HKSAR v. Wong Gan Hei

DCCC 672/2021

[2022] HKDC 183

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 672 OF 2021

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REASONS FOR VERDICT

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CHARGE

1.The defendant was charged with one count of trafficking in a dangerous drug, namely 9.18 grammes of ketamine.

PLEA

2.The defendant denied the charge.

BACKGROUND

3.The prosecution alleged that the police officers laid ambush outside a flat on 16/F of an Industrial Centre.  When the defendant opened the door of the premises, the police officers revealed their identities and gained entry. The defendant immediately ran into a room (called the Room A)  of the premises and shut the door.  The officers gave chase and tried to push the door open but found the door being blocked from inside.

4.After pushing for a while, the officers managed to open the door and found the defendant sitting alone on the floor in the said room.  A packet of dangerous drugs in question and a mobile phone were found on the floor, about one metre away from the defendant.  Inside the said room, an electronic scale was found on the table and 220 re-sealable plastic bags were found in the refrigerator.

5.The defendant was arrested.  After caution, he remained silent.

6.It was the defence case that the prosecution failed to prove possession of the drugs by the defendant.

PROGRESS OF TRIAL

7.An admitted facts, search warrant, drugs in question, a mobile phone, an electronic scale and 220 empty re-sealable bags were produced by consent.

8.Prosecution called 3 witnesses to give evidence.

9.The defendant elected not to give evidence and did not call any witness.

THE PROSECTION’S CASE

Admitted facts

10.Some of the admitted facts are as follows:-

(1)  The police laid an ambush outside the premises in question at the material time.

(2)  Upon sight of the police, the defendant rushed into a room of the premises and shut the door.

(3)  Upon gaining access to the said room, the police found the defendant sitting alone on the floor of the said room.

(4)  Inside the said room, 1 plastic bag of ketamine of the subject charge and a mobile phone were found on the floor. 1 electronic scale was found on the table therein. 1 plastic bag containing 220 empty re-sealable plastic bags were found in a refrigerator in the same room.

(5)  There were 5 other persons inside the main room of the premises (photograph P7(2)).

(6)  14 fingerprint impressions and 12 DNA samples were taken from the premises. 7 DNA samples were taken from the drugs and their packaging. Neither the defendant’s fingerprints nor his DNA were found in the drugs and packaging.

(7)  The estimated street value of the drugs in question was $6,727.

(8)  All the persons at the premises were arrested but only the defendant is prosecuted for the offence in relation to the premises or the items found.

Observation Officer (DPC 16823)

11.On the material day, PW2, together with 4 police officers (including PW1), laid ambush at the rear staircase outside the premises in question on 16^th floor of the Industrial Centre.

12.At 12.45 am, PW2 heard some sound of opening of lift door on 16/F.  He saw 2 males and 1 female standing outside the iron gate of the premises in question.  Shortly afterwards, he saw a male in black top and black trousers, namely the defendant, opening the door and gate of the said premises.  PW2 immediately revealed his police identity and went forward to the premises.  The defendant then turned around and rushed back towards a room (called Room A)  of the said premises. 

13.PW2 together with other officers chased after the defendant.  PW2 saw the defendant entering the Room A (which was at the right hand side as depicted in the photograph P7(2)).  The defendant shut the door of the said room.  PW2 tried to push the door open but in vain.  He found the door lock could be turned but the door could not be opened.  He felt that someone had blocked the door from inside.

14.After pushing for 10 to 20 seconds and with the aid of his baton, he finally opened the door and found the defendant sitting alone on the floor in front of a table as circled in photograph P7(13).  The defendant was facing the door.  PW2 found one plastic re-sealable bag containing some white powder (the subject charge)  and a mobile phone on the floor inside the Room A near the doorway as depicted by photograph P7(15).  He also saw an electronic scale on the table.

15.Under cross-examination, PW2 disagreed that the door of the room was locked.  He also disagreed that the door lock was damaged.  He explained that the damage at the edge of the door as depicted in photograph D1 was caused by his putting the baton in the gap while pushing.

D Sgt 58722 (PW1)

16.He followed PW2 entering the premises chasing after the defendant. Apart from the defendant, there were 5 other persons in the main room (photograph P7(2)).  In the main room, there was a gambling machine for fishing which was switched on.  In the safe (photograph P7(4)-(6))  placed in the main room, some other drugs (not the subject charge)  were found.  Some beef knives (photograph P7(2), (7)-(9))  were also found in the main room.

17.In the drawer of the bunk bed in the main room (photograph P7(3), (26), (27)), an identity card in the name of Chow was found who was not present at the scene.  The tenant of the premises was a male called Ko Shui Ching who was also arrested at the scene (one of the five persons in the main room).  He agreed no sign of consuming dangerous drugs at the scene.  He disagreed that the packet of drugs in question (photograph P7(24), (25))  could be flushed away in the toilet bowl.

Exhibit Officer

18.PW3 was assigned as the search and Exhibit Officer.  In the main room, other drugs were found in the safe.  Also, beef knives and a baseball bat were found.  A gambling machine and two other safes were found in the main room. The safes were subsequently opened by locksmith in the police station with cigarettes containing drugs and re-sealable bags found inside.  No equipment or apparatus relating to smoking dangerous drugs was found.

ANALYSIS OF EVIDENCE

19.Prosecution bears the burden of proof and has to prove the case beyond reasonable doubt.  Defence needs not to prove anything.  The defendant elected not to give evidence.  It was his right.  No adverse inference would be drawn against him.  The defendant was of clear record.  I reminded myself of the Berrada’s warning as to the credibility and less propensity to commit crime by a person of good character like the defendant.

20.I have considered the final submission made by the defence and also assessed carefully all the evidence before me.

21.Having considered the evidence of the prosecution witnesses, I found their evidence being clear and straightforward.  They gave a detailed account of the event.  I found them being honest and credible witnesses.  I accordingly accepted their evidence.

22.The main thrust of the defence case was that the prosecution failed to prove possession against the defendant.

23.Having considered the evidence and all the circumstances of the case, I made the following findings:-

(1)  The defendant did open the door and gate of the premises.

(2)  Upon reveal of police identity, the defendant did rush into the Room A of the premises. Police officers chased after him.

(3)  Once the defendant entered the Room A, he only shut the door without locking. He blocked the door from inside.

(4)  After pushing for 10 to 20 seconds, PW2 managed to open the door. He saw the defendant already sitting on the floor alone. However, PW2 could not tell whether the defendant was falling down during their pushing of the door.

(5)  The packet of drugs in question was quite apparently lying on the floor near the doorway which was about 1 metre away from the defendant.

(6)  Next to the packet of drugs was a mobile phone. There was no evidence showing that it belonged to any person.

(7)  Outside Room A was the main room where there were 5 persons present before the defendant opened the door of the premises.

(8)  In the main room, there was also a gambling machine for fishing which was operating. Obviously it was an illegal gambling establishment.

(9)  Before the defendant entered the Room A, its door was not locked and there was no evidence as to the situation of the inside of Room A.

(10)  There were 5 persons present in the main room. One of them was the tenant of the premises in question. He was also arrested but not prosecuted.

(11)  Except the fact that the defendant opened the door of the premises, there was no further evidence as to the extent or degree of his connection with the premises.

(12)  There were 3 locked safes in the main room. Other drugs were also found therein with no one being prosecuted for that.

(13)  14 fingerprint impressions and 12 DNA samples were taken from the premises. A further 7 DNA samples were taken from the drugs and their packaging. Neither the defendant’s fingerprints nor his DNA were found.

(14)  The defendant was aged 16 at the material time with a clear record.

24.As to the facts found above, even though what the defendant did was highly suspicious, the court was unable to conclude that a unique and irresistible inference could be drawn against the defendant that he did possess the drugs in question at the material time.  I found that the prosecution failed to prove the case beyond reasonable doubt.

25.I accordingly acquitted the defendant as charged.