HKSAR v. Liang Chun Ho

DCCC102/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 102 OF 2012

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Reasons for Verdict

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1.Defendant is charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The prosecution’s case is that the defendant was seen holding a plastic bag and acting suspiciously on 24 December last year. He was intercepted by a police officer for a stop‑and‑search whereupon the drugs, which are the subject of the charge, were found inside the defendant’s plastic bag.  The defendant then fled but was eventually subdued by the police and was arrested.

3.The defence case is that the defendant was never in possession of the bag.  A man in plainclothes suddenly the defendant from behind.  The defendant fled because he did not know that the man was a police officer.  The bag was held by the police officer and the drugs were planted on him by the police officers.

4.This is a criminal court.  I remind myself that the onus is on the prosecution to prove the charge beyond all reasonable doubt.  If there were any reasonable doubt, the benefit of that doubt must go to the defendant.

5.Part of the prosecution’s case was not in dispute.  Facts admitted by the parties under section 65C of the Criminal Procedure Ordinance, Cap.221 were produced as P17.  The prosecution only called two witnesses.  The defendant elected to give evidence but called no other witnesses.

The Prosecution’s Evidence

6.In the evening of 24 December last year, PC7011 (PW1) was on anti-crime control in the Sau Mau Ping district in EU car No. 59 with his colleagues: Sergeant 53079, PC6842 who was PW2, and PC34294.  PW1 was in plainclothes that evening.

7.At about 7 pm that day, PW1 and his team members arrived at Po Tat Estate where they began to patrol on foot.  PW1 patrolled alone whilst two other uniformed officers (Sergeant 53079 and PW2) patrolled together.

8.At about 7.35 pm, PW1 was outside Tat Fu House in Po Tat Estate when he noticed the defendant at a distance of about 20 metres.  The defendant was holding a white-and-yellow bag in his right hand. He was around nervously and walking at a fast pace.  The plastic bag was produced as P1.  The positions of the defendant and PW1 at the time is(are?) depicted in a sketch drawn by PW1 and produced as P18.

9.PW1 felt suspicious and decided to go forward to intercept the defendant.  When PW1 reached the defendant, he showed the defendant his warrant card and revealed his police identity.  He explained to the defendant that he suspected that the defendant was in possession of dangerous drugs and requested to search the defendant.  The defendant appeared to be dumbfounded and did not respond.  PW1 then took and looked into the defendant’s plastic bag, P1.  He saw some white powder inside some resealable plastic bags but the defendant started to run towards Tat Hong House before PW1 had a chance to inspect those items. 

10.PW1 immediately gave chase.  During the chase, PW1 was about 6 feet behind the defendant and PW1 shouted, “Police.  Don’t run.”  However, the defendant continued to run.  After chasing the defendant for about 150 metres which took about 40 seconds, PW1 saw Sergeant 53079 and PW2 at a distance of about 50 metres away from the defendant. 

11.At about the same time, the defendant slowed down and PW1 went forward and subdued the defendant against the wall.  PW2 saw PW1 chasing after the defendant and shouting, “Police.  Don’t run.”  After PW1 had subdued the defendant, PW2 and Sergeant 53079 went forward to assist.  The defendant appeared to be out of breath and he was co-operative when he was stopped by PW1.  PW2 saw the defendant move his arms and body slightly after he had been subdued. 

12.PW1 then inspected the items inside P1 in front of the defendant and PW2.  There was no dispute that PW1 found P1 outside Tat Fu House and that the following items were inside P1:

(1) a resealable transparent plastic bag (P2) with a red line containing two resealable transparent plastic bags (P3 and P4), each with a red line, each containing some white powder (P2A);

(2) a resealable transparent plastic bag (P5) with a red line containing two resealable transparent plastic bags (P6 and P7), each with a red line, each containing some white powder (P5A);

(3) a resealable transparent plastic bag (P8) with a red line containing two resealable transparent plastic bags (P9 and P10), each with a red line, each containing some white powder (P8A);

(4) a resealable transparent plastic bag (P11) with a red line containing two resealable transparent plastic bags (P12 and P13), each with a red line, each containing some white powder (P11A);

(5) a torn resealable transparent plastic bag (P14) with a red line containing some white powder (P14A) (see paragraph 1 of admitted facts).

13.PW1 then handed the abovementioned exhibits to PW2 for safe custody.  At about 7.40 pm on the same day, PW1 declared arrest on the defendant outside Tat Hong House for the offence of possession of dangerous drugs.  See paragraph 2 of P17.

14.Upon subsequent examination by the government chemist, Chan Tai-wai David, it was confirmed that:

(1) P2 was containing P3 and P4, containing a total of 27.84 grammes of a powder containing 14.94 grammes of ketamine (P2A);

(2) P5 was containing P6 and P7, containing a total of 27.26 grammes of a powder containing 17.03 grammes of ketamine (P5A);

(3) P8 was containing P9 and P10, containing a total of 27.50 grammes of a powder containing 14.95 grammes of ketamine (P8A);

(4) P11 was containing P12 and P13, containing a total of 26.73 grammes of a powder containing 13.61 grammes of ketamine (P11A);

(5) P14 was containing 6.63 grammes of a powder containing 4.54 grammes of ketamine (P14A).

15. That is a total of 115.96 grammes of a powder containing 65.07 grammes of ketamine (see paragraph 3 of P17).

15. The relevant government chemist certificate dated 17 January of this year was produced as P15. The street value of the dangerous drugs was about $13,567 in December last year.

16.At about 10 pm on the same day, PC7844 took six photographs of the dangerous drugs in the Report Room of Sau Mau Ping Police Station.  There was no dispute that these six photographs accurately depicted images captured by the camera.  The photographs were produced in an album marked P16, 1 to 6.

17.Between 11.02 pm and 11.12 pm on 24 December, PC7844 and Detective Police Inspector Ho Yin-fung conducted a search at the defendant’s abode at Flat F, 2nd Floor, Kin Fung Building, Fu Yan Street, Kwun Tong in the presence of the defendant.  Nothing suspicious was found or seized by the police in that search.  The chain of evidence of all exhibits was admitted (see paragraphs 4 to 8 of P17).

The Defence Evidence

18.Defendant told the court that his parents lived in Tat Fung House in Po Tat Estate.  The defendant went to his parents’ home at about 7 pm on 24 December last year and discovered that the $2,000 in the form of four $500 notes that he intended to give to his parents as household money was missing.  He was very concerned and he tried to look for the missing money everywhere inside his parents’ home, including the bathroom, the computer desk drawer and his bed but in vain. 

19.He recalled that he was talking on the telephone to a friend whom he may now be unable to contact and having a cigarette on the ground floor of his parents’ building before he went to his parents’ home.  The money was inside his trousers pocket and he thought he might have dropped the money when he took out his cigarettes.  He therefore went downstairs to look for the missing money but found none on the ground floor.  He decided to look for the money along the route he took to his parents’ home.  He was looking around at the ground. 

20.When the defendant reached Tat Fu House, he noticed a man looking at him curiously.  The defendant thought that the man was a curious pedestrian.  He paid no attention to the man and continued his search.  Suddenly, the defendant felt a hand grabbing his upper garment on his shoulder.  He was very scared.  The person grabbing him told the defendant not to run away.  The defendant was even more frightened.  He suspected that the person was a triad.  The defendant brushed away the hand and started to run without a word.  As he ran, he noticed that he was being pursued by the man. During the chase, he saw two men in blue uniform at a distance of about 13 metres.  He believed that they were either police officers or security guards, but he did not shout for help. 

21.He kept running for one to two minutes until he got to Tat Hong House.  When he was about 10.5 feet away from the two uniformed persons, he saw that they were police officers.  He ran up to the police officers, intending to ask for help, but one of those uniformed police officers pushed him to the wall and he was handcuffed.  The man chasing the defendant then arrived.  The man was holding a bag.  The man alleged that the bag belonged to the defendant and counted the contents in his presence.  The defendant’s mind was blank and paid no attention to what was happening around him.  He told the police officers that the bag did not belong to him many times, but the police only asked whether he had anything else to say. 

Submissions

22.The prosecution admitted that there was a slight inconsistency in PW1 and PW2’s evidence in respect of whether the defendant put up a slight struggle when subdued.  However, they argue that this does not affect the credibility of the witnesses.  The prosecution submitted that the defendant’s evidence was self-contradictory and incredible.

23.Counsel submitted that the onus was on the prosecution to prove the charge beyond all reasonable doubt.  It was not a question of whose evidence the court prefers.  There was no fingerprint evidence and there was a slight inconsistency between PW1 and PW2’s evidence, namely, whether the defendant stud when he was subdued.  He urged the court to give the benefit of the doubt to the defendant.

24.I have considered all the evidence and submissions very carefully.  PW1 and PW2’s evidence was clear and direct.  They were unshaken under cross-examination.  I agree that PW1 told the court that there was no resistance from the defendant when he was subdued.  According to PW2, the defendant moved his body and arms slightly when subdued. 

25.Whether this amounted to resistance is a matter of personal opinion of the police officers.  The inconsistency does not affect that credibility.  Apart from that, the evidence of PW1 and PW2 was wholly consistent.  I found PW1 and PW2 to be honest and credible witnesses.  I accept their evidence.

26.I did not believe the defendant.  His version of events was preposterous.  His evidence was self-contradictory and some of his allegations were never even put to the witnesses.  There were too many examples to enumerate.  The most salient examples are as follows:

(1) The defendant stated that the alleged missing money was originally placed in his trousers pocket. However, when he found it missing, almost as soon as he arrived home, he looked around in his bed, his computer desk drawer and toilet. If the money had been in his pocket, there was no reason for him to look in those places especially inside drawers.

(2) Initially, the defendant explained that during his search he would bend down and pick up any item which looked like a banknote. Under further cross-examination, he alleged that he never picked anything up. He only smoothed out the item to see if it was his money.

(3) The defendant stated that when he first noticed the man, the man only appeared to be a curious pedestrian. Although nothing else happened before the man approached, when the defendant felt a hand on his shoulder, he thought that the man was a triad with hostile intentions. The defendant started running without a word.

(4) Counsel suggested to PW1 that when PW1 approached the defendant, PW1 asked what the defendant was looking for. There was no such evidence from the defendant.

(5) PW1 stated that the chase lasted for about 40 seconds. That was never challenged. The defendant alleged that the chase lasted for about one to two minutes.

(6) Initially, the defendant stated that the two uniformed police officers were about 10.5 feet away from him when he first saw them. Under further cross-examination, he stated that he saw two uniformed persons at a distance of just under 13 metres.

(7) The defendant admitted that he believed that the two uniformed persons were either police officers or security guards. He was desperate for help, but he never shouted to them for help during the chase.

(8) In examination, the defendant said that he only ran up to the two uniformed police officers, intending to ask for help, but he was pushed to the wall by one of the uniformed police officers before he had the chance to do so. Under cross‑examination, the defendant initially agreed that he never shouted to the two police officers for help. He later changed his evidence and stated that he shouted “Ah Sir, help” when he was running towards them.

(9) Both PW1 and PW2 told the court that the defendant was subdued against the wall by PW1. This was never challenged. To the contrary, counsel suggested to PW1 that the defendant was subdued by PW1 and other officers. However, the defendant alleged that he was in fact pushed against the wall and handcuffed by one of the uniformed police officers before PW1 even arrived. In other words, PW1 took no part in subduing the defendant. The defendant’s evidence was inconsistent with the case put.

(10) In examination-in-chief, the defendant alleged that his mind was blank after he was pushed against the wall and he paid no attention to what was happening. Under cross-examination, the defendant stated that he knew PW1 showed him the bag and alleged that it belonged to him. He repeatedly told the police officers that it did not. The police officers’ only response was to ask the defendant whether he had anything else to say. These allegations were never put to any of the prosecution witnesses, and the defendant’s evidence was self-contradictory.

27.I found the defendant to be wholly dishonest, incredible and unreliable.  He was clearly making up this evidence as he went along.  I rejected his evidence.

28.The prosecution adduced evidence of flight in the present case.  I remind myself of the principles and guidelines in R v Chan Kwok Keung & Another [1990] 1 HKLR 359 and HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155.  The defendant fled within seconds of being intercepted by PW1 who had already revealed his police identity and as soon as PW1 looked into the plastic bag.  There was clearly a nexus between the defendant’s flight and his possession of the drugs.  The only and irresistible inference is that the defendant knew that the contents of the plastic bag were drugs. 

29.There was no evidence of actual trafficking in the present case.  However, the defendant was arrested on the street in the evening of Christmas Eve with over 115 grammes of a powder containing over 65 grammes of ketamine.  The drugs were packaged in nine separate resealable plastic bags.  The street value of the drugs was $13,567.  The defendant is only a youngster.  The defendant was not living in Po Tat Estate at the time. He lived in Kwun Tong. 

30.Having regard to all the circumstances, the only and irresistible inference is that the defendant was trafficking in those drugs.  I found the charge proved beyond all reasonable doubt.  The defendant is accordingly convicted.