HKSAR v. Tsang Chun Man

DCCC 530/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 530 OF 2012

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REASONS FOR VERDICT

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The charge

1.The defendant appeared before me and pleaded not guilty to a single charge of trafficking in a dangerous drug, namely 5.43 grammes of a solid containing 4.36 grammes of cocaine, 149.69 grammes of a powder containing 108.97 grammes of ketamine and 70 tablets containing 0.05 grammes of nimetazpam, contrary to section 4 (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap134.

The summary of prosecution case

2.This is a classic stop and search scenario and the fact of the prosecution case is simple enough.  Apart from the three police officers and two civilian witnesses called to testify, the facts of the prosecution case is also to a large extent already covered by the two admitted facts which deal with the seizure and the examination of the drugs, namely cocaine, ketamine and nimetazepam, their estimated street values at the time of the alleged offence and the production of a photo album (Exh P28 (1) – (15)) of the scene.  Also produced by consent were two calling records of mobile phone numbers 54372880 and 61939550 at all material times of the alleged offence.

3.I can largely adopt the Summary of Facts prepared by the prosecution. At around 0115 hours on 8 March 2012, while a team of 14 police officers attached to the Special Duty Squad of the Eastern District was conducting an anti-narcotics operation in Wong Tai Sin area, a grey coloured private car was seen parked outside Wing Sin House (“the building”), Wong Tai Sin Road.  Around a minute later, 2 unknown males came out from the building and one of them approached the front passenger seated in the vehicle.  The male left after having some contact with the front passenger.

4.After the male left, the vehicle left the building and was being driven along Wong Tai Sin Road. It was later intercepted by the police after it turned into Nga Chuk Street.  The vehicle was found to bear a registration mark JE 5399 (“JE 5399”). Upon interception, the defendant was sitting on the front passenger seat, male Wan Tin Chau (“Wan”) was sitting on a rear passenger seat and Wong Kin Kwan (“Wong”) was the driver.  All of them were asked to alight from JE 5399 for enquiries and search.

5.Upon search of the defendant, a re-sealable transparent plastic bag containing 5 re-sealable transparent plastic bags of suspected dangerous drugs (exhibit 2) was found inside his left front trousers pocket.  The defendant said he would take out the rest himself.  He then went to the front passenger seat of JE 5399 and reached into a paper bag in black and white colour.  Then he took out a cloth pocket in blue colour and handed it to the PC 3269 (PW3).  Upon search of the cloth pocket, a total of 46 re-sealable transparent plastic bags of suspected dangerous drugs (exhibits 2-22) and 7 foilpacks containing a total of 70 tablets of suspected dangerous drug were found (exhibits 25).

6.PW3 then arrested the defendant for trafficking in dangerous drugs.  Under caution, the defendant admitted that the drugs found on his trousers pocket and in the blue cloth bag belonged to him and it had nothing to do with Wan and Wong.

7.At the time of arrest, the defendant was in possession of a mobile phone and cash of HK$12,600.  HK$12,000 was found in his right front trousers pocket and HK$600 was found from his wallet.

8.The suspected dangerous drugs were later all sealed in temper proof envelopes and delivered to the Government Laboratory for analysis.  Government chemist Ms Shum Shuk Wah, Nora, upon forensic examination, certified that:-

· Exhibit 2 contained 1.14 grammes of a solid containing 0.93 grammes of cocaine;

· Exhibit 5-22 contained a total of 4.29 grammes of a solid containing 3.43 grammes of cocaine and 149.69 grammes of a powder containing 108.97 grammes of ketamine; and

· Exhibit 25 contained 0.05 gramme of nimetazepam.

9.At a subsequent cautioned video-recorded interview (VIR), the defendant claimed, inter alia, that:-

· he came to know a male called ‘ah lung’ around 1 month ago at an internet cafe but he was not very close with him and did not have his contact number;

· on the material day, he bumped into ‘ah lung’ and the latter gave the blue cloth bag to him, asking him to keep it until he calls him to get it back; he agreed and while he was about to leave, ‘ah lung’ gave him a transparent plastic bag to him to keep as well; he just put it inside his trousers pocket; ‘ah lung’ then left quickly;

· he then met up Wong and Wan and planned to have supper together;

· Wong drove JE 5399 and when it went past Wong Tai Sin, he received a call from ‘ah lung’ asking him to wait for him in Wong Tai Sin; it was over this telephone conversation that he was told that both bags he received from him contained dangerous drugs; it was five minutes before he was intercepted by the police;

· when ‘ah lung’ called, he had yet to mention about reward to him;

· he was in possession of cash of HK$12,600 as he intended to purchase a birthday present for his girlfriend on the material day;

· the sources of the cash were his red packet money he got during Chinese New Year and salary;

· he worked in the recycling business with HK$450 daily wage; and

· he was so focused on thinking how to celebrate with his girlfriend on her birthday that he did not put his mind to it when ‘ah lung’ gave the two bags to him for temporary retention.

10.According to the admitted facts, the average retail price for cocaine in March 2012 was HK$1,144 per gramme.  A quantity of cocaine as mentioned above could have sold at street level to abusers for HK$6,211.  The average retail price for ketamine in March 2012 was HK$116 per gramme.  A quantity of ketamine as mentioned above could have sold at street level to abusers for HK$17,364.  The average retail price for nimetazepam tablets in March 2012 was HK$65 per tablet.  A quantity of nimetazepam tablets as mentioned above could have sold at street level to abusers for HK$4,550.  The total agreed street value of the dangerous drugs was HK$28,125.

11.Mr Chandler, who appeared for the defendant, has informed the court that the defence was not going to challenge the admissibility of the police notebook of PW3 which allegedly contained a post-record of the defendant’s reply under caution when he was arrested at the scene.  More importantly, the defence also did not seek to challenge the admissibility of the VIR of the defendant which was subsequently made on 8 March 2102 between 2150 and 2304 hours.  The notebook and the VIR were therefore formally produced as P37 and P32 respectively together with their relevant certified English translations.

The Issues

12.The burden is on the prosecution to satisfy me so that I am sure that:-

· The defendant was in possession of the 2 bags of the dangerous drugs found in his trousers pockets and the cloth pockets inside the paper bag in black and white colour;

· he knew that they were dangerous drugs; and

· In doing so he possessed those dangerous drugs for the purpose of trafficking.

13.There is now no dispute about the fact that the defendant had physical possession of the two bags of dangerous drugs in question.  In fact, the defendant already admitted under caution at the scene that :

“Ah Sir, in my trouser pockets and in the blue cartoon character cloth bag, the dangerous drugs therein was mine.”

14.In the subsequent VIR, the defendant basically maintained the same position while providing explanations to the police as to how he came by those dangerous drugs.

15.The identity of the defendant is also not an issue in the case.  In consequence, I have no difficulty in being sure that the defendant was the person who was sitting in the front passenger seat of JE 5399 when he was intercepted and arrested by PW3 as described in the evidence.

16.The first real issue for my consideration, therefore, is whether the prosecution has established beyond reasonable doubt that the defendant knew that the substances found inside the two bags as described by PW3 were indeed dangerous drugs?

The defence case

17.The defendant chose not to give evidence.  Nor did he call any witness to testify on his behalf.  Basically, according to the defendant’s explanation in the VIR, the essence of his defence, if accepted, was innocent possession of the two bags from ‘ah lung’ without knowledge that they contained dangerous drugs.

General directions

18.In arriving at my verdict, I direct myself that the prosecution must prove beyond a reasonable doubt that the defendant is guilty of the charge he faces and he does not have to prove anything.  I further direct myself that I have to be sure of the defendant’s guilt on the charge before I can convict his of it.  This is the same thing as being satisfied beyond reasonable doubt of his guilt before I can convict him.  The defendant elected not to give evidence and that is his undoubted right.  I direct myself that every defendant is entitled to require the prosecution to prove its case against him and I must certainly not assume that an accused person is guilty because he has chosen not to give evidence.  The fact that he has elected not to do so proves nothing, one way or another.  It does however mean that there is no evidence coming from the defendant to undermine, contradict or explain the evidence led before me by the prosecution.

19.Although the defendant has chosen not to give evidence, he did proffer some explanations to the police under caution in various records of interviews. The accuracy as well as the voluntariness of these records was not disputed.  The answers provided by the defendant therein contained both incriminating parts and explanations.  I must consider the whole of its content in deciding where the truth lies.

Evaluation of evidence

20.I approached the evidence and every piece of exhibit as outlined above with utmost care.  I also found that the answers the defendant had given when he was cautioned first at the scene after arrest and later in the police station during the subsequent VIR were given by him voluntarily and the transcripts were accurate statements of his answers.  The defence in fact did not seriously challenge the evidence of the witnesses called by the prosecution.  I found that they were all honest and truthful witnesses whose evidence I can rely.

21.As said, there is no dispute that the defendant had physical custody and control of the dangerous drugs in question when he was arrested by PW3, I therefore begin my analysis with the evaluation of the evidence by focusing on the principal sub-issue of whether the defendant knew that the dangerous drugs were there as he was carrying those two bags when he was intercepted by police.

22.Before I turn to the analysis, however, it is convenient for me to first deal with a short point raised by Mr Chandler concerning the chain of the evidence or what he described as a “lacuna” in the prosecution case regarding the integrity of the dangerous drugs exhibits from the time they were seized by PW3, the exhibit officer, to the time they were sealed in three temper proof valuable property envelopes (“envelopes”) in front of Station Sergent Li between 1114 hours and 1145 hours on 8 March 2012.  Mr Chandler made it clear that he did not seek to dispute the subsequent chain of the evidence from that time onwards to the time they were produced in the court.  It was submitted however that the chain of the evidence was not intact as there was no evidence adduced as to the security or proper custody of the dangerous drugs after they were seized from the defendant by PW3.

23.This submission can be disposed of very simply.  Even if PW3 did not mention positively in his testimony that the dangerous drugs seized by him from the defendant were all along kept in his safe custody until they were sealed into the envelopes in front of the duty officer, in my analysis, it is simply unthinkable that the dangerous drugs were misplaced and tempered before that.  The defendant himself had for one signed on the surface of the envelopes together with PW3 as witnessed by the duty officer.  What is more, in light of the large numbers of the packets of the dangerous drugs seized during the operation and their market values involved, any suggestion that the dangerous drugs might have been replaced or planted by someone would be strained.  PW3 was never cross-examined on his safe custody of any exhibits concerned in this case and it is implicit in PW3’s evidence that as an exhibit officer assigned, it was his normal duty to keep the dangerous drugs seized in his safe custody all along until it was handed over to the duty officer.  In my judgment, the fact that nothing was mentioned by him about the integrity of the exhibits was but a clear indication and reflection of the fact that nothing untoward happened before that.  One also should not lose sight of the fact that the suspected dangerous drugs in this case as contained in the three envelopes were all later shown to the defendant respectively during the VIR by the interviewing officer and the defendant had already positively identified the contents of the three envelopes as the suspected dangerous drugs seized from him by PW3 during the operation.

24.This argument is therefore both technical as well as untenable.

25.Returning to the real issue of knowledge, the proper test regarding knowledge is that if the defendant had, or might have no knowledge of the presence of the dangerous drugs in question, he is entitled to be acquitted: it was the defendant’s subjective knowledge of the existence of dangerous drugs which had to be established (see HKSAR v Mohammed Saleem [2009] 1 HKLRD 369).

26.To answer this question, I need to understand the defendant’s explanations proffered in the VIR very clearly and to approach his version fairly but also critically.  I had already outlined the essence of his explanations in para 9 of the above and I do not intend to repeat them here.  In his final analysis, Mr Chandler submitted that the defendant was simply telling the truth and he gave his answers in a forthcoming manner without any pause.

27.More importantly, what the defendant was trying to say was what he was asked by ‘Ah lung’ to do for him was only a small errand, namely to carry the bag for ‘ah lung’ until he called to give him back.  He bumped into ‘ah lung’ on the street while he was in Mongkok wondering what he should buy for his girlfriend’s birthday present.  He said he had looked at the 5 packets of dangerous drugs found in his left trousers pocket and he thought it was strange but he did not ask (#547C).  He said once ‘ah lung’ had given them to him, ‘ah lung’ went away very quickly (#549C) so he just could only wait for him to get the things back.  He said the whole encounter with ‘ah lung’ was brief, only for about five minutes (#557C) and ‘ah lung’ was in a hurry.  As to the blue cloth bag, the defendant said ‘ah lung’ just shoved it to his hand and left immediately (#567C), telling him that he would be back in a moment.  The defendant said he could not ask ‘ah lung’ about anything so he just put it into the black and white paper bag that he himself was carrying and walked around with it (#591C).  In other words, the defendant was trying to say it would be difficult, if not impossible, for him to refuse the request by ‘ah lung’ in the circumstances.

28.I judge that the followings are the obvious queries when one was caught in the defendant’s situation: why did ‘ah lung’ has to ask the defendant to carry the things for him when they just saw each other on the street by chance? If ‘ah lung’ was indeed caught up with something, he should have appointed someone by telephone to do the errand for him and what if they did not see each other on the street in the first place?  Why should the defendant agree to keep the things for ‘ah lung’ when he did not even make it clear to him what was exactly inside the bags and when exactly would he return to him to get back the things? 

29.In any event, as his explanations in the VIR revealed, he never ask a single word about what was the content of the two bags.  Furthermore, even according to him, he did not know ‘ah lung’ for long and ‘ah lung’ was not even his  friend so much so that he did not even know his full name and had no mean to contact him (#107C, 110C) at all.  Under the circumstances, why the defendant did not even ask ‘ah lung’ what was inside the two bags at all before he agreed to receive them for him even it was intended to be only temporarily?  There was no further mentioning about any arrangement of collecting the bags later in the same evening by ‘ah lung’ before he left.  The defendant was at pain to convince the interviewing officers that he did not has the opportunity to ask as ‘ah lung’ was in such a hurry.  I judge that no one in his or her right mind being caught in the defendant’s situation would lend his or her hands on any of the two bags given by ‘ah lung’.  The account given by the defendant in the VIR is just so illogical and lacks credibility.

30.His account of how later ‘ah lung’ suddenly called him in JE 5399 by mobile phone and revealed to him that the contents of the two bags were actually dangerous drugs also simply does not has a ring of truth. If ‘ah lung’ was on the way to Wong Tai Sin and asked the defendant to wait and return the things to him, there was no compelling reason why he needed to tell the defendant that those were indeed dangerous drugs. For the quantity and the street values of the dangerous drugs involved, it only made more sense for ‘ah lung’ to pay someone he trusted to keep or carry the dangerous drugs for him in the first place. Even for some unknown reasons, he decided to take the risk and entrusted the drugs with someone momentarily who did not know what he or she was actually carrying, there was simply no good reason for him to finally ‘come clean’ on the matter before he got back the drugs. Why did ‘ah lung’ not just come and collect the two bags of drugs from the defendant in Wong Tai Sin and leave? Further, he said in the VIR that he was picked up by Wong in Mongkok at around 12 midnight to go to Yau Tong for night snacks but even after 0100 hours, they were still in the vicinity of Wong Tai Sin when he received the call from ‘ah lung’. Looking at the calling records (exhibit 29) now produced by consent of the defendant’s mobile number 54372880, at the material times, after he had boarded JE 5399 and before he was intercepted by the police, the defendant had made three calls to others but received one call only from mobile number 61939550 at 01:03:52 hours on 8 March 2012. Before that, it was the same number who called the defendant at 1:03:23 hours. Obviously, the latter call was a return call to the defendant’s earlier call but in any event, it was definitely not a sudden call from ‘ah lung’ as described by the defendant in the VIR.

31.The prosecution has also called one Lau Ho Wah (PW4) who actually was the son of the registered subscriber of this mobile number 61939550.  PW4 testified that he actually was the person who used this mobile number.  He told the court that he was a friend of the defendant and Wong was their common friend.  PW4 was known to the defendant as ‘ah wah’.  PW4 remembered calling the defendant a few times on 7 March 2012 for chit-chat and fixing a meal appointment with him using the same mobile number.  He said categorically that he never give any stuff to the defendant and asked him to keep it for him on 7 March 2012.

32.Based on the above, I can therefore easily conclude that the so-called sudden phone call from ‘ah lung’ 5 minutes before the defendant was intercepted by the police simply did not happen at all and the defendant was not telling the truth when he gave his answers in the VIR.  The details of the defendant’s exculpatory account in the VIR, no doubt was only an attempt on his part to try to explain away why he would come to carry the two bags of dangerous drugs when he was intercepted but I totally reject his explanations.  After all, there is very little weight that I can attach to his explanations, for they were not made on oath, have not been repeated on oath, and have not been tested by any cross-examination.

33.Considering the evidence in the round, I repeat that I fully reject the defendant’s account of the circumstances under which he came to carry the two bags of drugs and based on the evidence before me, I can only infer that the defendant was either the true owner of the two bags or at least the courier of the two bags of drugs but either way, he must knew full well that those were dangerous drugs that he was carrying with him before he was intercepted.  In fact, once the issue of physical control and custody was established and the defendant’s account of how he came to possess the two bags of drugs is rejected and when the circumstances of this case certainly cry out for explanation, I can reasonably infer that the defendant has subjective knowledge of the existence of the drugs in the two bags.

34.Having established his knowledge and control of the drugs, it remains for me to decide the ultimate issue of whether the prosecution can establish that the defendant was in possession of the dangerous drugs for the purpose of trafficking.

35.In this case, there was no evidence of actual trafficking. The evidence of earlier observation of JE 5399 was neither here or there and the prosecution relied on the surrounding circumstances of arrest and invited the court to infer from those circumstances the intent and purpose of trafficking on the part of the defendant.

36.There is no principle in the criminal law of Hong Kong more fundamental than the prosecution must prove the existence of all essential elements of the offence and as I have said, the proof must be beyond all reasonable doubt.  The requirement of proof beyond reasonable doubt does not prevent me from inferring, from the facts that have been the subject of direct evidence before me, the existence of some other facts, such as the knowledge or the intent of the defendant in this case, which constitutes an essential element of the offence but the inference must be a compelling one and the only one, that no reasonable man could fail to draw from the direct facts that I find proved (see R v Kwan Ping Pong [1979] HKLR 1(PC), at page 5).

37.Applying my mind to the above principle, the followings are salient features in the case which are capable of strengthening the inference that the purpose and intent of possessing the cocaine, ketamine and the nimetazepam by the defendant was trafficking:

· There is a mixture of three different types of drugs carried by the defendant in the same occasion when he was intercepted by the police;

· There is a large quantity of ketamine found (nearly 110 grammes) 46 plastic packets and at the same time the presence of a lesser quantity (4.36 grammes) but more potent drugs of cocaine and there is also the presence of a large number of 70 tablets of very small quantity (0.05 grammes) of nimetazepam;

· In HKSAR v Ko Ka Hing [2009]4 HKLRD 586, the Court of Appeal observed that in respect of a mixture of different types of dangerous drugs, ie the so-called "cocktail drugs" or "designer drugs", it usually involves the use of one of the components to enhance the potency of another (see para 4);

· The defendant had with him a large amount of cash HK$12,000 found not in his own wallet but separately in his front trousers pockets when the other front trousers pocket was also found with the cocaine;

· His explanations that this HK$12,000 represented half of the red packet monies he received from his girlfriend’s relatives in the mainland during the Chinese New Year and also his income for the immediate two weeks before he was arrested was just so incredible that must be rejected; eg He said he had no relative and every year he went with his girlfriend to pay a visit to her relatives in China (#395C) but he could not even name the place or hometown in the Mainland that he went with his girlfriend to visit her relatives(#409C)

· Given his income level, there was no way he could afford to obtain the drugs with an agreed street value of HK$28,125. It was by no mean a small amount for any average drug consumer and thus, without more, was a sufficient piece of evidence in support of the inference of trafficking;

· It also reinforces my reasons for rejecting his explanation that he was just given this quantity of drugs with high value by another to carry it around without knowledge. In light of the present values of the dangerous drugs involved in this case, it is inconceivable that any drug trafficker would not hire a courier but just take the risk and passed the drugs to an innocent third party for control and custody.

38.Lord Simon had said in DPP v Kilbourne [1973] AC 279:-

“circusmstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities.”

39.The combination of the above circumstantial evidence has the effect of strengthening the inference of trafficking.  Each of the circumstance, on its own, may not be sufficient.  However, after considering the matter in the round and when the cumulative effects are considered, I come to the conclusion that they are capable of amounting to cogent evidence in support of the allegation of trafficking by the defendant in this case.

Conclusion

40.For these reasons, I am satisfied beyond a reasonable doubt of the defendant’s guilt and I convict him of trafficking in the dangerous drugs as charged.