HKSAR v. Tse Yu Hin
|
DCCC 694/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 694 OF 2012 ____________
____________
REASONS FOR VERDICT 1.Charges The defendant was charged with three offences. They were:-
2.D1 pleaded not guilty to charge 1 and guilty to charges 2 & 3. 3.Overview The defendant was intercepted by police officers upon suspicion that he was in possession of dangerous drugs. During a body search the defendant pushed the police officer away and fled. Three police officers immediately chased after the defendant. The defendant fled into a hillside slope area. The police shouted at him not to run. In the midst of the chase the defendant fended off and pushed the three police officers away to evade capture, two of them sustained injuries. 4.During the chase one of the police officers (PW1) saw the defendant put his right hand into his right trousers pocket and take out a white packet and throw it away on to the hillside. Almost immediately after the defendant had thrown away the packet the defendant was subdued by the police officers. 5.Despite PW1 looking for the white packet of drugs on the hillside he was unable to find it. About an hour later with the assistance of a police sniffer dog called ‘Devil’ a plastic transparent bag containing ketamine, (white in colour) the subject matter of the charge was recovered from a shrub at the bottom of a cluster of trees. The shrub was located at a distance of about 1 metre away from where PW1 had seen the defendant throw the plastic bag and to where he was subdued. 6.The defendant was not present when the bag of drugs was found. He had already been taken back to the police station. 7.The defendant’s case was that he was never in possession of the dangerous drugs and he had not thrown anything away. 8.Issues
9.A resolution of the first issue turns principally on the credibility of PW1. A resolution of the second issue involves a consideration of the established facts together with a consideration of what inferences might be drawn from those facts. 10.Background facts The majority of the facts were admitted and/or not challenged by the defendant. 11.At around 9.45 pm on 8 June 2012 two Emergency Unit (EU) teams of police officers were conducting an anti-robbery patrol around Lei Muk Shue Estate (LMSE), Kwai Chung, New Territories. 12.At about 10 pm while on patrol PW4, WPC 6683 saw a taxi with its engine running but stopped with its hazard lights on with two female passengers on board. About three minutes later PW4 saw the defendant and another male approach the taxi. 13.When the defendant and the other male were on their way to the taxi they looked ahead and saw a uniform officer PC9898 (PW4’s partner), at that moment they both suddenly put their right hands into their right trousers pockets and boarded the taxi hurriedly. The taxi then started off. PW4 suspected they were in possession of dangerous drugs and told her supervisor who was nearby to intercept the taxi. 14.With the assistance from PW4’s team members the taxi was stopped near the exit gate of LMSE. The taxi was intercepted at about 10.04 pm. PW4 searched the compartment of the taxi but found nothing suspicious. The three passengers and the defendant were told to alight from the taxi as there would be an investigation. 15.The defendant asked the officers if it was possible to take them to a quieter place for the police to make their investigation and to carry out their search upon them. The police officers obliged and took them to Yeung Shue House, LMSE where they arrived at 10.16 pm. 16.After arriving there, the defendant was then separated from the other passengers. He was taken to the car park outside Yeung Shue House where PC5473 began a body search on the defendant. During the search the defendant suddenly pushed PC5473’s chest wall and fled. The defendant fled into a hillside banking the car park. The defendant ran towards and leapt over a concrete barrier of the car park and fled down the hill to a flat section and ran alongside a concrete gutter. On one side stretching along the gutter was wire fencing on the other was the hillside. In the meantime he had avoided being caught by the police officers and had assaulted them when they attempted to grab hold of him. 17.After a short while the defendant then ran back up the slope towards the concrete barrier which bordered the car park. The defendant ran alongside the concrete barrier. When the defendant was by a tree numbered 309 in P1 photo 13, PW1 saw the defendant put his right hand into his right trouser pocket and take out a packet which was white in colour. At this moment PW1 dashed forward to try and stop the defendant from throwing it away but he was unable to stop the defendant from throwing it away. 18.PW1 saw that the defendant had thrown the packet towards the front of the defendant; he did not however see where the packet landed. 19.Almost immediately after the defendant had thrown the packet PW1 pushed the defendant onto the ground and with the assistance of PC5473 and PC5626 they subdued the defendant. 20.The chase lasted for about 37 metres. The route can be seen in P8 the sketch and the route and surroundings can be seen in the photos P1 photos 5-14. 21.Once the defendant was subdued, PW1, the two police officers (PC4573 & PC5699) and the defendant went back up to the car park. They used a ladder which was already there to climb over the concrete barrier from the hillside back to the car park (see P1 photo 13). 22.Once in the car park PW1 handed the defendant over to PW2 PC54483 at about 10.23 pm. PW1 told PW2 that the defendant had assaulted the two other officers. PW1 then immediately went back down to the hillside to look for the white packet thrown away by the defendant. 23.PW1 estimated that he was away from the hillside area where the defendant had thrown the white packet for about 1 – 2 minutes. 24.PW1 spent about 10 minutes looking for the white packet on the hillside near to where the defendant threw the white packet. Despite using his torch, he could not find it. 25.As PW1 failed to find the packet he used his beat radio to inform the teams of EU68 and EU69 to assist him in his search. PW1 remained at the hillside area alone near to where the drugs were thrown to secure the area until the EU teams arrived. No-one entered that area of the hillside until his colleagues of EU arrived. 26.The EU officers and the police sniffer dog named Devil arrived at the car park above the hillside at about 10.45 pm. Whilst PW1 remained on the hillside area securing the area PW1 related to the officers in charge of the EU team including PW3 PC4880, Devils handler, what had happened between the police officers and the defendant. He told them that he had seen the defendant throw a white packet and showed PW3 where the area where the defendant had thrown the packet. 27.Devil was deployed by PW3 at 11.15 pm to look for the white packet which was suspected to be dangerous drugs. At around 11.30 pm a packet of drugs white in colour (the subject matter of the charge Ketamine) was found by Devil. The packet was located at the base of a cluster of trees within some shrub. See P1 photo 14. 28.PW1 was told by his colleagues that drugs were found by Devil. He went to see where they were found. The drugs were found in a cluster of trees at the base in a shrub at a distance of about one metre from where PW1 the defendant had thrown the packet. 29.The spot where the drugs were found in the shrub was marked by PW1 in exhibit P9 with a red circle and by PW3 in exhibit P10 with a blue cross. 30.PW1 seized the packet of drugs using gloves. There was one transparent resealable plastic bag containing two transparent resealable plastic bags each containing white powder. The 2 packets of white powder were ketamine weighing 13.54 and 13.57 grammes each. 31.From the time the defendant was handed over to PW2 at 10.23 pm to the time they left the scene at 11.10 pm PW2 and the defendant stayed on board a police vehicle. The defendant left the scene as he was taken to the police station by PW2. 32.The defendant was not present at the scene when the drugs were found at 11.30 pm. 33.At the police station at 0204 hours on 9 June 2012, after PW2 was informed that a packet of drugs had been found at the scene he declared arrest on the defendant for possession of dangerous drugs. Under caution the defendant had nothing to say. 34.Defence case D1 elected not to give evidence as was his right nor call any defence witnesses. I drew no adverse inference on the defendant’s right to remain silent. 35.The defence as put in cross examination to PW1 was that the defendant was never in possession of any drugs and did not throw anything away when he was fleeing from the police officers. 36.Proof I have borne in mind that it is for the prosecution to prove beyond all reasonable doubt that the defendant was trafficking in dangerous drugs. No onus whatsoever lies on the defendant. 37.Submissions I have taken into account Mr William Allan counsel for the defendant’s closing submission questioning the credibility of PW1. I have also carefully considered all the evidence before me. 38.I have referred to a number of Mr Allan’s submissions in my analysis below but the fact that I have not mentioned anyone of them does not mean I have not considered them all. 39.Mr Allan submitted there were many unusual and uncharacteristic actions taken by the police officers which cast doubt on the prosecution case. 40.Mr Allan raised the following points:-
41.I turn now to deal with each of the above points. First, points (i) and (ii). (i) After the defendant allegedly threw the white packet PW1 did not search the vicinity immediately after the defendant was seen to throw the packet but only did so after 1-2 minutes (ii) During this 1-2 minutes PW1 left the area where the defendant allegedly threw the drugs “unsecured”, PW1 did not search the vicinity immediately upon subduing the defendant but immediately left the area (the hillside) together with the other 2 injured officers to take the defendant and the two officers back to the car park. 42.PW1 said that the reason why he did not immediately search for the white packet was because the two other officers were injured (as they had been assaulted by the defendant during the chase – which was not in dispute). PW1 said he could see one of the officers was bleeding, therefore he wanted to take him back to the car park where it was brighter so that the officer’s injuries could be examined and see how bad his injuries were. 43.Mr Allan submitted that leaving the vicinity without immediately searching the area for the drugs was extraordinary and a dereliction of PW1’s duties. If the defendant had really thrown a packet suspected to contain dangerous drugs PW1 should have looked for the packet immediately without leaving the area. 44.Mr Allan submitted that the two injured officers could have guarded the defendant at the hillside whilst PW1 should have immediately gone to look for the white packet. Or alternatively PW1 should have remained there on the hillside with the defendant and the two injured officers and radioed for assistance given that PW1 knew that many of his colleagues from the EU teams were nearby. 45.PW1 should not have left the scene, leaving it as an unsecure area so as to leave that area open either for other people to pass through, or even to leave drugs. It was undesirable for PW1 to have left the hillside unsecured and not to have searched for the packet immediately. 46.Analysis PW1 arguably should have remained at the scene and radioed for assistance. In the situation in which PW1 encountered, his priority was to take his injured colleagues to the car park where it was brighter so they could be examined for their injuries. PW1 said after the chase his colleagues were injured and they were all out of breath. It was understandable that PW1 wanted the defendant to be guarded by an officer who had not been involved in the chase nor was injured. Further it was reasonable in the circumstances that PW1’s concern about the physical condition of his colleagues was greater than the location of the drugs. 47.The area was left unsecured for about 1-2 minutes. In the circumstances of this case, this was not fatal to the prosecution case. The hillside was not a thorough-fare for people. It was an enclosed area with a wire fence on one side and a concrete barrier on the other. Any persons entering that area would be required to climb over those barriers. It was late at night. In view of the above factors PW1 leaving the scene unsecured for a brief period of 1-2 minutes was not detrimental to the investigation. 48.I found it inherently improbable that any persons would have accessed that hillside area in the brief 1-2 minutes and even if any persons had it would not have changed or affected the scene. 49.It was inherently improbable that drugs would have been left or disposed of at that exact same spot or area by anyone that evening after PW1 saw the defendant throw the drugs or previously. 50.(iii) After PW1 had seen the defendant allegedly throw the white packet PW1 did not tell PW2 (the arresting officer of the defendant) or the injured officers, that he had seen the defendant throw a white packet he suspected was dangerous drugs Mr Allan submitted it was inconceivable PW1 did not relate to the three police officers (PW2 and the 2 injured officers) that he had seen the defendant throw a white packet suspected to contain dangerous drugs but yet only told PW2 that the defendant had assaulted the two officers. Mr Allan submitted that the defendant was intercepted by the police officers as he was suspected to be in possession of dangerous drugs and therefore it was a very significant piece of information. As PW1 never told the officers this important fact it demonstrated that PW1’s account that the defendant threw the white packet of drugs was not true. 51.The evidence PW1 did not tell the three officers about the defendant throwing the white packet. PW1 only told PW2 that the defendant had assaulted PC5473 and PC5699 when he handed the defendant to PW2 after he was brought to the car park from the hillside. PW2 then immediately declared arrest on the defendant for assaulting a police officer. Under caution the defendant admitted assaulting and pushing the police officers “as he did not want to be arrested.” 52.The first time PW2 became aware of the defendant being in possession of drugs was at 11.30 pm later that same day when he had taken the defendant to the police station. PW2 had searched the defendant at the scene after he was subdued but nothing of significance was found. 53.Analysis I agree was Mr Allan that it was remarkable that PW1 did not tell PW2 or the other officers about him seeing the defendant throwing the white packet suspected to be dangerous drugs, particularly when PW1 knew the reason the defendant was being searched was because he was suspected to be in possession of dangerous drugs. 54.The fact that PW1 did not do what might reasonably be expected of him in my view does not however equate to PW1 being dishonest or fabricating an account. 55.As mentioned above PW1’s priority was to take the injured officers back up to the car park to see the extent of their injuries and to place the defendant into the hands of another officer. PW1 was not asked to explain why he did not tell the officers about the defendant throwing the white packet. It was however apparent from the evidence the officers were breathless from chasing the defendant. Also utmost in PW1’s mind was to have his colleagues injuries examined and the defendant arrested for assaulting his colleagues. The white packet had not been found and PW1 took it upon himself to return to the hillside alone to look for the white packet. 56.Although PW1 did not do what may reasonably have been expected of him, PW1’s clear actions spoke louder than his silence. After handing the defendant over to PW2, PW1 immediately went back down to the hillside to look for the drugs. PW1’s failure to tell the officers that the defendant had thrown the packet was not significant in light of the actions he took. 57.(iv) Despite looking in the shrub where sniffer dog Devil found the drugs PW1 did not find the drugs Mr Allan submitted that if the white packet of drugs was on any part of that hillside area it would have been clearly visible. Not being overtly visible it was most likely if there was a white packet it was to be found within one of the few trees with shrubs. 58.Mr Allan submitted it was unbelievable that PW1 was not able to find the white packet despite looking in the very shrub where the packet was found by Devil which was only about 1 metre from where the defendant allegedly threw the packet. 59.The evidence A large part of the hillside area as can be seen from the photos was not covered in over-grown grass or foliage but it was a clear area with what looks like dry mud. PW1 said that he did not see any other white packets found in the vicinity. PW1 said that it was very dark in the area where he was looking. He had a torch with him and spent about 10 minutes looking but he could not see the packet. He had looked in the shrub at the bottom of a clump of trees where the packet was found. 60.When the sniffer dog found the packet, PW1 saw that the packet was in the middle of the shrub within the clump of trees inside a small hole in the ground. 61.Analysis The drugs were found in a shrub where there was quite a lot of growth of leaves. The shrub was at the bottom of a cluster of trees. I did not find odd that PW1 was not able to find or see the packet. PW1 was using a torch in a very dark area scrimmaging amongst the shrub. The packet was not overtly exposed in the shrub; it was in the middle of the shrub inside a small hole in the ground. PW1 may have over looked the small hole in the ground. 62.(v) Photographs were taken of many areas at the scene but no photograph was taken of where the drugs were found Mr Allan complained and thought it highly improper and unusual that there was no photograph taken of where the drugs were seized. The absence of the photo casts doubt on the finding of the drugs and its location and thus affects the credibility of the prosecution case. 63.Analysis I accept that it was unusual that no photograph was taken of the drugs at the place where they were found especially as the defendant was not present when they were found. More so, when photographs were taken of almost every other area of the chase and the scene. 64.There was no evidence that PW1 was in charge of or directing where photos should be taken. I can attach no criticism to PW1 for not taking a photograph. Nevertheless I however do not believe that the absence of a photograph was because the officers had fabricated the finding or location of the drugs. 65.(vi) PW1’s description of where the drugs were found on the tamper proof envelope containing the drugs was an imprecise description PW1 had written on both tamper proof evidence bags that contained the drugs that the drugs were seized from the slope of Yeung Shue House of LMSE. It was agreed by PW1 that the description of “on a slope” was not at all helpful to the defendant as to where the drugs was found as there was no detail of the location on the hillside of the trees and its shrubs. 66.Analysis I accept PW1’s description of where the drugs were found was lacking of any detail. It would not have assisted any one in knowing exactly where the drugs were found. The slope covered a substantial area. PW1 should have written a more precise location. However lacking in detail PW1’s description was, it was not inaccurate or misleading. PW1 correctly stated that the drugs were found on the slope of Yeung Shue House at LMSE. I was not satisfied that PW1’s imprecise description of the location had any effect on his credibility or the finding of drugs. 67.(vii) Despite PW1 allegedly telling PW3 where the defendant threw the packet of drugs PW3 did not take the sniffer dog ‘Devil’ to that location but illogically PW3 started from the beginning of the chase PW3 was the dog handler of Devil the sniffer dog. He said when he arrived PW1 pointed out the location where the defendant had thrown the packet of drugs and demonstrated the throwing of the packet to him. PW3 said PW1 threw it in the forward direction. At that time he was standing near the tree numbered 309. 68.Upon hearing this PW3 however suggested to PW1 that drugs may well have been thrown by the defendant in the midst of the chase in other areas. PW1 agreed. PW3 said as he and Devil entered the hillside from another area close to the beginning of the chase PW3 decided to search the route of where the chase first began before the area where PW1 had told him the defendant had thrown the packet. 69.As Devil was searching the other areas first it was not until 11.30 pm that Devil found the drugs which was in the area where the chase ended. 70.Analysis It is beyond comprehension why PW3 did not first take Devil to the area where PW1 pointed out that the defendant had thrown the white packet to search for the drugs. That was the area where PW1 had said he had seen the defendant throw the packet. He had not seen the defendant throw anything anywhere else. 71.PW1 had told PW3 where he saw the defendant throw the packet. PW3’s venture on his own accord and not logically searching that area first does not affect the credibility of PW1 but perhaps shows the zealousness of PW3 in searching the whole area. 72.As PW3 did not take Devil first to the vicinity where the defendant threw the packet, the drugs were only found some 15 minutes after Devil starting looking and not sooner. 73.(viii) The defendant’s fingerprints were not found on the plastic bag and thus it was never thrown by him nor was it ever in his possession. It was Mr Allan’s submissions that if the defendant had thrown the drugs his fingerprints would have been found on the plastic bag. There was no evidence that the defendant was wearing gloves when he threw the bag. Therefore as the defendant’s fingerprints were not found on the plastic bag he did not throw the bag. 74.Analysis When PW2 seized the plastic bags of drugs he was wearing gloves. I accept that the absence of the defendant’s fingerprint may be evidence of the fact that the defendant did not touch or handle the bag. However the fact that the defendant’s fingerprints were not found on the plastic bag does not denote or necessarily mean that the defendant did not throw, handle or touch the bag. The bag was taken out of the defendant’s pocket and thrown away quickly. It was found amongst the shrubs of the bush, inside a dirt hole. There may therefore be a number of reasons why the defendant’s fingerprints were not found on this plastic bag. The fact that the defendant’s fingerprints were not found on the plastic bag is not fatal to the prosecution case and is not conclusive evidence that he did not throw or touch the bag. 75.Discussion I turn now to the issues. 76.Is PW1’s account of the defendant throwing the drugs and finding drugs a fabrication? If the white packet of drugs was not thrown by the defendant the drugs would have either:-
77.I accept that PW1 and PW3 may not have responded or followed the usual and standard procedures expected of a police officer at the scene after suspicions that an offence had been committed. PW1 and PW3’s obvious flaws in this respect did not undermine their credibility. In my view it painted a convincing picture of what actually occurred. 78.If PW1 had wanted to fabricate an account of the defendant being in possession of drugs he could have fabricated a much simpler account with far fewer flaws. It would have been simple to have said he had found the packet of drugs after searching for it himself. He could have said the drugs were found on the defendant after he was subdued. 79.I do not believe that PW1 would have gone to the lengths of calling his colleagues from the EU team and the sniffer dog to look for the packet if his account was not bona fide. 80.I do not believe that the other EU team members, particularly PW3, Devils handler, would have drummed up an account of Devil finding the drugs in the shrub. If it was a fabrication, it would have been a futile for PW3 to take Devil to search the route of the chase and not go straight to the area where the officers knew the drugs was planted. 81.PW4 and PW1’s evidence about the defendant’s right hand and his right pocket The defendant was initially intercepted by police officers as he was suspected to be in possession of dangerous drugs. PW4 had seen the defendant put his right hand in his right pocket and walk hurriedly to the taxi earlier that evening as soon as he saw a uniform police officer. PW1 was not present when PW4 saw the defendant put his hand in his right pocket. All PW1 was told before the search of the defendant was that the defendant was suspected to be in possession of dangerous drugs. PW1 and PW4 independently related and gave evidence that the defendant put his right hand inside his right trouser pocket. PW4’s observation was an indication that something was in the defendant’s right pocket of which PW1’s evidence confirmed it was the white packet of drugs. 82.Credibility of PW1 and the other prosecution witnesses On all the evidence before me, I was satisfied that PW1 and the other prosecution witnesses were honest and reliable witnesses. 83.The defendant’s reason under caution for assaulting the police officers After the defendant’s arrest and under caution for assaulting the police officers the defendant replied that he admitted assaulting the police officers as he did not want to be arrested. At the time of the search the defendant was not under arrest. Until that time he had not committed any arrestable offence. He was not told he was under arrest. The reasonable inference to be drawn from the defendant’s reply under caution is that the defendant knew if he was searched the drugs would be found and he would be arrested. 84.The defendant’s vigorous effort of preventing the police from searching him and fleeing is evidence that the defendant did not want the police officers to find the drugs. 85.I was satisfied on the evidence the defendant did not want to be searched and fled because he knew he had the drugs in his pocket and did not want the officers to find it. During the chase the defendant discarded the drugs in an attempt to avoid detection of them by the police. 86.Conclusion The defendant was in possession of the dangerous drugs In considering the totality of the evidence before me when standing back and looking at the evidence as a whole I was satisfied that the defendant fled when he was searched by police officers because he did not want the police to discover the drugs in his possession and be arrested thereafter. He discarded the drugs during the chase in an attempt to dispose of the drugs so the police could not find it. 87.I was satisfied beyond all reasonable doubt that PW1 had seen the defendant take out from his right trousers pocket a white packet of drugs and throw it towards the front of the defendant. That white packet that the defendant threw was the white packet containing drugs found in the shrub of the cluster of trees. 88.I was therefore satisfied beyond all reasonable doubt that the defendant was in possession of the white packet containing the dangerous drugs. 89.Was the defendant unlawfully trafficking in the dangerous drugs? The defendant remained silent under caution when he was arrested for possession of dangerous drugs. He elected not to give evidence. It was not the defendant’s case that he was in possession of the drugs. There was no evidence that he was in possession of these drugs for his own consumption. 90.I was satisfied that the defendant was unlawfully trafficking in the drugs by drawing an inference from the facts. The defendant was away from home. He was out in the streets at night in the company of other persons. He boarded a taxi which was waiting for him with two other passengers on board. The taxi had started off. The drugs were packed in two packets of almost identical weight, one of 13.54 and the other of 13.57 grammes. The quantity of the drugs was not of a small amount. The defendant’s throwing of the dangerous drugs was done to avoid the detection by the police. The inferences from the above facts support the supply of drugs to others. 91.I was satisfied beyond all reasonable doubt that the defendant is guilty of the charge of unlawful trafficking in a dangerous drug. The defendant is convicted of the charge accordingly.
Miss. Vickie LING, Public Prosecutor, for Prosecution Mr. ALLAN William G. instructed by Messrs Raymond T.M. Lau & Co. (DLA) for the Accused Please refer to CACC458/2012 for the relevant appeal(s) to the Court of Appeal. |
Further hearings and rulings under DCCC 694/2012