HKSAR v. Tsang Siu-ngau

DCCC 1338/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1338 OF 2011

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BETWEEN

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REASONS FOR VERDICT

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The Charge

1.The defendant was charged with and pleaded not guilty to a count of trafficking in a dangerous drug, namely, 180 grammes of a powder containing 50 grammes of ketamine, such offence was contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The prosecution has called 2 witnesses ie SPC 52382 (“PW1”) and SPC 51645 (“PW2”).  The defendant chose to testify but called no witness.

s 65B & s 65C of the Criminal Procedure Ordinance Cap 221

3.Certain evidence of the case, including the proper handling and custody of exhibits and the photographs of the same (exh p-9) were agreed by both parties (exh p-10) by virtue of s 65C of the Criminal Procedure Ordinance, Cap 221.

4.The estimated street value for the dangerous drug in question in October 2011 was agreed by both parties to be $19,800 as stated in the witness statement of DSI Leung Kin Man (exh p-11) by virtue of s 65B of the Criminal Procedure Ordinance, Cap 221.

The issue

5.The identity of the defendant was not in issue.  The main issues of the case werethe placewhere the dangerous drug in question was found and the knowledge of the defendant.  Such issues involve the credibility and reliability of witnesses.  The Prosecution has to prove its case beyond all reasonable doubt.

6.The defendant has a clear record. This court will take into account the defendant’s previous good character fully according to the Vye directions.

Evidence of PW1 and PW2

7.On 11 October 2011, SPC 52382 (“PW1”) and SPC 51645 (“PW2”) were on anti-dangerous drug patrol at the Yau Tsim district.  At around 10:30 pm they arrived at the 3/F corridor of Multifield Plaza, Nos 3-7 Prat Avenue, Tsim Sha Tsui, Kowloon (“the Corridor”).  PW1 saw the defendant wandering at the Corridor outside the rear entrance to a restaurant and looking around nervously.  PW1 and PW2 thus intercepted the defendant and revealed their police identity.

8.The defendant was not in any uniform and did not appear to be the staff of the restaurant.  He was then asked several times the reason for being present at the place, but he gave no answer.  The police then told the defendant that the location was known to be a black spot for dangerous drugs, and that they needed to search him.  When conducting a body search on the defendant, it was observed that the right front pocket of the defendant’s sports trousers (“exh p-2”) was bulging.  Inside that pocket, PW1 found a white plastic bag (“exh  p-1A”) containing a transparent re-sealable plastic bag (“exh p-1B”) which further contained 14 small packets of white powder (collectively referred to as “exh p-1”).  PW1 handed the same to PW2 who then counted exh p-1 in the presence of the defendant.  The said items found were handed over to PW2 for seizure.

9.At around 10:40 pm on the same day, PW1 arrested the defendant for the offence of Trafficking in a Dangerous Drug.  Under verbal caution at scene, the defendant said he had nothing to say.

10.At around 10:42 pm on the same day and witnessed by PW2, PW1 conducted a further search on the defendant.  It was found from the black shoulder bag (“exh p-3”) carried by the defendant across his shoulder, one “GLAD” re-sealable plastic bag (“exh p-4”) containing 37 small transparent re-sealable plastic bags (collectively referred to as “exh p-5”) and an electronic scale with battery (“exh p-6).  PW1 handed the same to PW2 for counting in the presence of the defendant.  The lighting of the Corridor was adequate and good.

11.Upon arrival at the police station, PW2 reported the case to the Duty Officer Sgt Wong Sui Fat and then conducted an initial body search on the defendant.  $2.60 cash was found on the defendant.  The money and the pair of trousers which the defendant was wearing were then handed over to PW2 by PW1.

12.PW1 testified that all other exhibits were handed over to PW2 at the crime scene, whereas PW2 said the same thing except that the shoulder bag was handed over to him together with the $2.60 and the pair of trousers belonging to the defendant at the police station.

13.PW2 explained that he witnessed PW1’s searching of the shoulder bag which the defendant had been carrying with him.  Having taken exhs p-4 to p-6 out from the shoulder bag, the defendant was allowed to carry the shoulder bag until they returned to the police station.

14.At 1:32am on 12 October 2011 S/Sgt Yung, the defendant and PW2 signed on the tamper evident envelope containing exh p-1.

15.During cross examination, PW1 admitted to have arrested a person called ‘Leung Wing Lim’ later on 2 November 2011, other than that he had no dealings with him nor anyone called ‘Sai Wai’ or ‘Wai’ at all at least between 23 September and 2 November 2011. 

The defendant’s evidence

16.In general, the defendant purportedly claimed that he was framed up by the police together with 2 males by the name of ‘Sai Wai’ and Leung Wing Lim.  He also claimed that exhs p-1, p-1A, p-1B, p-4 to P-6 were not his nor found on him as alleged by the Prosecution. He also denied knowledge of the dangerous drug.

17.The defendant, aged 22, was a kitchen worker earning $7,000 per month.  On 11 October 2011, he went off work at 6 pm.  Shortly after 7 pm, a person named Sai Wai (“SW”), whom the defendant had known for slightly over one month at an amusement games centre, phoned him.

18.The defendant claimed that up to that day, he had only met SW 2 to 3 times, all in an amusement games centre.  They had never contacted each other before.  He hardly knew SW, neither did he know SW’s full name, occupation nor personal details.  This was the first time SW had phoned him.  Such call lasted for 5 to 6 minutes, in which he was asked to phone a person named Leung Wing Lim (“Leung”) and to go to Prat Avenue at Tsim Sha Tsui to collect a bag of 6 to 7 mobile phones which were worthless for a reward of $1,000.  SW could not tell what kind of mobile phones they were and the defendant did not ask SW what purpose those phones were for. 

19.The defendant then went to Tsim Sha Tsui.  Whilst he was playing at an amusement games centre, SW called him the second time and asked the defendant to call Leung.

20.About 9 pm when the defendant was on his way to Prat Avenue, he called Leung whom he had never met nor heard of before the incident.  He talked with Leung on the phone until he reached the G/F of Multifield Plaza where he saw Leung already waiting there.  He was asked by Leung to go up to the corridor on 3/F of the same building by himself to pick up a bag of valueless mobile phones which was placed on top of an air conditioner.

21.As the defendant had never been to 3/F and was not familiar with the surroundings, Leung had to give details about where and which particular air conditioning machine it should be.  They spoke for about 15 minutes.  None of them had raised the issue about Leung being there and chose not to get the bag personally.

22.The defendant claimed that he did not feel strange nor suspicious about the whole situation.  Despite the fact that Leung was a total stranger to him, the defendant was still willing to fully comply with Leung’s instructions to go up to the 3/F corridor personally to pick up the said bag and let Leung remain at the G/F.

23.Upon arriving 3/F, the defendant noticed that there were 2 to 3 restaurants but none of them were opened for business, and no restaurant staff was there.  As the bag in question was placed on top of the relevant air conditioner, he had to climb up a chair to reach for it.  Whilst the defendant was taking the said bag down, a team of police officers rushed out and caught hold of him.

24.Although the defendant claimed that he was sure that the said bag in question was a PARKnSHOP bag, he later changed his version and confirmed that it was exh p-1A and not a PARKnSHOP bag.  After he was intercepted, things were found inside the exh p-1A in his presence at the Corridor including the electronic scale, plastic bags, resealable plastic bags and the dangerous drugs in question.

25.The defendant was later taken to the rear staircase but he insisted that he would not say anything to the police without a lawyer.

26.After being taken to the police station, the defendant claimed that he was conned into signing the exhibit envelope where the dangerous drug was kept, but he had never made any complaint to the Duty Officer in the police station.

Court’s observations on the evidence

27.It seems that evidence of PW1 and PW2 differed with regard to the time of seizure of exh p-3, the black shoulder bag.  PW1 seemed to indicate that he handed exh p-3 to PW2 at the Corridor whilst PW2 said he received exh p-3 from PW1 at the police station.  Such discrepancy was minor and did not in any case affect significantly the Prosecution’s case.  Both PW1 and PW2 testified that exhs p-4 to p-6 were found from exh p-3 and immediately handed over by PW1 to PW2 at the scene.  Moreover, the defendant admitted possession of exh p-3 and agreed that he was carrying exh p-3 in the exact way as described by PW1 and PW2 at the time of arrest.  The present discrepancies hence do not affect the overall credibility and reliability of PW1 and PW2.

28.It was put to only PW1 that the police had acted upon information from Leung and/or Sai Wai to set the defendant up for the present offence.  There was no evidence to suggest that the police had acted upon information during the anti-narcotics patrol on 11 October 2011.  PW1 confirmed with the aid of his notebook that he had no encounter with Leung until the latter was arrested by him on 2 November 2011, and by that time the defendant had already been arrested for almost a month.  PW1 said that he knew no one by the name of Sai Wai.  On the other hand, the defendant did not substantiate in what way Sai Wai and/or Leung had provided information to the police in connection with his arrest.

29.There were no material inconsistencies in the evidence of PW1 and PW2.  Their credibility has not been weaken nor in any way discredited under cross-examination.

30.The defendant chose to testify and called no witness.  He is a man of clear record.  He gave inconsistent and conflicting versions of testimony, for example, the number of calls with SW and Leung, the places when making call to them and the time of calling.  Contrary to his case, the defendant alleged that during the material time, there were no people at the Corridor.  He made up his evidence in court as he went along and he was evasive.

31.The defendant’s version in helping out SW and Leung is highly inconceivable.  He claimed that he had known SW for just over a month and met him only 2 to 3 occasions at the amusement games centre.  He knew nothing about SW and yet for the very first telephone conversation with him, he did according to his instructions ie to pick up a bag of worthless mobile phones for a handsome reward of $1,000 without questioning nor feeling dubious, suspicious or otherwise.  He realized the reward of $1,000 was high but as SW knew that he was short of money, therefore, he was asked to do such task.

32.The defendant was also asked to contact a complete stranger Leung.  When he met Leung at the Multifield Plaza, he was asked to go up to the 3/F through back door alone to pick up a bag of worthless phones allegedly belonged to Leung.  Not only did Leung choose not to walk up to the 3/F and to pick them up personally, but he also remained on the G/F and took the trouble of directing the defendant the way to the Corridor and giving details of the place where the ‘phones’ were kept. 

33.The phones according to the defendant were placed somewhere high up, ie on top of a tall air conditioning machine, where it could not be easily reached and noticeable. 

Court’s findings, knowledge and possession

34.It was inconceivable that the defendant complied fully with the questionable instructions of the two strangers without questioning.  He purportedly chose to take up an easy task which he did not know the purpose of, but suspiciously arranged in many ways for a high reward.  The defendant’s evidence is not only inconsistent, but also unreliable, illogical and incredible.  This court finds that the defendant was a dishonest witness.  The evidence of PW1 and PW2 were consistent and straight forward.  This court accepts their evidence and finds:

(i) that the dangerous drug in question was found inside the right front trousers pocket of the defendant;

(ii) that the defendant knew that the drug or things in his trousers pocket were dangerous drug; and

(iii) the defendant was in possession of exhs p-1, p-1A, p-1B, p-2 to p-6 at the material time.

35.The street value of p-1 amounted to HK$19,800.  However, the defendant was lack of personal financial means to purchase the drugs for himself.  The defendant was aged 22, a kitchen worker earning HK$7,000 per month, all his earnings had been spent in the amusement centre and/or on shopping, he had no savings at all, he had only HK$2.6 cash with him at the time of arrest.  He admitted that he was in need of money, therefore, SW and Leung offered him a high reward task to pick up a bag of worthless phones at the Corridor.

36.The dangerous drug in question was packed in a way suitable for distribution.  Inside exh p-1A and p-1B, there were 14 small resealable plastic bags each containing ketamine.  Equipment fit and intended to be used for distributing dangerous drugs were found on the defendant ie 37 small resealable plastic bags (exh p-5) and an electronic scale with battery (exh p-6).  The only irresistible inference that can be drawn was that exh p-5 and p-6 were to be used for distributing and/or otherwise dealing with dangerous drugs for retail.

37.This court finds that the only irresistible inference that can be drawn from the evidence is that the defendant possessed the dangerous drug in question for the purpose of trafficking.  The Prosecution has established its case beyond all reasonable doubt.  The defendant is convicted as charged.

Please refer to CACC157/2012 for the relevant appeal(s) to the Court of Appeal.