HKSAR v. Yeung Chi Keung
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DCCC 554/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 554 OF 2012 ____________
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REASONS FOR VERDICT for the 2nd defendant 1.Charge The defendant pleaded not guilty to the offence of Trafficking in dangerous drug contrary to section 4 (1) and (a) and (3) of the Dangerous Drugs Ordinance (charge 2). The co- accused D1 pleaded guilty to a similar charge, (charge 1) on the first day of the trial. 2.Overview The prosecution allege that the 1st defendant (D1) handed to the 2nd defendant (the defendant) and the defendant received a plastic bag containing the drugs stated in the charge outside of Wah Yu House, Wah Fu Estate in Pok Fu Lam. 3.The defendant denied that D1 handed to him and he received the plastic bag. It is alleged that D1 threw the plastic bag of drugs into the taxi where the defendant was sitting. 4.The prosecution case It was the prosecution’s case that the defendant went to Wah Yu House by taxi as he had an appointment to meet D1 there to collect the dangerous drugs from D1. After collecting the drugs from D1 he was continuing on with his journey in the same taxi to Tin Wan in Aberdeen. The defendant therefore had the drugs in his possession for the purposes of unlawful trafficking. 5.At the time of the handover by D1 and receipt of the plastic bag by the defendant, the defendant was seated in a taxi whilst D1 was standing outside the taxi at the right rear door. The handover and receipt of the plastic bag was witnessed by a police officer (PW2) nearby. 6.The defence case The defendant’s case is that he went to Wah Yu House by taxi to meet a friend called Alan to return Alan’s lap top computer to him. The defendant had an appointment to meet with Alan. After returning the lap top to Alan the defendant was going to meet his girl friend for dinner in Tin Wan. 7.Whilst waiting for his friend Alan at Wah Yu House, the defendant saw D1. At that time, the defendant was seated at the left rear seat of the taxi. He called out to D1 to have a chat with him. D1 then approached the taxi. When D1 was standing near the opened right rear door, unexpectedly D1 threw the plastic bag containing drugs onto the taxi’s rear seat next to where the defendant was seated. 8.The defendant did not know what was contained in the plastic bag. He had no knowledge there were drugs in the plastic bag. He had no time to inspect the plastic bag, as very shortly after D1 threw the plastic bag into the taxi, the police officers came to the taxi and intercepted him and D1. 9.The defendant’s case is that D1 never handed the plastic bag to him and he never received the plastic bag from D1. 10.The defendant knew D1 as they both lived at Wah Fu Estate. He was an acquaintance of the defendant’s whom he had known for about 5-6 years. 11.Issues The main issue was one of possession. Was the defendant in possession of the dangerous drugs? There was no dispute that D1 came out of Wah Yu House holding the plastic bag containing the drugs and approached the taxi. Very shortly thereafter the plastic bag with the drugs was found on the rear seat of the taxi next to the defendant. The questions are:-
12.A resolution of the above issues turns principally on the credibility of PW2, the police officer. 13.If the defendant was in possession of the drugs did he unlawfully traffick in the drugs. A resolution of this issue is to be inferred from the facts of the case. 14.The Law Trafficking is defined in s. 2 of cap 134 “in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking” 15.Cap 134 does not offer a definition of “possession” save that s.47 provides for a presumption of possession and knowledge of the nature of the drugs for the purposes of the Ordinance in certain circumstances.
16.Physical possession arises when there is immediate and direct manual control or detention of the article: see DPP v Brooks [1974] AC 862. Constructive possession arises when the control over the article is not physical or immediate but is exercised through some other person holding on behalf and subject to the directions of the person who has constructive possession: Chan Sun v R (unrep., Crim app 34 of 1956). 17.Proof It is for the prosecution to prove that the defendant was in possession of the plastic bag. If the prosecution prove the defendant was in possession of the bag and there is sufficient evidence as to the lack of knowledge as to the drugs by the defendant, it is for the prosecution to prove that the defendant did have knowledge of the drugs and it is not for the defendant to prove that he did not. If what the defendant asserts is or may be true he is entitled to be acquitted. In short the defendant need only raise an evidential burden and the prosecution needs to prove beyond a reasonable doubt that the defendant had knowledge of the drugs. 18.The witnesses The prosecution called four prosecution witnesses (PW1-PW4). PW1 was the taxi driver. PW2 was the police officer who witnessed the handing over and receipt of the drugs from D1 to the defendant. PW3 was the police officer who searched the defendant and found $1,868.00. PW4 was the police photographer who took pictures of the taxi at the scene and the police station, the scene, the plastic bag and the drugs. 19.The defendant elected to give evidence in his defence and called no defence witnesses. 20.The evidence The only contentious witness was PW2 the police officer who witnessed D1 hand over the plastic bag containing the drugs to the defendant. 21.PW1 PW1 stated at about 5:45 p.m. on 26 March 2012, the defendant boarded his taxi at Heard Street, Wanchai and told him to go to Wah Fu Estate and thereafter on to Tin Wan in Aberdeen. On reaching the entrance of Wah Fu Estate the defendant made a phone call, saying to the other caller, “I have arrived at the entrance of the estate.” 22.At about 6:00 p.m. the taxi stopped outside Wah Yu House squarely opposite the entrance. PW1 switched off the taxi’s engine while waiting outside Wah Yu House. The defendant told PW1 that he was going outside to have a cigarette and he was leaving his lap top in the taxi. PW1 looked around and saw the lap top on the rear seat of the taxi. 23.The defendant alighted from the taxi and smoked a cigarette at the rear of the taxi. After smoking the defendant boarded the taxi again. 24.Whilst the defendant was smoking outside at the rear of his taxi a police van came and parked opposite to Wah Yu House. 25.After the defendant boarded and after waiting for about 1-2 minutes PW1 saw a male coming out of Wah Yu House and approached his taxi. As soon as he saw that person coming towards the taxi he started the taxi’s engine as he had a feeling that that person would board his taxi. PW1 then saw the right rear door of the taxi open. At the same time, PW1 heard the defendant saying to the male who was standing outside the taxi “get into the car first, get into the car first.” A few seconds later PW1 saw policemen running towards the taxi. He then immediately switched off his taxi’s engine again. 26.When the police officer reached the taxi the officer asked the defendant, “what is inside the plastic bag, what is in the plastic bag?” Once PW1 heard these words, he turned round and saw a pink plastic bag placed beside the defendant on the rear seat. This was the first time he had seen the plastic bag. He had looked earlier at the rear seat and only saw the lap top and a yellow soft drink box. 27.PW2 PW2 was in uniform on board large marked police van (AM 8499). When the police van arrived at Wah Yu House he saw PW1’s taxi parked outside Wah Yu House and the defendant’s standing outside behind it smoking and on the phone. 28.The police van parked at a distance of about 8-10 metres from PW1’s taxi. It was parked behind and to the left or off side of the taxi. The police van was opposite the taxi but not directly opposite but at an angle from it as shown in the sketch drawn by PW2 exhibit P16. 29.When PW2 spotted the defendant smoking on the road at the rear of the taxi and making a phone call, PW2 found the defendant to be very suspicious as when he was making his phone call the defendant looked anxious. PW2 suspected that the defendant had a culprit stealing things in Wah Yu House. PW2 and his fellow officers therefore remained on board the police van and kept observation of the defendant. 30.After smoking his cigarette, the defendant boarded the taxi. The defendant sat at the left rear seat of the taxi. PW2 saw that whilst seated there the defendant turned around a number of times to look in the direction of the police van. Approximately two minutes after the defendant boarded the taxi PW2 saw D1 walking out of Wah Yu House towards the taxi carrying a pink plastic bag. 31.PW2 then saw the right rear door of the taxi open. PW2 observed D1 use his right hand to hand over the pink plastic bag which contained something into the taxi compartment. Then at the same time PW2 saw the defendant extend his right hand to receive the bag. The defendant placed the bag on his right hand side. 32.At that juncture PW2 and his colleagues immediately took action to conduct an interception of D1 and the defendant. They alighted from the police van and ran towards the taxi. 33.When PW2 reached the taxi he opened the left rear door of the taxi and showed the defendant his police identity. He asked the defendant to alight from the taxi. PW2 then seized the pink plastic bag which was placed on top of a black laptop computer in the right rear passenger seat of the taxi. 34.At the scene in the presence of the defendant and D1, PW2 opened the pink plastic bag and found the drugs. 35.Inside the plastic bag were 2 cigarette boxes and a soft drink box containing the drugs.
36.PW2 asked the defendant what were the things he found in the pink plastic bag however the defendant kept silent. 37.Defence case The defendant stated that he lives in Wah Fu Estate with his mother and younger sister. He had collected his friend Alan’s lap top computer in Wanchai earlier just before he boarded the taxi. He had caught the taxi to meet Alan to return the lap top computer to him at Wah Yu House. After dropping the lap top to Alan he was then going to meet his girl friend for dinner in Tin Wan. He therefore directed the taxi to go to Wah Yu Estate first then continue on to Tin Wan. 38.He had made an appointment to meet Alan at Wah Yu House. He had spoken to Alan over the phone when he collected the computer, then again when he boarded PW1’s taxi. When he reached the mouth of Wah Fu Estate he called Alan and told him he was there. He told Alan he was coming in a taxi and to “please come down to get the computer.” 39.When the defendant arrived outside Wah Yu House he called Alan again to come down to get the computer but Alan told him to wait for while as he needed to go to the toilet and he would be down a bit later. The defendant then told the taxi driver to park his vehicle to one side as he the defendant was going to alight to have a cigarette first. 40.When the defendant got off the taxi he called Alan again but Alan did not answer his phone. Then he called Alan again and again constantly. At that time he knew the police were present, he saw their police van. His last call to Alan was answered by an unknown person who told him to call again later. 41.He boarded the taxi again. After waiting for about one to two minutes he saw D1 approaching. He knew D1 worked as a security guard at Wah Fu Estate but he was only acquainted with D1. He saw D1 approaching the taxi from its right hand side. 42.When the defendant saw D1 he asked D1 to come aboard the taxi to have a chat with him. D1 did not say anything but opened the taxi door and threw the plastic bag into the taxi very quickly. The defendant described the throwing in of the plastic bag as similar to that of throwing a bowling ball, down and low. The defendant immediately asked “what is it?” However D1 did not answer. Suddenly the police officers arrived and intercepted himself and D1. 43.The defendant said that he did not touch or handle the pink plastic bag. He did not know what was contained inside the pink plastic bag. He had no time or opportunity to look inside the pink plastic bag. 44.Submissions Mr Mark Sutherland counsel for the defendant made submissions that PW2 lacked credibility and was an unreliable witness. He submitted as unbelievable and incredible that PW2 could have seen either D1 hand the plastic bag to the defendant or the defendant receive the plastic bag. Mr Sutherland set out in great detail why PW2 was unable to make such an observation. 45.Mr Sutherland cross examined at extreme length PW2 regarding his ability to observe the handing over and receipt of the plastic bag. He left no stone unturned in challenging PW2’s observation. 46.Mr Sutherland’s submissions were that PW2 did not have a clear line of vision, his view must have been blocked either by the taxi’s frame or because of the angle to which the taxi was parked from the police van. It was only PW2’s speculation that D1 handed the plastic bag to the defendant as PW2 had seen D1 with the plastic bag and then the next time the plastic bag was seen was in the taxi. PW2 therefore fabricated his evidence to say that D1 handed and the defendant received the plastic bag. 47.I will not set out or re-iterate the detailed submissions enunciated by Mr Sutherland but suffice it to say that I have carefully considered all the submissions and evidence before me. 48.Analysis of the evidence I turn first to deal with the defendant’s evidence. Then I shall turn to deal with PW2’s evidence. 49.The defendant’s evidence The defendant’s evidence of him not making an appointment to meet with D1, then coincidentally meeting D1, then D1 unexpectedly throwing the plastic bag containing drugs into the rear seat of the taxi is wholly unworthy of belief. 50.Is it believable that despite having made an appointment to meet Alan and Alan saying he would be there shortly, for Alan not to appear but instead for D1 to appear by chance with a plastic bag full of drugs and unexpectedly throws it into the taxi? 51.The defendant was waiting outside Wah Yu House to meet D1 and not Alan The defendant alleged he was waiting for Alan outside Wah Yu House to return the lap top to Alan. He had spoken to and made an appointment with Alan. The defendant had spoken to Alan a number of times before and when he arrived at Wah Yu House. When the defendant arrived at the entrance of Wah Fu Estate, Alan had told him he would be down after he went to the toilet. However for some unknown reason Alan never appeared and despite numerous attempts at Wah Yu House the defendant could not reach Alan. Thereafter the defendant however lost contact with Alan and could not locate him again even up until the trial. 52.The defendant stated that after he was arrested by the police officers he remained outside Wah Yu House for about 10-15 minutes, however in that time he never saw Alan. Alan did not come down at all. He never found out why Alan did not come down to collect his computer. Even after the defendant was arrested he had no idea why Alan did not come down to collect the computer. 53.I found it most unbelievable that despite making an appointment to meet with Alan, Alan did not appear even up to 10-15 minutes later. Why did Alan not come to collect his lap top a valuable commodity? Why did Alan never collect his valuable commodity? Why is it that the defendant could not locate Alan even after his arrest? Why is it that Alan did not call the defendant and tell him he was not coming down? Why is it that Alan simply vanished? The only answers are that Alan is a fictitious person made up by the defendant. The defendant’s account of returning the lap top to Alan is a fabricated account in an attempt to give an innocent explanation of why the defendant was waiting there at Wah Yu House and why he made the phone calls that he did. 54.A key question is why if the defendant went to Wah Yu House to return the lap top to Alan did the defendant not take the lap top out of the taxi and have it ready to hand over to Alan? Why leave the lap top in the taxi? If the lap top did not belong to the defendant why did he tell PW1 it was his lap top? The defendant told PW1 when he went out for a cigarette “I’ll alight and have a cigarette…MY computer is here.” 55.I was satisfied on the evidence that these phone calls were made to D1 for the purposes of meeting D1 outside Wah Yu House not Alan. They were made to collect the drugs from D1 and not to return the lap top to any person called Alan. 56.Why would the defendant invite D1 to come inside or get aboard the taxi to have a chat and further not talk to D1 from the window? The defendant’s evidence as to why he did not have an intended conversation through the window of the taxi is because he did not consider it reasonable for him to see D1 (“a friend”) standing there whilst chatting with him. This answer is wholly unreasonable and unbelievable in light of the circumstances below.
57.I reject the defendant’s evidence that he wanted to have pleasantries with D1 at all or that he had invited D1 aboard for a chat. 58.I was satisfied that the defendant told D1 “get on board first” twice as PW1 said, so that the passing of the drugs to him in the plastic bag would be more discreet as the defendant knew there were police officers present. The defendant concocted his account of asking D1 to get on board the taxi for pleasantries in an attempt to explain why he had asked D1 to get on board first. 59.I was satisfied the defendant was there waiting outside Wah Yu House for D1 to pass to him the plastic bag containing the drugs. Upon seeing D1 he immediately told D1 to get on board the taxi first. 60.PW1 and PW2 stated that D1 came out the lift lobby of Wah Yu House carrying the plastic bag and headed directly for the taxi. This is clear evidence that D1 was headed for the taxi and was not just a coincidental passer-by. PW1 had stated on seeing D1 he even started the engine of the taxi because he thought D1 was the person the defendant was waiting for. If it was an off chance meeting as D1 was passing by, D1 would not have headed directly for the taxi, the taxi door would not have been opened immediately and the defendant would not have invited D1 to board the taxi immediately. 61.Moreover PW1 saw the right rear passenger taxi door open, he heard the defendant saying “get in first, get in first.” If the defendant’s account was true that he just coincidentally saw D1 and wanted to ask him some pleasantries, it would be far-fetched to believe that an acquaintance would say to another “get in first get in first” on their first sight of each other. 62.It is beyond belief that D1 an acquaintance of the defendant would unexpectedly throw the plastic bag of drugs into the taxi.
63.I found it most implausible that the defendant would meet D1 just by coincidence and by further chance D1 would unexpectedly throw in a plastic bag containing valuable drugs into the taxi to the defendant who was only an acquaintance. 64.I was satisfied from all the circumstances that the defendant was there to meet D1. The only reasonable inference even from the defendant’s evidence is that the defendant was there to meet D1 not Alan and to take delivery of the plastic bag containing the drugs from D1. 65.I drew the reasonable inference that he made the telephone call to D1 to tell him he was at the entrance of Wah Fu Estate and that is why very shortly thereafter D1 came down to the ground floor to meet the defendant. 66.PW2’s evidence PW2’s observation was made from a big marked police van parked about 8-10 metres away from the taxi. He was seated in the second row of the police van. The seats in the police van were higher than that of the taxi’s. PW2’s observation was therefore made from raised level. There was sufficient natural light for him to see at that distance. Nothing blocked his view towards the taxi. He could not see the defendant’s full face but was able to see the defendant’s profile and the side of his body. PW2 said that his line of vision was similar to that of photo 27 of the defence photos exhibit D1. That photo shows clearly PW2 was able to see the waist and upper body. PW2 said was able to see D1’s waist and upper body from his view point. 67.Despite the rigorous searching cross-examination of PW2, he was not shaken. PW2 agreed with Mr Sutherland that he was unable to see the many meticulous areas of the taxi that Mr Sutherland had put to him that he could not see. Those areas were for example the door handle of the right rear taxi door, the rear seat where the lap top was placed and back rest of the rear seat. 68.PW2 demonstrated that D1 put the plastic bag up to his chest level then stretched his arm out in front of his chest then handed it down towards the defendant. He then saw the defendant receive the bag. PW2 accepted that D1 did not hand the plastic bag over to the defendant at the height of the top of the taxi window. He was unable to say exactly which part of the taxi the plastic bag was handed over but was sure from his angle he was able to see the handing over. 69.I did not consider PW2’s evidence unreasonable or unreliable when he said he was unable to say exactly at which area the plastic bag was handed over. I accepted his evidence that at the time his observation centred on what the defendant was doing. It was therefore reasonable that he did not notice exactly which exact part of the taxi the bag was passed. I was satisfied that whichever part of the taxi it was handed over to the defendant, PW2 was able to see the bag pass hands. 70.D1 did not board the taxi. Nothing unusual so to speak happened. Something must have triggered PW2 and the other officers to run towards the taxi to intercept the defendant and D1. I was satisfied that what prompted PW2 and the other officers to suddenly run over to the taxi was because PW2 saw D1 hand over the plastic bag to the defendant. Moreover as soon as PW2 reached the taxi, PW2 asked the defendant what is in the plastic bag. The plastic bag was central to the observation and the interception by PW2 and the other police officers. 71.I found PW2 to be an honest and reliable witness. I was satisfied that from his angle and from his higher view point in the police van he was able to see D1 hand the plastic bag to the defendant and the defendant receive it. 72.I was satisfied that D1 took possession of the plastic bag and knew that the contents contained dangerous drugs. I have made my finding despite the absence of the defendant’s finger print or DNA from the plastic bag or packets containing the drugs. 73.I found PW’s 1, 3 and 4 to be honest and reliable witnesses. I was satisfied beyond a reasonable doubt that the prosecution had proved beyond a reasonable doubt the chain of evidence relating to the seizure of the dangerous drugs to the time of delivery for examination by the Government Chemist. The drugs seized had never been tampered with nor was the chain of evidence ever broken. 74.Was the defendant unlawfully trafficking in the dangerous drugs? The defendant remained silent when he was arrested for the offence of trafficking in a dangerous drug. The defendant denied possession or knowledge of the drugs. I have found that he was in possession and had knowledge of the drugs. 75.I was satisfied that the defendant was unlawfully trafficking in the drugs by drawing an inference from all the facts. He had gone to Wah Yu House to collect the drugs from D1. He was then going out to Tin Wan in Aberdeen. He was going away from his home area after collecting the drugs carrying with him a fairly large quantity of drugs out into the streets. 76.Some of the drugs were packed in numerous smaller packets. There were a total of 18 packets, the reasonable inference is that the numerous packets of drugs would be more easily supplied to others. There was also one large packet of drugs containing 27.94 grammes of ketamine. The quantity of the drugs was not of a small amount. The irresistible inferences from the above facts support the supply of drugs to others. 77.Conclusion In considering the totality of the evidence as a whole I was satisfied that the defendant was trafficking in the dangerous drugs. 78.I found that the defendant had an appointment to meet D1 outside Wah Yu House, Wah Fu Estate to collect the plastic bag containing the drugs from D1. The defendant was waiting for D1 outside Wah Yu House. When D1 exited the lobby of Wah Yu House, he headed straight for the taxi that the defendant was sitting and waiting in. 79.As soon as D1 reached the taxi, the rear door was opened, the defendant told D1 to get into the taxi first however D1 did not board the taxi but handed to the defendant and the defendant received the plastic bag containing the drugs. 80.D1 was in physical possession of the plastic bag of drugs. 81.I was satisfied beyond all reasonable doubt that the prosecution had proved that defendant was in possession of the plastic bag containing the dangerous drugs and that that defendant had full knowledge and was aware that the dangerous drugs were in the plastic bag. 82.In the circumstances I found the defendant guilty of the charge of unlawful trafficking in the dangerous drugs. The defendant is convicted of the charge accordingly.
Mr. Matthew CHONG Chun-sang, counsel on fiat, for Prosecution Mr. Mark R.C. SUTHERLAND instructed by Messrs. H.L. Wong & Co. for A2 Please refer to CACC518/2012 for the relevant appeal(s) to the Court of Appeal. |
Cases cited in this judgment
Further hearings and rulings under DCCC 554/2012