HKSAR v. Wong Yu Ting and Another

DCCC 2/2021

[2022] HKDC 1343

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2 OF 2021

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REASONS FOR VERDICT

1.D1 faces a charge of "Resisting police officers in the execution of their duties" (Charge 1), a charge of "Possession of a dangerous drug" (Charge 2), and a charge of "Assisting offender" (Charge 4). He pleaded guilty to Charges 1 and 2, but not guilty to Charge 4.

2.D2 pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 3).

3.This trial is concerned with Charge 4 against D1 only.

The Prosecution Case

4.About 4:20 p.m. on 24 July 2020, PC 16730 (PW1)  and his teammates arrived at the Ground Floor lobby of The Zutten (a residential building situated at Ma Tau Kok Road, To Kwa Wan).

5.Upon arrival, PW1 went to the security counter to monitor the real time CCTV footage. About 5:15 p.m. on the same day, PW1 saw a male (later on confirmed to be D1)  entering the lift on the 17^th Floor.

6.D1 was intercepted by PW1's teammates (PCs 1791 and 5979)  at the Ground Floor and was taken to the rear staircase for enquiries.  D1 was searched at rear staircase by PC 1791.  A transparent resealable plastic bag[1] wrapped in a piece of tissue[2] was found inside D1's underpants.  The plastic bag was found to contain 0.26 gramme of a solid containing 0.24 gramme of cocaine.  D1 was arrested for "simple possession" at the rear staircase.  PW1 then showed a search warrant for Flat J, 17/F of The Zutten[3] to D1 and explained the contents to him.  D1 did not say anything. 

7.PW1 and his teammates then escorted D1 to the 17^th Floor by taking the lift.  Outside Flat J, PW1 asked D1 if he knew the code for opening the door of the flat.  D1 did not say anything.  PC 5979 pressed the doorbell of Flat J. D1 then immediately shouted aloud "There is no one in the flat" （單位裡面冇人呀）. Within 5 to 10 seconds, a female (later confirmed to be D2)  opened the door and the police officers entered the flat.

8.Flat J, a one-bedroom apartment, was searched and 2 types of dangerous drugs (namely ketamine and cocaine)  and packaging paraphernalia were found in the living room.  D2 signed a tenancy agreement in respect of the flat as tenant for the period from 1 March 2020 to 28 February 2022.

The Defence Case

9.D1 elected not to give evidence or call any defence witness. This is his right; I drew no adverse inference against him in this regard.

Assessment and Analysis of Evidence

10.The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

11.D1's counsel Ms. Ko agreed with most of the evidence adduced by the prosecution, except (i)  PW1 did not present the search warrant to D1 or explain its contents to D1 at the Ground Floor rear staircase; and (ii)  D1 did not shout "There is no one in the flat" outside Flat J. Both allegations were put to PW1, but he denied them.

12.As a juror, I believe PW1's evidence in its entirety. I have no reasons not to. I find as a fact that after PC 5979 pressed the doorbell of Flat J, D1 immediately shouted aloud "There is no one in the flat". But the matter does not end here. The crux of the issue is when D1 shouted this sentence, what was his intention? The prosecution is required to prove beyond reasonable doubt that he intended to impede the apprehension or prosecution of D2.

13.As a juror, I find that D1 knew there were dangerous drugs in Flat J, although by amending Charge 3, the prosecution accepted that there is insufficient evidence of trafficking or even possession against him. Knowing there were dangerous drugs in Flat J, however, does not imply that D1 intended to impede the apprehension or prosecution of D2.

14.There are many reasons why D1 shouted "There is no one in the flat". One possibility is that it was his feeble attempt to persuade the Police not to enter or search the flat (rather than tipping off D2 not to open the door or to discard the drugs). D1 had knowledge of the presence of drugs in Flat J does not mean he knew that D2 was in the flat when he was escorted back to the 17^th Floor.

15.People often say things knowing that what they say would not change the expected outcome. For example, when a driver is caught speeding, he/she may say to the police officer who is about to issue him/her a fixed penalty ticket "Ah Sir, please give me a chance". Experience tells us that more likely than not, the police officer will issue the driver a speeding ticket even if he/she begs for a chance. Yet most drivers would still say this utterance knowing that it has little or no effect. Most importantly, there is insufficient evidence to charge those drivers with "Perverting the course of public justice".

16.If D1 had wanted to tip off D2 of the imminent police raid, he could have simply shouted "Don't open" or "Throw the stuff away". Unless he had agreed with D2 in advance that "There is no one in the flat" is the code for police raid, as a juror, I am unable to draw the irresistible inference that D1 intended to tip off D2. At present, there is no evidence showing that D1 and D2 had any agreement on how to alert each other for police raid. In my view, "There is no one in the flat" is an equivocal utterance for the purpose of Charge 4.

17.Based on common sense, if D1 intended to tip off D2, he should have given the alert signal (in whatever shape or form)  before the doorbell was pressed. He had sufficient time and ample opportunity to do so once he reached the 17^th Floor. However, the evidence remains that he shouted after PC 5979 had pressed the doorbell.

18.Based on the reasons stated above, I am not satisfied beyond reasonable doubt that D1 had the intention to impede the apprehension or prosecution of D2. Accordingly, I find him not guilty of Charge 4.