HKSAR v. Ahmed Waqas
|
DCCC 1555/2024 [2026] HKDC 1558 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1555 OF 2024 ------------------------------
------------------------------
-------------------------------------------------- REASONS FOR VERDICT -------------------------------------------------- 1.The defendant was charged with and pleaded not guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. 2.The particulars of the offence are that, on 19 August 2024, on a private car bearing registration mark ZL3504, at the parking space of Parking Meter No. 29217B, Wing Lai Road, Tseung Kwan O, New Territories, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 17.09 grammes of a solid containing 13.97 grammes of cocaine and 5.26 grammes of a solid containing 4.48 grammes of ketamine. 3.The prosecution called two witnesses at trial:
4.Two sets of Admitted Facts were also adduced in evidence (Exhibit P4 and P4A). Prosecution Case 5.On 19 August 2024, at around 2:56 am, PW1, PW2 and their colleagues were patrolling at Tseung Kwan O area. When they reached a parking area on Wing Lai Road, they saw a white private car bearing registration mark ZL3504 (“the Vehicle”) parked beside a metered parking space with its headlights off. The Vehicle was not parked within a metered parking space, and its right-hand side was positioned very close to a medium goods vehicle. PW1 and PW2 observed that a person was seated in the driver’s seat. They also observed bodily movements, with the head kept lowered. In light of these circumstances, PW1, PW2 and their colleagues approached the Vehicle to ascertain the situation. 6.When PW1 and PW2 arrived at the Vehicle, they saw a South Asian male (later confirmed to be the defendant) sitting in the driver’s seat. PW1 tapped on the Vehicle’s window and signaled to the defendant to lower it. The defendant complied. PW1 then produced his warrant card and spoke in simple English and Punti, asking what the defendant was doing there. The defendant prevaricated and was unable to provide an explanation. PW1 found the defendant suspicious and requested him to alight from the Vehicle for investigation. During the conversation, PW1 used simple English and Punti to communicate with the defendant. The defendant told PW1 that he could understand Punti and was able to speak some simple Punti. 7.The defendant produced his HKID card to PW1. PW1 saw that, apart from his English name, the Chinese name “Chan Wah Sum” (transliterated) appeared on the HKID card. PW1 recalled that the defendant’s English name was “Ammed Waqas”. 8.PW1 subsequently conducted a body search of the defendant; nothing suspicious was found. At around 3:05 am, in the presence of PW1 and the defendant, PW2 conducted a search of the Vehicle. At around 3:08 am, PW2 found an opened blue rectangular Tempo tissue box (Exhibit P5) in the lower compartment area of the centre console between the front-passenger seat and the driver’s seat.The Tempo tissue box was placed lengthwise over the larger compartment of the storage tray (Exhibit P1(11)), with the opening of the tissue box facing upwards (Exhibit P1(1)). 9.Upon searching, PW2 found (and subsequently seized) the following suspected dangerous drugs inside the Tempo tissue box:
10.At 3:10 am, PW1 arrested and cautioned the defendant for the present offence in Punti. Under caution, the defendant said in Punti, “It was for my own consumption.” PW1 explained that he arrested and cautioned the defendant in Punti because, during the previous communication and exchange between him and the defendant in Punti, for example, when he demanded that the defendant produce his HKID card and driving licence, the defendant was able to give corresponding responses. PW1 therefore knew that the defendant could understand and speak some simple Punti. The defendant had not told PW1 that he did not understand Punti. 11.Under cross-examination, PW1 explained that he requested an Urdu interpreter to take part in the video-recorded interview at the police station because the defendant had stated to him that his mother tongue was Urdu. He also agreed that he had provided a “Notice to Person in Police Custody” in Urdu to the defendant before the interview. 12.PW1 also testified that he post-recorded what the defendant had said under caution in his police notebook, but he did not request the defendant to sign the relevant entries. PW1 disagreed with the proposition that the defendant had never said those words. 13.Under cross-examination, PW2 agreed that, in his witness statement, he had only recorded that PW1 arrested the defendant for trafficking in dangerous drugs and nothing further. 14.Both PW1 and PW2 agreed that, at the time when photographs were taken of the Vehicle, PW2 did not put the Tempo tissue box back to its original location where it had first been found, and no photograph was taken of it in that regard. After PW2 seized the Tempo tissue box, he put it inside an exhibit bag. 15.At the request of the police photographer who arrived afterwards, PW2 placed the Tempo tissue box (with the suspected dangerous drugs therein) in the car boot for the purpose of photo-taking (i.e. Exhibit P1(1)).PW2 disagreed with the proposition that he ought to have put the Tempo tissue box back to the original location for the purpose of photo-taking, given that he had already seized the item by that time. 16.The alcohol test and drug test conducted on the defendant at the scene both yielded negative results. 17.Apart from the above exhibits, PW2 also seized a blue Huawei mobile phone belonging to the defendant, and a black TCL phone from the Vehicle. These phones were subsequently examined by the Cyber Security and Technology Crime Bureau. Nothing of evidential value was found. Further investigations 18.At around 8:04 am on 19 August 2024, a house search was conducted at the defendant’s residential premises in Tuen Mun. No illegal or suspicious items were found. 19.On 20 August 2024, between 12:45 pm and 1:23 pm, a video-recorded interview was conducted by PC 14800 with the defendant at Tseung Kwan O Police Station, with the assistance of an English interpreter and an Urdu interpreter. During the interview, PC 14800, assisted by the interpreters, read out PW1’s self-recorded notebook entries to the defendant. When the defendant was asked whether he understood the alleged verbal admission made to PW1 that the dangerous drugs were for his own consumption, the defendant said “No” in Urdu, which was translated with the assistance of the interpreters. The defendant then remained silent in the interview. 20.On 21 August 2024, the suspected dangerous drugs seized were delivered to the Government Laboratory for examination. The Government Chemist’s Certificate (Exhibit P2) showed that Exhibit P6 contained a total of 9.57 grammes of a solid containing 7.80 grammes of cocaine. Exhibit P7 contained 7.52 grammes of a solid containing 6.17 grammes of cocaine. Exhibit P8 contained 5.26 grammes of a solid containing 4.48 grammes of ketamine. 21.On 23 August 2024, DNA examination was conducted at the Government Laboratory on the packaging of the dangerous drugs seized. The defendant’s DNA was not found on the packaging of the dangerous drugs. The DNA of a Chinese male, Tsang Ho Chung (“Tsang”), was found on one of the nine small transparent plastic bags mentioned in paragraph 9(iii) above. Tsang is currently remanded in custody in relation to a charge of trafficking in a dangerous drug. 22.It was agreed between the parties that Tsang was arrested on 16 October 2024 near a unit, which he had rented and had the keys to, in an industrial building in Hung Hom. Multiple dangerous drugs, including cocaine and ketamine, were found on Tsang. Cocaine, ketamine and methamphetamine hydrochloride were found in the aforesaid unit. Over 20 transparent plastic re-sealable bags of dangerous drugs were found in the unit. 23.Drug-related paraphernalia, including three electronic scales, two spoons, two pairs of scissors, a sealing machine, a clamp, and bundles of re-sealable plastic bags, were also found in the aforesaid unit. Tsang’s DNA was found on multiple bags of the aforesaid dangerous drugs, and his fingerprints were found on the inside and outside of the door to the aforesaid unit. Upon arrest and caution, Tsang admitted to trafficking in dangerous drugs and stated that the dangerous drugs were for him to earn money. The total quantities of dangerous drugs seized in Tsang’s case were 120.78 grammes of ketamine, 49.41 grammes of cocaine and 17.02 grammes of methamphetamine hydrochloride. The total estimated street value of the dangerous drugs seized was approximately HK$119,825. Tsang’s case will be heard in the Court of First Instance. 24.The Scenes of Crime Section of the Identification Bureau conducted fingerprint analysis on the small plastic bags containing the dangerous drugs seized in the present case. No marks of evidential value were found. 25.The Scenes of Crime Section of the Identification Bureau conducted fingerprint analysis on the three respective transparent re-sealable bags containing the smaller plastic bags of dangerous drugs seized in the present case. No marks of evidential value were found. 26.Further investigation revealed that the defendant had, on 12 August 2024, entered into a hire-purchase agreement for a white Toyota Prius (“the Prius”) with a company called Joy United Auto Limited (“the Company”) at a price of HK$198,000. The Prius was to be paid for in 36 monthly instalments of HK$5,500. Until the full price was paid, the Prius belonged to the Company. 27.At the time of the aforesaid hire-purchase agreement, the vehicle’s registration mark was VL 9458, and its chassis number was ZVW30-1658167. The Prius was handed over to the defendant on 12 August 2024. 28.The Drug Street Valuation Report of DSIP Li Winkie was adduced in evidence (Exhibit P3). The average retail price of cocaine powder in August 2024 was HK$715 per gramme, and that of ketamine was HK$483 per gramme. Defence Case 29.The defendant elected not to testify and called no defence witnesses. Analysis 30.The burden is always on the prosecution to prove every element of the offence beyond reasonable doubt. 31.The defendant elected not to testify. No adverse inference is to be drawn against him. 32.The defendant has a clear record. I direct myself as to the Vye directions in respect of propensity. 33.I have considered the testimonies of all prosecution witnesses, exhibits and the closing submissions. 34.Mr Allen submitted that there was no photograph showing the original location where the Tempo tissue box was found. The Court should not accept PW2’s evidence in this regard. 35.I have carefully considered PW2’s testimony. He clearly stated that the Tempo tissue box was found in the lower compartment of the centre console between the front-passenger seat and the driver’s seat. It was placed lengthwise over the larger compartment of the storage tray, with its opening facing upwards. This aspect of the evidence was supported by PW1, who had witnessed the search. I find that the testimonies of PW1 and PW2 in relation to the sequence of events and the car search were consistent with one another. PW2 had also requested the police photographer to take a close-up photograph of where the Tempo tissue box had been found (i.e. Exhibit P1(11)). I do not consider that it was strictly necessary for PW2 to have put the Tempo tissue box back to its original location. 36.In relation to PW2’s testimony that he placed the Tempo tissue box in the car boot for photo-taking, I do not find it unreasonable. The car boot provided a wide and flat surface on which PW2 could lay out the underlying A4 papers, the ruler and the Tempo tissue box for photo-taking. I reject Mr Allen’s criticism on this point. 37.Mr Allen relied heavily on HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093 and submitted that the Court should not attach weight to the defendant’s alleged admission. He also pointed out that PW1 had made an erroneous record of the defendant’s English name in his witness statement by recording it as “Ammed Waqas”, which he contended, reflected the poor quality of PW1’s evidence. 38.Having considered these submissions, I am satisfied that the erroneous record was merely a clerical error. I do not find this minor mistake undermined PW1’s credibility and reliability. Further, I am of the view that PW2 was merely an exhibit officer with his own duties to perform. The responsibility for recording what the defendant had said under caution rested with PW1. The fact that PW2 made no mention of any caution in his witness statement does not necessarily mean that PW1 did not caution the defendant. 39.PW1 testified that, from his interactions with the defendant, he understood that the defendant could understand Punti and speak simple Punti. I also note that the defendant had elected to include a Chinese name in his HKID card. In those circumstances, I find it understandable that PW1 conducted the investigation with the defendant in Punti. 40.On the other hand, the defendant was plainly not of Chinese ethnicity, and PW1 also fairly accepted that the defendant could only speak simple Punti. Furthermore, the alleged oral admission was not confirmed by the defendant either in PW1’s police notebook or in the video-recorded interview, for which interpreters had been engaged. Viewing the evidence as a whole, I do find merit in Mr Allen’s complaint concerning the defendant’s alleged admission. 41.Although I am sure that the defendant made some utterances in the course of the investigation, I am unable to safely attach weight to this aspect of PW1’s evidence, namely, that the defendant had admitted that the dangerous drugs were for his own consumption. 42.Save for the above, I find that the testimonies of PW1 and PW2 were generally simple, clear and straightforward. Their testimonies were also consistent with each other. I do not find Mr Allen’s criticisms to be able to undermine their credibility and reliability. I accept their evidence as truthful. 43.I find that the course of events was as testified by PW1 and PW2. I also accept that DSIP LI Winkie is an expert on the value of dangerous drugs sold at street level. Save in respect of the defendant’s alleged admission, I attach full weight to their testimonies. 44.Mr Allen placed significant reliance on the fact that Chinese names were written on two of the larger packages of dangerous drugs, which he submitted, tended to show that the dangerous drugs belonged to those named persons. I have carefully considered these submissions, but I consider this to be simply a red herring. First, there is no evidence to suggest that whether those names denoted the owners or indeed the ultimate recipients of the dangerous drugs. Second, it is trite law that possession does not mean ownership. A person may well be in possession of an item even though it belongs to another person. 45.I have also considered the evidence that the defendant’s DNA was not found on any of the exhibits seized, and that Tsang’s DNA was found on one of the nine small transparent plastic bags containing dangerous drugs. It was agreed by the parties in the Admitted Facts that he was a drug trafficker. However, I am of the view that the presence of Tsang’s DNA, which tended to show that Tsang might have come into contact with that plastic bag, does not necessarily mean that the defendant was not in possession of the dangerous drugs. I must assess this issue having regard to the overall circumstances of the case. 46.The defendant had entered into a hire-purchase agreement for the Vehicle at a price of HK$198,000 on 12 August 2024. The Vehicle was handed over to the defendant on the same day, and the present incident occurred on 19 August 2024. There were approximately seven days in between for the defendant to inspect the Vehicle for any objects that did not belong to him. There is no evidence to suggest that the defendant had previously lent the Vehicle to any other persons for their use. 47.The dangerous drugs were found inside a Tempo tissue box. The tissue box was not a small container. It was a rectangular carton box with dimensions of approximately 22cm x 7cm x 11cm. It was in brightly colour. It was not the sort of small personal item (such as a pouch) that a passenger might leave behind (and without the defendant noticing). 48.The Tempo tissue box was placed in the lower compartment of the centre console. According to PW2, an observer looking from the driver’s seat side would see exactly what was depicted in Exhibit P1(11). As shown in Exhibit P1(1), the dangerous drugs could readily be seen through the opening. According to PW2, when he discovered the Tempo tissue box, its opening was facing upwards. Markings were present on the Tempo tissue box: the letters “A” and “B” were written on its top surface against a white background, which made the letters prominent. One could easily see the letters. It was not an ordinary tissue box. 49.In the circumstances, I am sure that the defendant, having acquired the Vehicle for approximately seven days by the day of the offence, must have been able to notice the presence of the Tempo tissue box. 50.In addition, the street resale values of the cocaine and ketamine were HK$12,219 and HK$2,541 respectively. These were high-value illicit substances. It is impossible for someone to leave them behind in the defendant’s Vehicle. 51.Lastly, the dangerous drugs were placed inside a Tempo tissue box. Tissues are a common, everyday item that a driver would use while inside the vehicle cabin. A driver would access the tissue box and take tissues and therefore would readily discover the dangerous drugs. In fact, the dangerous drugs could be seen directly through the tissue box’s opening. 52.I am of the view that, in the circumstances, no one would leave behind dangerous drugs of such large quantity and high value and concealed in that manner inside a Tempo tissue box in the Vehicle. I am sure that it was the defendant who placed the dangerous drugs inside the Tempo tissue box. 53.The dangerous drugs were in either crystalline or pellet form. They were stored inside transparent plastic re-sealable bags. One could readily see what was in the bags. The dangerous drugs had been deliberately placed inside a Tempo tissue box, which was not a usual place for storage. I am sure that the defendant knew that they were dangerous drugs. 54.The Tempo tissue box was placed in the lower compartment of the centre console. It would be convenient for the driver to retrieve the plastic re-sealable bags (which contained dangerous drugs) and distribute them to others. The dangerous drugs were also packed in a systematic manner: all smaller transparent plastic re-sealable bags (without a red seal) were stapled at the opening, whereas those smaller transparent plastic re-sealable bags with a red seal were not stapled. 55.Taking into account the total value of the dangerous drugs, the fact that more than one type of dangerous drugs were found, the manner in which the dangerous drugs were packaged and stored inside the Tempo tissue box, and notwithstanding the absence of any admission, I find that the only irresistible inference is that the defendant trafficked in those dangerous drugs. 56.Accordingly, the defendant is convicted as charged.
|
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment
Further hearings and rulings under DCCC 1555/2024