HKSAR v. Lau Chi Yan

DCCC 931/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 931 OF 2013

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Reasons for Verdict

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1.Defendant, you have pleaded not guilty to one offence of possession of dangerous drugs, contrary to Sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, and also to one offence of trafficking in dangerous drugs, contrary to Sections 4(1)(a)(3) of that same ordinance.

2.The prosecution case was as follows.

3.On 11 July last, PC 33818 (who was PW1) was on anti-drugs operation with team-mates.  At about 5 pm, he saw a Toyota car, RW 5830, parked outside No. 363, Castle Peak Road.  You were in the driver’s seat, acting suspiciously.  PW1 observed you from about 2 metres.  After a while, he saw you open the door about a foot and look around.  You then picked up a shoulder bag from the front passenger seat and inserted your right hand into it.  You replaced it on the seat and detached the window control panel of the driver’s door.  You then put a white plastic bag and a black plastic bag into the space under the control panel.  You then closed the panel and alighted. You walked towards Hing Wah Street at a fast pace. 

4.PW1 alerted PC 11442 (who was PW2) who was patrolling at the opposite pavement.

5.About five minutes later, PW1 saw you return to the car.  He intercepted you and conducted a body search.

6.You were holding the ignition key (which is Exhibit 10) in your right hand.  In the right front pocket of your shorts, PW1 found a plastic bag containing 0.54 grammes of powder containing 0.41 grammes of ketamine (that is Exhibit 1) and a paper packet containing 0.07 grammes of powder containing ketamine (Exhibit 2).

7.Under arrest and caution, you claimed that the ketamine was for your own consumption.

8.PW2 then searched the car.  He found a black plastic bag and a white plastic bag underneath the control panel of the driver’s door.  PW2 opened the black bag and found two plastic bags:  inside one, there was 34 small empty plastic bags; inside the other, three small plastic bags containing traces of ketamine.  Inside the white bag, three small plastic bags containing traces of ketamine; also inside the white bag, seven plastic bags containing 94.11 grammes of powder containing 71.51 grammes of ketamine.

9.Under further arrest and caution, you remained silent.

10.Also seized were the following items:

(1) four Nokia mobile phones and a Samsung (which are Exhibit 12, I believe);

(2) $9,490 from the wallet in the right pocket of your shorts;

(3) $1,026 and RMB100 from Exhibit 12.

11.A video recorded interview under caution was held the following day.  You claimed that on 8 and 9 July you borrowed the car from Mr Chung Kwai-ming.  You admitted owning the ignition key and the black shoulder bag.  You also admitted owning the five phones that were seized.  You remained silent over the drugs seized from your shorts and from the car.

12.The street value of 71.5 grammes of ketamine is approximately $11,293.

13.The prosecution assert that you possessed the large amount of drugs for the purpose of trafficking.

14.P13 are the admitted facts.  In accordance with Section 65C of the Criminal Procedure Ordinance, Cap.221, they were placed before the court.

15.The prosecution case, in addition to these admitted facts, comprise four live witnesses, two of which were simply tendered.

16.The following facts were admitted within the admitted facts:

(1) one, that you were in possession of the ignition key of the Toyota car, RW 5830, at the location referred to. Following a search of the vehicle, you were further arrested for trafficking in dangerous drugs;

(2) two, cautioned after your arrest for trafficking in dangerous drugs at 1736 hours, you remained silent;

(3) the registered owner of the Toyota is a local car dealer, Chung Kwai-ming. On 24 April of 2010 he had been sentenced to 40 months’ imprisonment for trafficking in dangerous drugs;

(4) four, the chain of evidence for all dangerous drugs exhibits is agreed;

(5) five, the dangerous drugs in Charge 1 is 0.61 grammes of powder containing 0.41 grammes of a controlled dangerous drug. Charge 2 is 94.11 grammes of powder containing 71.51 grammes of ketamine.

17.A bundle of 22 photographs is admitted as P1.  A hand-drawn plan of the locus in quo drawn by PC 11442 (who was PW2) is admitted as P2.

18.PW1 (PC 33818) gave evidence and the gist of what he said is as follows.

19.On 11 July at around 1630 hours after a briefing from his sergeant, who we now know to be Police Sergeant 4847 (who became PW3) he was on anti-drugs operation and patrolling along Castle Peak Road.  Outside 365 Castle Peak Road, he saw a silver Toyota, registered number RW 5830, stopped on the first lane.  The male driver he saw was looking in the driving mirror and moving both left and right.  The driver then opened the door and PW1 moved to about 2 metres away to observe.  He moved to the right rear of the car.  The driver leaned out of the car and looked left and right, which the officer found suspicious.  He took out a black bag from the front passenger seat with his left hand and inserted his right hand into it.  He then put it on the passenger seat.  He then used his left hand to open or remove the control panel under the window of the driver’s door. 

20.PW1 said it was about 5 pm, so still daylight, as summertime.  The driver’s door was opened about 1 foot.  However, as we know in cross-examination and demonstration, it was more likely to be 1½ to 2 feet.

21.The driver continued to sit in the driving seat, then using his right hand he put what looked like a white plastic bag and then a black plastic bag into the control panel.  He then left the car and closed the door.

22.PW1 followed and signalled to his partner (PC 11442) who was on the opposite pavement, by raising his arm.  When the driver returned to the car outside 363 Castle Peak Road, PW1 with PW2 stopped him and revealed their police identities. 

23.PW1 searched the man, who, in fact, was you - there is no dispute about this - making enquiries.  He found two items relating to the first charge in the right pocket of the shorts:  one rectangular white/blue paper with suspected dangerous drugs, and a transparent resealable plastic bag containing white powder, which he suspected to be dangerous drugs. These were Exhibits P3 and P4.

24.PW1 then arrested and cautioned you for possession of dangerous drugs.  I say it was you because your identity was clearly not an issue in this case and this was made clear from the outset.  You allegedly replied, “The K-Chai is for my own consumption.”  PW1 then seized the ignition key to the car held by you.

25.PW2 then searched the car while PW1 and you looked on.  You were handcuffed by this stage.  PW2 found two items in the control panel of the driver’s door.

26.At 5.36, PW1 arrested you for trafficking in dangerous drugs and cautioned you.  You made no reply.

27.PW1 said he witnessed the car search, also that he seized $9,490 from the wallet in your right front trousers pocket (that is P6).

28.PW1 then was referred to various photos and the plan.  He marked the position he stood at to observe you when you were in the car.

29.There then ensued length cross-examination, the theme being that the car was an identified target and that PW1 could not have observed what he said he had done; also, that the DD in Charge 1 was not found on you, nor did you reply as alleged.

30.PW1 refuted all this.

31.PW2 then gave evidence-in-chief.  He is PC 11442.

32.His evidence was highly corroborative of PW1 over material facts, confirming the finding of dangerous drugs in your shorts pocket (Charge 1) and your reply under caution; then the finding of the white plastic bag and the black plastic bag containing the dangerous drugs, the subject of Charge 2.

33.He also confirmed that you were indeed arrested and cautioned twice.

34.His main evidence, of course, relates to the search of the car and finding of the large amounts of ketamine, the subject of the more serious Charge 2.  In this regard, he said he said he searched the driver’s door area, where he found the window control panel with an abnormal opening.  He opened it by hand and found a white plastic bag and a black plastic bag with the dangerous drugs referred to in the charge and the other things referred to in the facts.

35.He did form the suspicion that it was dangerous drugs (P9, P10, P11, P12).  P12 is the subject of the charge.  He also spoke of the contents of the black shoulder bag (P15).  He formally produced a sketch (P2).  PW2 was also cross-examined to the effect that the car was a target, which he denied. 

36.There was some confusion as to which side of Castle Peak Road he patrolled, but this was settled later.

37.He corroborated PW1’s evidence as to what occurred after he crossed the road to join him.

38.In response to a question from the bench, PW2 confirmed that the only items in the control panel were the two plastic bags: black and white.

39.Police Sergeant 45847 then gave evidence as PW3. He was then tendered and then cross-examined.  He refuted any suggestion of targeting the car.

40.PC 11804 then gave evidence as PW4.  Again, he was simply tendered and denied targeting the car.  He, in fact, added nothing to the case.

41.The prosecution’s case was closed and, in the absence of any contrary submission, I found that there was a case to answer and ruled accordingly.

42.You, having had your rights explained by Mr Sherry, elected to give evidence but to call no defence witnesses.

43.I shall summarise what you said.  The gist of what you said is as follows.

44.You said that at the time of the incident you worked cleaning and waxing cars as well as buying and selling cars.  At about 4.30 pm on the day in question, you went down to the car park of your flat, intending to go to work.  Downstairs, you noticed a policeman, who you later realised was PW4.  He was 10 to 15 feet from your car and appeared to be taking photographs using his mobile phone.  The car was owned by My Chung Kwai-ming and was to be polished and cleaned. 

45.On the way to work, you decided to stop at the Bank of China ATM to pay a fixed penalty.  You parked at the position shown in P1 on Photo 1, switched off the engine and immediately alighted.  You said you saw there were some pedestrians but you took no notice.  You walked to the ATM. You walked to the ATM but found you had left your card in your wallet in your black bag, which is P15. 

46.PW1 then approached and asked to see your identity card.  You said you told him you had left it in your car.  You said PW1 appeared suspicious of you.  He then took the car key and asked to search the car.  He also searched you but found nothing apart from a fixed penalty ticket.  No one else was there when you were searched. 

47.PW1 then appeared.  PW1 handed the car key to him and PW1 opened the door.  By this time you said PW1 had not arrested you for possession of dangerous drugs nor had you cautioned him.  You had never said that any K-Chai was for your own consumption. 

48.PW2 then searched the car.  During the course of the search, other police officers arrived.  The police sergeant asked PW2 if he had found anything.  After another 30 seconds, PW2 was seen holding a small plastic bag he found from the position below the driver’s seat.

49.PW1 asked you if it was for your own consumption, but you did not reply the police sergeant that it was for your own consumption.  PW2 found a black plastic bag in the control panel.  You said you were not aware of anything that was put there.

50.You were then cross-examined. 

51.You said you were not aware that the owner of the car had served 40 months’ imprisonment in 2010 for trafficking in dangerous drugs.  You first met him, you supposed, in 2011.  The officer who took photos of the car was not challenged by you.  You denied that the control panel of the car was broken.  You claimed the large amount of money found on you was from betting on horses and the Renminbi left over from a trip you had made to the Mainland. You claimed that PW1 and PW2 lied when they said that the Hong Kong dollars were in a black wallet. 

52.You reiterated that no dangerous drugs were found in the front pocket of your shorts, that you ever admitted it was for your own use, and that you were ever arrested and cautioned for it.

53.Also, PW1 was lying when he said he saw you put a large quantity of ketamine in the control panel.  You claimed it was the small bags of dangerous drugs that PW1 held up.  You denied trafficking in dangerous drugs.

54.In view of your evidence, all four prosecution witness had to be recalled and further assertions made by you put to them.  These were all denied.

55.You were then re-examined by Mr Sherry after the new allegations had been put to PW1, PW2, PW3.  You agreed you had used the control panel to open the window at some stage.

56.The case for defence was then closed and written final submissions were made by Mr Hotten for prosecution and Mr Sherry for defence.

57.I turn now to the verdict.

58.In reaching my verdict, I considered the evidence against the background of those excellent written submissions.  I am obliged to both counsel for those.

59.The prosecution case was simple in the extreme.  It was logical and mutually corroborated by PWs 1 and 2. 

60.I have to say that the evidence, as it turned out, of PW3 and PW4 was of little value to either side and I intend no criticism in saying that, save to the extent that both were able to say that the car in question was never at any time a specific target.

61.I accept that.

62.The defence case too was simple and you gave evidence in support of your opposition.  Of course, I bear in mind the defence has no burden of proof to discharge at all.  It is for the prosecution to prove the case and all essential elements of the case beyond all reasonable doubt, if convictions are to lie.

63.Essentially, what you said was that you never placed the large amount of dangerous drugs in the control panel of the driver’s door and that when you drove the car you were totally unaware of them being there.

64.As we know, you are not the owner of the car and the owner does have a conviction in April 2010 for trafficking in dangerous drugs, for which he was sentenced to 40 months’ imprisonment.  From that, it is obvious that this involved a significant amount of narcotics.

65.You said that the police were targeting the car and this is evidenced by PW1’s presence in the car park of your estate taking photographs of the vehicle, that the dangerous drugs the subject of Charge 1 was not found in your front right shorts pocket, as alleged by PW1 and PW2, that at no stage were ever arrested or cautioned for possession of dangerous drugs, and you never made any admission to the effect that the drugs were for your own consumption.

66.In fact, you went on to claim it was found under the driver’s seat of the vehicle.  This, as we know, was not put to PW2 in the first cross-examination and he had to be recalled for that purpose.

67.You also account for your possession of a significant sum of money by way of a win on horses and the Renminbi as being left over from a trip to the Mainland.

68.All prosecution witnesses had to be recalled after your examination and they had to be re-cross-examined on material facts that were not put to them in the first case.

69.However, it is not for me to speculate as to the reasons for the omission.

70.You also said you were unaware that the owner of the car had a previous conviction for trafficking in dangerous drugs and had been sent to prison for 40 months in April 2010.  You claimed that you had known him since 2011. 

71.In short, your position was that the police were framing you up, to use common parlance, and that at no time were you in possession of any dangerous drugs the subject of either charge.

72.I have to tell you from the outset that I do not believe your evidence where it contradicts that of the prosecution witness.  It is illogical; it does not make sense.  If a person who at that stage you did not know was policeman was taking photographs of your car, why, I ask, did you not make enquiries of him to find out what he was doing?

73.Your explanation for your possession of the Hong Kong dollars is too glib and convenient and I also bear in mind that there is no onus of proof on you. 

74.Neither do I believe if it was a frame-up by the police, would they claim to have found a very small amount of dangerous drugs on your person, when in the car there was a significant stash of narcotics.  It is pointless and it is untrue, your assertion.

75.Nor do I believe that you drove the car, operated the window and had no idea that the control panel was so clearly in a distressed state.  I refer to photo 10 of P1.

76.Therefore, I do not believe and I discount your evidence as largely untrue on salient points.

77.Having so found, that is not, however, the end of the matter.

78.I have to be satisfied beyond all reasonable doubt of your guilt on the prosecution evidence, bearing in mind, as I have said previously, you have no evidential burden to discharge.

79.It is true that neither PW1 nor PW2 could be described as perfect witnesses, each demonstrating a tendency towards fallibility on minor matters and a reluctance to concede fault or mistake.  PW2, for example, clearly fell into error when describing which side of the road he patrolled, whether it was the odd or even numbers.  It was only when I questioned him on this point that he admitted and conceded his error.  However, as I have said, this is a minor point.  On matters of importance, I found them to be honest, accurate and highly corroborative of each other. 

80.When I analysed Mr Sherry’s filed submissions, his attacks on the prosecution case and credibility of the officers, whilst he is clearly doing his best to make of what he has, there is little for him to work with and I say this, again, reiterating that there is no onus of proof on the defence.

81.The prosecution case, in my opinion, is very strong indeed, unlike the fragile, factual account presented by you, which is clearly untrue and embellished to such an extent that all prosecution witnesses had to be recalled to put extra matters to them. 

82.The first plank of defence is that the car at least was targeted from the outset.  If it had been and drugs were indeed found in it, what is the objection, I ask?  I can see no possible reason for the officers to deny targeting a specific vehicle if they had intelligence relating to drug activity and any other good reason to do so.  It simply makes no sense.

83.In my opinion, the evidence of all the four officers together satisfies me beyond all reasonable doubt that the specific vehicle was not so targeted.  It goes without saying that if I found it was or even could have been in the situation of denials, then this would have impacted adversely on the credibility and integrity of the prosecution case as a whole.

84.It was not, and I so find.

85.In respect of Charge 1, the defence case is that no such drugs were found in your right shorts pocket.  You were never cautioned nor arrested and you made no such admission as alleged that they were for your own consumption.

86.The evidence of PW1 is clear and unambiguous on all these points and fully and properly corroborative by PW2, who stood guard.

87.In paragraph 65(1), Mr Sherry asserts that there is no evidence to support such an admission ever being made.  There is, of course, the evidence of PW1 and PW2, and that is evidence enough, which I believe.

88.Also, both speak as to the finding of the dangerous drugs, which is in itself sufficient to establish the charge.  Then, the arrest and caution.

89.The clear admission is merely icing on the cake.

90.Mr Sherry quotes from HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093.  However, that case is, with respect, totally different scenario, referring to an alleged admission prior to both the finding of dangerous drugs and prior to arrest and caution.

91.In the present case, the dangerous drugs were found, you were arrested, cautioned and then made the admission.

92.That admission amounted to how the drugs would be used.

93.Whilst I do scrutinise carefully that admission, as it is not recorded down nor put again to you, I am satisfied beyond all reasonable doubt that all three events took place as described by both PW1 and PW3.

94.Therefore, on Charge 1, you are convicted.

95.Charge 2 is, of course, a much more serious matter.

96.I do not intend to rehearse all that was said again, save to say PW1’s account is both truthful and accurate, in my opinion. I fully accept that the only reason he paid attention to the vehicle was that you were acting suspiciously while parked outside of 363 Castle Peak Road.  You kept looking in your rear view mirror and moving your body left and right.

97.In my finding, there was no question of the car being pre-targeted, as I have said repeatedly.

98.I am also satisfied and so find that PW1 did indeed stand at the position he was shown in various photos and was able observe your actions as you sat in the driver’s seat and opened the driver’s door some distance which seems to be 1½ to 2 feet, as indicated by PW1.

99.I can find no basis to support Mr Sherry’s contention in paragraph 22 of his submissions that if you had so reached to the control panel with your left hand, as asserted, you would have fallen out from the car.

100.I do not find that this is true.

101.The extreme edge of the door was opened 1 foot 6 to 2 feet, but the control panel, being towards the front of the door, as we see in photo 9, would only move out a few inches.

102.PW1 was only about 2 metres away, directly observing you from the rear.  He saw you pick up the black bag (P15) from the front passenger seat and rummage inside it.  You then used your left hand to lift up the control panel of the driver’s door and with your right hand you placed first a white plastic bag and then a black plastic bag into the gap.

103.I note the defence do not dispute that these were drugs as mentioned in Charge 2 and I also note nothing else was in the gap below the control panel.

104.Therefore, given my acceptance of PW1’s evidence, it is proved beyond all reasonable doubt that you did indeed take the dangerous drugs from your bag which contained other items belonging to you and placed them in the panel.

105.It is, of course, of some small concern that PW1 did not direct PW2 to that place when he searched the car, but I cannot find that anything turns on this submission and so it does not undermine the credibility of either of the prosecution witnesses in any way.

106.Your removal of the two bags containing the dangerous drugs from the bag containing other possessions of yours and placing them in the door leads me to an irresistible inference that you had knowledge of the dangerous drugs and possessed them. 

107.Given the quantity, the way in which they were packed in seven smaller bags, the amounts of cash in your possession, the five mobile phones in your possession and the hiding of the dangerous drugs in the door, this leads me to the further irresistible inference that they were indeed possessed for the purpose of trafficking in dangerous drugs.

108.The fact that the owner of the vehicle which has a previous conviction for trafficking in dangerous drugs is, in my opinion, neither here nor there, given the strength of the evidence against you.

109.Therefore, in respect of Charge 2, I am satisfied beyond all reasonable doubt that you possessed the 94.11 grammes of powder containing 71.51 grammes of ketamine and you did so for the purpose of trafficking and you are convicted on that charge.