreed explaining that the brief facts were written according to the description given by the arresting officers.  DPC 12510 said he was not sure the description given by the arresting officers was after they had spoken to DPC 54258.

Discussion

162.I have carefully considered the evidence of DPC 54258 and DPC 12510 and the submissions of Mr Donald.  In considering the evidence of DPC 54258 I bear in mind that DPC 54258 has been convicted, after trial, of possession of ketamine and is now serving sentence. 

163.DPC 54258 could not recall very much about the case and relied on the content of his investigation report.  Mr Donald submits that what DPC 54258 remembers is markedly different to the evidence of DPC 12510[94].  After looking at the investigation report DPC 54258 said he assisted DPC 12510 whereas DPC 12510 testified that he assisted DPC 54258.  I also note that in cross-examination PC 19566 said that DPC 54258 should be the detective who conducted further investigation[95]. 

164.Whilst it is not possible to reconcile this difference between the evidence of DPC 54258 and DPC 12510 as to who was assisting who, I find the difference does not cause me to doubt the evidence of PC 19566 (PW1) and PC 21352 (PW2). 

165.Even if DPC 54258 was assigned as the lead investigator when the case was handed over to Yau Tsim District Investigation Team 1, the evidence of DPC 12510 shows that DPC 54258 was not involved in the initial stages of the investigation, for example DPC 54258 did not go on either of the house search of the arrested persons[96]. I also note that in his investigation report DPC 12510 states he took over the investigation of the case, took photographs of the exhibits and made enquiries prior to going to the scene.

166.I accept the evidence of DPC 54258 in cross-examination that when he was a police officer he wouldn’t overstep the law/bend the rules to protect a good informer and that he and his colleagues were not protecting AP2 (Fiaz) by blaming AP1 (the defendant).

167.I accept the evidence of DPC 12510 in cross-examination that what he recorded in his investigation report under brief facts was according to the description given by the arresting officers. 

168.I accept the evidence of PC 19566 in cross-examination that he did not discuss the case with DPC 54258; no police officer asked him to amend or delete any part of his witness statement; he had no previous dealings with Fiaz and that he did not encourage the defendant to become an informant. 

169.I accept the evidence of PC 21352 in cross-examination that he had no previous dealings with Fiaz; did not know whether Fiaz had contact or dealings with any other police officers and no one made any suggestions to him how he should write his witness statement. 

170.I reject the submission that this is a case of, could, or maybe, DPC 54258 and Fiaz were known to each other and DPC 54258 was protecting Fiaz.  

Evidence of PC 19566 (PW1) and PC 21352 (PW2)

171.I am satisfied so I am sure that PC 19566 and PC 21352 are witnesses of truth. Unless otherwise stated I accept the evidence of PC 19566 and PC 21352.

172.I find as a fact that:

(i)  the defendant and Fiaz were seen by the middle concrete barrier;

(ii)  when PC 19566 was about to go up to the defendant and Fiaz they immediately turned round and left in opposite directions;

(iii)  PC 19566 saw the defendant take out from his trouser pocket the Marlboro cigarette packet and throw the packet on the ground;

(iv)  PC 19566 intercepted the defendant and picked up the Marlboro cigarette packet; and

(v)  PC 21352 intercepted Fiaz.

Oral statement

173.The prosecution relies on the oral statement that after PC 19566 opened the Marlboro cigarette packet the defendant immediately pointed to Fiaz and said in English “He give me this to selling other people”[97].

174.No evidence has been placed before the court that this statement was recorded in writing and shown to the defendant for example by way of a post-record of the arrest.  The Court of Appeal has said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement[98].

175.Taking into account that in cross-examination PC 19566 said his English was not good and the defendant’s English also should not be good and that due to language difference no caution was administered[99], I do not rely on this part of PC 19566’s evidence.   

Possession and knowledge

176.Taking into account that when PC 19566 was about to go up to the defendant and Fiaz they immediately turned round and left in opposite directions and the defendant took out from his trouser pocket the Marlboro cigarette packet and threw the packet on the ground, I am satisfied so I am sure the only inference to draw is that the defendant possessed the Marlboro cigarette packet knowing that cocaine was inside the cigarette packet. 

Trafficking

177.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. 

178.Taking into account the defendant was intercepted on the street in the early hours of 4 October 2017; the cocaine was contained in twenty re-sealable plastic bags; the defendant is a Form 8 holder who is prohibited from working and therefore has limited income to purchases cocaine, the street value of which was $12,900, I am satisfied so I am sure the only inference to draw is that the defendant possessed the cocaine for the purpose of trafficking.  I also note there is no evidence to suggest that the defendant is a consumer of drugs[100].

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

180.Having refused the defence application for disclosure whether Fiaz was a police informant, I have borne in mind my duty to keep under review the fairness of the trial[101]. I am satisfied the defence having cross-examined the two arresting officers and the prosecution making available the police officers requested by the defence for cross-examination, that no prejudice has been caused to the defendant in the conduct of his defence by refusing the application for disclosure whether Fiaz was a police informant.

181.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 as charged.