HKSAR v. Barrow Bubacarr and Another

DCCC 444/2021

[2023] HKDC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2021

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

BACKGROUND

1.At about 2305 hours on 23 October 2020, the 1^st defendant (hereinafter referred to as “D1”)  was intercepted by a team of police inside a building at No 98 of Second Street.  Upon body search, a set of keys (hereinafter referred to as “the Keys”), which had a label with words “Topworth Court 4A 7918”[1], was found.  D1 said that he lived at that address.

2.Then, D1 was taken by the police to Topworth Court of the Third Street.  Upon reaching the staircase between the 3^rd and 4^th floor, D1 became emotional and was subsequently handcuffed.  At about that juncture, the 2^nd defendant (hereinafter referred to as “D2”)  went out from a room of Topworth Court (hereinafter referred to as “Room 4A”).  Upon investigation, D2 said that D1 was his friend and the Keys were given to D1 by him so that D1 could sleep or take a rest there.

3.Police found a blade on the worktop of a washing machine in the open kitchen of Room 4A.  As there was some white powder stick to the blade, police suspected that were dangerous drugs.  Therefore, the police entered into Room 4A for a search. Further suspected dangerous drugs (hereinafter referred to as “Exhibit P-1”), large number of transparent plastic bags and an electronic scale were found inside a drawer of a bed.

4.D1 was arrested by PC24613 (hereinafter referred to as “PW1”)  for the offence of trafficking in a dangerous drug.  D1 then said, “the cocaine for myself”.  PW1 recorded what D1 said in his notebook but D1 refused to sign on it.

5.D2 was arrested by PC8273 (hereinafter referred to as “PW2”)  for the offence of trafficking in a dangerous drug.  D2 then said, “I don’t know what it is.  It doesn’t belong to me”.  PW2 recorded what D2 said in the notebook but D2 refused to sign on it.

6.Later on, police dog team arrived and carried out a search.  Further suspected dangerous drugs (hereinafter referred to as “Exhibit P- 2”)  were found inside a kitchen cabinet.  D1 was further arrested by PW1 for trafficking in a dangerous drug.  D1 then said, “I eat for exercise”.  This was recorded in the police notebook. Again, D1 did not sign on it.

7.D2 was also further arrested by PW2 for trafficking in a dangerous drug to which D2 replied, “I don’t know what it is.  It is not mine.”  This was recorded in the police notebook.  Again, D2 did not sign on it.

8.The government chemist confirmed that both Exhibit P-1 and P-2 were cocaine.  The total quantity was 42.67 grammes of a solid containing 17.77 grammes of cocaine.  However, the blade contained no dangerous drug.  The street value of Exhibit P-1 and P-2 in powder form was $58,757, and in crack form was $100,573.

9.Room 4A was originally rented by a Ms Jeppesen and D2 from 4 April 2020 to 31 March 2022 pursuant to a rental agreement.  In July, 2020, Ms Jeppesen decided to terminate the tenancy agreement but D2 wanted to continue.  Finally, a Mr Webber signed a tenancy agreement of Room 4A from 1 August 2020 to 31 March 2022 whereas D2 continued to live at Room 4A.  Mr Webber never at any time lived at Room 4A.  No key was given to Mr Webber by the owner of Room 4A.

10.D1 and D2 were jointly charged with 1 count of trafficking in a dangerous drug.  Both defendants pleaded not guilty.

ISSUE OF TRIAL

11.Apparently, both D1 and D2 had access to Room 4A where Exhibit P-1 and P-2, namely the cocaine, were found.  It is not in dispute that cocaine, electronic scale and large number of transparent plastic bags were found inside Room 4A.  The main issue of trial is who was (or both defendants were)  in possession of the cocaine.

12.The prosecution’s case is that D1 admitted he was in possession of the cocaine.  D1’s case is that he did not utter those “admissions” in reply upon his arrest.  Initially, counsel for D1 said that she would not challenge the admissibility of what D1 allegedly said and therefore submitted that alternative procedure was not required[2]. After a second thought, counsel for D1 challenged the admissibility[3]. Finally, I adopted the alternative procedure to resolve that issue.

LEGAL PRINCIPLE

13.The burden of proof is on the prosecution and the standard is beyond reasonable doubts.  The defendants have nothing to prove.  Most of the witnesses for the prosecution are police and their evidence are to be assessed in the same way as an ordinary witness.

14.D1 elected to give evidence on the special issue.  If the account given by him is or may be true, I must accept his version.  However, even if I entirely reject the account given by D1, that would not relieve the prosecution of its burden.  The prosecution is still required to prove its case beyond reasonable doubts.

15.D1 and D2 elected not to give evidence on the general issue and did not call any witness.  That is their rights and no adverse inference can be drawn.  However, it means that there is no evidence from the defendants to rebut, contradict or explain the evidence put before the court by the prosecution.

ANALYSIS

Witnesses for the prosecution

16.4 witnesses gave evidence for the prosecution.  PW1, PW2 and PC 23787 (hereinafter referred to as “PW4”)  were police and a Ms Tang (hereinafter referred to as “PW3”)  was a tenant residing at a room of the 5^th floor at No 98 Second Street.

17.PW1 said that on that night, he saw D1 entering a building at No 98 Second Street.  He informed other police, including PW2 and PW4.  PW2 and PW4 said that they intercepted D1.  At that time, PW4 suspected that D1 was in possession of dangerous drugs and conducted a body search.  Nothing illicit was found.  Then, they enquired with D1 for his presence at No 98 Second Street.  In reply, D1 said that he was looking for his friend.  Later on, D1 said that he was looking for his girlfriend.  Because D1 said that his friend was residing at the 5^th floor, the police team went up to the 5^th floor and finally located PW3, who lived at a room of the 5^th floor.  PW3 said that there were 4 rooms at the 5^th floor and an African male resided at one of the room at the material time.  She, however, did not know that African male.  She also did not recognize D1.

18.Ultimately, the police were not able to locate D1’s friend or girlfriend at No 98 Second Street.  However, the Keys were found and D1 said that he lived there.  The police then went to Topworth Court with D1.  Upon reaching the staircase between the 3^rd and 4^th floor of Topworth Court, D1 yelled in a language unknown to the police and became emotional.  Finally, D1 was handcuffed.  At about that juncture, D2 went out from Room 4A.  Upon investigation, D2 said that D1 was his friend and the Keys were given to D1 by him.  D2 also said that D1 sometimes lived there.

19.Suspecting there were dangerous drugs inside Room 4A, PW4 conducted a search.  At that juncture, PW1 guarded D1 and PW2 guarded D2.

20.PW4 said that he searched the drawer of the bed inside Room 4A and found Exhibit P-1, an electronic scale in silver color and a big transparent bag containing large number of transparent bags.

21.PW1 then arrested D1 for trafficking in a dangerous drug.  However, he did not caution D1.  D1 then said, “the cocaine for myself”.  PW1 recorded what D1 said in his notebook but D1 refused to sign on it.  PW1 did not ask any other police officer to countersign his notebook.

22.PW2 also arrested D2 for trafficking in a dangerous drug.  D2 then said “I don’t know what it is.  It doesn’t belong to me.”

23.Later on, with the assistance of police dog team, Exhibit P-2 was found inside a cabinet in the kitchen.  D1 was further arrested for trafficking in a dangerous drug.  D1 then said, “I eat for exercise”.  This was recorded in the police notebook.  Again, D1 did not sign on it.

24.PW2 also further arrested D2 for trafficking in a dangerous drug to which D2 replied, “I don’t know what it is. It is not mine.”

D1

25.D1 elected to give evidence for the special issue.  He testified that he was stopped by the police at No 98 Second Street when he was looking for his friend.  He also admitted he was in possession of the Keys and ultimately went to Topworth Court with the police.  However, he did not witness how Exhibit P-1 and P-2 were located.  He was not cautioned and did not admit anything upon arrest.

ADMISSIBILITY OF THE “ADMISSIONS” BY D1

26.D1 challenged the admissibility of what he allegedly said upon arrest. D1 did not sign the police notebook and therefore did not adopt the writing as a true record of what he said.

27.At the material time when D1 allegedly made “admissions”, PW2 said that he did not pay any attention to what D1 said.  PW4 said that he heard something but could not remember what was exactly said.  In the circumstance, PW1 is the only prosecution witness who can tell what was said by D1.  Therefore, PW1’s evidence is crucial.

28.However, PW1 frankly admitted that he did not administer caution to D1 because his English proficiency is not good enough for him to do so smoothly.  Although PW1 said that he could understand D1’s English, in my view, it is possible that PW1 did not accurately understand what D1 said upon arrest.  Besides, D1 was not asked to reconfirm his “admissions” afterwards because the police were not able to find a Wolof interpreter even after D1 was brought back to the police station.

29.Further, PW1 admitted that he knew D1 is a Gambian and opined that D1’s mother tongue is not English.  He said that he wanted to protect D1’s rights and therefore did not administer caution.  However, by the time when Exhibit P-1 was found, the police team had already communicated with D1 in English.  In the circumstance, PW1 should have known that D1 could speak some English.  In my view, it would be unfair not to administer caution in English at that material time.  If PW1 was not confident to do so smoothly in English, he could and should have asked other police with better English proficiency to do so. 

30.Taking all the circumstance into account, I think that it is not fair to admit what D1 had allegedly said upon his arrest into evidence.  In any event, taking into account the English level of PW1, I am not sure if D1 had actually said “the cocaine for myself” and “I eat for exercise” upon arrest.

WHO WAS IN POSSESSION OF EXHIBIT P-1, P-2, THE ELECTRONIC SCALE AND THE TRANSPARENT PLASTIC BAGS?

31.Apart from what was allegedly said by D1 upon his arrest by PW1, the evidence of all witnesses for the prosecution were unshaken under cross-examination and I find all of them honest and reliable.  I accept their evidence.  I accept Exhibit P-1 and P-2 were kept inside a drawer of the bed and inside a cabinet.

32.The total quantity of the cocaine found was not negligible.  Inside the drawer where Exhibit P-1 was found, PW4 also found a big transparent bag containing a total of 104 small transparent bags and also an electronic scale.  In the circumstance, the only inference is that all the dangerous drugs found in this case were possessed for the purpose of trafficking.

33.However, the issue is who was, or were, in possession of those dangerous drugs.  In this case, I find that both D1 and D2 could enter Room 4A.

34.The prosecution relied upon D1’s “admissions” under arrest.  However, I find the “admissions” inadmissible.  In any event, I am not sure if D1 had actually utter those “admissions”.

35.It is admitted that the Exhibits P-1 and P-2 were finger printed by the police and “no marks of value” were located.  Also, no DNA from either defendant was detected from Exhibits P-1 and P-2.

36.In other words, the DNA analysis and fingerprint analysis fail to connect D1 with the dangerous drugs.  In the circumstance, the most important evidence against D1 was the Keys.

37.There is no dispute that at the material time, D1 was possessing the Keys, which allowed him assess to Room 4A.  However, that is not sufficient to draw an irresistible inference that D1 was in possession of Exhibit P-1 and/or P-2.  D1 became emotional and yelled when he almost arrived at Room 4A.  However, there were numerous reasons for D1 to behave as such at the material time and not necessarily related to his knowledge of the dangerous drugs inside Room 4A.

38.Taking all the evidence into account, I am not sure if D1 was in possession of Exhibit P-1 and/or P-2.

39.There is no dispute that D2 was the tenant of Room 4A.  He also went out from Room 4A at the time when police arrived.  A DHL envelope bearing D2’s name was found inside the drawer where Exhibit P-1 was found.  The police also located other documentary evidence and an envelope that indicates D2 resided at Room 4A.  However, the DNA analysis and fingerprint analysis fail to connect D2 with the dangerous drugs.  During trial, D2 did not challenge the admissibility of what he said upon arrest.  However, D2 simply denied knowledge of the dangerous drugs.

40.I find that D2 resided at Room 4A.  However, it is possible that he was not the only person residing there at the material time.  In the circumstance, there is not sufficient evidence to draw an irresistible inference that D2 was in possession of Exhibit P-1 and/or P-2.  Taking all the evidence into account, I cannot say for sure if D2 was in possession of Exhibit P-1 and/or P-2.

FINDING

41.Taking all the evidence into account, D1 and D2 are very suspicious.  Room 4A is a small room.  The dangerous drugs, electronic scale and the transparent plastic bags were not hidden in secret place.  However, I cannot say who was possessing Exhibit P-1 and/or P-2.  It might be D1, or D2 or both of them were possessing Exhibit P-1 and/or P- 2.  Given the benefit of doubt, I cannot find who was possessing Exhibit P-1 and/or P-2.

42.In the circumstance, both D1 and D2 are acquitted.