HKSAR v. Ko Shui Ching

DCCC 643/2021

[2022] HKDC 220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 643 OF 2021

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REASONS FOR VERDICT

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1.The 2 defendants in this case face two joint charges of Trafficking in Dangerous Drugs^[1]. D1 pleaded guilty to both charges on the first day of trial. This Reasons for Verdict deals only with the trial of D2.

2.The fact that D1 has pleaded guilty will have no bearing on my decision in the case of D2.  The prosecution has to prove its case against D2, just as it would have to if D1 had not pleaded guilty.

3.Charge 1 alleges that the defendants on 17 December 2020 were in joint possession of a total of 16 transparent re-sealable plastic bags of solids found inside the kitchen of a residential unit on the ground floor of No 311 Tuen Tsz Wai (hereinafter “the unit”), which contained a total of 3.89 g of cocaine, for the purpose of trafficking in them.

4.Charge 2 alleges that they were on 18 December 2020 in joint possession of 39 transparent re-sealable plastic bags with cocaine and ketamine inside, as well as 433 unused transparent re-sealable plastic bags, one plastic container containing small amount of cocaine, a spoon and a cut up playing card containing traces of white powder, and one electronic scale.  These items were found from inside a shoe box on an iron rack that was located in a stone hut a short walk from the unit.  The total narcotic contents in charge 2 are 17.99 g of cocaine and 3 g of ketamine.

An overview

5.Police officers laid ambush in the vicinity of the unit on the evening of 17 December 2020.  A male, later known as Ng, was seen coming down a pathway from the direction of the unit.  He was intercepted by the officers in ambush.  Ng is neither a defendant nor a witness in this case.

6.The officers brought Ng back to the unit and knocked.  D1 opened the door and the Police executed a search warrant on the unit.

7.D2 was sitting on the sofa when Police entered the unit.  He was searched and a key to the main door of the unit was found on him, together with cash of $9,180.

8.D2 allegedly told one of the officers that he occupied the room directly adjacent to the living room (hereinafter as “room A”).  Room A was searched.  A mainland driving license in D2’s name and 3 keys were found on the window sill of the set of windows near the door of the room.

9.One of the 3 keys was later found to unlock the door of one of 4 stone huts located near the unit.  All the items particularized in charge 2 were found from inside a shoe box on the second tier of a five-tier iron rack inside the hut.  D2’s thumb print was later lifted from the edge of the horizontal shelf divider that the shoe box was on.

10.Back in the unit, the kitchen was searched and the particularized items in charge 1 were found lying openly on top of the stove area and next to the sink in plain sight.

11.Investigation revealed that D2 was the person who entered into a rental agreement dated 17 November 2020 with the landlord at a monthly rental of $12,000.

Prosecution’s case

12.It is the prosecution’s case that circumstantial evidence would allow the court to draw the only reasonable inference that D2 and D1 were in joint possession of the dangerous drugs found in the kitchen and the stone hut respectively, that D2 must have known that it was some kind of dangerous drugs that he was in possession of, and that D2 must have been in possession of them for the purpose of trafficking.

D2’s case

13.It is D2’s case that the key to the stone hut was not found from D2’s room, but from the living room.  As such, there would be insufficient evidence to allow the court to infer that D2 was in possession of the drugs inside the hut.

14.As to the thumb print of D2 found on the iron rack, it is D2’s case that he had helped D1 to move the rack about 1 week before the night of his arrest and that was how his print came to be left.  D2 said he had no idea what was inside the shoebox, and so could not have been in possession of its contents.

15.As to the dangerous drugs in the kitchen, it is D2’s case that there is no evidence from the prosecution as to when and how the dangerous drugs came to be put in the kitchen.  It is D2’s evidence that he had only been back in the unit about 20 to 30 minutes before the Police knocked on the door.  He had no knowledge of the presence of the dangerous drugs in the kitchen and therefore could not have been in possession of them.

16.As such, D2 says he cannot be guilty of either of the two charges.

Summary of prosecution’s evidence

17.Much of the prosecution case is not contested.  The primary factual dispute is whether the prosecution can prove beyond reasonable doubt that the key to the stone hut was found in D2’s room.

18.The prosecution called 6 officers as witnesses.  They all took part in the operation on the night of 17 December after attending a briefing at Tuen Mun Police Station.

19.PW1 DPC18787 left the Police station at 2100 hours and arrived in the vicinity of Tuen Tze Wai at around 2115 hours together with the whole team.  PW1 then took up his place of observation by the roadside near lamp post VD7459 on Ng Lau Road. From where he was, he could not see the door of the unit, but the road leading away from the unit was within his view.

20.At around 2200 hours, PW1 saw a man walked down that road away from the unit.  The man was naked waist up, wearing a pair of shorts.  He crossed the road and went over to a stone hut and then the witness was not able to see him anymore.  At that time, PW1 was not able to identify that man.

21.PW1 continued with his observation.  At about 2330 hours, he saw another man (later confirmed to be the Ng mentioned above) walking down the road away from the unit and turned left towards Fa Pao Association.  This man wore black upper garment, a pair of black pants and a black facial mask.  PW1 found his action very suspicious and asked his teammates over the console to intercept the man.  He then continued to wait and observe at his original position.

22.Acting upon PW1’s information, PW2 58722 went up with 2 colleagues and intercepted Ng.  They revealed their Police identity, searched and interrogated him.  Nothing suspicious was found on him.

23.PW2 asked Ng what he was doing there and where he lived.  Ng said he lived at the unit and was out taking a stroll.  PW2 told Ng that they had a search warrant for the unit and asked Ng to bring them there.  Meanwhile, PW2 informed his colleagues to meet up outside the unit.

24.PW1, PW2, Ng and the other officers (including the 4 other witnesses) in the vicinity all arrived outside the unit at around 2336 hours.  PW2 knocked on the door.  It is not disputed that D1 came to open the door.  PW2 revealed his Police identity and showed D1 the search warrant and told D1, Ng and one other man who was sitting in the sofa in the living room inside the unit that they were going to search the unit.  It is not disputed that the man in the sofa was D2.

25.PW5 DPC11818 was instructed to search D2.  5 keys (exhibit P2) were found on D2’s person.  One of them was later found to be able to unlock the main door of the unit.

26.The keys were given back to D2 after they were first found by PW5, because at that time he did not think the keys were important to the case.  The keys were only seized at 0117 hours after PW1 told PW5 that the keys were needed to be tested, whereupon PW5 took the keys from D2 and handed them over to PW1.

27.PW5 also found $9,180 cash, an iPhone and a car key for XB6002 on D2.  These items were seized after they had returned to Tuen Mun Police Station.

28.PW3 DPC9085 was the designated exhibits officer and he proceeded to search the 3 bedrooms, living room, kitchen and bathroom of the unit.

29.Between 2340 and 2348 hours, PW5 brought D2 into room A to witness the room search by PW3.

The reason why D2 had to witness the search of room A

30.It is PW5’s evidence that after the body search, D2 had told him that the room near the doorway of the unit was his room, ie room A.  The reason why he brought D2 into room A was so that D2 could witness the search of his own room.

31.In cross-examination, it was pointed out to PW5 that he did not record the exact conversation about D2 telling him the room was his in PW5’s witness statement.  PW5 agreed that he did not record the exact words, but explained that he was not recording the conversation between them, just the meaning of what D2 said, which was that the room near the doorway of the unit was D2’s room.

32.PW5 was asked why he did not make a record of that after he had later cautioned D2.  PW5 explained that it was perhaps because he did not think this matter was directly related to the offences in this case.

33.The search of D2’s room ended at 2348 hours.  On the window sill of the set of windows near the doorway of the unit, PW3 found D2’s mainland driver’s license.  Next to it were 3 keys. The items were not seized at that time.

34.One of the keys had a blue head, making it easier to recognize, and PW3 identified this as P5, which was later found to be able to unlock the door to the stone hut mentioned in charge 2.

35.Room B was then searched, witnessed by PW4 10968 and Ng standing outside the doorway.  No suspicious items were found, nor was there anything that was of interest to the investigation.

36.Room C was searched, witnessed by PW6 15586 and D1 standing at the doorway.  A bunch of 3 keys (P6) were found.

37.The bathroom was searched and nothing of interest was found.

The kitchen

38.At around 0004 hours, PW3 searched the kitchen.  PW5 and D2 witnessed the search of the kitchen while standing outside near the doorway.

39.From the area described as the “cooking range” in PW3’s sketch, 6 small packets of dangerous drugs (P11) were found. Next to them was an empty cigarette packet (part of P13).

40.Additionally, from next to the sink in photo 18, PW3 found 10 small packets of dangerous drugs and 7 cigarette packets, as indicated by the small solid triangle in his sketch (P34).

41.PW3 informed his team members what had been found and at around 0015 to 0020 hours of 18 December 2020, D1, D2 and Ng were arrested and cautioned for trafficking in dangerous drugs.  D2 said he had nothing to say under caution.  There is to be no adverse inference against D2 for him exercising his right to silence.

42.From 0025 to 0035 hours, PW5 went with PW3 and D2 to near lamp post AD7459 to search D2’s car XB6002.  Nothing suspicious was found, nor anything that would be of assistance to the investigation.

43.At around 0115 hours, PW1 spoke with PW2 and talked about the man whom he saw at 2200 hours walking to a stone hut across the road resembling D1.

44.PW2 reported this to his superior and was instructed to search the hut to see if there were dangerous drugs stored elsewhere.  PW2 in turn instructed PW1 to collect all the keys found.

45.At 0116 hours, PW5 went back to room A together with PW3 and D2.  PW3 seized the driving licence (P4) and 3 keys from the window sill and later handed them over to PW1.

46.In cross-examination, PW5 said that he did not pay attention as to what was on the window sill of the window next to the door of room A when he first entered.  The first time he saw D2’s driving licence and the 3 keys was at 0116 hours.

47.At 0117 hours, PW5 handed over to PW1 the bundle of 5 keys that he earlier found on D2’s person.

The stone hut

48.PW1 and PW2 then walked over to the stone hut area.  One of the keys found on the window sill of room A was able to unlock the door of one of the stone huts.

49.PW1 and PW2 entered the hut, saw nobody inside and came back out.  They waited outside the hut while PW1 informed officer PW5 and PW3 to bring over D2 at around 0130 hours.

50.PW3 then searched the hut with D2 and PW5 both inside witnessing the search while PW1 and PW2 waited outside the hut in the doorway.

51.From an iron rack inside the hut, PW3 found a beef knife, and next to it a shoe box.  The shoe box contained all the items particularized in charge 2.  Photo 45 and 46 in P37 show the shoe box and the knife.

52.After PW3 informed PW5 of his findings, PW5 cautioned D2 for the offences of possession of offensive weapon and trafficking in dangerous drugs.  D2 said that he had nothing to say.  Again, there is to be no adverse inference in relation to D2’s exercise of his right to silence.

53.Between 0145 and 0149 hours, the hut was searched with the assistance of a Police sniffer dog for further evidence of dangerous drugs but nothing suspicious was found.

54.Between 0150 and 0156 hours, PW5 and PW3 escorted D2 to search his private vehicle XB6002 again, this time with the sniffer dog and its handler.  Nothing suspicious was found.

55.At 0222 hours, PW4, PW6 and PW3 escorted Ng and D1 to the stone hut where they were informed of the findings of dangerous drugs.

56.At 0225 hours, SPC34478 of the Identification Bureau dusted for fingerprints at the stone hut.

57.It is admitted fact that a fingerprint was found on one tier of the 5-tiered iron rack which matched the thumb print of D2.  The area where the print was lifted from can be seen in photo 54 of P36, and was on the edge of the horizontal divider on which the beef knife and shoebox were found.

58.At about 0400 hours, a photographic officer from the identification bureau took the photos in the P37 album under PW3’s instructions.

59.PW3 confirmed that photos 7 and 8 in the P36 album show room A, and that photos 10, 11, 33 and 34 show where he found D2’s mainland driving licence and the 3 keys.  Photo 39 of the P37 album shows the blue headed key inside the stone hut door lock.

60.At 0452 hours, all the arrested persons and the Police party left the unit and returned to Tuen Mun Police Station.  At the Police Station, PW3 assisted the Duty Officer to weigh the seized drugs.  They were then put in various tamper proof evidence envelopes.

61.The chain of evidence and the integrity of the seized exhibits are not being challenged.

62.In cross-examination, Mr Davies suggested to PW1 that on 17 December, D2 in fact had been to Tuen Mun Police Station at around 2200 hours to deliver food to his friend who was in custody there, a Mr Siu On Ka.  At around 2300 hours, D2 drove and parked his car at the position where PW1 later found it and walked down the road to go back to the unit, thus walking pass the surveillance area of PW1.  D2 had therefore only been inside the unit for about 30 minutes when the Police knocked on the door.

63.PW1 disagreed that D2 had so walked past him, but agreed that during the 2 odd hours he was observing Ng Lau Road, he had seen quite a few people walking up and down the road.  PW1 had no knowledge of where D2 had been prior to seeing him inside the unit.

64.PW3 confirmed that the curtain behind the set of windows of Room A that opened in the same direction of the front door of the unit was only half drawn when he entered to search the room later on, as shown in photo 10 of P36.  PW1 confirmed that all 9 officers were outside the front door when PW2 knocked on the door and D1 came to open it.

65.PW1 agreed that D2 was simply sitting in the sofa in the living room and did not attempt to get up or leave when the Police entered the premises.

66.PW4 Officer 10968 was the officer who handled Ng in this operation.  His evidence in chief confirmed the evidence of the earlier officers.

67.In cross-examination, he was asked about the kitchen door when he walked past it to get to Ng’s room.  PW4 had no recollection as to whether the door was open or closed, nor did he pay attention as to whether there was anything suspicious inside.

68.PW5 DPC1181 was the officer who searched D2.  Parts of his evidence have already been summarized above.

69.In cross-examination, PW5 was asked about the kitchen door as well, and he said it was open when he entered the unit.  He, however, did not walk past or look inside the kitchen.  His recollection is that all the doors in the unit were open when he entered.

70.It was put to PW5 that D2’s driving licence was found from inside a black bag on the floor of room A, and the key to the stone hut was found from the living room.  PW5 disagreed.

71.PW6 DPC15586’s examination in chief was extremely brief. Mr Tracey asked if he knew the age of D1 at the time he arrested him.  PW6 says it should be approximately 17, and since he was under 18, D1’s aunt had to accompany him during D1’s video recorded interview.

72.In cross-examination, PW6 said that both the kitchen and bathroom doors were open, and that he had walked past them.  He did not pay attention to what was inside the kitchen, both before and after D1’s room search.  The first time he noticed the dangerous drugs inside the kitchen was when he accompanied D1 to witness the search by PW3.

73.The prosecution formally closed their case after PW6’s evidence.

74.There was a no case submission.  I ruled that there was a case to answer against D2 on both charges.

Summary of D2’s evidence

75.D2 fully understood his rights and elected to give evidence in his own defence.  He had also been advised by his counsel that D1 was a competent and compellable witness and it was open for him to summons D1 to the witness box to give evidence in D2’s defence.  D2 elected not to do so.

76.D2 is 33.  He is a decoration worker both now and back in December 2020, earning from $30,000 upwards per month.  He was the person who signed the rental agreement for the unit, and had moved in around 30 November 2020.  At the time of signing, D2 had already told the property agent that he was going to be sharing the unit with two other occupants.

77.The 2 occupants are Ng and D1 in this case.

78.D2 had known Ng for about 2 years through working as a casual transportation worker.  It was Ng who suggested, sometime in September 2020, to rent the unit together with D2.

79.Sometime in October 2020, Ng introduced D1 to D2 in person, and said D1 would like to live in the unit as well.  Ng said D1 had a job but did not earn a lot and suggested that they split the rental of $12,000, with Ng and D2 each paying $5,000 and D1 paying $2,000 since he was younger one.  D2 agreed with the suggestion.

80.Ng did put up his share of $15,000 as security deposit and commission payment.  D2 remembered that Ng’s share of the 1 December 2020 rental payment was paid by D1, in other words, D1 had paid a total of $7,000 in December 2020.

81.D2 said that the $9,180 Police found on his person on the night of his arrest were meant to be rental payment.  Since his evidence is that the payment date is the first of each month and that the December rental had already been paid, it would appear that D2 meant that the money was for the January 2021 rental payment.

82.Prior to 17 December 2020, the last time D2 travelled to China was around end of December 2019, about 1 year before his arrest.  This evidence was later relied on to support D2’s saying that the mainland driving licence was found from inside a black Manila envelope on the floor of room A and not on the window sill next to the 3 keys.

83.It is D2’s evidence that on 17 December, he left the unit at around 2100 hours and drove XB6002 to Tuen Mun Police Station to deliver a rice box to a friend, a Mr Siu On Ka, who had been arrested for another case.

84.D2 had to show his identity card to a Police officer when he handed over the rice box.  The officer made a note of D2’s name and identity card number.  D2 cannot remember if it was in a notebook or in the computer.

85.D2 stayed for about 20 minutes at the Police Station.  He then drove to Hung Shui Kiu to look for a friend, to find out what happened in the case of Siu On Ka.  After the visit, D2 bought a rice box and drove home to Tuen Tze Wai which was about 10 minutes’ drive away.

86.D2 parked his car at the parking space that was included with the rental of the unit, crossed Ng Lau Road and walked down the pathway to go home, carrying his rice box.

87.Although it was pointed out to PW1 that D2 parked his car at 2300 and went back to the unit, D2 never mentioned the specific time he parked his car in his evidence in court.

88.After he got home, D2 sat at the table in the living room near the main door to eat.  Photo 10 in exhibit P37 show the rice box with the chopsticks still inside.

89.After he finished eating D2 sat in the sofa and played on his mobile phone.  About 10 minutes later, Police came and knocked on the door.  The door was opened and Police came into the unit and he was told not to move and just sit in the sofa.  D2 never got out of the sofa and he cooperated with the Police throughout.  He was eventually arrested after some drugs were found inside the unit.

90.D2 confirmed in court that Room A is his room, although he cannot remember if he had told the Police that it was his room or not.

91.Instead of on the window sill, D2 said that his mainland driving licence was found from inside a black Manila envelope that was on the floor inside room A, being the black rectangular object in the middle of photo 12 of exhibit P37.

92.As to the key with the blue handle which could open the door of the stone hut in question, it is D2’s evidence that it was not found on the window sill in room A, but from the living room.

93.D2 did not give details as to how he is able to say that the key was found in the living room, nor where in the living room was the key found.  There is no mention in his evidence at all of how he might have seen the officers taking the key from the living room, although Mr Davies did point out in the cross-examination of PW3 that the key was either found on the window sill of the living room or on the desk in the living room.

94.D2 said he did not rent the stone hut, and he did not have the key to the stone hut.

95.D2 recalls that about 1 week before this incident, D1 had asked him to go to the stone hut to help with moving some racks and assorted things, which were taken to the refuse room to be disposed of, and D2 did not know what they were.

96.D1 did not tell D2 why D1 had an interest in the stone hut, nor did D1 tell him that any other person was living in the hut.

97.D2 said the rack on which his fingerprints were later found was moved from outside the doorway of the hut to the corridor of the hut as shown in photo 45 of P37.  D2 said he also moved some beds, but later clarified that it was just one bed that he had helped move, and it was not the one shown in photo 42.

98.In cross-examination, Mr Tracey put to D2 that he lied about moving any beds, that he changed his story from moving more than one bed to just one bed after he saw that the photos show only one bed in the hut.  D2 disagreed and said that the bed that he had moved is not shown in any of the photos.

99.D2 stayed about 10 to 15 minutes in the hut on that occasion.  D1 did not explain to D2 why he had the key to the stone hut, nor did D2 ask him.  D2 did not know to whom the hut belonged.  It is D2’s evidence that he was never aware that there were drugs in the hut.

100.In relation to the drugs found in the kitchen that day, it is D2’s evidence that after he returned home from Hung Shui Kiu that evening, he had not gone into the kitchen.  He had never seen those drugs in the kitchen before.  He did not know that there were drugs in the unit.  He does not know who put them there and has no idea how they got there.

101.D2 said he also had not seen the cigarette boxes before.  He never knew that D1, or anyone, was dealing with drugs in the unit.

102.As to the $9,180 in his pocket, D2 said he kept the money in his pocket and not in his room because it is his habit to keep his money on his person.

103.It was lastly put to D2 that he was in joint possession of the drugs in the kitchen as well as the stone hut with D1 and that they were in possession of the drugs for the purpose of trafficking in them.  D2 disagreed that such was the case.

Findings

104.Having had the opportunities to see and hear all the prosecution witnesses, I find them honest and reliable.  There are no material discrepancies at all between their testimonies.

105.Although it was put by counsel for D2 to PW3 that the stone hut key was found on the window sill of the window in the living room or the desk in the living room, D2 never gave any evidence to that effect.  The basis of Mr Davies’ puttage appears, therefore, only to be his interpretation of the words used in PW3’s witness statement.

106.In cross-examination, Mr Davies referred to the witness statement of PW3 where he stated that the keys and licence were found “from the window sill near the main door”, and suggested that the way it was worded indicated that the 3 keys (including the blue headed stone hut key) and the licence were found on the window sill of a window inside the living room and not room A.

107.PW3 disagreed.  He explained that it was perhaps because of his choice of words that caused the confusion.  What he recorded in this part of his witness statement is what had taken place inside room A and what he saw and found there.  He is sure that he found the keys and the licence inside room A.

108.It is noted that the window of room A is in fact near the main door of the unit, just separated by a narrow partition and the door of room A.  The description in PW3’s witness statement are, therefore, not incorrect, although his choice of words could have been more accurate.

109.I accept PW3’s explanation and find that PW3 told the truth about finding the keys and the licence on the window sill inside room A, as depicted in the above referred to photos.

110.Since I have accepted PW3’s explanation regarding his witness statement, and have found that he is telling the truth about finding the licence and the 3 keys on the window sill of the window inside the room where D2 said he occupied, it must follow that D2 is not telling the truth when he said they were not found there, and I reject this part of D2’s evidence accordingly.

D2’s credibility as a witness

111.I also find D2 not to be a credible witness for the following reasons.

112.D2 said the money on his person were for rental payment.  Yet, it was 17 December when the money was found on his person and rent was not due for another 14 days.  There was no reason why D2 should have the rental payment in his pocket while he was at home at that time.

113.Furthermore, as D2 himself agreed in cross-examination, the $9,180 was in any event still $2,820 short of the full rental payment.

114.Based on these observations, I find that it is inherently improbable that the money D2 kept on his person was for rental payment, and the only reasonable inference must be that he is lying about the nature of the money.  I do not surmise why he is so lying, just that it shows that he is not a credible witness.

115.Another weakness in D2’s evidence appeared in his story of how he left his print on the rack while moving things in the hut at the request of D1.

116.D2 at first said he moved the rack and some beds in the hut, but later on said he just moved one and it was not shown in any of the photos.  However, D2 never said from where he moved that one bed and moved it where.

117.It is also his evidence that the assorted stuff that he helped D1 moved were taken to the rubbish dump and he did not know what they were.

118.D2’s evidence about the moving of the bed and the assorted items is devoid of details and obviously untrue.  I cannot surmise why he lied, but his lying adversely affects his credibility.

119.As to D2’s evidence of him only having been in the unit for about 30 minutes before the Police arrived, I find as follows.

120.It is D2’s evidence that he left the unit at around 2100 hours to go to Tuen Mun Police Station.  PW1 only arrived at the observation point after 2115 hours so he could not have seen D2 leaving the unit if he did in fact so leave at that time.

121.It is D2’s evidence that he stayed for about 20 minutes at the Police Station and then drove to Hung Shui Kiu to look for his friend.  He did not say how long he stayed there.  He bought a rice box and then drove 10 minutes to arrive back at Tuen Tze Wai.  Therefore, the earliest time D2 could have been back at Tuen Tze Wai would likely to be some time after, say, 2200 hours.

122.PW1 was still keeping observation at 2200 hours when he saw the first man coming from the direction of the unit and went to the stone hut.  Then at 2300 he saw Ng coming from the direction of the unit and notified his colleagues to intercept him.

123.PW1 was obviously fully focused at his observation post throughout in order for him to have been able to spot the two specific persons.

124.On that basis, I find that it would have been impossible for PW1 to have missed D2 coming back in a car, bringing a meal box, walking back up to the unit that PW1 was specifically paying attention to.

125.The only reasonable inference must be that D2’s evidence about how he had driven back to Tuen Tze Wai, parked his car near the unit and then walked back to the unit during the time when PW1 was observing that particular area is not true.

126.I do not surmise why D2 would tell this lie, just that it is a matter to consider regarding his credibility, which, based on my findings above, is lacking.

Was D2 in joint possession of the dangerous drugs

127.Having found that the prosecution witnesses are telling the truth about the events that took place on 17 and 18 December, and D2 is not, the next matter to consider is whether the facts as proved would allow the court to draw the only reasonable inference that D2 was in joint possession of the dangerous drugs in the kitchen, and separately, the dangerous drugs in the shoebox in the stone hut, and that he was in possession of them for the purpose of trafficking in them.

Some observations regarding the kitchen drugs

128.As seen from the photo album, the stove surface (灶頭) in the kitchen is an open area in full view of anyone walking past the kitchen.

129.I have considered the suggestion by counsel in his closing submissions about how if the drugs were really so openly displayed in the kitchen, it would have been impossible for the Police officers not to have noticed them when they walked past the kitchen en route to the two bedrooms at the end of the unit (Room B and C on PW3’s sketch).

130.Mr Davies submitted that based on the fact that none of the officers noticed the drugs in the kitchen, the dangerous drugs must either not have been conspicuous and therefore not noticeable to D2 as well, or they were put there by someone after the officers had walked past.

131.Furthermore, it is Mr Davies’ submission that there is no evidence as to when the drugs were placed in the kitchen and that D2 had seen them, coupled with D2’s uncontested evidence that he only returned to the unit about 30 minutes before the Police arrived, there is simply not enough evidence to allow the court to infer that D2 was in possession of the drugs in the kitchen.

132.I disagree with Mr Davies’ submissions for the following reasons.

133.I find that the kitchen door was open when the Police officers entered the unit.  Photo 18 and 20 of the P36 album show clearly how the packets were placed. There is no concealment and the packets are casually laid out on the stove and the counter top area.  It is not a big unit with the bathroom and the kitchen right next to each other.  I find that they are impossible to miss for anyone residing in the unit.

134.And residing is the key word, explaining why the officers who did walk past the kitchen did not notice the dangerous drugs.

135.The focus of the Police officers guarding the 3 apprehended persons was on the 3 people and not on the unit, since they were not tasked to look for drugs.

136.As for PW3, he had a planned route searching the unit.  Until he got to the kitchen, his focus must have been on the area that he was next going to search and not the kitchen.

137.I find, therefore, that despite the officers not noticing the drugs in the kitchen, it does not mean that the drugs were not conspicuous and on open display in the kitchen, and inevitably noticeable to anyone residing in the unit.

138.As to the suggestion that the drugs might have been put there by Police officers after they got there, I find that there is no basis for D2 to make such a suggestion in the first place.  More importantly, I have found that the officers are telling the truth about their finding of the drugs and that is the fact.

139.I also adopt my earlier finding that D2 was not telling the truth about how he had returned to the unit during the time when PW1 was keeping surveillance of the area outside the unit. Mr Davies would, therefore, unable to rely on this part of D2’s evidence about how he had only been back in the unit for about 30 minutes before the Police knocked on the door.

Some observations regarding the stone hut drugs

140.It is admitted fact that the descriptions in the indexes of the P36 and P37 photo albums are accurate descriptions of the photos.

141.Photo 45 in P37 shows “Shoe rack near the main door of the unnumbered stone hut near lamppost VD9993 and Public Toilet in Tuen Tsz Wai, Ng Lau Road, Tuen Mun, New Territories.”

142.Photo 40 of P37 is described as “Unnumbered stone hut near lamppost VD9993 and public toilet in Tuen Tsz Wai, Ng Lau Road, Tuen Mun, New Territories (looking from outdoor to indoor)” and in Chinese, “....(室外望向室內)”.

143.Photo 45 of P36 is taken from inside the hut, with the door on the left and the rack in front of the camera, as confirmed in its description that says “Inside unnumbered stone hut...”

144.It is, therefore, clear that the shoe rack was right next to the main door of the stone hut, on the second tier, which was the most eye catching spot on the rack.

145.There is unchallenged evidence that a beef knife was found right next to the shoe box.  Photos 47 and 48 of P37 show that the knife is not an ordinary household knife but one with the handle wrapped in cloth and the blade covered with a sheath made out of newspaper. It must be the only reasonable inference that the handle was wrapped in cloth to prevent the leaving of fingerprints.

146.D2 is, of course, not being tried for the possession of the knife, but the fact that there was such an ominous looking knife next to the shoe box must have caught the attention of anyone who was moving the rack.

147.There is, however, no evidence that the knife, or even the shoe box, was on the rack on the day when D2 said he helped D1 to move it, but if they were, I find that it would have been impossible for D2 to miss them.

148.There is, furthermore, no duty on D2 to make enquiries even if he did see them and the prosecution is not relying on constructive knowledge on D2’s part to prove guilt.  These are just matters to be taken into account together with all other circumstances.

Overlapping evidence

149.It is Mr Tracey’s submissions that the fact that dangerous drugs were found openly in the kitchen of the unit and in possession of D2 is one of the facts that the court can take into consideration when deciding on whether D2 was in possession of the drugs in the stone hut.

150.Mr Davies did not submit that the prosecution cannot so suggest.  D2’s position has always been that he was never in possession of either the drugs in the kitchen or the stone hut.  If the prosecution cannot prove that he was in possession of the drugs in the kitchen, they will also not be able to rely on their possession to prove that D2 was in possession of the drugs in the hut.

151.I have reminded myself that even though the facts of charge 1 might assist my coming to a conclusion on charge 2, I must reach separate verdicts on each charge having focused on each separately and having formed a separate decision about it.

Verdicts

152.On the basis of my findings above that the prosecution witnesses are honest and reliable witnesses, and that D2 is not, I turn then to consider my verdicts based on the facts as I found them to be.

Charge 1

153.I find that, based on all the circumstantial evidence, including the fact that D2 was the person who rented the unit from the landlord, that D2 had the key to the unit on his person, that the dangerous drugs found in the kitchen were casually and openly placed on the stove top and sink area of the kitchen, in full view of everyone who resided in the unit, that D2 resided in the room right next to the kitchen, and that D2 was sitting in the living room of the unit while the dangerous drugs in the kitchen were there, the only reasonable inference must be that the defendant was in possession of the dangerous drugs inside the kitchen in the sense that they were within his control, and that D2 knew they were there and had the intention to exercise custody and control over them.

154.I find also that, based on the fact that the dangerous drugs were contained in 16 small transparent re-sealable plastic bags, and the manner they were laid out on the stove top and the sink, the only reasonable inference must be that D2 was in possession of them for the purpose of trafficking in them.

155.As such, I find D2 guilty of charge 1.

Charge 2

156.In relation to charge 2, I find that based on the circumstantial evidence, including the fact that D2 had the key of the unit on his person, the key to the stone hut was found on the window sill of D2’s room next to the mainland driver’s license in D2’s name, the fact that there were dangerous drugs on open display in the kitchen of the unit and being in the custody and control of D2, the placement of the shoebox right next to the entrance, and the fact that D2’s thumb print was found on the rack where the shoe box with all the dangerous drugs and paraphernalia were found, the only reasonable inference must be that the defendant was in possession of the shoe box and its contents in the sense that they were within his control, and D2 knew they were there and had the intention to exercise custody or control over them.

157.Furthermore, even if we were to accept what D2 said was true about leaving his print on the rack after D1 asked him to move it, I find that the remaining circumstantial evidence would still compel me to draw the only reasonable inference that D2 was in possession of the dangerous drugs in the hut.

158.I also find that, based on the fact that the cocaine and ketamine were contained inside 39 transparent re-sealable plastic bags, that there were 433 unused transparent re-sealable plastic bags inside the shoe box, that a plastic container containing small amount of cocaine, a spoon and a cut up playing card containing traces of white powder, and one electronic scale were also found together with the drugs, the only reasonable inference must be that D2 was in possession of the dangerous drugs for the purpose of trafficking.

159.As such, I find D2 guilty of charge 2.

Conclusion

160.D2 is convicted of charge 1 and 2.