HKSAR v. Tsui Chi Yin

DCCC 561/2021

[2022] HKDC 1380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 561 OF 2021

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REASONS FOR VERDICT

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1.In these proceedings, the defendant Tsui Chi-yin faces two counts, namely, 「trafficking in dangerous drugs」, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 and 「Resisting police officers in the execution of their duties」, contrary to section 63 of the Police Force Ordinance, Cap 232.

2.The prosecution’s case was that when the police officers tried to stop and search the defendant, the latter fled and in the process, dropped a bag containing 18 bags of dangerous drugs.  In all there were 1.19 grams of cocaine and 5.64 grams of ketamine.

3.By the defendant’s response, the number of bags, the total quantity involved and the fact that there were two varieties of dangerous drugs, the prosecution asked this court to infer that the defendant knew what was inside the bag and also they were there for trafficking.  It was also contended when the defendant was intercepted, he had full knowledge that those were police officers and that he resisted by trying to flee and by trying to struggle free from the police apprehension. 

4.Part of the facts had been admitted under section 65C of the Criminal Procedure Ordinance, P1A, and I will recite only part of it when necessary. 

5.The defendant had a clear record.  The court accepts that a person with a clear record is less likely to commit a crime and his own evidence (if he choses to give evidence), is more reliable than those who choose not to put this fact before the court. 

6.At the end of the prosecution’s case, after this court has ruled that there was a case to answer in both charges, the defendant elected not to give evidence.  This is the exercise of any of person’s right.  The court would not draw adverse inference against him and this does not, in any way, affect the prosecution’s burden, to prove each and every element of the charges against him. 

7.On the other hand, this means the court could only have the evidence of the prosecution to consider.  There was nothing from the defence to reject, contradict, explain, or offer a different interpretation of the events.  This court will not imagine every possible defence for the defendant but can only review the prosecution’s evidence in the most light most favourable to the defence to see there is anything capable of giving rise to a reasonable doubt. 

Evidence

8.The main part of the evidence came from PW2 (PC21467): on the second day of April 2021 at about 10 pm, he and two police officers saw the defendant board a taxi outside a Kowloon City hotel, they proceeded to follow the taxi in a vehicle.  The defendant eventually alighted in Tsui Ping South Estate, Kwun Tong after which he began to walk up a ramp leading to Tsui Hon House. 

9.PW2 and PW3 (Sergeant 9793)  also alighted and followed from a distance.  When the defendant reached the upper end of the ramp, he stated walking towards another male outside the entrance of a kindergarten.  At that point, PW2 approached the defendant, revealed his identity and demanded a search.  The defendant suddenly ran down the ramp, and was pursuit by PW2 and PW3.  During the chase PW2 saw a wad of cash fall from the defendant’s person. 

10.When the defendant reached the road outside Tsui Hon House, PW2 saw the defendant take out a grey bag (P5)  from his right side pocket and discard it on the road.  PW2 stooped to flick the bag aside and continued the pursuit for another 10 feet.  PW3 who was then waiting in a police vehicle ran out from the driver’s seat and blocked the defendant’s way.  They collided and fell on the ground.  PW2 and PW3 then caught up and subdued the defendant. 

11.While on the ground the defendant put up a struggle by trying to jack up his body with his limbs, during which PW2 repeatedly told him that they were police officers and he should not resist.  The struggle went on for about two minutes before PW3 succeeded in handcuffing the defendant from behind. 

12.PW2 then went back to collect the grey bag (P5)  and examined its content in front of the defendant.  The bag in question was a small velvet bag usually used for keeping jewellery.  There were also traces of the defendant’s DNA on P5.  Inside P5 there were 18 resealable plastic bags, eight of which contained a total of 1.19 grammes of cocaine, the rest contained a total of 5.64 grammes of ketamine. 

13.PW3 subsequently counted the cash that fell out from the defendant and of then handed it over to PW2 for safekeeping.  Its total sum was $13,640.  After the defendant was subdued, PW2 formally declared arrest on the defendant for trafficking in dangerous drugs and resisting arrest. 

14.Under cross-examination, PW2 agreed that all three police officers were in plainclothes.  At the time when PW2 attempted to intercept the defendant, there were other residents of the estate taking their evening stroll in the vicinity.  During the walk up the ramp, it was PW2 who was in front and followed by PW3, but at some point PW3 overtook PW2 and proceeded to intercept the other man the defendant was approaching. 

15.PW2 was adamant that when he first approached the defendant, he had produced his warrant card and had verbally revealed his identity.  He was certain that he saw the defendant take out P5 from his right hand pocket and discard the same.  While trying to subdue the defendant, PW2 had declared his police identity and asked the defendant not to resist. 

16.Under cross-examination, it was revealed that there was a number of inconsistencies between PW2’s oral evidence and those in his statement and notebook, in particular on the time the defendant discarded the grey bag (P5).  Since PW2 was the only witness who saw the defendant discard P5, without other evidence this might have amount to a reasonable doubt.  The court also accepts that it is the duty of the police officers to make an accurate record of what had transpired as far as possible, the failure of which might and would impinge his credibility.

17.The court also accepts that there were discrepancies in where the police stopped the defendant and where the defendant discarded the cash.  PW2 had been vague and unclear in his evident, and was not entirely consistent with those of the other police.  However, the uncontroverted fact that the grey bag had the DNA of the defendant had proven that the defendant had at some point in contact with the bag. 

18.The defence never suggested or explained how the defendant’s DNA came to be left on P5.  I have been invited to conjecture that the DNA traces are somehow transferred from the police onto the bag.  I do not think I can make such an elaborate connection or consider it a reasonable inference. 

19.In my view, the fact that the bag contained the defendant’s DNA is consistent with the prosecution’s contention that the defendant had physical possession of the bag.  PW3’s evidence was similar to that of PW2 and PW4. 

20.I also accept that there were minor differences such as to the entrance as an estimate of distances and the exact place the interception took place.  However, I found the substance of their evidence consistent. 

21.I found that the police had tried to stop the defendant and the defendant tried to evade apprehension by running down the ramp.  He was intercepted by PW4 who was waiting by the roadside in his vehicle.  Upon seeing the defendant running towards him, followed by PW2, PW3 alighted from the driver’s seat, stood out with his arms open and intentionally used his body to collide with the defendant.  The two fell on the ground followed by a brief struggle. 

22.I found the substantial part of the prosecution’s case coming from all three witnesses unfettered and consistent.  Together with the fact that the defendant’s DNA was on the grey bag, led me to the inevitable conclusion that not only the defendant had tried to flee, he also had the grey bag with him.

23.When PW2 revealed the content of P5, the defendant made no response.  While it was his right remain silent, his lack of response means that I have no evidence coming from the side of the defence to explain the prosecution’s case in the defence’s favour. 

24.The fact that it was midnight, the fact that the defendant had a large quantity of cash, the fact that the grey bag contained quite a quantity of dangerous drugs in two different kinds, and that he tried to flee from the police, cumulatively led me to the inevitable conclusion that the defendant was well aware of the content of the grey bag, P5.  He was well aware that those stopping him were police officers. 

25.The inevitable conclusion I had reached therefore is that the defendant had the dangerous drugs with him and that they were not for his own consumption, they were for the purpose of passing on to other people.  The fact that he was aware that PW2 to 5 were police officers and still tried to run away could only indicated that the prosecution has proved to the required degree that the defendant knew that the police were carrying out their duties and had intentionally resisted them.  I found the defendant guilty of both charges. 

26.There were a number of inconsistencies in the witnesses’ evidence, however this court does not ask for mathematical precision in the witnesses’ evidence.  The fact that there might be inconsistencies or there were inconsistencies between witnesses could be explained by the fact that it happened within a very short time and also one’s span of attention is directional and temporary.  Each person’s perception of what happened might differ slightly because of the difference in the individual’s points of view.  I found those inconsistencies collateral and they did not undermine the thrust of the prosecution’s case.