HKSAR v. Ho Tung Sum

DCCC 609/2024

[2025] HKDC 1980

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 609 OF 2024

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REASONS FOR VERDICT

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Charges

1.There are two defendants in this case. For clarity purpose, the Defendant here is referred to as D2. Another male jointly charged with D2 on Charge 1 is referred to as D1.  

2.D1 pleaded guilty to Charges 1 to 4. D2 pleaded guilty to Charge 5 but he pleaded not guilty to Charge 1, hence this verdict deals with D2 on Charge 1 only. The Prosecution alleges that the two defendants in Charge 1 were in joint possession of all the drugs found for the purpose of unlawful trafficking. The fact that D1 has pleaded guilty will have no bearing on my decision in the case of D2. The Prosecution has to prove its case against D2, just as it would have to if D1 had not pleaded guilty.

3.Charge 1 alleges that they were on or about the 9^th day of July 2023, at No. 17 Kam Tin Road, Kam Tin, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely traces of a plant material containing tetrahydrocannabinol, 7.22 grammes of ketamine and 11.29 grammes of cocaine and 16.34 grammes of cannabis in herbal form.

Issues in dispute

4.Whether D2 had knowledge of the dangerous drugs inside the black sling bag (P28)  that D1 took with him before police interception. Whether D2 jointly possessed the dangerous drugs for trafficking (The Prosecution says D1 and D2 were part of joint enterprise in which they shared a common purpose/common intention to commit the offence, hence in law, it is therefore not necessary that D2 be in physical possession or custody of the drugs).

Prosecution case

5.The Defence did not dispute most of the prosecution case. The Prosecution finally called 1 witness to give live evidence.

6.On 9^th July 2023, police officers set up two observation posts.  Observation Post 1 in Sinopec Petrol Filling Station on Kam Tin Road, near lamppost AD 1640, and Observation Post 2 in Sinopec Petrol Filling Station on Kam Tin Road, near lamppost AD1632. The police officers were conducting an anti-drink driving operation (the Operation).

7.On even date, at 2344 hours, during the Operation, PC19608 (PW1)  observed a white private car (which was driven by D1 as a learning driver)  (the Vehicle), travelling slowly along the left, first, lane of Kam Tin Road towards Pat Heung. On approaching the Sinopec Petrol Filling Station on Kam Tin Road, near the lamppost of AD 1632, the Vehicle suddenly made a left turn and entered the petrol filling station for refueling. At the time, PW1 saw a male (D2), who was wearing a white short-sleeved T-shirt, a pair of blue jeans and a pair of white and grey sports shoes, alighted from the passenger seat and wandered around near the Vehicle. Then a male (D1)  who was seated in the driver's seat then alighted. D2 was then seen getting into the driver's seat. D2 drove away the white private car. D1 was seen holding a black sling bag in his left hand (P28)  and another, dark grey cross bag. He was seen to bend down. After being intercepted by the police, it was discovered that the black sling bag he had originally been seen carrying was missing (CCTV obtained at a later stage captured that D1 placed the bag near the fuel dispensing pump shortly before police interception). Enquiries were made and Sergeant 2137 (PW4)  later found the black sling bag near the fuel dispensing pump opposite the convenience store in Sinopec Petrol Filling Station, near where the Vehicle had previously stopped.

CCTV Footage

8.A summary of the CCTV footage showed:

23:45:01	The Vehicle arrives at Sinopec Petrol Filling Station
23:45:07	D2 exits from the front of the passenger seat
23:45:10	D2 walks from the front passenger side to the back of the Vehicle.
23:45:12	D2 engages the Petrol Station’s assistant
23:45:29	D2 goes to the area of the driver's side and stands outside the Vehicle
23:45:29	D2 collects something from D1 and hands it to the staff of Sinopec
23:45:40	D2 is standing in front of the driver’s door
23:45:48 - 23:45:54	D2 is seen bending his body checking the top of the vehicle inside the Vehicle with his left hand stretched in
23:45:57	D2 walks away from the driver’s area towards the front and walks over to the assistant filling the fuel in the fuel compartment on the right back of the Vehicle
23:46:11	D2 then walks back towards the direction of the passenger side and the front of the Vehicle to the driver’s side where D1 is still seated
23:46:19 - 23:46:23	D2 is then bending his body to lean in to where D1 is seated
23:46:23	D2 stands back up, still positioned outside the door of the driver’s seat
23:46:25	D2 holds a mobile phone in his right hand, puts his phone down and engages D1 who is still seated inside the driver’s seat
23:46:33 - 23:46:46	D2 then walks away and starts to walk to and from and keeps looking around
23:46:46	D2 speaks to the assistant and points to his left, then D2 continues walking to and from
23:46:58	D1 exits the Vehicle from the driver’s seat
25:47:02	D1 bend into the driver’s seat, while D2 waits to enter the Vehicle
23:47:05	D2 enters the Vehicle and sits in the driver’s seat
23:47:06	D1 opens the door at the back of the driver’s seat
23:47:20	There is body movement from D2 turning his body towards the passenger seat
23:47:33	D1’s hand appears and is touching the front of the arm rest compartment in the driver’s area
23:47:48	D2 seems to be bending down in the driver’s seat and then gets back up and moves his hand to the passenger side before coming back up
23:47:48	D1 is still at the back of the driver’s seat bent in

Drugs seized

9.On 10.7.2023, at 0100 hours, PC14592 (PW3)  searched the black sling bag, and upon searching the three zip pockets of the black sling bag which contained the following:

(a)  1 plastic bag containing traces of a plant material containing tetrahydrocannabiol (being a tetrahydro derivative of cannabinol)  (P1);

(b)  1 plastic bag containing 0.34 grammes of a solid containing 0.21 grammes of ketamine (P2);

(c)  7 cigarettes containing a total of 0.59 grammes of a solid containing 0.48 grammes of cocaine (P3);

(d)  10 cigarettes containing a total of 1.09 grammes of a solid containing 0.89 grammes of cocaine (P4);

(e)  3 cigarettes containing a total of 0.46 grammes of a solid containing 0.19 grammes of cocaine (P5);

(f)  1 cigarette containing 0.09 grammes of a solid containing cocaine (P6);

(g)  20 cigarettes containing a total of 1.62 grammes of a solid containing 1.37 grammes of cocaine (P7);

(h)  9 plastic bags (P8), each containing the following narcotic content:

i. 1 plastic bag containing 2.38 grammes of cannabis, in herbal form;

ii. 1 plastic bag containing 2.91 grammes of cannabis, in herbal form;

iii. 1 plastic bag containing 2.05 grammes of cannabis, in herbal form;

iv. 1 plastic bag containing 2.65 grammes of cannabis, in herbal form;

v. 1 plastic bag containing 2.83 grammes of cannabis, in herbal form;

vi. 1 plastic bag containing 1.59 grammes of cannabis, in herbal form;

vii. 1 plastic bag containing 1.61 grammes of cannabis, in herbal form;

viii. 1 plastic bag containing traces of a plant material containing tetrahydrocannabinol (being a tetrahydro derivative of cannabinol);

ix. 1 plastic bag containing traces of a plant material containing tetrahydrocannabinol (being a tetrahydro derivative of cannabinol);

(i)  20 plastic bags containing a total of 6.85 grammes of a solid containing 4.76 grammes of ketamine (P9);

(j)  18 plastic bags containing a total of 1.51 grammes of a solid containing 1.34 grammes of cocaine (P10);

(k)  2 plastic bags containing traces of a plant material containing tetrahydrocannabinol (being a tetrahydro derivative of cannabinol)  (P11);

(l)  1 metal grinder with a scraper containing 0.32 grammes of cannabis, in herbal form (P12);

(m)  10 plastic bags containing a total of 3.37 grammes of a solid containing 2.25 grammes of ketamine (P13);

(n)  36 plastic bags containing a total of 5.09 grammes of a solid containing 4.59 grammes of cocaine (P14); and

(o)  20 plastic bags containing a total of 2.69 grammes of a solid containing 2.43 grammes of cocaine (P15).

10.On even date, at 0111 hours PC14592 (PW3)  found banknotes and coins in the center of the Vehicle’s compartment (HK$37,388.2)  and the cup holders next to the driver's seat.

Arrest

11.On 10.7.2023, at 0015 hours, PC17856 (PW2)  finished searching D2 and found HK$19,568.6 and two mobile phones from the left pocket and right pocket of D2's trousers respectively. On even date, at 0125 hours, PC17856 (PW2)  declared arrest on D2 for the offences of trafficking in a dangerous drug and driving a vehicle without a "P" plate.

Drug Valuation

12.According to the drug valuation report compiled by Mr Leung, Detective Senior Inspector of Police:

i. for the quantity of ketamine (10.56 grammes), the average retail price was HK$528 per gramme in July 2023, i.e. 10.56 grammes x HK$528 per gramme = HK$5,576

ii. for the quantity of cocaine (13.14 grammes), the average retail price was HK$1,075 (powder)  per gramme in July 2023, i.e. 13.14 gramme x HK$1,075 per gramme = HK$14,126

iii. for the quantity of cannabis (16.34 grammes), the average retail price was HK$233 per gramme in July 2023, i.e. 16.34 grammes x HK$233 per gramme = HK$3,807

Prosecution witness

13.As said before, the Defence did not challenge the witnesses’ testimonies, whether oral or written. The summary of the main witnesses’ evidence can be found in Appendix 1 herein. 

Half way submissions

14.Counsel for D2 makes no submission after the close of the prosecution case. I found there is a case to answer for D2 to answer on Charge 1.

Defence case

15.D2 elected not to give evidence and he had no witnesses to call. No adverse inference be drawn from his right to remain silence throughout.

Closing submissions

Prosecution

16.The Prosecution asked the court to draw an irresistible inference against D2 that from the objective facts or proven facts, D2 must be knowingly assisting D1 in trafficking. The Prosecution cited the case of Wong Chun Yi CACC 118/2022 and reminded me the following principles:

“In a case alleging a joint enterprise to traffic in a dangerous drug, the prosecution has to show that the defendants each shared a common intention to commit the offence and played their part in it to achieve that aim: HKSAR v Wong Chun Yau.”

Defence

17.Defence Counsel agreed to the legal principles on “inference” and submitted that put the prosecution case to the highest, there is no sufficient evidence to draw the irresistible inference that D2 knowingly assisted D1 on trafficking in dangerous drugs. He did not physically possess the drugs. There is no DNA or fingerprints evidence against D2. No evidence is adduced to infer D2 knew D1 possessed or carried the dangerous drugs with him. Despite D1 got the black sling bag (with drugs inside), alighted the Vehicle and got arrested immediately thereafter, D2 was simply a company of D1, a helper to handle fuel refilling and an ordinary driver who dropped D1 there and drove the Vehicle away.  

Discussion

18.I have reminded myself of the burden and standard of proof. It is for the prosecution to prove a defendant’s guilt on each and every element of the charge beyond all reasonable doubt. The defendant has no burden of proof whatsoever. 

19.The parties have prepared detail summary of the evidence and made thorough analysis of the issues in their written submissions. I have considered all the evidence in light of the defence case and the defence submission. I have reminded myself the relevant principles in relation to the drawing of irresistible inference. No adverse inference is to be drawn unless it is “the only irresistible inference”. Where there is any reasonable doubt, the benefit should go to the defendant(s). 

20.In my analysis, I pay heed to the following objective or proven facts:

a)  D1 was a learning driver, not a qualified driver to drive the Vehicle but he drove the Vehicle to the petrol station. D2 was a probationary driver and D2 admitted failure to display “P” plates (Charge 5). For about two minutes D1 drove and sat on the driver’s seat, D1 got off from the driver’s seat and D2 sat on the driver’s seat. It is apparent that the black sling bag contained voluminous drugs. D1 took the bag from the Vehicle and walked out of the Vehicle. D2 took over the Vehicle and drove away. Put their driver’s status into the context, D1 could not be said to be simply a naughty boy and drove without proper licence. D2 could not be said to be mere negligent and failed to display “P” plates. Both of them had his own role. They must have discussed and reached an agreement on taking turn to drive. They must have a common intention that D1 should carry the bag and leave the Vehicle and walk towards somewhere.

b)  Before D1 left the Vehicle, video footage shows that D2 touched the inside top of the Vehicle near the driver’s seat. D2 took over the control of the Vehicle and accessed to the compartment of the Vehicle where over HK$30,000 cash with many HK$1,000 and HK$500 bank notes were found, which was visible and conspicuous once the cover is open:

(i)  D2 bended his body down to touch the top of the upper part of the Vehicle at the driver’s seat from outside the car as if he was familiar with things put inside the Vehicle (23:45:48);

(ii)  D2 was seen to walk and look around and acting furtively (23:46:25)  before D1 left the Vehicle with the black sling bag with drugs. D2 then took over the driver’s role. It is apparent that D2 was acting as a lookout before D1 left the Vehicle with the drugs;

(iii)  Before D1 took the black sling bag out of the Vehicle, D1 was searching something inside the Vehicle via rear passenger door while D2 was sitting on the driver’s seat, there was body movement from D1 and D2. D1 then retrieved the bag and took it with him out of the Vehicle before his arrest (23:47:20). It is apparent that the bag with drugs was placed somewhere inside the car, not hidden in the car boot;

(iv)  Before D1 left the Vehicle with drugs, D1 and D2 were seen interacting at numerous times before D1 exited the Vehicle. For example, after D1 drove the Vehicle there, D2 got a card like object from D1 and passed it to the Petrol Station’s assistant. Further, D2 looked around with caution, then D2 went back to D1 and seemed to converse with D1 when D1 was still on the driver’s seat. D1 then left the driver’s seat and went to get the black sling bag from the Vehicle. D2 then drove off. D1 was then intercepted by the police officers. Those indicia show that D2 was not a mere company of D1, he was not a mere helper for fuel refilling, he was not a mere substitute driver. The above interaction must origin from some common intention as to (i)  who should drive first; (ii)  who should check around while refueling; (iii)  who should carry the bag and leave the Vehicle and go somewhere; (iv)  who should drive the Vehicle away. Irresistible inference can be drawn to the fact that they must have discussed the above arrangement, so that D1 would be able to traffic those drugs, i.e. that each party were party to an agreement to commit the crime and that each had a shared intention to commit it. D1 would be the one trafficking in the drugs and that D2 was to back up and drove off the Vehicle once D1 had exited the Vehicle with P28 (the black sling bag with drugs);

(v)  It is beyond debate that there was a substantial amount of drugs inside the Vehicle’s cabin while D1 and D2 took turns to drive the Vehicle. This pointed to the joint role as drugs couriers;

(vi)  There were drug paraphernalia: a grinder, paper to wrap drugs to smoke/ intake (see photo 27/36, P107)  the drugs found in P28;

(vii)  The individual small packaging of the drugs and “cocktail of drugs” showed that they were for trafficking, as they were numerous in quantity and of different kinds, and especially when one considers the way they were packed in transparent resealable plastic bags;

(viii)  The time the offence was committed was in the late evening, hence lower risk to be detected;

(ix)  The street value of the drugs is high (over HK$23,000);

(x)  The value of the amount of money found on D2 was HK$19,568.6. This amount cannot be looked at in isolation as there was a large amount of cash found in the Vehicle driven away by D2. D2 drove off in the Vehicle with a pile of cash (HK$37,388.2)  and once the compartment was open, big amount of bank notes was visible and obvious (total amount of cash is HK$56,956.8);

(xi)  There were two mobile phones found on him when he was intercepted;

(xii)  Shortly after D1 was caught red handed, D2 was also intercepted. At about 0016 hours, while PW2 (PC17856)  was making inquiries on D2, he looked flustered and was looking around. He did not cooperate with the investigation and had the intention to escape. Therefore, PW2 put handcuffs on him.

21.Regarding the legal principles on “irresistible inference”, in HKSAR v Au Hau Ching CACC 146/2008 ([2009] HKCU 1197), the Court of Appeal propounds that:-

“18. We adopt what was said by McHugh J in the decision of the High Court of Australia in Shepherd v R [1990] 170 C.L.R. 573 at 592:

‘If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular act has been proved beyond reasonable doubt.’

and, at 593:

‘The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.”

22.Further, in R v Exall 176 ER 850 Pollock, the court rules that:

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can required or admit of.” (per p 853)

23.The essence of the joint criminal enterprise principle involves the accomplice’s culpability for the criminal act of another person, of a co-adventurer – not his own act – falling within the agreed scope of the joint enterprise or foreseen as a possible incident thereof: HKSAR v Chan Kam Shing (2016)  19 HKCFAR 640, para [40].

24.There is no gainsaying that (i)  a crime of trafficking has been committed; (ii)  D1 was the one who committed the trafficking. However, on the questions of whether D2’s presence was innocent or not, whether he was more than an ordinary company, helper or driver? Although D2 was likely to be knowingly assisting D1, the standard of proof is beyond reasonable doubt, I cannot be sure from the factual matrix above, there can be the only irresistible inference that D2 knew D1’s black sling bag contained the drugs. In other words, D2 might not know the existence of the drugs: Hong Kong Archbold 2025 Volume 2, p.47, para 17-22A.

Conclusion

25.For the reason above I find that the Prosecution fails to prove beyond reasonable doubt that D2, together with D1, were trafficking all the dangerous drugs at the material date, time and location. D2 is acquitted for Charge 1.

Appendix 1

(Summary of Main Witnesses’ Evidence)

PW1’s Evidence

1.  His evidence was that he was on duty on 9.7.2023. At 2344 hours he saw a white private car (the Vehicle)  which had been travelling slowly along the left first lane of Lam Tin Road towards Pat Heung, and was approaching Sinopec Petrol Filling Station (Sinopec)  on Kam Tin Road, near lamppost AD1632. The Vehicle then suddenly turned left, entered the petrol filling station and stopped for filling. He watched the CCTV (P104)  and confirmed that that was consistent with what he saw on the day of his observation. He was some 40 meters away. He could see clearly a male who was D2 getting out of the passenger seat, and later on saw D1 then exiting the driver’s seat and D2 getting into the driver’s seat. D2 then drove away without D1. He had reason to believe that D2 became the driver by swapping with D1. He decided to intercept D1. When he was approaching D1 from the opposite direction, 10 meters away, he clearly saw D1 holding Exhibit P28 with his left hand, and carrying a dark cross-bag from his left shoulder across his body to the right waist. He saw D1 approaching the fuel dispensing pump opposite the convenience store in the Sinopec. He then saw D1 bending down. He went to intercept D1, who immediately walked away towards Kam Tin Road after seeing PW1. He was asked to stop, D1 ran away and the officers at the scene tried to subdue him.

2.  At 0002 hours, on 10.7.2023, PW1 discovered that SGT 2137 found P28, which contained dangerous drugs near the fuel dispensing pump opposite the convenience store in Sinopec Petrol Filling Station. He confirmed that P28 was the same sling bag he saw D1 carrying in his left hand after exiting the Vehicle.

PW2’s Evidence

3.  On 9.7.2023 at 2145 hours, he was conducting an observation at Sinopec near lamppost AD1640. He went forth to intercept D2 and ascertained that D2 did not have the requisite probationary driving licence and failed to display “P” plates as required. He searched and found HK$19,568.6 and two mobile phones from his left and right pocket. A search was conducted of P28 and the Vehicle in the presence of D1 and D2. He later declared arrest on D2.

PW3’s Evidence

4.  On 9.7.2023 at 2145 hours he was on duty conducting an operation. He was the exhibit officer and conducted a search of P28 at 0018 hours on 10.7.2023 and found the drugs in the following compartments, namely (1)  the outside pocket with logo (P1, P2), (2)  the zip pocket in the middle (P16, P3, P17, P4, P18, P5, P19, P6, P20, P7, P8, P21, P9, P22, P10, P23, P12, P24, P11), (3)  the middle pocket (P80, P82, P79, P81)  and (4)  the other side of the zip pocket (P25, P13, P26, P14, P27, P29, P30).

5.  On even date at 0111 hours he found a large quantity of cash in the center console compartment and cup holder of HK$37,388.2 (P65 to P78)  and the two mobile phones at 0128 hours.

PW4’s Evidence

6.  On 9.7.2023 he began an operation at 2345 hours. At 0003 hours on 10.7.2023 he found P28 near the ground at the gas pump of the convenience store. Inside P28 he found a large quantity of drugs. He handed the bag (P28)  with the drugs to the exhibit officer.