HKSAR v. Obi Cosmas Nonso (Aka Dolo Saydou) and Another

HCCC 93/2022

[2024] HKCFI 1448

IN THE HIGH COURT OF THE

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 93 OF 2022

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REASONS FOR RULING
ON NEWTON HEARING

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Introduction

1.The two defendants (D1 and D2)  pleaded guilty to one joint count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134.  The Charge averred that on 28 July 2020, at Room A, 4/F, No. 41 Tai Po Road, Sham Shui Po, Kowloon (the “Room”)  in Hong Kong, both D1 and D2 trafficked in 727.5 g of a crystalline solid containing 721.8 g or methamphetamine hydrochloride (commonly known as “ICE”), 119 g of a solid containing 62.1 g of cocaine, and 986.8 g of tablets containing 233.12 g of 3, 4-methylenedioxymethamphetamine (commonly known as “MDMA”)  (collectively the “Drugs”).

2.Whilst both defendants had tendered their guilty pleas to the Charge, they denied trafficking in the whole lot of Drugs together.  They contended that each of them was only aware of, and thus responsible for, part of the Drugs found.  This contention was not accepted by the Prosecution whose case was that both D1 and D2 were acting in a joint enterprise and trafficking in the whole lot of Drugs found inside the Room.

3.Pursuant to the order of Hon. D’Almada Remedios J, a Newton Hearing was fixed and held before me in order to resolve the issue in dispute. Four police officers gave evidence at the hearing, including the two arresting officers (PW1 and PW2), the officer who took photographs at the scene (PW3)  and the exhibit officer (PW4).  The defendants also testified.

4.At the conclusion of the hearing, I rejected the case put forth by the defendants and found the prosecution case proven beyond reasonable doubt that both D1 and D2 were acting in a joint enterprise and trafficking in the whole quantities of Drugs found inside the Room together.

5.On 15 November 2023, prior to sentencing D1 and D2, I gave my ruling on the Newton Hearing and indicated that I would hand down the detailed reasons for my decision in due course, which I now do. 

Summary of Evidence

Prosecution Case

Admitted Facts

6.For the purpose of the Newton Hearing, the following facts inter alia were admitted by the parties pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221[1]:

(a)  on 27 July 2020 at around 7:55 pm, D1 and D2 left the building at No. 41 Tai Po Road (the “Building”)  and went to Un Chau Street towards Nam Cheong Street, where D1 dropped a white bag containing bundles of 1,000 empty resealable plastic bags near a rubbish bin;

(b)  on 28 July 2020 at around 00:36 am, D1 and D2 were intercepted on the 2/F of the Building;

(c)  upon search of D1, the police found 9 keys in 5 keyrings;

(d)  using the keys found on D1, the police entered the Room;

(e)  upon search of the Room, the police found:

(i)   Exhibits P1 to P23, which contained inter alia the Drugs[2];

(ii)  4 electronic scales;

(iii)  a sealing machine;

(iv)  a tenancy agreement in the name of D2;

(f)  at Sham Shui Po Police Station (“SSP Police Station”), D1 and D2 were asked to sign on each of the bags of drugs, but they only signed on bags which they later claimed to be theirs.  D1 signed on Exhibits P1 and P6[3], whereas D2 signed on all the remaining bags;

(g)  later in his cautioned video recorded interview (“VRI”), D2 admitted ownership of all the remaining drugs (other than two larger bags of ICE admitted by D1 – namely P1 and P6)  and stated inter alia that: 

(i)   he (D2)  rented the Room, in which both D1 and D2 lived and had keys;

(ii)  he weighed those ICE dangerous drugs belonging to him and separated them into small packets of about 26 g, so all the bags that weighed 28 g belonged to him; and

(iii)  all the cocaine and MDMA belonged to him as well.

Evidence of PW1 (PC 26145)

7.PW1 was the officer who arrested D1.  He gave evidence as to his participation in the anti-dangerous drugs operation conducted by his team in the evening of 27 July 2020, which, according to the briefing he received from the officer-in-charge of the case (“OC Case”), involved some African males.  According to PW1, at around 0036 hours on 28 July 2020, he received a request from his team members for assistance and thus proceeded from his ambush location to the Building.  Upon arrival at the staircase on the 2/F of the Building, he met his team members including the OC Case and two sergeants, as well as D1 and D2.  The defendants were handcuffed as, PW1 said, they tried to rush down the stairs.

8.Enquiries were made of the defendants separately, with PW1 handling D1.  Upon search of D1, PW1 found 9 keys, two mobile phones and some money on him.  He later reported his findings to the OC Case and was instructed by the latter to take D1 to the 4/F of the Building.  Meanwhile, in the course of PW1’s enquiry of D1, D2 had already been taken by the OC Case and PC 12699 (PW2)  upstairs to the 4/F.  According to PW1, during that period of about 40 minutes before he went up to the 4/F, he and D1 were staying on the 2/F together with three other officers[4].

9.On the 4/F, PW1 met the OC Case and other officers including the exhibit officer PC 23343 (PW4).  There was an iron gate outside the premises on the 4/F in which the Room was located.  Behind the iron gate was a narrow corridor, and the wooden door of Room A was immediately to the right upon entry into the corridor[5].  Using the keys seized from D1, PW4 opened the iron gate and the wooden door to gain entry into the Room.  The Room itself was approximately 150 square feet with a toilet and no other room within.  PW4 proceeded to conduct a house search therein in the presence of the defendants.

10.When cross-examined, PW1 stated that there were around 9 police officers in total on the 4/F at the time before they entered the premises where the Room was.  Whilst he could not recall the exact location of individual officers before they entered the premises, he was adamant that both defendants were standing in front of the iron gate when it was being opened by PW4.  At that time, D1 was right behind PW4 and thus could see clearly both the iron gate and wooden door being opened.

11.Ms Alva suggested to PW1 in cross-examination that D1 was not allowed to witness the search of the Room and was instead told to sit on the middle steps of the staircase outside the Room.  PW1 denied this and said that the whole course of the search was conducted in D1’s presence. 

12.As to the process of the house search, PW1 recounted that PW4 searched the Room in a clockwise direction - first the toilet, then the sink, the bed, the cabinet, and lastly the storage place above the door of the Room.  According to PW1, the whole search took about an hour.  Approximately 30 minutes into the search, PW4 informed PW1 about the finding of two recycle bags - one in black (Exhibit P43)  and the other in red (Exhibit P44)  - beneath the sink, containing suspected dangerous drugs.  When cross-examined, PW1 agreed that he could readily see the two recycle bags P43 and P44 upon entering the Room.  As depicted in the photographs taken by the police photographer at the scene[6], the two bags were placed rather conspicuously under the sink and not hidden at all.

13.It was further suggested to PW1 in cross-examination that the portion of Drugs belonging to D1 (Exhibits P1 and P6)  were not found inside either of the recycle bags.  PW1 disagreed and maintained that all of the Drugs were found inside the two bags.

14.Having been informed of the discovery of the suspected dangerous drugs, PW1 declared arrest of D1 at the scene in English for trafficking in dangerous drugs, to which D1 made no reply. 

15.Later at around 5 am, the defendants were taken back to SSP Police Station where, in the presence of the Duty Officer and the two arresting officers (PW1 and PW2), PW4 laid out the suspected dangerous drugs seized, counted and weighed them in front of both defendants.  The suspected dangerous drugs were then sealed inside the tamper-proof bags which were produced as Exhibits P1-P23.  The defendants were asked to sign on Exhibits P1-P23, but D1 only signed on some of the bags whilst D2 signed on the others. 

16.Apart from the Drugs in question, PW1 also found 3 other transparent plastic bags of suspected dangerous drugs hidden in D1’s underwear, upon body search of D1 in the presence of PW4 after their return to the police station.  These other drugs (68.2 g of ICE in total)  formed the subject matter of the charge against D1 only, under HCCC 94/2022.

17.Two VRIs were subsequently conducted with D1 in the presence of PW1, the voluntariness of which was not challenged by D1.  When cross-examined by Ms Alva for D1, PW1 was taken to a number of entries in the transcript of the VRIs and asked to confirm that those were the answers given by D1 in the interviews.  Those entries related to D1’s claim that he had been living in the Room for a few months and would sometimes sleep there and that he had slept in the Room the night before the incident.  The officer was also asked to confirm that D1 did tell him in the VRIs that the two packets of drugs (Exhibits P1 & P6)  which he identified and signed~  were the only portion of the Drugs belonging to him.

18.Ms Alva also questioned PW1 about his failure to point out to D1 in the VRIs where exactly in the Room were the Drugs and the electronic scales found and that he did not ask D1 anything about the sealing machine.  The officer agreed and explained that given his role as the arresting officer, his focus during the VRIs was on the facts of the case and he would leave those questions relating to the exhibits to the exhibit officer PW4 who was responsible for the exhibits.

19.When cross-examined by Mr Raffell for D2 as to why he and his fellow officers proceeded immediately to handcuff the defendants and keep them on the stairs once they were intercepted, PW1 denied having made the assumption that both of them must have been involved in a joint crime together. The officer explained that he handcuffed D1 at the time because he (D1)  had tried to rush downstairs and was not cooperative.  He said he had to put handcuffs on D1 to prevent him from fleeing and from attacking others.  PW1 further maintained that the search of the Room was conducted in the presence of D1 and D2 and that the Drugs were found in the two recycle bags that were placed underneath the sink quite openly and not hidden at all.

Evidence of PW2 (PC 12699)

20.PW2 was the officer who arrested D2.  He gave evidence as to his participation in the anti-dangerous drugs operation.

21.PW2 went to the Building to offer assistance and upon his arrival at the 2/F of the Building, he saw the OC Case, two sergeants, and the two defendants.  He handcuffed D2 who was physically larger and stronger than him, and who appeared to be agitated at the time, intending to flee down the stairs.

22.PW2 then took D2 to the 4/F of the Building where the OC Case made enquiries of D2 in English for around 40 minutes, with PW2 guarding D2, on the landing of the staircase.  PW2 then searched D2 and found 2 mobile phones and some cash on him.  PW2 later learnt from the OC Case that D2 resided in the Room.

23.PW2 then described how he witnessed PW4 opening the main gate of the premises and the door of the Room with the keys seized from D1 (Exhibit P27)  in the presence of both defendants.

24.After PW4 opened the door, the defendants were escorted by PW1 and PW2 into the Room where PW4 proceeded to conduct the house search in their presence.  PW2 admitted that he had not requested D2 to sign anything to indicate his presence during the search and explained that it was because D2 was handcuffed at the back, and would have to be uncuffed in order for him to be able to sign.

25.PW2 said that PW4 was the first person who entered the Room and searched the toilet, the sink, the chair and cabinet next to the sink. 

26.PW2 confirmed that he was informed by PW4 that suspected dangerous drugs were found in one red plastic bag and one black plastic bag under the sink, despite not having mentioned this in his witness statement.  He was told the black bag contained 17 transparent plastic bags of suspected dangerous drugs and the red bag contained 6 bags of suspected dangerous drugs in tablet-form.  Immediately afterwards, PW2 effected arrest on D2 for trafficking in dangerous drugs.

27.PW2 described how the drugs were weighed and sealed in tamper-proof bags in the presence of both D1 and D2 in SSP Police Station.  The defendants were asked to sign on the bags, but each of them only signed on some, but not all of the bags.

28.A VRI was conducted with D2 subsequently, during which D2 claimed that some of the drugs belonged to D1 and not himself.  It was suggested to PW2 in cross-examination that he had deliberately omitted to mention D2’s presence in the Room when the house search was being conducted so that he would not risk eliciting D2’s denial of the same in the VRI.  PW2 disagreed.

Evidence of PW3 (SPC 34185)

29.PW3 was the officer who went to the scene to take photographs subsequently.  He arrived at around 3:10 am on 28 July 2020 and took 36 photographs in total, which were produced as Exhibit P138A.

30.Upon cross-examination, PW3 confirmed that he was told by PW4 as to what areas and items he should photograph.  He said he was not certain at the time whether PW4 was the exhibit officer (“EO”), but he took it that only the EO or an assigned member of the team would be responsible for handling the exhibits at the scene.  PW3 could not recall seeing either D1 or D2 at the time. 

31.As PW3 only attended the scene subsequently, he was unable to confirm the original positions of the items that were photographed prior to his arrival.  That said, PW3 could not recall seeing a trolley bag that was navy blue in colour inside the Room.

Evidence of PW4 (PC 23343)

32.PW4 was the EO.  He gave evidence that he was patrolling near Un Chau Street when he was told by the OC Case that D1 and D2 had been intercepted at the Building.  He was asked to go over to offer assistance and upon his arrival at the stairwell on the 4/F of the Building, he met the OC Case, two sergeants, PW2 and D2 there.  The OC Case was at the time conducting enquiries on D2.  D1 was later brought to the 4/F as well.

33.Using the keys passed to him by PW1, PW4 opened the gate and the door to the Room.  He then conducted a search of the Room in a clockwise direction, starting from the toilet, and then proceeding to the sink area.

34.PW4 found the following items during the search:

(a)  one black and one white electronic scales (Exhibits P47 and P48)  in the sink area;

(b)  two silver electronic scales (Exhibits P45 and P46)  on top of a plastic cabinet (“Cabinet”);

(c)  a sealing machine (Exhibit P49)  on the Cabinet;

(d)  a black recycle blag (Exhibit P43)  and a red recycle bag (Exhibit P44)  each containing suspected dangerous drugs underneath the sink near a chair (“Chair”); and

(e)  a black plastic bag (Exhibit P64)  containing empty resealable plastic bags (Exhibits P65 to P72)  underneath the Chair.

35.When cross-examined, PW4 agreed that he did not know how the keys were bundled together when PW1 seized the keys from D1.  He disagreed that he had taken unduly long to complete the search of the Room, explaining that he could not recall whether the toilet was in a chaotic state and that if there were drugs inside the toilet, they could be hidden away in inconspicuous places; hence the time taken to search the Room thoroughly.  PW4 maintained that both D1 and D2 were present in the Room when the search was being conducted. 

36.It was put to PW4 by Mr Raffell that the red and black bags were in fact found inside the false ceiling of the toilet, not underneath the sink.  PW4 disagreed.  He also denied the case as suggested by Mr Raffell that the red bag in fact contained 11 packets of Ice and 6 packets of MDMA, whereas the black bag contained 1 packet of cocaine and 3 packets of Phenacetin.  PW4 had no recollection of seeing a navy-blue trolley bag in the Room during the search. 

37.PW4 agreed that D2 had mentioned about a trolley bag during his VRI but he did not follow up on this with D2 in the interview.  He added that given that a senior officer of his team, Sergeant 1652, was monitoring the VRI inside a separate control room, any supplemental questions could have been raised by him where necessary.

The defendants’ VRIs

38.D1 made two VRIs under caution on 28 July 2020 whereas D2 made one on the same day.

39.In gist, D1 took full responsibility for the 3 bags of ICE found in his underwear (subject of Charge 1 in HCCC 94/2022)  but denied possession of all of the Drugs found inside the Room, claiming that only some belonged to him.  Essentially D1 took responsibility for only those drugs that were signed by him in the police station, as well as one of the 4 electronic scales found in the Room.  He said he was living in the Room with D2 and both of them had keys to it.  He later clarified that the Room was leased by D2 and he (D1)  would only stay there sometimes.  He claimed that the drugs for which he was responsible came from someone called James, who had also passed him the electronic scale which he used to weigh the drugs.  He came to know James a few months before the offence and had no idea how to locate him.

40.On the other hand, D2 admitted possession of only those bags of Drugs which were signed by him and not by D1.  He maintained that there should be a clear division of the Drugs and that those that belonged to D1 were locked away separately inside a particular cabinet in the Room.  He also admitted that 3 of the 4 electronic scales seized were his.  He said the sealing machine was not his but belonged to D1.  As to the Room in question, D2 admitted that he was the one who rented it and that both he and D1 had keys to the Room.  D2 claimed that the drugs for which he was responsible came from someone called Baby Boy, who gave D2 the drugs in Jordan for D2 to keep on his behalf.

Defence Case

41.Both defendants testified in the Newton Hearing and called no other witness.

Evidence of D1

42.D1 gave evidence as to how he and D2 were intercepted by the police on the 2/F of the Building and were demanded for proof of identity. The police took the keys from D1, which he later learnt were taken to the 4/F by the officers. 

43.D1 was then asked to sit on the steps on the 2/F, whilst D2 was taken upstairs by some of the officers.  During this time, he saw officers going up and down the staircase.  Eventually he was also brought up to the 4/F.  By the time he reached 4/F, the gate outside the premises was already open.  D1 said he was asked to sit down, this time on the landing of the staircase.  From that position, D1 was unable to see what was happening inside the Room as his view was blocked.  To his recollection, there were 4 officers behind and 5 officers in front of him.

44.D1 said that he was handcuffed throughout until he was taken back to SSP Police Station and brought to a reception desk where his handcuffs were removed.  The dangerous drugs seized from the Room were then brought out and shown to him.  He told the police that some of the drugs which he did not recognise were not his. 

45.He then asked D2 whether the other drugs belonged to him.  The two of them then got into an argument, with each accusing the other for having brought drugs to the Room without informing the other.

46.A sergeant at the police station eventually told them to keep quiet.  D1 then told D2 that each of them should only sign to acknowledge the dangerous drugs that each was responsible for.  D1 said he had told D2 earlier on in the police detention cells that he had placed a locked trolley bag (“Trolley Bag”)  containing his drugs, a sealing machine and a scale, in the shelf on top of the door of the Room.  D1 said he had not discussed with D2 as to what quantity of drugs each of them should admit to.

47.It was not in dispute that in his VRIs, D1 was not shown the red and black recycle bags in which, according to the police, the Drugs were found.  Nor was D1 shown the sealing machine during the interviews.

48.In his testimony, D1 said he did not recognise the two recycle bags, but he confirmed that the sealing machine and one of the 4 electronic scales were both his which he had kept in his Trolley Bag.  D1 described that the Trolley Bag had been locked with a small padlock which could be unlocked with one of the keys found on him[7].  D1 also said he had wrapped the two packets of Ice (Exhibits P1 and P6)  in some clothing items and kept them inside the Trolley Bag.

49.When asked in cross-examination as to how he came to know D2, D1 said they met at the church and became acquainted as both of them would purchase second-hand electronic products in Sham Shui Po for resale in Africa.

50.As regards the shared use of the Room, D1 claimed that he had asked D2 for permission to use the Room to store the second-hand items he purchased overnight, so that he could take them to either his girlfriend’s place or the shipping company the day after.  The two of them thus put in place an arrangement whereby they would leave the keys to the Room on the rooftop of the Building so that whoever needed to access the Room could retrieve them from the rooftop and use them.

51.D1 was cross-examined about the bag containing bundles of empty resealable plastic bags which he discarded the night before on 27 July 2020.  He explained that he had initially thought of reselling these plastic bags in Africa but later decided to throw them away after being advised by D2 that it would not be profitable to do so.  He said D2 only became aware of the bags and gave him that advice on the same night.  Hence he took the bags with him as they were leaving for the night market and discarded them on the way at the rubbish bin.

52.D1 confirmed in his evidence that Exhibits P1 and P6 were his.  D1 went on to elaborate that the two packets of “Ice” were given to him by James on 26 July 2020 and that he would keep them for James until James asked him for specific quantities.  On the day in question, D1 was asked to prepare three portions of “ICE” in quantities of 28 grammes, 28 grammes and 14 grammes.  He thus weighed these portions using the electronic scale in the Trolley Bag and placed them into plastic bags, which D1 said were originally kept inside the packets of “ICE”.  He denied having used the sealing machine.

53.D1 maintained that D2 did not know about the “ICE”, notwithstanding that the two of them left for the night market together.  When asked in cross-examination how he would be able to deliver the drugs to James if James happened to make that request whilst D1 was out with D2 that night, D1 initially responded that he could simply return to the Room to pack the drugs unbeknownst to D2 who would still be at the night market.  However, later in his cross-examination, D1 gave a different account and said that he had actually had the drugs in his underwear before joining D2 for the night market, because James had already asked him for the drugs earlier that day.

Evidence of D2

54.D2 accepted in his evidence that he was the one who rented the Room.  However, he claimed he would usually stay at his girlfriend’s place in Portland Street, Yau Ma Tei instead for around half of the week.  He had permitted D1 to stay over at the Room and had given D1 keys to it.  In cross-examination, D2 claimed that they would use the Room, as well as the rooftop, for storage of some of the goods they purchased.

55.As regards the bag of empty resealable plastic bags discarded by D1, D2 said they had nothing to do with drugs and gave a similar account as that of D1 – namely, that D1 originally intended to resell those plastic bags in Africa but later decided to discard them upon advice of D1 that they were not marketable.  D2 added that the bundles of empty plastic bags thrown away by D1 actually came from the black plastic bag (Exhibit P64)  found inside the Room which was filled with similar resealable plastic bags.  As to why D1 did not dispose of those other bags in Exhibit 64 as well, D2 surmised that it may well be because of the “weight” of these bags that D1 decided to discard them in batches.

56.During cross-examination, D2 recounted that he and D1 left the Room for the night market earlier that evening, taking with them the bag of plastic bags that D1 threw away on their way.  As the night market was not open when they arrived, they decided to return to the Room together.  Upon arrival at the Building, D2 did not go back to the Room immediately but decided to go up to the rooftop to fix his laundry and to take a sudden phone call from his family.  Afterwards, D2 told D1 that they should try the night market again, and on their way out, they were intercepted by the police officers.

57.Regarding the drugs which D2 said belonged to him, D2 claimed that they were actually placed inside the red and black bags and were hidden in the false ceiling of the toilet, not underneath the sink where the police said they were found.  D2 also refuted what the police said were contained in the red and black bags.  According to D2, the black bag in fact contained 1 bag of cocaine and 6 packets of MDMA, together with three electronic scales; whereas the red bag contained 11 packets of ICE. 

58.At SSP Police Station, D2 was shown the dangerous drugs seized and told to sign the ones that belonged to him.  D2 said that he could differentiate his drugs from those of D1’s by virtue of their weight difference, since he routinely measured quantities of 28 grammes, whilst D1’s packets were larger, heavier and with different packaging.

59.D2 knew that D1 had kept a trolley bag in the Room, but he said he had no idea about what it contained.  He complained that he had not been given the opportunity to fully express his concerns about that trolley bag in his VRI.  D2 recalled that he had argued with D1 at the police station as they were not aware of the drugs kept by the other in the Room prior to the arrest.  D2 said that after they were each searched, they continued their conversation about the drugs, and D1 told D2 that two packets of “ICE” were placed in a trolley bag which was stored on the shelf above the main door.  D1 also mentioned the sealing machine and the padlock to D2.

60.D2 began renting the Room in March 2020.  He was told to store drugs in the red and black bags at the Flat by a person nicknamed “Baby Boy”.  According to D2, the red bag came with 11 packets of “ICE” and 6 packets of MDMA, whilst the black bag contained three electronic scales, 1 packet of cocaine, and 3 packets of Phenacetin.  D2 said that whenever “Baby Boy” needed the drugs, he would let D2 know. 

Analysis and findings

61.On the evidence before the court as summarised above, it fell upon me to decide whether the two defendants were trafficking jointly in the whole lot of Drugs found inside the Room as the prosecution contended, or whether they were each liable for only part of the Drugs that they claimed to have knowledge about and be responsible for as the defence asserted.  It required due consideration and assessment of the evidence adduced by the prosecution on the one hand, and the accounts given by the defendants on the other.

62.It was common ground that the prosecution bore the burden of proving its case to the requisite criminal standard of proof[8]. The defendants did not have to prove anything.  Whilst they chose to give evidence in this Newton Hearing, they were not obliged to do so.  If the account given by either of the defendants was or might be true, then the court must resolve the issue in dispute in their favour.

Defence case

63.Having carefully considered the testimony of the two defendants and the submissions of counsel, I rejected their evidence as I did not find them to be telling the truth.  The accounts put forward by them were riddled with illogicalities and implausibilities, and were simply not deserving of belief. 

64.Firstly, it was the defence case that both D1 and D2 had access to the Room in which their individual lots of Drugs, unbeknownst to the other, were stored.  Whilst the Room was rented by D2, it was said that D1 was allowed to use it for storing electronic goods purchased by him temporarily and that they would share the same set of keys which was placed at the rooftop of the Building.

65.As can be seen from the photographs produced, the Room was very small in size, with only some basic furniture and no separate partitioned room within apart from the toilet.  I found it hard to believe that the defendants would choose to store their drugs in the Room and somehow expect each other not to discover the existence of the other’s portion of drugs therein.  It was not the case that D2 did not use the Room at all or would only use it infrequently.  As D2 said in his evidence, he would only stay at his girlfriend’s place for half of the week, suggesting that he would still use the Room for the rest of the week.

66.The suggestion that D1 wanted access to the Room to store the electronic goods he purchased is also inherently improbable.  Given the small size of the Room and the apparent lack of space therein, I did not consider it credible that D1 would find it suitable to store his purchases there – goods of such quantities that D1 claimed he would purchase from night market for resale to Africa.

67.Pausing here, I should mention that I also found the defendants’ accounts as to the bag of empty resealable plastic bags that D1 discarded on the street utterly unbelievable.  It beggars belief that D1 would find these empty resealable bags to be of any commercial value at all to merit his consideration of reselling them to Africa for profit (leaving aside the question of shipping and delivery costs)  in the first place.  Nor did I find the explanation proffered by D2 as to why he thought D1 would discard only one of the two bags of empty resealable bags but leave the other bag still in the Room credible.  These empty resealable bags were neither heavy nor bulky in size as to justify D1 needing to take them out to throw away, in D2’s word, “bit by bit” separately.

68.In my view, what the defendants asserted to be the innocent purpose of having shared use of the Room – namely, for D1’s storage of merchandise for resale to Africa, was simply a lame excuse put up by them in an attempt to explain away their common ulterior purpose of using the Room for storing and packaging the Drugs together, especially given the presence of drug packaging paraphernalia such as the electronic scales, empty resealable plastic bags, etc. in the Room.

69.Secondly, the accounts that the defendants gave as to their modus operandi – viz. how they were instructed to store and traffick in the dangerous drugs they were each responsible for, bore such coincidences and illogicalities as to render their stories artificial and unconvincing.  That they were each given drugs by somebody whom they knew little about (i.e. James or Baby Boy)  without specific instructions as to when and how to deliver the drugs until each of them was to be contacted by James or Baby Boy at unspecified time to make the delivery was, in my view, not worthy of belief at all. 

70.In this regard, the evidence given by D1 as to how he was supposed to make delivery of the drugs to James on the night in question when they were out for the night market was inconsistent.  He initially said that James had yet to call him on the day, and if he did receive such a call from James, he would have to return to the Room to pack the drugs without alerting D1.  When further questioned, D1 changed his version and said that he had already brought the drugs with him in his underwear before he headed out to the night market with D2, in anticipation of James contacting him.  I disbelieved him and found his testimony not credible.  Like many of the other aspects of his evidence, he was clearly concocting a story in an attempt to give a false impression that he was dealing in his own drugs with James without D2 knowing, and vice versa.

71.Thirdly, the accounts given by both defendants as to how they were taken by surprise upon learning about the other’s drug trafficking activities after they had been brought back to the SSP Police Station and how they argued at the police station and eventually reached a consensus that they were to only sign and acknowledge their own packets of drugs, were also hard to believe.  I rejected their evidence in all these respects.

72.The above are only some of the aspects of the defendants’ case which I found hard to accept.  As mentioned, their accounts were riddled with inherent improbabilities, many aspects of which were simply unworthy of belief.  Having carefully considered the whole of their evidence, I found both defendants to be dishonest and rejected their evidence in its entirety. 

Prosecution case

73.Even though I rejected entirely the accounts put forward by both defendants, that would not relieve the prosecution of its burden of proving its case to the required standard.  I would still have to be satisfied beyond reasonable doubt that the prosecution had established on all the evidence that the defendants were jointly trafficking in the whole lot of Drugs in question.

74.Having carefully considered the evidence of the prosecution witnesses who testified in this Newton Hearing as summarised above, I found them all to be credible and reliable.  To the extent of any minor inconsistencies that might exist in their evidence, I did not find such discrepancies to be material enough to affect their overall credibility and reliability as witnesses.

75.I accepted all of the prosecution witnesses’ evidence.  In reaching that conclusion, I had duly considered the criticisms levelled at the credibility of these police witnesses by both Ms Alva and Mr Raffell in their cross-examinations of the officers and their closing submissions.  Suffice it to say that I did not find any of those criticisms to be made out or be sufficient to affect the overall credibility of the witnesses’ evidence.  For instance:

75.1 As to whether the arresting officers and the defendants were in fact present inside the Room at the time of the house search,Ms Alva asked the court to consider (i)  PW1’s evasiveness when he refused to draw a sketch of the Room and (ii)  his inability to mark on the sketch drawn by the exhibit officer PW4 the exact positions of the defendants and the individual officers present in the Room during his testimony in court.  Ms Alva argued that the reason why PW1 could not do so was that he was in fact not present in the Room during the search.  In this regard, I accepted PW1’s explanation that it was PW4 who was tasked to search the premises and who must be in a better position to produce a more accurate and reliable sketch of the layout of the Room than PW1 himself.  Further, as PW1 logically explained, it would be difficult to pinpoint the exact positions of the individuals on the sketch as they had to move around the Room in the course of the search.  In any case, whether PW1 could now accurately draw or mark on a sketch was neither here nor there and it did not cast any doubt on PW1’s evidence that he, together with the defendants, was present in the Room during the search, which evidence I accepted.

75.2 Both Ms Alva and Mr Raffell made the point that if PW1 had been present at the Room, PW4 would not have had to announce to him (and the other officers present)  the result of the house search, as that would have been obvious to anyone in the premises.  There was nothing in this point.  There is plainly nothing wrong for PW4, being the exhibit officer, to report his findings, especially the total number of packets of drugs that he counted, to his team members who were present.  Further, as Mr Hingorani submitted, given that the Drugs were found underneath the sink, the contents of the bags and the exact number of packets counted might not be as clear to the other officers present as the defence would suggest.

75.3 As to PW4’s omission to draw the shelf above the door in his sketch and PW2’s omission to mention the search of the shelf in his evidence, these were made subject of criticisms by the defence as it was the defendants’ case that the Trolley Bag was put on that shelf.  I did not consider these criticisms to be of any merits.  None of the police officers who testified said they had actually seen such a Trolley Bag.  As explained by PW4, he did not draw the shelf in his sketch as he did not find any relevant exhibits there. 

75.4 As to the complaint about the lack of any record in the police notebooks of both PW1 and PW2 to acknowledge the defendants’ presence during the house search, I did not consider this to be of any material significance as to affect the officers’ overall credibility.  In any case, as explained by PW2, D2 was handcuffed at his back and would have to be uncuffed if any signatures were to be obtained from him at the scene, which the officer apparently did not consider appropriate at the time. I found the officer’s explanation in this regard to be logical and reasonable.

75.5 As to the criticism that the search took unduly long despite the small size of the Room, it was PW4’s testimony that he had taken some time to search the Room including the toilet as from his experience, dangerous drugs could have been hidden in inconspicuous places.  I accepted the officer’s explanation in this regard.  In any case, a period of 30 minutes did not seem to me to be unduly long in the circumstances of this case if the police were to properly search the premises, identify and take stock of any items seized in a thorough manner.

75.6 As to the various criticisms on the way in which the VRIs were conducted by the officers, including the failure to follow up on the question of the Trolley Bag as well as the failure to show the red and black bags to D2, I did not find these criticisms to be of such significance as to affect adversely the veracity of the officers’ evidence.  None of the officers had seen the Trolley Bag in the Room and, as stated above, I did not accept the defendants’ versions of where they said they had kept the Trolley Bag and the red and black bags in the Room.

76.All in all, I did not find any of the attacks on the officers’ testimonies substantiated and I accepted all the evidence given by the officers as truthful and credible.

Conclusion

77.Having duly considered all of the evidence including the whole circumstances of the case, and taking into account the submissions made by counsel, I was satisfied that the prosecution had proven its case beyond reasonable doubt that D1 and D2 were both aware of and jointly trafficked in the total quantities of Drugs seized from the Room.  Accordingly, this would be the basis upon which they should be sentenced.

Mr Jeevan Hingorani, Counsel on fiat, instructed by the Department of Justice, for HKSAR 

Ms Patricia Alva, instructed by T.H. Wong & Co, assigned by Director of Legal Aid, for the 1^st defendant 

Mr Andrew Raffell, instructed by Lo, Wing & Tsui, assigned by Director of Legal Aid, for 2^nd defendant