HKSAR v. Chak Wai Ho

DCCC 841/2019

[2021] HKDC 63

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 841 OF 2019

____________

____________

REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of possession of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of trafficking in cocaine, ketamine and fluorodeschloroketamine, contrary to section 4 of the Dangerous Drugs Ordinance (charge 2) and one charge of trafficking in fluorodeschloroketamine, contrary to section 4 of the Dangerous Drugs Ordinance (charge 3).

Prosecution case

2.On 24 February 2019 PC 9665, PC 7866 and WPC 19081 were patrolling on Wing Hong Street in Cheung Sha Wan when PC 9665 saw the defendant sitting in the driver’s seat of a black Audi, LP 4684.

Charge 1

3.When PC 9665 saw the defendant take out a banknote from the compartment between the driver’s seat and the front passenger seat he gestured to his colleagues to intercept LP 4684.  PC 9665 and PC 7866 walked round the back of LP 4684 and approached the driver’s door.  PC 9665 asked the defendant to get out LP 4684 at which time he was still holding the folded banknote in his left hand.  PC 9665 seized the banknote inside which was some white powder found on examination to be cocaine.

4.The prosecution relies on an admission made by the defendant under caution that the cocaine was for his own consumption and the post recording of that admission.

Charges 2 & 3

5.In the compartment between the driver’s seat and the front passenger seat of LP 4684 PC 7866 found nineteen plastic bags containing cocaine, one plastic bag containing ketamine and thirty-six plastic bags containing fluorodeschloroketamine (charge 2) and in the storage compartment in front of the front passenger seat found four plastic bags containing fluorodeschloroketamine (charge 3)[2].

6.The prosecution case is that the black Audi LP 4684, which was registered in the name of Leyland Development HK Limited, was sold to the defendant in January 2019; the defendant was in possession of the cocaine found in the banknote and being the owner and driver of LP 4684 was in possession of the dangerous drugs found in LP 4684 knowing them to be dangerous drugs; and that the only inference to draw from the evidence, including the packaging of the drugs was that the defendant possessed the drugs found in the car for the purpose of trafficking[3]. 

Defence case

7.The defence case as put in cross-examination is that LP 4684 was not sold to the defendant; the $20 banknote containing cocaine was not found in the defendant’s hand; the defendant did not say the cocaine was for his own consumption and that the defendant did not witness the finding of the dangerous drugs in LP 4684. 

8.The defence challenged the admissibility of the oral statement attributed to the defendant that the cocaine found in the banknote was for his own consumption and the post-recording of that statement.

Evidence

9.The prosecution called three witnesses on the schedule of prosecution witnesses attached to the prosecution opening: Mr Chiu Kam Wah (PW1), who set up Leyland Development HK Limited; PC 9665 (PW2), who arrested the defendant and PC 7866 (PW3), the exhibit officer. 

10.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including that LP 4684 was registered in the name of  Leyland Development HK Limited[5]; the finding of suspected dangerous drugs in LP 4684[6]; sketches[7]and photographs[8]. The admitted facts were revised several times and only admitted at the end of the prosecution case[9]. I will refer to the admitted facts as I review the evidence.

11.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.  This does not establish his guilt. 

12.Adduced in evidence is that after the defendant was arrested for possession of the drugs found in LP 4684 the defendant said he did not know what they were[10].  I have considered what the defendant said under caution in accordance with the decision in R v Sharp[11].

13.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, each charge being considered separately.  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.

14.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

15.The alternative procedure was adopted. I will first summarise the prosecution evidence.

The ownership of black Audi LP 4684

16.Mr Chiu Kam Wah (PW1) testified that in 1977 he established Leyland Motors and in 1989 he set up Leyland Development HK Limited (“Leyland”).  Both companies were in the business of buying and selling second hand cars.   Mr Chiu would keep the cars for sale in an underground carpark in Kowloon City.  In cross-examination Mr Chiu said he also had a second carpark near Shek Kip Mei MTR station.

17.In October 2018 a customer asked Mr Chiu to sell a black Audi, LP 4684 on consignment basis.  Mr Chiu was able to sell LP 4684 to Chak Wai Ho, someone who Mr Chiu had known for about a year or so and who had worked for Leyland as a driver for a couple of months before the sale. 

18.In cross-examination when Mr Percy put the defence case that the defendant had never worked for Leyland, Mr Chiu replied that Chak Wai Ho only worked for couple of days on a trial basis.  When Mr Percy suggested that the defendant had never been employed as a driver by his company, Mr Chiu replied “It can be put in this way because no contract was signed.”

19.Mr Chiu personally conducted the transaction.  LP 4684 was sold to Chak Wai Ho for $75,000.  On 15 January 2019 Mr Chiu handed over the car together with the ignition key to Chak Wai Ho on payment of $20,000.  The balance was to be paid in three instalments.  In cross-examination Mr Chiu agreed that there was no documentation in relation to the contract of sale or in relation to the deposit.

20.Mr Chiu explained that because payment was made by way of instalments LP 4684 was registered the same day in the name of Leyland and that ownership would be transferred to Chak Wai Ho only after he had settled the whole sum.  Chak Wai Ho however did not pay the three instalments. 

21.On 24 February 2019 Mr Chiu received a telephone call from the police informing him that Chak Wai Ho had been arrested.  In answer to the court Mr Chiu said that after he sold LP 4684 he never saw LP 4684 again[12].

22.In court Mr Chiu identified the defendant as Chak Wai Ho.  In cross-examination Mr Chiu disagreed he had never seen the defendant and disagreed that he was mistaken when he identified the defendant as the man who bought LP 4684. 

Arrest

23.In summary PC 9665 (PW2) and PC 7866 (PW3) testified that just before 2.30 p.m. on 24 February 2019 they were on anti-crime patrol in plain clothes in Wing Hong Street together with WPC 19081[13].

24.PC 9665’s attention was drawn to a private car, a black Audi with registration number LP 4684 (“LP 4684”) which was parked in the space exclusively for the disabled[14]. The defendant, who was the only person in LP 4684, sat in the driver’s seat.

25.When PC 9665 reached the front part of LP 4684 he saw the defendant searching for something from one of the storage compartments between the driver’s seat and the front passenger seat.  The defendant took out what looked like a banknote from the square storage compartment shown in photograph 8.  

26.The defendant acted quite quickly therefore PC 9665 kept the defendant under observation.  On reaching the middle of LP 4684 PC 9665 gestured to his colleagues to intercept LP 4684.  In cross-examination when asked what gesture he made, PC 9665 replied he made a “shoosh” sound once and looked at LP 4684 once.  PC 9665 explained there was a tacit understanding that this gesture meant to intercept the car or a person[15].

27.PC 9665 and PC 7866 then walked round the back of LP 4684 and approached the driver’s door.  PC 9665 could see that the defendant was holding in his left hand the folded banknote he had seen him take out of the storage compartment earlier on.

28.PC 7866 testified that when he walked to the back of LP 4684 with PC 9665 and approached the driver’s seat “It was seen that the male sitting in the driver’s seat was holding a folded banknote with his left hand”.  

29.PC 9665 showed his warrant card and said he was a policeman.  PC 9665 described the defendant as very nervous.  PC 7866 described the defendant as quite shocked when he saw the two of them. 

30.PC 9665 knocked on the window asking the defendant to open the door.  When PC 9665 asked the defendant to get out of the car the defendant got out and took the ignition key with him.  In cross-examination PC 9665 agreed he had made no note of this in his notebook or made a record in his witness statement and said that he remembered this when giving evidence the day before[16].

31.When the defendant got out of the car he was still holding the folded banknote in his left hand.  PC 9665 opened the defendant’s left hand and seized a $20 banknote which he unfolded in the presence of the defendant.  PC 9665 and PC 7866 saw some white powder inside the banknote which was suspected to be dangerous drugs.  The folded $20 banknote was marked exhibit P1 and the suspected dangerous drugs exhibit PP1A[17].

32.In cross-examination when asked how the banknote was folded PC 9665 replied it was folded into a small square packet.  PC 9665 demonstrated that the banknote was folded three times into a small packet which was measured in court as 4 cm x 3.5 cm.  Asked by the court if that was how the banknote was actually folded PC 9665 replied it was folded differently but was more or less the same size.  PC 9665 said he was unable to fold the banknote now in the same way he found the banknote[18].

33.PC 9665 informed the defendant he would conduct a body search and took the defendant to the pavement to search him.  No suspicious items were found on the defendant. 

34.PC 9665 then declared arrest for possession of dangerous drugs and cautioned the defendant (“the first arrest”).  The defendant replied he bought the dangerous drugs for his own consumption.  PC 9665 immediately made a note of the defendant’s reply in his notebook[19]. PC 7866 heard PC 9665 declare arrest and caution the defendant.  The defendant answered but PC 7866 did not hear what the defendant said.

35.In cross-examination PC 9665 and PC 7866 disagreed that the defendant was not holding a banknote.  PC 9665 disagreed that he did not seize the banknote from the defendant’s hand; disagreed he did not caution the defendant and disagreed the defendant never said the drugs were for his own consumption[20].  

36.After the defendant was arrested PC 9665 saw the defendant moving around and therefore he handcuffed the defendant.  In cross-examination PC 9665 agreed that the defendant got out of LP 4684 without hesitation; did not try to escape when he got out or after the banknote was seized from his hand and was only handcuffed after he was brought to the pavement[21].

Search of LP 4684

37.PC 7866 told the defendant that he suspected that there was contraband in LP 4684 and that he would search LP 4684.  PC 7866 asked the defendant for the key of LP 4684.   PC 7866 took the key (exhibit P15) from the defendant’s hand but did not see where the defendant got the key from.

38.PC 7866 then searched LP 4684 while PC 9665 and the defendant witnessed the search.  In cross-examination PC 9665 disagreed that the defendant was facing the wall during the search and disagreed that the defendant was never shown any of the items found in LP 4684[22].

39.Between the driver’s seat and the front passenger seat PC 7866 found in the square storage compartment under the arm rest shown in photograph 8two transparent re-sealable plastic bags containing suspected dangerous drugs[23].  One bag contained twenty smaller transparent re-sealable plastic bags.  The other bag contained thirty-six smaller transparent re-sealable plastic bags.

40.Admitted in evidence is that at about 1440 hours on 24 February 2019 the EO (PC 7866) found in the storage compartment between the two front seats two re-sealable plastic bags containing suspected dangerous drugs; one plastic bag (exhibit P5) contained twenty smaller plastic bags (exhibits P2 and P2A)[24]; and the other plastic bag (exhibit P6) contained thirty-six smaller plastic bags (exhibits P3 and  P3A)[25].

41.After PC 7866 found the two bags he put them back in the original position and continued with the search. 

42.PC 7866 next searched inside the storage compartment in front of the front passenger seat shown in photograph 7.  PC 7866 found a red packet inside which was four transparent re-sealable plastic bags containing suspected dangerous drugs[26].

43.Admitted in evidence is that at about 1445 hours on 24 February 2019 the EO (PC 7866) found a red packet (exhibit P7) in the storage compartment in front of the front passenger seat inside which was four transparent plastic bags containing suspected dangerous drugs (exhibits P4 and P4A)[27].

44.After the search was completed and nothing else of significance was found PC 7866 informed PC 9665 the result of the search.  After PC 7866 had counted the number of plastic bags PC 9665 arrested the defendant for possession of dangerous drug (“the second arrest”). 

45.In answer to the court when asked at what stage he counted the smaller bags PC 7866 replied that he counted the smaller bags twice, once after finding the two bags containing the smaller bags and also after completing the search of LP 4684[28].

46.Under caution the defendant said he had nothing to say and claimed he did not know what they were.  PC 9665 again made a note of the defendant’s reply in his notebook.  PC 7866 heard PC 9665 declare arrest and caution the defendant but did not know if the defendant made any reply. 

47.PC 9665 and PC 7866 waited at the scene for the police photographer to come to take photographs and a dangerous drug dog to conduct a search.  The defendant was present when the photographs were taken and the dangerous drug dog conducted a search.  Admitted in evidence is that a police photographer attended the scene and took fourteen photographs (exhibit P11)[29]. No photograph of the $20 banknote (exhibit P1) was taken. 

48.PC 7866 also drew two sketches showing where LP 4684 was parked (exhibit P9) and where the dangerous drugs were found in LP 4684 (exhibit P10).  Admitted in evidence is that on the same day the EO (PC 7866) made two sketches of the scene[30].

Police Station

49.At 18:25 the defendant was taken to the Cheung Sha Wan Police station. 

50.PC 9665 kept the $20 banknote (exhibit P1) until he reached the police station. In cross-examination PC 9665 said he kept the banknote in his trouser pocket and when he returned to the police station he took the banknote out and weighed the dangerous drugs with the Duty Officer after which he gave the banknote to PC 7866[31].

51.PC 9665 conducted a body search.  In answer to the court PC 7866 said he was present when the search was conducted[32].The defendant was found in possession of three mobile phones, HKD$3,120; USD$300 and small amounts of foreign currency[33].  

52.In cross-examination PC 9665 and PC 7866 both disagreed that when they saw the defendant he was using a mobile phone which was seized from the defendant on the pavement and disagreed that the other two mobile phones were found in the driver’s door of LP 4684.  PC 9665 disagreed that at the scene of arrest the defendant asked for his mobile phone to call his girlfriend [34].

53.After conducting the body search PC 9665 served on the defendant a Notice to Persons in Custody (exhibit P13) setting out the defendant’s rights.  In cross-examination PC 9665 disagreed that the defendant exercised his right to communicate privately with his family and a lawyer and asked for food and water[35].

54.Between 19:42 and 20:41 PC 9665 post-recorded the course of the first arrest in the form of a Record of Interview (exhibit P12).

55.PC 9665 read the post record to the defendant and passed the record to the defendant to read.  The defendant appeared to read the record.  PC 9665 told the defendant that he could alter, correct or add anything after which the defendant wrote out the two declarations and signed the record.  In cross-examination PC 9665 disagreed that he asked the defendant to write out the declarations before reading out what he had written down; disagreed that he signed all in one go and disagreed that the defendant signed all in one go.

56.Between 20:42 and 21:57 PC 9665 post-recorded the course of the second arrest, also in the form of a Record of Interview (exhibit P14)[36].  PC 9665 again read the post record to the defendant and passed the record to the defendant to read. The defendant read the record.  PC 9665 told the defendant that he could alter, correct or add anything after which the defendant wrote out the two declarations and signed the record.

57.The defendant was given a copy of both the records of interview.

Sealing of the dangerous drugs

58.PC 7866 testified that he sealed in tamper evident property envelopes the suspected dangerous drugs handed to him by PC 9665 and the suspected dangerous drugs which he found in LP 4684.

59.PC 7866 obtained the $20 banknote (exhibit P1) from PC 9665 and sealed the banknote and the contents in tamper evident property envelope A2821231.  PC 7866 identified the $20 banknote and the tamper evident property envelope A2821231. On production in court tamper evident property envelope A2821231 was sealed in tamper evident property envelope B363737 together with the suspected dangerous drugs which were in Government Laboratory sealed packet marked 19CD648/1[37]. 

60.The contents of the $20 banknote the suspected dangerous drugs, having been provisionally marked exhibit PP1A were now marked exhibit P1A[38].  The tamper evident property envelopes were not specifically marked by court as exhibits.

61.Admitted in evidence is that at about 0240 hours on 25 February 2019 PC 9665 was in possession of the $20 banknote and contents which PC 7866, the exhibits officer, sealed in tamper evident property envelope A2821231 (exhibits P1 and P1A)[39].

62.PC 7866 sealed the twenty smaller plastic bags containing suspected dangerous drugs in tamper evident property envelope B1778789 and the thirty-six smaller plastic bags containing suspected dangerous drugs in tamper evident property envelope B1778788[40].

63.PC 7866 identified the plastic bag containing the twenty smaller plastic bags (exhibit P5); the plastic bag containing the thirty-six smaller plastic bags (exhibit P6) and the two tamper evident property envelopes (B1778788 and B1778789) but was unable to identify the twenty smaller plastic bags and the thirty-six smaller plastic bags[41]. In court the twenty smaller plastic bags were marked exhibit PP2A and the suspected dangerous drugs exhibit P2.  The thirty-six smaller plastic bags were marked exhibit PP3A and the suspected dangerous drugs exhibit P3.

64.Admitted in evidence is that at 0243 hours on 25 February 2019 PC 7866 sealed the twenty smaller plastic bags (exhibit P2A) and contents (exhibit P2) in tamper evident property envelope B1778789 and the thirty-six smaller plastic bags (exhibit P3A) and suspected dangerous drugs (exhibit P3) in tamper evident property envelope B1778788[42].

65.PC 7866 sealed the four plastic bags and contents which were found in the red packet in tamper evident property envelope B1778787.  PC 7866 identified the four plastic bags (exhibit P4A), the red packet (exhibit P7) and the tamper evident property envelope B1778787. On production in court tamper evident property envelope B1778787 was sealed in tamper evident property envelope B363740 together with the suspected dangerous drugs which were in Government Laboratory sealed packet marked 19CD648/4.

66.Admitted in evidence is that the content of the four plastic bags (suspected dangerous drugs) are produced as P4 and that at 0247 hours on 25 February 2019 PC 7866 sealed the four plastic bags (exhibit P4A) in tamper evident property envelope B1778787[43].

67.PC 7866 testified that these were all the drug seizures he made in this case and that he handed over the suspected dangerous drugs to the Duty Officer for safe keeping. 

68.Admitted in evidence is that the seized suspected dangerous drugs including P1 (banknote and contents) were kept in safe police custody until they were delivered to the Government Laboratory on 26 February 2019[44].

Examination

69.Admitted in evidence is that these suspected dangerous drugs including P1 (banknote and contents) were examined by the Government Chemist[45].  The Government Chemist’s Certificate is produced and marked exhibit P8.

70.The folded banknote was found to contain 0.04 gramme of a solid containing cocaine (exhibit P1 and P1A).

71.On examination nineteen of the twenty smaller transparent re-sealable plastic bags were found to contain a total of 7.86 grammes of a solid containing 7.48 grammes of cocaine and one smaller transparent re-sealable plastic bag was found to contain 0.79 gramme of a solid containing 0.68 gramme of ketamine (exhibits P2 & P2A).

72.The thirty-six smaller transparent re-sealable plastic bags which on examination were found to contain a total of 28.3 grammes of a solid containing 24.3 grammes of fluorodeschloroketamine(exhibits P3 and P3A).

73.The four bags were found to contain a total of 53.2 grammes of a solid containing 41.6 grammes of fluorodeschloroketamine (exhibits P4 & P4A).

74.After the Government Chemist examined the suspected dangerous drugs, the $20 banknote (exhibit P1), the twenty smaller transparent re-sealable plastic bags (exhibit P2A), the thirty-six smaller transparent re-sealable plastic bags (exhibit P3A) and the four plastic bags (exhibit P4A) were separated from the contents for fingerprint examination and returned in a sealed packet labelled 19CD648/1-4W[46]. 

75.When these exhibits were produced in court they were all contained in one tamper evident property envelope C1349740.  The Government Laboratory references 19CD648/1-4W are clearly seen inside this tamper evident property envelope. The $20 banknote (exhibit P1) has the reference 19CD648/1W; the twenty smaller transparent re-sealable plastic bags (exhibit P2A) are divided into nineteen bags with reference 19CD648/2W and one bag with reference 19CD648/2a-W; the thirty-six smaller transparent re-sealable plastic bags (exhibit P3A) have the reference 19CD648/3W and the four plastic bags (exhibit P4A) have the reference 19CD648/4W. 

76.Admitted in evidence is that the exhibits were examined for fingerprint comparison and that the defendant’s fingerprints were not found on any of the exhibits.  Only the fingerprints of female Cheng Ka Man were found inside the black Audi, LP 4684.  The exhibits were not examined for DNA comparison[47].

Marking of exhibits

77.As noted earlier the admitted facts were revised several times and only admitted at the end of the prosecution case by which time all exhibits had been marked by the court.

78.In paragraph 28 (c) of the defence final submission Mr Percy submits that two separate exhibits have been admitted as P2A, the twenty smaller bags and the tamper evident property envelope B1778789.  When asking Mr Percy about this submission I stated that the tamper evident property envelope was part of exhibit P2A as marked in court.  Having looked at the exhibits again this is incorrect.  The tamper evident property envelope is part of exhibit P2 (the suspected dangerous drugs).  Only the twenty smaller bags were marked exhibit P2A.

79.When the exhibits were produced in court the suspected dangerous drugs (exhibit P2) were sealed in tamper evident property envelope B363738 inside which was tamper evident property envelope B1778789 and the Government Laboratory sealed packet marked 19CD648/2.  The tamper evident property envelopes were not specifically marked by court as exhibits.

80.The inclusion of the tamper evident property envelope B1778789 in the admitted facts as part of exhibit P2A is therefore a mistake.  Similarly, the inclusion of the tamper evident property envelopes as part of exhibit P3A and exhibit P4A in the admitted facts are also mistakes[48]. I am satisfied these mistakes did not prejudice the defence case.  

Voire dire

81.The defence objected to the admissibility of the post-record of the oral statement attributed to the defendant in answer to caution after he was first arrested for possession of cocaine on the grounds particularised in the written grounds of objection submitted by Mr Percy[49].

82.In summary the grounds of objection were that no proper caution was administered for the first arrest; the defendant never made the oral statement attributed to him by PC 9665; PC 9665 took away the defendant’s mobile phone following a request by the defendant to call his girlfriend; the defendant’s request to call his family to hire a lawyer was refused; he was hungry and tired and wanted to rest and he was induced to sign the post record of the first arrest.

83.One of the grounds of objection being that PC 9665 took away the defendant’s mobile phone following a request to call his girlfriend, I was satisfied the voire dire should also include the oral statement attributed to the defendant when he was first arrested. 

84.Guided by the decision in HKSAR v Okafor[50]as applied in HKSAR v Ip Chun Yin[51]these are my reasons for ruling the oral statement attributed to the defendant and the post-record ( exhibit P12) admissible in evidence.

Prosecution evidence

85.The prosecution relied on the evidence of PC 9665 and PC 7866 which evidence has been summarised earlier.  Mr Percy on behalf of the defendant did not require any other witnesses to be tendered for cross-examination.

86.PC 9665 testified that he did not nor did any police officer in his presence assault the defendant or offer any inducement or act improperly to persuade the defendant to say anything at the scene of arrest or take part in the records of interview. 

87.PC 7866 testified that at the scene the defendant was not assaulted, nothing was said that might be taken as an inducement and he did not nor did any police officer behave improperly.  In the police station PC 7866 did not see the defendant ill-treated in any way or see any police officer behave in any improper manner towards the defendant.

88.In cross-examination PC 9665 and PC 7866 both denied the allegations of impropriety suggested to them by Mr Percy as particularised in the grounds of objection.   

Defence evidence

89.The defendant elected not to give evidence.  No witnesses were called on his behalf.

Discussion

90.I carefully considered all the evidence.  I took into account witnesses were testifying about events which happened over sixteen months earlier.

91.Mr Whitehouse invited the court to accept the evidence of PC 9665 and PC 7866.  Mr Percy had no submissions to make.

92.The issue was one of credibility.  Having carefully considered all the evidence I was satisfied so I was sure that PC 9665 and PC 7866 were witnesses of truth who gave credible and reliable evidence.  I was satisfied so I was sure that the defendant was not induced as alleged.

93.I was satisfied beyond reasonable doubt that the oral statement, if said, was said voluntarily and that the post-record (exhibit P12) was signed voluntarily, the voluntariness of the oral statement and the post-record being considered separately.

94.Applying the principles established in HKSAR v Lam Tat Ming[52], I found no grounds to exercise my discretion to exclude from evidence the oral statement attributed to the defendant or the post-recording of the statement.

General issue

Prosecution evidence

95.The prosecution rely on the evidence of Mr Chiu (PW1), PC 9665 (PW2) and PC 7866 (PW3) which evidence has been summarised earlier.  Mr Percy on behalf of the defendant did not require any other witness to be tendered for cross-examination.

Consideration of the evidence

96.I have carefully considered all the evidence and the submissions of Mr Whitehouse and Mr Percy.  

Identification - ownership of the black Audi LP 4684

97.In summary Mr Chiu testified that he sold LP 4684 to Chak Wai Ho.  In court Mr Chiu identified the defendant as Chak Wai Ho.  In cross-examination Mr Chiu disagreed that he had never seen the defendant and disagreed he was mistaken in identifying the defendant as the man who bought LP 4684. 

98.The defence case being mistaken identification I direct myself in accordance with the principles established in R v Turnbull[53].  I warn myself of the special need for caution before placing reliance on the evidence of identification.  I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that mistakes in recognition of close relatives and friends are sometimes made[54].

99.The defendant having elected to remain silent there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution.  As was said by the Court of Appeal in Turnbull[55]:

“An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.”

100.Mr Percy objected to a dock identification, no identification parade having been held.  I was satisfied an identification parade was not necessary.  Chak Wai Ho was someone who Mr Chiu had known for a year or so and who had worked for Leyland albeit only a couple of days on a trial basis. 

101.Initially when asked to see if Chak Wai Ho was in court Mr Chiu looked round the court and referring to the defendant said, “Perhaps he’s in different hairstyle and in glasses.  The impression is quite vague and I haven’t seen him for quite a long time.”  In court the defendant was wearing a mask[56].  When the defendant removed his mask Mr Chiu immediately identified the defendant as Chak Wai Ho.

102.I am satisfied so I am sure that Mr Chiu has correctly identified the defendant as the person who bought LP 4684.  In addition, the fact the defendant was found by the police sitting in the driver’s seat of LP 4684 lends support to the identification.

Credibility of PC 9665 and PC 7866

103.Mr Percy submits that there is both unreliable and inconsistent evidence that the defendant was in possession of anything containing dangerous drugs, either on himself or in LP 4684 at the time of the arrest[57].

Finding of the $20 banknote (exhibit P1)

104.The evidence of PC 9665 and PC 7866 about seeing the defendant holding the $20 banknote (exhibit P1) which PC 9665 seized from the defendant was challenged in cross-examination. 

105.Mr Percy submits that PC 7866’s evidence that when he walked to the back of LP 4684 with PC 9665 and approached the driver’s seat “It was seen that the male sitting in the driver’s seat was holding a folded banknote with his left hand” was an odd turn of phrase which was suggestive of PC 7866 being told this rather than seeing it with his own eyes[58].

106.This was clarified in cross-examination when Mr Percy asked PC 7866 about this phrase.  Asked whether he saw the defendant holding a banknote or was told that by PC 9665, PC 7866 replied that he saw that[59]. This submission does not cause me to doubt the evidence of PC 9665 and PC 7866 that when they approached LP 4684 they both saw the defendant holding a banknote.

107.Mr Percy submits that PC 9665 should not have kept the $20 banknote for up to 12 hours and should have placed the banknote in a plastic bag and given to the exhibits officer at the scene[60].

108.In cross-examination when asked why he did not obtain the $20 banknote from PC 9665 at the scene, PC 7866 replied that because the banknote contained some powder suspected to be dangerous drugs in order to avoid the suspected dangerous drug being blown in the air in the street he did not ask PC 9665 for the $20 banknote.

109.I accept the explanation given by PC 7866 for not taking possession of the $20 banknote.  This submission does not cause me to doubt the evidence of PC 9665 and PC 7866 that the defendant was found possession of the $20 banknote.

110.Admitted in evidence is that a police photographer attended the scene the same day and took fourteen photographs (exhibit P11)[61]. No photograph was taken of the $20 banknote (exhibit P1).

111.In cross-examination when asked why he did not ask the photographer to take a photograph of the banknote PC 9665 replied that the photographer was taking photographs of LP 4684 and the exhibits found from LP 4684 and that he did not think there was such a need to take photographs of the banknote.

112.In cross-examination when asked why, as the exhibits officer, he did not require PC 9665 to have the $20 banknote photographed, PC 7866 replied “Perhaps at that time we forgot about that.”  

113.Mr Percy submits that the reason given by PC 9665 was not a very convincing answer and that as a responsible officer trained to properly handle exhibits he must have realised the significance of the exhibit when the photographer arrived[62].

114.Clearly it would have been better if a photograph of the $20 banknote had been taken. The failure to do so does not however cause me to doubt the evidence of PC 9665 and PC 7866 that the defendant was found in possession of the $20 banknote.

115.Having carefully considered all the evidence I am satisfied so I am sure PC 9665 and PC 7866 saw the defendant holding a banknote which PC 9665 seized from the defendant’s left hand. 

116.The admitted facts refer only to the sealing of the banknote and contents[63].  Mr Percy sought to draw a distinction between contents and suspected dangerous drugs[64].  In his oral submission Mr Percy submitted that there was no admission in paragraph 2 (a) of the admitted facts that suspected dangerous drugs were sealed together with the banknote and that the admission in paragraph 2 (e) of the admitted facts with regard to exhibit P1 contradicted paragraph 2 (a).

117.In my view there is no contradiction in the admitted facts and that reading the two paragraphs together it is clear that the same $20 banknote and contents were sealed and examined by the Government Chemist who certified the contents contained cocaine.

118.I accept the evidence of PC 9665 that he seized from the defendant the $20 banknote containing suspected dangerous drugs (exhibit P1 and P1A) which after weighing in the police station he gave to PC 7866.  I accept the evidence of PC 7866 that he sealed the $20 banknote containing suspected dangerous drugs given to him by PC 9665 (exhibit P1 and P1A).

119.The absence of any supporting forensic evidence by way of finger-prints or DNA evidence is a neutral factor[65]. 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 9665 and PC 7866[66].

Oral confession

120.The prosecution relies on the oral confession of the defendant that the defendant said he bought the dangerous drugs for his own consumption.  PC 7866 did not hear what the defendant said.  This Mr Percy submits is remarkable considering PC 7866 was close enough to hear PC 9665 administer the caution[67]. 

121.The fact that PC 7866 did not hear what the defendant said under caution does not cause me to doubt the evidence of PC 9665 that the defendant said he bought the dangerous drugs for his own consumption. 

122.As summarised earlier PC 9665 immediately made a note of the defendant’s reply in his notebook.  In cross-examination PC 9665 agreed that the defendant never signed the notebook at the scene saying there was nothing for him to sign.  Mr Percy submits this contradicts what PC 9665 said in examination-in-chief[68]. 

123.Although the defendant was not asked to sign the notebook PC 9665 did post-record the course of the arrest (exhibit P12) reciting what the defendant had said[69]. The defendant signed the post-record and wrote out the declarations that the contents were all true. This submission does not cause me to doubt the defendant said he bought the dangerous drugs for his own consumption. 

124.Having carefully considered all the evidence I am satisfied so I am sure the defendant said he bought the dangerous drugs for his own consumption. 

Finding of the dangerous drugs in LP 4684

125.Mr Percy submits that the court cannot be satisfied that the items seized together with their contents are the same items which were sealed in tamper-proof bags and produced as exhibits and that the prosecution cannot prove that any of the various packets which PC 9665 and PC 7866 claimed they seized at the scene did in fact contain the dangerous drugs as found in the Government Chemist Certificate[70].

126.This submission is based on the evidence of the weight of the dangerous drugs, the weight as found by the Government Chemist being heavier than when the drugs were weighed in the police station by the Duty Officer.   Mr Percy submits this difference, which he describes as ‘whopping’, is irreconcilable and fatal to the prosecution case.  Mr Percy submits that there must have been some error or mix-ups with additional suspected dangerous drugs from an unknown source from the time of seizure at the scene to the time the suspected dangerous drugs were sealed[71].

Weighing of the drugs

127.Neither PC 9665 nor PC 7866 were asked any questions about the weighing of the dangerous drugs inside the police station. This evidence was elicited in cross-examination of PC 9665.  PC 7866 was not asked any questions in cross-examination about the weighing of the dangerous drugs. 

128.In cross-examination after saying he kept the $20 banknote in his trouser pocket Mr Percy asked when he next took out the banknote to give to anyone.  PC 9665 replied that after he returned to the police station and weighed the dangerous drug with the duty officer he handed the banknote to PC 7866[72].  Asked by Mr Percy whether he weighed the $20 banknote that contained dangerous drugs, PC 9665 replied that he did not and that the Duty Officer did.  PC 9665 agreed that it was the duty of the Duty Officer to physically weigh the packets of suspected dangerous drugs[73].

129.Later in cross-examination PC 9665 was asked what happened when the drugs were weighed[74]. PC 9665 replied:

“Well, first of all, the scales were with the duty officer. Then by taking turns, in the presence of everybody, we put the dangerous drugs on the scales and there was a reading shown on the scales which let everybody knew the weight of it. So everybody could read it. And according to the weight, the duty officer assigned the cases to different units to handle the case.”

130.PC 9665 explained that if the weight of the dangerous drugs was over a certain amount the case would be handed over to CID for investigation. 

131.PC 9665 said he did not make a note of the weights in his notebook straight away but did write down the weights on a piece of paper and later transferred the information to his notebook after which he threw away the piece of paper.  PC 9665 did not see anyone else in his team, including the exhibits officer (PC 7866) make a note of the weights or notice any colleague make a similar note on a scrap of paper.  PC 9665 explained he made a note because he had to understand how much it weighed[75].

132.Mr Percy asked PC 9665 to read out the weights recorded in his notebook[76].  The weights were as follows: exhibit P1 - 1.32 grammes; exhibit P2 - 8.4 grammes; exhibit P3 - 22.6 grammes and exhibit P4 - 39 grammes.    

133.The only witness who was asked about the sealing of the suspected dangerous drugs was PC 7866.  As summarised earlier PC 7866 testified that he sealed the $20 banknote and contents (exhibits P1 and P1A) handed to him by PC 9665 and the smaller plastic bags containing suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) which he found in LP 4684 in tamper evident property envelopes.  PC 7866 said that these were all the drug seizures he made in this case.  There was no cross-examination of either PC 9665 or PC 7866 with regard to the sealing of the suspected dangerous drugs and exhibits. 

134.Save for the banknote the weight of the dangerous drugs found by the Government Chemist are all heavier than the weight recorded in PC 9665’s notebook

135.Mr Percy submits that the chain of evidence has been broken and that the prosecution have failed to prove that there has been no tampering with the exhibits[77]. Mr Percy refers to the evidence that CID were also called to the scene to investigate the case[78].

136.In answer to the court PC 9665 said that after the records of interview (exhibits P12 and P14) he was not involved in the investigation anymore.  Asked if he knew when the case was handed over to another team PC 9665 replied that he knew the case would be handed over to another team because at the scene he reported the case to the Report Room because he knew the weight was over the limit and that the case would be transferred to a CID team; from 3 p.m. he knew the work for searching for evidence would be done together with the duty CID team who arrived at the scene and who eventually took over the case and that because he had arrested the defendant he had to do follow up work including reporting to the Duty Officer and making the post-record[79].

137.In answer to Mr Percy PC 9665 said that at the scene he knew the weight was over the limit by visual inspection only; the CID team arrived at the scene shortly after 3 p.m. and that as far as he remembered two officers arrived.

138.In his oral submissions Mr Percy submitted that there were no admissions about the chain of evidence.  After Mr Percy finished his oral closing submission I asked Mr Percy what he says was admitted by virtue of paragraphs 2 (d) and 2 (e) of the admitted facts as read with paragraphs 2 (b) and 2 (c).  Mr Percy submitted that the admissions in paragraph 2 were imprecise and not clear. 

139.Specifically, Mr Percy submitted that in paragraph 2 (d) there was no mention at what stage of the seizure safe custody started, whether from the time of seizure or the time of sealing; there was no reference to not having been tampered with and asks what does safe police custody mean?  In paragraphs 2 (c) and 2 (d) Mr Percy sought to draw the distinction between finding and seizing the suspected dangerous drugs.  Mr Percy submitted that paragraph 2 (e) does not state that the suspected dangerous drugs examined by the Government Chemist were the same suspected dangerous drugs found by PC 7866. 

140.I informed Mr Percy that, subject to any further submissions, my view was the admitted facts were clear and that the chain of evidence was admitted.  The court holding a different view I afforded the defence the opportunity to withdraw the admitted facts[80].

141.Mr Percy said that there would be no application.  Notwithstanding, I stood down the case for the defence to consider their position and Mr Percy to take instructions from the defendant.  When the court resumed Mr Percy confirmed there would be no application to withdraw the admissions.  Mr Percy repeated his submission that there was a break in the chain of evidence and that there had been a substitution or possible substitution of the suspected dangerous drugs found in LP 4684.

142.After carefully considering all the evidence and giving further consideration to the submissions of Mr Percy, I am satisfied the admissions in paragraph 2 of the admitted facts are sufficiently clear. 

143.Although paragraph 2 of the admitted facts titled “SEIZURE OF DANGEROUS DRUGS could have been better phrased, I am satisfied that by reading paragraphs 2 (d) and 2 (e) together with paragraphs 2 (b) and 2 (c),the following facts were admitted:

(i) PC 7866 found in LP 4684 a total of sixty plastic bags containing suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A);

(ii) the sealing of the same sixty plastic bags containing the suspected dangerous drugs;

(iii) the same suspected dangerous drugs were kept in safe police custody until they were delivered to the Government Chemist; and

(iv) the same suspected dangerous drugs were examined by the Government Chemist.

144.Whilst one might expect the weight of the suspected dangerous drugs to be heavier in the police station, having carefully considered all the evidence, I find I am satisfied so I am sure that the sixty plastic bags containing suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) which were sealed in tamper evident property envelopes and delivered to the Government Chemist are the same sixty plastic bags and suspected dangerous drugs found in LP 4684 by PC 7866 and which were photographed at the scene (photographs 5-13, exhibit P11).

145.Mr Percy submits there was conflicting evidence of where the photographs of the packages of suspected dangerous drugs were taken at the scene (photographs 9-13)[81].  In cross-examination PC 9665 told the court they were taken in the rear of a police vehicle whereas PC 7866 said that they were photographed in the rear of LP 4684.

146.Admitted in evidence is that the photographs were taken at the scene[82].  Whether photographs 9-13 were taken in the back of LP 4684 or the back of a police vehicle does not cause me to doubt the evidence of PC 9665 and PC 7866 that the suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) were found in LP 4684.

147.I accept the evidence of PC 7866 that he sealed the sixty plastic bags containing suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) which he found in LP 4684.

148.I reject that there was any tampering with the exhibits whether by way of substitution of the suspected dangerous drugs found by PC 7866 in LP 4684 or by way of additional dangerous drugs being added to the suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) found by PC 7866 in LP 4684.  I am satisfied the only inference to draw is the weighing process in the police station was not accurate. 

149.The differences in the weight between the police station and the Government Chemist does not cause me to doubt the evidence of PC 7866 that he sealed the $20 banknote containing suspected dangerous drugs given to him by PC 9665 (exhibit P1 and P1A) and that he sealed the plastic bags containing suspected dangerous drugs (exhibits P2, P2A, P3, P3A, P4 and P4A) which he found in LP 4684.  Nor does the fact that the duty CID team attended the scene and eventually took over the investigation of the case cause me to doubt the evidence of PC 7866.

Verdict

Charge 1

150.I accept the evidence of PC 9665 and PC 7866 that the defendant was in possession of the $20 banknote.  I am satisfied full weight is to be attached to the defendant’s admission that the cocaine found in the banknote was for his own consumption in showing that the defendant was in possession of the cocaine knowing it was a dangerous drug.

Charges 2 & 3

Record of interview (exhibit P14)

151.Adduced in evidence is that after the defendant was arrested for possession of the dangerous drugs found in LP 4684 the defendant said under caution that he did not know what they were[83]. This was post-recorded in a record of interview (exhibit P14) [84].

152.I am satisfied no weight is to be attached to the defendant’s claim which was not made on oath, has not been repeated on oath and has not been tested by cross-examination. 

153.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.

Possession and knowledge

Charge 2

154.I accept the evidence of Mr Chiu that he sold LP 4684 to the defendant. I accept the evidence of PC 9665 and PC 7866 that suspected dangerous drugs were found in LP 4684 (exhibits P2, P3 and P4) which were sealed, examined by the Government Chemist and found to be dangerous drugs as particularised in the Government Chemist Certificate (exhibit P8).

155.Taking into account the defendant purchased LP 4684; was the only person in LP4684; the dangerous drugs were easily accessible and the inherent improbability that someone would leave such a quantity of drugs in the car thereby running the risk the drugs would be discovered by someone else using the car and who might very well dispose of the drugs, I am satisfied so I am sure the only inference to draw is that the defendant possessed the dangerous drugs knowing that they were dangerous drugs.

Charge 3

156.Taking into account the defendant purchased LP 4684; was the only person in LP4684; the dangerous drugs were easily accessible in the storage compartment in front of the front passenger seat and the inherent improbability that someone would leave such a quantity of drugs in the car thereby running the risk the drugs would be discovered by someone else using the car and who might very well dispose of the drugs, I am satisfied so I am sure the only inference to draw is that the defendant possessed the dangerous drugs knowing that they were dangerous drugs.

Trafficking

157.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 the dangerous drugs found in LP 4684[85].

Charge 2

158.Taking into account there were three dangerous drugs found in the storage compartment between the driver’s seat and the front passenger seat, cocaine, ketamine and fluorodeschloroketamine; the quantity of the cocaine and the fluorodeschloroketamine; the packaging of the cocaine in nineteen plastic bag and the packaging of the fluorodeschloroketamine in thirty-six plastic bags and that the dangerous drugs were found in a car in a public street 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, the ketamine and the fluorodeschloroketamine for the purpose of trafficking.

Charge 3

159.Taking into account the quantity of the fluorodeschloroketamine which was contained in four plastic bags and that the dangerous drugs were found in a car in a public street 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 fluorodeschloroketamine for the purpose of trafficking.

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

161.I am satisfied so I am sure the prosecution has proved all the elements of each charge beyond reasonable doubt, each charge being considered separately.  The defendant is convicted of charges 1, 2 and 3.