HKSAR v. Lam Chun Hang and Others

DCCC 204/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 204 OF 2013

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Reasons for Verdict

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1.The 1st to 3rd defendant pleaded not guilty to one charge of trafficking in a dangerous drug each, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The 1st and 2nd defendant indicated that they would plead to a possession of dangerous drugs charge instead of trafficking dangerous drugs.  The prosecution would not accept this plea. 

3.The issue in this case is credibility of witnesses.

4.The prosecution case is that the 1st defendant visited the 3rd defendant at premises under observation by the police.  The 3rd defendant was seen handing the 1st defendant a bag and the 1st defendant immediately departed.

5.The 1st defendant was arrested very close by with a bag of ketamine in his pocket.  He said under caution that he got it from the 3rd defendant. 

6.Before the police could enter the said premises, the 2nd defendant then appeared at the door.  The police rushed in when the door was opened and the 2nd defendant fell to the ground.  A bag full of ketamine that he had in his possession was found by the police on the ground next to him.  He admitted the drugs were in his possession.

7.The 3rd defendant denied any knowledge of the dangerous drugs found on the 2nd defendant and he denied he passed any dangerous drugs to the 1st defendant.

8.The 1st defendant gave evidence and says he bought the dangerous drugs for his own consumption from somebody else, not the 3rd defendant despite what he said upon arrest. 

The prosecution case

9.The police had intelligence of drug activity at No 29, 1st Floor, Pak She Back Street, Rear Block, Cheung Chau.  They obtained a search warrant for the premises.  They intended to stop and search anyone leaving No 29 whilst the premises were under observation. 

10.On 25 November 2012, a team of police officers set up observation posts to put this into effect.  Observation post 1 was opposite the target premises.  PW1 stood there and could see all who went in and out of No 29.  Observation post 2 was on the stairwell above the 1st Floor target premises and was manned by PW2.  Observation post 3 was to the left of No 29 and observation post 4 was to the right of No 29 if one was facing No 29. 

11.These posts were manned with several officers. Their job or task was to intercept those that came from the target premises depending on whether they went left or right upon exiting No 29.

12.PW2 briefed this team before they left Cheung Chau Police Station and told them the target address, the proposed observation post positions and who was to man which post.

13.At 1.45 pm all officers took up their respective positions.  At 14.24 pm PW1 contacted PW2 by radio and told him of a male all in grey going into No 29.  PW2 waited for the male to come into sight.  PW2 saw the 1st defendant, this male all in grey, stop outside the target address front door.  He was 4 metres away on the stairs above this door.  He saw the door open and the 3rd defendant appear.

14.The 3rd defendant gave the 1st defendant a blue bag which the 1st defendant put in his left front shorts pocket.  PW2 saw no other transactions between the men and the 3rd defendant then shut the door. The 1st defendant went downstairs to exit No 29.

15.PW2 spoke to his team over the radio and said, “Watch that male.  There was a transaction put in left trouser pocket.”  He heard PW1 tell observation post 3 that the male was going south in their direction.  Observation post 3 replied that they had seen him.  They stopped and searched the 1st defendant and within a very short period of time observation post 3 said to colleagues over the radio, “Bingo” meaning they found dangerous drugs.

16.PW2, the officer-in-charge, then told observation post 3 to arrest the 1st defendant for trafficking dangerous drugs.

17.At 14.25 pm PW2 then told officers of observation post 4 and PC 13953 of observation post 3 to come to observation post 2 to assist him.  He planned to storm into the flat and needed assistance.  When they arrived of observation post 2, PW2 told his colleagues all to stand behind him on the staircase between the two floors.  PW2 waited near the door of the target flat with the intention of rushing in if the door opened. 

18.At 14.35 pm PW2 heard PW1 of observation post 1 tell him a male in white was coming up the stairs towards him.  He retreated further up the stairs and out of sight as did all his colleagues.  The 2nd defendant appeared at the target premises door and the 3rd defendant opened it.  Without warning, PW2 went down towards the 2nd defendant and pushed him into the open door and the premises.  He shouted, “Police.  Search of house. Don’t move.” 

19.The male in white, the 2nd defendant, fell to the ground just inside the door as a result of the push.  The 3rd defendant was backed up to the sofa of the living room and sat down on it.  There was no one else inside the premises.

20.PW3 immediately saw and seized a bag of white powder on the ground next to the 2nd defendant.  In the bag, PW3 saw 50 small bags containing white powder.  The 2nd defendant told PW3 under caution that it was for his own fun and he had bought it outside.  The dangerous drug was exhibited as P4A and B.

21.This target address was about 400 square feet in size with two bedrooms, one bathroom, a kitchen and a living room.  The photographs of Exhibit P2  and Exhibit D1(1-8) show the outside of Block 29, the inside of the apartment, the dangerous drugs found in a blue bag on the 1st defendant, the dangerous drugs found next to the 2nd defendant and the various exhibits seized from within the apartment.  These include a lot of cash in various places from out in the open to in boxes and locked drawers.  Electronic scales, small transparent resealable bags and a small plastic scoop and straw were also seized.  The cash totalled $83,980.

22.PW4 was PC 2941 and the designated exhibits officer.  He produced all the seized exhibits and with the assistance of the photographs of Exhibit P2 pointed out where each exhibit was found. 

23.PW5, PC 3088, was at the observation post 3 with his colleagues on duty.  At 2.24 pm he heard PW1 of OP1, observation post 1, say that a male in grey was going up towards the target flat.  His evidence was that he then heard PW2 say, “There has been a transaction.  Put in left trouser pocket.  Take notice of his movements.”  Observation post 1 told observation post 3 to get ready to intercept this male.

24.PW5 and colleagues stopped the 1st defendant, the male in grey, who was riding a pink bicycle away from No 29.  After 15.48 grammes of a powder containing 12.04 grammes of ketamine, divided into 41 small resealable transparent bags, were found in a small blue canvas bag in the 1st defendant’s left shorts pocket, the 1st defendant was arrested and cautioned. Two mobile phones were also found on the 1st defendant.  He told the police that he had got the ketamine from To Wai-kit and it was for his own consumption.

25.A post-recorded statement was exhibited as P20A and B.  The blue bag was Exhibit P3 and the dangerous drugs was Exhibit P19A and B.

26.Nothing suspicious was found at a later house search of the 1st defendant’s home. 

27.In a subsequent video-recorded interview, the 1st defendant made further admissions relating to the purchase of the 41 bags of ketamine and the 3rd defendant’s involvement in the transaction.  This record of interview was exhibited as P25A and B; it was not challenged.

28.The 2nd defendant’s video record of interview was not challenged either and exhibited as P26. 

29.Exhibit P23, the Admitted Facts, dealt with the quantity of the ketamine found on the 1st defendant and the ketamine found beside the 2nd defendant.  The chain of evidence was not challenged and the government chemist certificate was P24.

30.It was agreed there were no viable fingerprints found on any exhibits.  It was also agreed the ex-wife of the 3rd defendant was the named tenant of the targeted premises. 

The defence case

31.It was not challenged the 1st and 2nd defendant were in possession of ketamine.

32.The 1st defendant said that despite what he had said under caution did not get the ketamine from the 3rd defendant, but somebody else at the Pak Tei Temple playground.  He gave evidence and said he paid Ah Ngau $1,500 for the ketamine.  He then put the dangerous drugs in a small blue bag which belonged to him.  He had his identity card, some cash and keys in the bag as well.

33.After he had purchased the dangerous drugs, he wanted to borrow some money from a Miss Lee, this is the 3rd defendant’s ex-wife, and so he went to her home from the drug transaction.  He knocked on the door and the 3rd defendant answered.  The 1st defendant told the 3rd defendant he was there to borrow some money from Miss Lee.  The 3rd defendant swore at him and told him Miss Lee was not there.  The 1st defendant wanted to borrow money for food and to gamble.  He had borrowed money from her before but had repaid her. 

34.The 1st defendant then left after the 3rd defendant swore at him.  When he was promptly arrested with the dangerous drugs in his possession, he was very angry that the 3rd defendant had sworn at him, so he told the police that it was the 3rd defendant that had given him the drugs.  He wanted to frame the 3rd defendant. 

35.Some four hours later, he was still angry with the 3rd defendant, so he continued to implicate him in his video record of interview.  He gave full details of arranging to get the dangerous drugs from the 3rd defendant. 

36.In his oral evidence in court he said he had made it all up in order to frame the 3rd defendant.  The statement was not challenged and he said some of it was true and some of it was false.  In this interview he described his drug habit which differed to his evidence in court. Nonetheless, he said he bought the dangerous drugs for his own consumption. 

37.The 2nd and 3rd defendant did not give evidence.

38.The 2nd defendant relies on his video record of interview.  The 2nd defendant’s position is very simple.  The ketamine was brought by him to the target address.  It was not for trafficking purpose and the prosecution cannot prove it.  His video record of interview, P26, explains his drug habit and supports his assertion that the dangerous drugs was for his own consumption.

39.The 3rd defendant’s position is that he did not give any blue bag containing any dangerous drugs to the 1st defendant when he came to the door.  PW2, the second prosecution witness, the only witness to say he saw this transaction, is lying and framing the 3rd defendant.  PW2 did not see this exchange nor was it possible he saw this exchange from his position upstairs, at least not without being spotted or discovered.  The 3rd defendant did not live there let alone deal with dangerous drugs from there.

40.The fact that the exhibits were seized from inside the premises was not challenged but where certain items were found was in dispute.  In particular, those items include $38,000 in cash, a small electronic scale and over 100 small transparent resealable plastic bags.

41.The 3rd defendant called his ex-wife and tenant of the target premises to give evidence on his behalf.

42.The 3rd defendant was married to Miss Lee in 1998 and they divorced in 2005.  Together they have two daughters, aged 12 and 4 years old respectively.  She rented the premises in year 2004.  The 3rd defendant lives nearby but visits often.  He had his own set of keys to her home.  She explained that her and her two daughters received CSSA public assistance of $9,300 per month of which 3,000 went to pay the rent.  She said the 3rd defendant was also a CSSA recipient until November 2012 when he worked for a week as a decoration worker at a friend’s place. 

43.Her evidence was that the $38,000 found belonged to her friend and she held it for him to pass on to a mutual friend.  She kept this money in a drawer in her daughter’s bedroom as seen in photograph 42 of P2.  The $38,000 was not on top of the drawer as described by the exhibits officer.  This money was exhibited as P14.

44.The $8,790, P13, found in a pink metal box as seen in photograph 31 did belong to her but was her social welfare payment for the month.  She had just received it.  The $2,460, P12, found loose on a shelf was also her money.  It was the half-year premium payable for an insurance plan for one of her daughters.  She was due to pay it and had put it to one side. This money is seen in photograph 29. 

45.The $2,630, P10, found in a round tin on top of a cupboard is seen in photographs 20 and 21.  There were $600 in two laisees, she said, belonged to her younger daughter who had received it for her birthday, and the $2,030 balance in cash was for books and stationery for the academic year of 2013, she would need to pay it in January 2013.

46.There was also $31,000, Exhibit P18, found in a locked drawer, ultimately forcibly opened by the police.  She said this money was laisee money her two daughters had saved up over the years.  The $1,100 found near the front door did not belong to her and she did not know where it had come from.  The money is Exhibit P7 and is seen in photographs 16 and 17.

47.She said the 141 small transparent resealable plastic bags, Exhibit P15, seen in photographs 40 and 41, next to the box containing $38,000 was not found there by the police.  They were in fact in a bag by the bunk bed near the window seen in photograph 39.  She said she had bought these bags in a stationery shop to put in sweets for her younger daughter when they went out, one in each bag.

48.She said the small electronic scale, P11, seen in photographs 33 and 34, was found in the drawer below the printer, not on top of it as alleged.  The scales were hers and used for baking cookies, measuring butter and flour.  She did not keep them in the kitchen as there was no space in the kitchen for the small scales. 

49.The plastic straw and spade, P8 and 9, seen in photographs 18 and 19, were toys or a straw that probably belonged to her daughter.

50.She gave evidence that she had known the 1st defendant for about 6 years and recently lent him money, on each occasion two to three hundred dollars.  He always repaid her.  The 2nd defendant, she had known for a couple of years.

51.The 3rd defendant on that particular day had gone to her home to play with her daughter.  He was waiting for her to come home from a dancing class.  She got a call from the 3rd defendant after the police arrived and as a result called his friend.  This friend arranged a lawyer to go to the flat, but she did not go back as she was scared. 

52.As I said, the 1st defendant gave evidence, the 2nd and 3rd elected not to give evidence.  An accused is not obliged to give evidence.  The failure to give evidence is no evidence of guilt.  It proves nothing one way or the other.

53.The fact that an accused does not give evidence could strengthen any adverse inference to be drawn against him on the prosecution’s evidence.  The prosecution case enjoys the advantage of not being undermined, contradicted or explained by any testimony from the defendant. 

The law

54.The prosecution has a duty to prove all the charges beyond reasonable doubt.  The defendants do not have anything to prove.

55.The evidence against each defendant must be considered separately and independently, nor do the charges stand or fall together. 

56.Trafficking in relation to dangerous drugs include - I quote - “or otherwise dealing in or with the dangerous drug or possessing the dangerous drug for the purposes of trafficking.”  I refer myself to the definition of “trafficking” in section 2 of the Dangerous Drugs Ordinance.

57.I also refer myself to the authority of HKSAR v Chan Hong [1998] 2 HKC 688 at page 690, the English translation at E, where the Court of Appeal held, refusing leave to appeal - I quote:

“Trafficking was given a very extensive meaning in the Dangerous Drugs Ordinance, Cap 134. A part of the definition relevant to this case was dealing with a dangerous drug and possessing a dangerous drug for the purpose of trafficking. Not all manner of possession of a dangerous drug amounted to dealing with the drug. It all depended on the act of dealing and the purpose or use involved. The mere fact that the defendant moved about on the street with the dangerous drug was not sufficient to constitute dealing with dangerous drug. In order to draw an inference that the defendant was dealing with the dangerous drug, one must have regard to the circumstances at the time as well as other factors such as the intent, use and purpose which the defendant had when carrying the dangerous drugs, the time and place of the incident and the quantity of the drug found. In respect of possession of a dangerous drug for the purpose of trafficking, the prosecution did not have to prove any act of dealing with the dangerous drug. All they had to prove was that the defendant possessed the drug and had the intention and capability to make use of the whole or part thereof for the purpose of trafficking.”

58.The prosecution’s case against all three defendants is that on the evidence before the court, the only inference to be drawn is that each defendant possessed the drugs for the purpose of trafficking.  It is well established that an inference of guilt can only be drawn against a defendant if it is the only reasonable compelling inference to be drawn.

59.I refer to the often cited decision in The Queen v Kwan Ping Bong [1979] HKLR 1 and what Lord Diplock said in particular at page 5:

“The inference must be the only one that no reasonable man could fail to draw from the direct facts proved.”

My findings

60.As I have said earlier, the crux of this case against the 1st and 3rd defendant is the credibility of witnesses.  The issue requires close scrutiny of the prosecution witnesses and the 1st defendant’s evidence.

61.Where the 2nd defendant is concerned, it is whether or not the prosecution can prove the ketamine in his possession is for the purpose of trafficking.  The evidence against the 1st and 3rd defendant cannot be used to infer anything against the 2nd defendant.

The second defendant

62.In this case, the 2nd defendant and the 1st defendant do not interconnect, crossover or have any nexus according to the evidence presented.

63.I will deal with the 2nd defendant first.  He admits the drugs are his and he brought the dangerous drugs to the premises. He admits they were for his own consumption.  There is no direct evidence of trafficking.

64.Is the quantity alone sufficient to prove trafficking dangerous drugs?  In Exhibit P26, the 2nd defendant’s video record of interview, he tells the police he smoked ketamine six days a week and up to 10 packets a day.  A packet would last about an hour.  He bought the whole lot in Wan Chai for $2,000. 

65.The prosecution estimate its value to have been at that time $2,240. 

66.He describes the transaction in detail to the police.  He then explains why he went to visit the 3rd defendant, and it was not the first time he had visited the target flat.  This time it was to repay a gambling debt.  He owed $1,100 to the 3rd defendant and had it in his hand when the 3rd defendant opened the door.  P7 was $1,100 seized by the door.

67.The 3rd defendant told the 2nd defendant to put the money down, then the police rushed in.  Ketamine dropped on the ground when the 2nd defendant was knocked over.

68.The 2nd defendant told the police he met the 3rd defendant playing mahjong and had known him for a few months.  He had been to the target premises before and when no one else was at home, he had inhaled ketamine there.  He brought his own apparatus.  The 3rd defendant supplied nothing.  The 3rd defendant let him take ketamine there but did not partake himself.  On this occasion there is no evidence to suggest that he did not bring the ketamine to the flat.

69.I also ask: is his consumption plausible?

70.A professor K Lee gave evidence as an expert in the authority of The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  His evidence was referred to at paragraph 64 of the judgment.  Defence counsel referred me to this paragraph and I repeat it:

“Experienced users who have developed tolerance can use up to a gramme or more of ketamine during the course of a single evening.”

71.The professor is also quoted at paragraph 65, and I quote:

“Short duration of effect and the rapid onset of action when ketamine is consumed intranasally or intravenously often lead abusers to administer repeated doses in order to maintain the desired effect.”

72.It could be said that Professor K Lee is describing the 2nd defendant here.  The quantity the 2nd defendant possessed is not inconsistent with his own use.

73.I find the 2nd defendant’s heavy consumption plausible.  He said he was there to repay a debt $1,100 and the police found $1,100 very near the front door in loose notes.  He told the police in detail where and how he made the purchase for the drugs in question.  His immediate response when arrested was to admit possession for self-consumption. 

74.This is not a case where quantity alone proves an irresistible inference that the 2nd defendant was trafficking.  I refer myself to two authorities, HKSAR v Ho Ka Kei CACC378/2009 and HKSAR v Cheng Kong Sang CACC371/2008.

75.It is relevant he had this quantity on him rather than take it straight home, but he does explain where he was going and why.  It does not follow that if one has a quantity of drugs on them on the street or not at home, he is trafficking dangerous drugs.  I refer myself to the authority of Chan Chuen Ho v HKSAR [1999] 2 HKCFAR 198 at page 204B.

76.Having considered the evidence against the 2nd defendant and his video record of interview, I remind myself that to draw an inference from such, the inference must be a compelling one.  Despite suspicions, I am not satisfied the only inference to draw is that the 2nd defendant was trafficking in the ketamine.

The first defendant

77.Where the drugs found on the 1st defendant is concerned, there are several versions of events.  One from the prosecution, three from the 1st defendant.  The prosecution’s version is that the 1st defendant went to the 3rd defendant, collected the dangerous drugs in a blue bag and left immediately without further ado.  No money was seen changing hands. If it was a straight buy/sell transaction, there would have been an exchange of money.  If the 1st defendant was a cog in the wheel, then he was collecting to deal with the dangerous drugs.

78.The 1st defendant’s version includes getting the dangerous drugs from the 3rd defendant for his own consumption.  Later, it was getting the dangerous drugs from a male who was arranged by the 3rd defendant to deliver dangerous drugs to him.  That male gave him the dangerous drugs in a blue bag.  The latest and most current version was that he framed the 3rd defendant and the 3rd defendant was not involved at all.  He bought it from another in a park in Cheung Chau and the blue bag was his, his Cheung Chau wallet.  This is distinct from his other wallet he carried when going to Hong Kong Island.  He explained his anger towards the 3rd defendant just before his arrest led him to frame the 3rd defendant.  Hence, his different versions of events.

79.Other conflicting evidence versions from the 1st defendant include his drug taking habit.  In his video record of interview he told the police that he consumed ketamine twice a week.  On each occasion he would consume 10 to 11 packets a day.  The 41 packets he bought for $1,500 would last two weeks.  He would spend $3,000 each month on dangerous drugs and earned from casual work six to seven thousand dollars a month. 

80.In his oral evidence, he told the court he took ketamine everyday, consuming two to three packets a day.  His purchase would last about 14 days or two weeks.  He said he lied in his video record of interview about his drug taking habit because he was hoping if he said that, the police would charge him with simple possession. 

81.Much was made of PW5’s answer to the question in cross-examination, “How did you, upon arrest of the 1st defendant, know the 1st defendant’s name?”  His answer was that he found his identity card in the blue bag.  PW5 does not recall what else besides that was in the blue bag with the 41 packets of ketamine.  He handed the blue bag to PW6.

82.PW6’s evidence was that the blue bag only contained dangerous drugs.  He said PW5 did not get the 1st defendant’s identity card from the blue bag, but he did see PW5 holding the 1st defendant’s identity card.  He did not notice where the identity card had come from. 

83.The issue here was that if the 1st defendant’s identity card was in the blue bag, that would cast doubt on PW2’s evidence that the blue bag was handed to the 1st defendant by the 3rd defendant and immediately pocketed as the 1st defendant left and was promptly arrested, he would not have had time to put in the bag his own belongings such as an identity card or keys or cash.

84.The prosecution called a police officer who prepared a POL39 list and receipt of a detained person’s property.  It is Exhibit P22. In short, there is a wallet, Octopus card, bank cards, re-entry card, identity card, cash, two mobiles, a key and a bag.  All these items were found on the 1st defendant.  These were items that were not seized by the police.

85.When asked why the identity card was not kept in his wallet with other cards which would have been the norm, the 1st defendant explained that the wallet was for Hong Kong Island and the blue bag was for Cheung Chau and hence why his identity card was in his blue bag that day as he was in Cheung Chau.  He had no real explanation as to why both his Hong Kong wallet and Cheung Chau wallet were both on his person that day. 

86.Defence counsel says PW5’s evidence of the identity card in the blue bag corroborates the 1st defendant’s evidence, that he bought the dangerous drugs and then put the dangerous drugs in his blue bag, his bag that contained his identity card and some personal belongings.

87.That submission would be correct if I accept PW5’s evidence, but I do not.  I believe he is mistaken.  I do not, like PW6, believe PW5 got the 1st defendant’s identity card from within the blue bag.  A wallet that contained other important similar cards would be the obvious place to keep it.  Moreover, why say the blue bag was given to him containing dangerous drugs in his video record of interview if the blue bag belonged to him and was clearly used as a Cheung Chau wallet?  If it was really his, the blue bag, he would have said he took the dangerous drugs and put it in the blue bag or not mention the blue bag at all. 

88.Other issues make me doubt the 1st defendant’s evidence.  He explains his admission that he got the dangerous drugs from D3 by trying to justify why he would frame the 3rd defendant.  His justification is a weak attempt to backtrack or back-peddle from implicating the 3rd defendant.  By saying he was angry that the 3rd defendant swore at him, he attempts to convince the court that the 3rd defendant was innocent.

89.Far from framing the 3rd defendant properly he starts to back-peddle in his video record of interview taken several hours after his arrest.  He says he called the 3rd defendant by phone to arrange a drug buy but collected the dangerous drugs in Pak Lee Cheung Park in front of No 29 from another male, not the 3rd defendant.

90.When the police asked him at counter 576 of his interview, under what name he had the 3rd defendant in his mobile, he said Lau, not To Wai-kit.  When asked in evidence if he had said this, he said yes but that he had lied to the police.  His explanation as to why he would lie was confusing.  He said by doing this, he thought he would pass the blame or the buck onto the 3rd defendant.  His answer was confusing, I am sure, because in fact what he had told the police was the truth and does, in reality, implicate the 3rd defendant which he tried so hard in the witness-box not to do. 

91.He says he felt remorseful for framing the 3rd defendant whilst in remand in Lai Chi Kok.  Yet the first time he mentions to anybody including the prosecution that he was falsely implicating the 3rd defendant was when he elected to give evidence at trial.  He explained he did not know what to do after remorse set in. 

92.Of course what he says against the 3rd defendant is not evidence against the 3rd defendant.  But the 1st defendant is at the same time as trying to exonerate the 3rd defendant also trying to convince or sound convincing when he says he bought dangerous drugs earlier for cash for his own consumption from someone other than or connected to the 3rd defendant.

93.I was not convinced that the 1st defendant was a reliable or truthful witness.  I rejected his evidence as to where the dangerous drugs came from and how he abused ketamine himself.  I rejected his explanation for his conflicting versions of events was motivated by anger towards the 3rd defendant for swearing at him.  It is not believable.  In any event, it is far too much of a coincidence that the police had the premises under drug surveillance when the 1st defendant visits to borrow a couple of hundred dollars with a pocket full of ketamine.

94.Although I reject the 1st defendant’s evidence, I still have to be sure that the prosecution witnesses’ evidence is reliable and credible.  Despite my rejecting PW5’s evidence that the 1st defendant’s identity card was in the blue bag, I saw no other material discrepancy that made me doubt the prosecution witnesses’ evidence. 

95.PW2 and PW6’s evidence on this point fly in the face of PW5’s evidence and I accept their evidence entirely.

96.PW2’s description of his observation post and observations made are clear, concise and believable.  I accept he could see the activity at the door from his position.  I believe he saw an exchange from the 3rd defendant to the 1st defendant and saw the 1st defendant put the bag in his left pocket.  He described the 1st defendant leaning on the door to his left as he faced the 3rd defendant and his open door.  If he was in that position, PW2 would have had a good view of his left hand and left side.

97.I believe he told the colleagues that the 1st defendant put something in his left pocket, and not long after the police found the ketamine in the 1st defendant’s left pocket.  I do not believe PW2 saw the 1st defendant at the door, heard an argument and swearing and thought he would have the 1st defendant stopped and searched even though he saw no transaction only to have the 1st defendant arrested with a lot of ketamine in his possession.   As I said earlier, that would be too much of a coincidence as PW2 said when it was put to him, if he was framing the 1st defendant, he would have framed the 2nd defendant as well at the same time. 

98.I accept the prosecution’s evidence that the 3rd defendant did hand the 1st defendant a blue bag containing ketamine at the door and the 1st defendant then left.  I am sure he took the ketamine without paying which, I find, means it was not dangerous drugs for his own use and consumption.  I am sure he was dealing with it other than as an end-user.  I do not believe the 3rd defendant or any drug trafficker would extend credit on that amount of dangerous drugs. 

99.I also take into account the packaging of the dangerous drugs, 41 small packets of ketamine, packaged as one would sell to consumers.  I find the 1st defendant was acting as a courier or a drug mule when stopped and searched by the police.  Hence, the address in the particulars of the charge is accurate. 

100.From the evidence I accept and that is in particular the evidence of PW2, I am sure I can draw the irrefutable inference the 1st defendant was dealing with ketamine and had the intention and capability to make use of the whole or a part thereof for the purpose of trafficking. 

101.The evidence of PW2 is very damning against the 3rd defendant.  He watched the defendant, the 3rd defendant, hand over a blue bag moments later found to contain 41 small packets of ketamine.

102.The house search did not reveal any other dangerous drugs, but the police did find other paraphernalia associated with trafficking dangerous drugs, small electronic scale, many small resealable bags associated with packing dangerous drugs as well as large quantities of cash. These small bags are not normally associated with packing sweets.  The quantity of cash found seems unlikely for a family of three that lives on public assistance. 

103.DW1’s evidence, Miss Lee’s evidence, that the 3rd defendant did not live there is rejected.  The 3rd defendant was there alone, and I am sure he told the police which room he would sleep in.  The 1st and 2nd defendant went there to look for him whilst the flat was under observation.  There is not enough to support the defendant’s submission that he did not live at the premises. 

104.DW1 would have a vested interest to help the 3rd defendant as his ex-wife and father of their children.  They may be divorced but clearly close.  He has free access to her home when she is not there and they had a second child together after they were divorced.  He may have another home but he clearly treats these premises as his own as well as did others such as the 1st and 2nd defendant. 

105.The first defence witness’ evidence in the main was to explain away the exhibits found, the large amounts of cash and tried to distance the 3rd defendant from her home and therefore all the exhibits seized.  Her explanations for the amounts of cash found were bare assertions, not substantiated by any supporting evidence or documents.  Her assertion she used the very small electronic scales for baking is ludicrous.

106.I see no reason for the exhibits officer to lie as to where he found cash, scales and the small plastic bags.  I believed his evidence.  I found the evidence overwhelming that the 3rd defendant used the premises as his own, contrary to her evidence. 

107.My finding can only mean in the absence of any other possibilities the 3rd defendant was dealing with dangerous drugs.  I took into account my finding that he did give 41 small packets of ketamine to the 1st defendant in a blue bag, clearly for the 1st defendant to take away to deal with it.  In addition, I found there was paraphernalia in the premises that could be connected to trafficking dangerous drugs.  That is all direct evidence that the 3rd defendant was trafficking the dangerous drugs he gave the 1st defendant.  In any event, no reasonable man could fail to draw the inference from those facts that he was trafficking that amount of ketamine.

108.I am satisfied the prosecution can prove beyond reasonable doubt that the 1st and 3rd defendant were trafficking dangerous drugs.  The 1st defendant is convicted of Charge 2 and the 3rd defendant convicted of Charge 1.

109.I find the prosecution has failed to prove the 2nd defendant was dealing in or with a dangerous drug for the purpose of trafficking.  The benefit of the doubt goes to the 2nd defendant and he is acquitted of Charge 3, but convicted on his own plea to possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance, Cap 134.