HKSAR v. Njie Ebou

DCCC 466/2022

[2023] HKDC 1866

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2022

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REASONS FOR VERDICT

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1.The defendant is faced with a single count of trafficking in a dangerous drug, namely 24.6 grammes of a solid containing 6.84 grammes of cocaine on 24 January 2022 at Wo Fung Street, Sai Ying Pun, in Hong Kong.

Prosecution’s case

2.The prosecution’s case is that at around 9:29 pm on 24 January 2022 the defendant was first spotted by a uniformed police officer, PW1 in the present case, when he was turning into Sutherland Street from Des Voeux Road West.  The defendant accelerated when he saw the officer.  PW1 then picked up his speed and told the defendant to stop.  Instead of stopping, the defendant started running and a long chase followed.  In the course of that pursuit, and whilst they were both on Wo Fung Street, the defendant suddenly squatted down near a red private car with the registration number of SY10XX,  (“the red private car” hereinafter)  and  did something with his right hand.  And after that he got back on his feet and continued running.

3.The defendant turned into Queen’s Road West and, after some further chase, was finally stopped by PW1 when he was at or near Queen Street.

4.At around 9:50 pm, PW2 in the present case found below the red private car, near its rear nearside wheel, the packet of dangerous drugs named in the charge.  The packet was at the material time wrapped with a piece of white-coloured tissue paper.

Prosecution’s evidence

5.The prosecution in this case called only two witnesses:  PW1, PC24280, and PW2, station sergeant Cheng Ho-cheung.  Parties have also produced two sets of Admitted Facts, respectively marked as exhibit P7 and P8.

6.According to PW1, at 9:29 pm on 24 January 2022, he was on foot patrol duty with PC25048 and PC18946 at Des Voeux Road West.  PC18946 and PW1 were in uniform, whereas PC25048 was in plainclothes.  Whilst patrolling there, PW1 saw a man walking along Des Voeux Road West near Sutherland Street in an easterly direction, in effect, walking towards them.  This man, whom PW 1, entirely on his own motion, pointed out in court as the defendant, was of “dark complexion, wearing a green sweater, dark trousers and white sneakers”.

7.PW1 said in his witness statement, which was brought in by the defence when cross-examining the officer, that this man was wearing a grey hat or cap, a sweatshirt in light green colour, long trousers and white-coloured shoes.  He was a foreigner with dark skin.  This man’s hand at that time was in his own trousers pocket and he turned into Sutherland Street.  Once this man saw PW1, he accelerated, walking hastily, as PW1 explained later.

8.Now, defence counsel had at this point asked for PW1’s identification of the defendant to be struck off on the ground that it was a dock identification which should not have been allowed in the first place. I do not agree with defence counsel’s view on that and I will give my reasons later.  But, for the present, I shall call this man as “the black man” .

9.Continuing with PW1’s evidence, he said that he suspected the black man was in possession of dangerous drugs and he gave chase.  He said he also told the black man to stop in English:  “Police.  Stop.”  The black man, PW1 said, was about 10 metres ahead of him at that stage. But instead of stopping, the black man began to run, first turning left from Sutherland Street into Ko Shing Street, and then turning right from Ko Shing Street into Wo Fung Street.  PW1 said he was running behind the black man all the time.

10.When they were both on Wo Fung Street, PW1 saw the black man “squatting down”, by a red private car next to him.  The black man waved his hand in the direction of the red private car, then he got back up on his feet and continued running, turning left this time from Wo Fung Street into Queen’s Road West. PW1 said when the black man squatted down, he was 10 to 15 metres away from him.

11.Eventually, PW1 managed to catch up with the black man and intercepted him when they were near Queen Street.  At 9:55 pm, PW1 said he was informed by his colleague, PC25048, that some drugs, wrapped in a piece of white tissue paper, were found near the rear tyre of a red private car.

12.At 9:57 pm, PW1 brought the black man back to where the red private car was at Wo Fung Street.  There, he pointed at a packet of stuff on the ground, which was wrapped in a piece of white tissue paper, and asked the black man what it was.  The black man, after hearing the officer, said in English, “Not me. Do you have CCTV?”.

13.At 10:15 pm the same evening, PW1 arrested the black man for trafficking in dangerous drugs.  After that, the black man was taken back to Western Police Station, where he was, among other things, searched.  It was found that the black man was a Form 8 holder and over HK$16,000 were found on him.  Apart from these, nothing else of significance was found by the officer during the search.

14.When asked by the prosecution to identify the black man in court, PW1 again pointed at the defendant.  PW1 said he was sure that it was the same man whom he first saw at Des Voeux Road West and whom he had been chasing after from that point onward until his interception at Queen’s Road West near Queen Street.`

15.Before dealing with PW1’s cross-examination, it may be convenient for me to say a word about the video record taken by a dash camera installed at the front of a private car with the registration number PS44XX.  This private car was also parked at Wo Fung Street, apparently on the other side of the road diagonally behind the red private car mentioned earlier. 

16.This video record, which was the subject of agreement in the 2^nd Admitted Facts, ie. exhibit P8, was admitted into evidence by consent and was marked as exhibit P4.  It was played in court when PW1 was testifying, and PW1 confirmed after viewing the video that it showed the defendant and himself when they were running past the red private car. 

17.It also showed the defendant falling forward when he was close to the rear nearside of the red private car whilst running up Wo Fung Street.  Now, on my viewing, the defendant fell in a way which looks like he was squatting down.  But he was clearly falling forward rather than squatting. 

18.As the defendant fell, he rolled a little to his left, with his head pointing diagonally at the rear nearside wheel of the red private car.  Although the video was a little blurry at times, one could see clearly that the defendant was holding what appeared to be a hat or cap in his right hand, and, as he rolled on the ground, the defendant stretched both his left and his right arms out.  As he did that, his left hand came very close to the front of the rear nearside wheel of the red private car.  However, as all these happened very quickly, and as the lighting condition for the lower part of the red private car was not at its best, one could not see clearly in the video whether the defendant was putting anything down at that point.

19.Returning to the defendant’s  cross-examination of PW1.  It was put by defence counsel to PW1 that he had made a mistake when he said that it was the defendant whom he saw at Des Voeux Road West.  The defence said to PW1 that it was a different man whom PW1 saw at Des Voeux Road West and whom he had been chasing after when negotiating the few streets after that.  PW1 disagreed strongly with this suggestion. 

20.It was also put to PW1 by defence counsel that he was wrong in saying that the defendant did not wear any mask because, according to defence counsel, the defendant was wearing a mask on the video.  In reply, PW1 disagreed with that and maintained that, as far as he could see, the defendant was not wearing any mask.

21.Now, again it may be convenient for me to mention at this stage that, as the above suggestion was made by defence counsel to PW1, I had indicated to defence counsel that I could not see in the video whether the defendant was wearing a mask.  The defendant was moving around very quickly and, as it was a little dark at the spot where the defendant was on the ground next to the red private car, I am of the view that it is impossible or almost impossible for one to tell from the video whether the defendant had or had not his mask on.

22.The defence also suggested to PW1 that the lighting condition at the material time was very poor and PW1 again disagreed with that. 

23.Then, a number of questions were directed at the lack of reference in PW1’s statement about the age, the build, the height of the defendant, and, for that purpose, whether he was wearing a mask.  Criticisms were also levelled at the PW1 about the absence of any reference in his witness statement to the lighting condition at the time and the length of time he had in seeing the defendant.

24.PW1 accepted that he had not made any record of these in his notebook and/or his witness statement.  PW1 accepted also that he had not made any record in his notebook and/or witness statement about the distance between himself and the defendant at various points of the chase, except those which I have already mentioned earlier.  And PW1 further agreed with defence counsel, when it was put to him, that he had not made any record about the time when he eventually intercepted the defendant near Queen Street.

25.When defence counsel suggested to PW1 that because the the man whom PW1 identified as the defendant went around a few corners when running from Des Voeux Road West up to Queen’s Road West, there were bound to be times when PW1 would have lost sight of the defendant, PW1 accepted this.  But PW1 also said in his answer that these gaps would have only lasted for a very, very short time, before he himself also turned the corner and gained sight of the defendant again.

26.Next, it was suggested by defence counsel to PW1 that, as the defendant could only speak very little English, the defendant should have been properly cautioned in his mother tongue, meaning Wolof.  Now, PW1’s answer, in short, is that he did not know whether the defendant was later cautioned again in Wolof, but, as far as he could tell, the defendant was able to understand what was said to him and had given his answer in simple English when asked about the packet of drugs below the red private car.

27.Lastly, PW1 was asked by defence if he and his colleagues had put on gloves when inspecting the packet of drugs to ensure that, if there was any DNA or fingerprint evidence left on the pocket, or the tissue paper used to wrap it, they would not have been contaminated.  PW1’s answer is that he did not remember.

28.Turning next to PW2’s evidence.  According to PW2, at 9:29 pm on 24 January 2022, he was in a patrol vehicle when he heard from the car radio that there was an incident at Ko Shing Street.  He then proceeded to Queen Street where a number of other police vehicles were already there, and there was a foreign man who was already put under control.  Based on what he was told, PW2 said he then made a sweep with other officers along the route the foreign male had come along.

29.At 9:50 pm, when he walked to where the red private car was on Wo Fung Street, he found a plastic bag which was wrapped in a piece of white paper near the rear left wheel of a private car.  When he inspected the bag, PW2 found that there was white powder inside.  After inspecting the bag, he placed it back on the ground. 

30.That is the long and short of PW2’s evidence.  The rest is basically covered in the 1^st Admitted Facts, namely exhibit P7, where it is accepted by the defence, among other things, that the bag of white powder found by PW2 was exhibit P1 in this case.  And there is no dispute that when this bag of white powder was subsequently examined at the Government Laboratory, it was found to contain 24.6 grammes of a solid containing 6.84 grammes of cocaine.

31.It is further agreed that this bag of cocaine had a street value of HK$21,500.

32.In the 1^st Admitted Facts, ie P7, the following points were also accepted:

(a)  the chain of exhibits relating to the drugs in question was intact from the point it was found to its production in court;

(b)  the defendant was a Form 8 holder, which means that he was a non-refoulement claimant on Immigration Department’s recognisance in Hong Kong and was, as such, incapable of taking up any employment in the territory;

(c)  when the defendant was intercepted on 24 January 2022, he had in his possession HK$16,218.

Defence’s half-time submission

33.After the prosecution closed its case, defence counsel made a lengthy “no case” submission which lasted for hours.  Now, these submissions consisted of two main points. 

34.Defence counsel’s  first point is that this is a so-called classic case of a fleeting glance.  It was said by defence counsel that, because of that and because of the poor lighting condition, no reasonable tribunal, upon proper direction, could have found the defendant to be the man whom PW1 first saw at Des Voeux Road West and whom he had been chasing all along. And it was repeated by defence counsel that, in view of these matters and bearing in mind the Turnbull guidelines, the court should not have allowed PW1 to make an identification in court in the first place.

35.The second main point made by defence counsel in his submissions is that even if the court was to find the black man to be the defendant, there is no evidence to show that the defendant had thrown or put the packet of cocaine beneath the red private car.

36.In addition to these two main points, defence counsel had also made a number of other subsidiary points.  These included, among others, whether the defendant was or was not wearing a mask; the fact that there were necessarily gaps in PW1’s observation when the defendant made his turn around the street corners, lack of proper or full description of the defendant in PW1’s witness statement, lack of fingerprint and/or DNA evidence in the present case.

37.Defence counsel also made a point that there is no evidence on whether the packet of dangerous drugs could have been placed beneath the red private car by other people at some stage prior to its finding by PW2.  And defence counsel repeated at length his comments on the alleged failure on the police’s part to properly caution the defendant in Wolof.  Lastly, defence counsel criticised the police’s failure to seek out and talk to the owner of the red private car which he said could have been material.

38.Having considered with care the defence submission, I found that there is a case to answer for the defendant.  The defendant elected not to testify and not to call any witness in his case.  In his final submission, defence counsel basically adopted what he had said in his half-time submission.

Discussion

39.I shall begin with the first main point made by defence counsel in his “no case” submission above.  With respect, I think defence counsel is entirely misconceived when he called PW1’s identification of the defendant a dock identification.  I also cannot agree with defence counsel when he said PW1 had nothing more than a fleeting glance of the defendant.  PW1’s evidence, as one will recall, is that he had been chasing after the defendant all along until intercepting him at Queen’s Road West near Queen Street.  And, after stopping the defendant, the officer had spent considerable time with with him both at the scene and back at to police station.

40.With this in mind, I cannot see how PW1 could be said to have only had a fleeting glance of the defendant, or that it was a dock identification, when he pointed at the defendant as the man whom he had been chasing after.  PW1 was making an identification of a man whom he had spent considerable time with both before and after stopping him.  It is clearly, in my view, a case of recognition. 

41.In view of that, I am of the opinion that, as opposed to admissibility, the question is really one of weight.

42.Turning to the next this question:  is PW1’s identification reliable?  Having considered PW1’s evidence with great care, I am of the opinion that it is.  To begin with, PW1 impressed me as a wholly truthful and credible witness.  In fact, defence counsel accepted in court that PW1 was an honest witness.  (As counsel said, he was only taking issue with the reliability of his identification.)

43.In relation to the point made by defence counsel that there must have been times when the defendant had gone out of PW1’s sight when he was turning from one corner to the other, my view is that, as these gaps were no more than one or two seconds, they had minimal impact on the issue.  One must bear in mind here the defendant’s appearance, (he being a tall, well-built foreign man with dark skin); his clothings, and the fact that he was running ahead of PW1 the whole time until he was intercepted by the officer.

44.With these in mind, I am convinced that PW1’s identification evidence is correct.  I am convinced that it was the defendant whom the officer had first seen at Des Voeux Road West and it was the same man whom he had been chasing after all along until the defendant’s interception on Queen’s Road West near Queen Street.

45.It follows that it must have also been the defendant who had fallen down when he ran past the red private car.  To suggest, as the defence did, that PW1 was running after another person before he reached Queen’s Road West, is, in my view, nothing short of a fantasy.  For this would have necessarily meant that this other person simply disappeared into thin air after he ran onto Queen’s Road West; and, at that very same moment, the defendant, who is also a black man of the same build and height and wearing the same kind of clothings, made his entry and ran towards Queen Street.  This I find to be wholly incredible.

46.The point made by the defence about lighting condition is also without merit.  To start with, Des Voeux Road West and Queen’s Road West, being two of the main thoroughfares, on Hong Kong Island, they were clearly well lit.  Although Wo Fung Street was a secondary road, one could see from the car video, exhibit P4, that it was still adequately illuminated.  I, for one, have absolutely no difficulty in seeing in the video the face and appearance of an expatriate young man who came down the road on an electric unicycle.

47.Defence counsel’s criticism of PW1 for not making a full record of the defendant’s appearance in either his notebook or his witness statement is likewise ill conceived.  The defendant having been arrested and brought back to the station by PW1 himself, I cannot see why it is necessary for the officer to spend time writing it all out.  As we know, soon after the defendant was taken back to the police station photographs would have been taken of him by the police as part of the usual formalities.

48.The same applies to the question of whether the defendant was wearing a face mask.  As I have already expressed my view on this point, I do not think it is necessary for me to go further into it here.

49.I shall now turn to the last question:  can the court be sure that it was the defendant who had put the packet of cocaine beneath the red private car? 

50.It is true that PW1 could only see some action with the defendant’s right hand when he was on the ground.  He was certainly not able to see the defendant putting the packet in question there. 

51.It is also fair to say that, from the car cam video, exhibit P4, one could only see the defendant stretching both his arms out in the direction of the rear nearside wheel of the red private car, with the defendant’s left hand touching , or almost touching, that wheel.

52.However, I think it is important for me to note that, after watching the car cam video a good number of times, I am convinced that the only reason for the defendant to stretch his arm out in the direction of the rear nearside wheel of the red private car, in the circumstances, was for him to put something there.  The stretching out of his arms, on my viewing, was not a natural part of his rolling.  It simply does not go with the flow.

53.Obviously, if that is the only evidence, then one may feel that there is a shortfall.  But that is not all.  In the present case, there are a number of highly indicative matters.  To begin with, the defendant’s running away as soon as he saw the officer is a very strong indicator.  In the absence of an innocent reason for him to do that, I am satisfied that the only reasonable inference is that he did not want PW1 to find out what he had on him.  In coming to the above view, I have found the discussion in HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 useful.  Although the case is concerned with the defendant fleeing from the scene after the crime, I have borne in mind the caution expressed by the Court of Appeal in that case.

54.Next, there is the fact that the defendant had over HK$16,000 on him at the material time.  In my view, that is another very important telltale. Bearing in mind that the defendant was a Form 8 holder, and in the absence of any evidence to show that the defendant had a lawful source of income, or an innocent reason for having such an amount of cash on him at the material time, there are reasonable grounds, in my view, to believe that the money was connected with illicit tradings, drug dealing being one of the more obvious in the circumstances. 

55.Last but not least, one must not lose sight of the value of the dangerous drugs in question.  As mentioned earlier, it is worth over HK $21,000. With such a valuable pack of dangerous drugs, I think the possibility of it being placed there by other people beneath the red private car is so remote that one can safely ignore in the circumstances.

56.In my view, the only reason for such a packet to be left beneath the red private car was that whoever having it in possession earlier was in desperate need to get rid of it.  It is certainly not a place one would have used to store a packet of drugs of that value, for it could have been washed away by street cleaners or ruined when the car drove off. And, on the evidence, there was no one else but the defendant who needed to get rid of the packet as desperately in the present case.

57.Taking all these matters into account, I am satisfied so that I am sure that it was the defendant who threw the packet of cocaine there when he fell near the red private car.  He did it because he did not want to be found by PW1 to be having it with him.

58.Now, in arriving at the above conclusion, I have not overlooked the other points made by the defence, like the police’s failure to wear gloves when dealing with the packet of drugs, or the fact that the defendant denied as soon as he was taxed with it by PW1.  But I do not see how these points could have any bearing on the conclusion I have arrived at.

59.I am of the same opinion when it comes to the defence’s complaint of the police not having a Wolof interpreter for the defendant when he was arrested and/or cautioned.  To begin with, I cannot see how it is relevant to the issue at hand, given that the prosecution has not sought to rely on anything said by the defendant after him being stopped.  On top of that, there is nothing in the evidence to suggest that the defendant had difficulty in understanding what PW1 had said to him in English.  According to PW1, the defendant could speak some English and certainly he had not expressed any problem in following what was said to him. 

60.In light of these matters, and the arguments which prosecuting counsel has set out in his written submission on this point, I have no hesitation whatsoever in rejecting the defence’s complaint on this.

61.There remains only one other question to be decided on, and that is: was the defendant trafficking in the cocaine?  Now, bearing in mind the circumstances of the present case, including in particular the quantity and value of the dangerous drugs, the time of the defendant’s interception, the defendant’s station in life at the material time, and, in the absence of any evidence before the court to suggest that the defendant was or could have been having the dangerous drugs for his own consumption, the only reasonable inference in the circumstances is that he was trafficking in the dangerous drug.

Conclusion

62.On the basis of the aforesaid, I am satisfied beyond a reasonable doubt that the defendant is guilty as charged.