HKSAR v. Wong Man Ching and Another
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DCCC 234/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 234 OF 2014 -----------------------------------
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---------------------------- Reasons for Verdict ---------------------------- Charge 1.D1 and D2 deny a joint charge of drug trafficking. Prosecution Case Basic facts 2.PW1, the only prosecution witness, was an undercover police constable in a police operation, code name “Brightwind”, to collect triad intelligence in Kowloon east. 3.On 14 June 2013, PW1 was together with a male called “Ah Kai”, ie D2, whose identity is not in dispute at trial, at Minden Avenue, Tsim Sha Tsui. D2 asked PW1 to see if PW1’s friends would like to buy ketamine from D2. PW1 agreed to see to it. 4.On 26 September 2013, PW1 was together with D2 outside Man Kwok Funeral Parlour, Hung Hom. D2 asked PW1 to see if PW1’s friends would like to buy cocaine from D2 at $11,000 or $12,000 per ounce. PW1 agreed to see to it. D2 gave his phone number, 6144 9592, to PW1 for contact. 5.On 2 October 2013, D2 asked PW1 the same question again at a park in Po Tat Estate. PW1 agreed to see to it. 6.At 0220h on 4 October 2013, D2 asked PW1 if PW1 had any friends to take cocaine at $6,500 per half-ounce or $12,000 per ounce. PW1 agreed to see to it. 7.At 1537h, PW1 told D2 on the phone that a friend would like to buy half-ounce of cocaine from D2. D2 replied it would be $6,500 and PW1 would have to ring up D2 when the money was ready. 8.At 1730h, PW1 received from the police marked banknotes for $6,500 and rang up D2. D2 asked PW1 to go to the vicinity of Wo Lok Estate and on arrival ring up D2. 9.At 1820h, PW1 arrived there and rang up D2. D2 asked PW1 to wait for D2 to ring up “Fei Mang” to see if the cocaine was ready. 10.At 1834h, D2 rang up PW1 and instructed him to go to the park outside Cheung On House in Wo Lok Estate for the handing-over with Fei Mang. 11.At about 1839h, PW1 arrived at the said park. Seated on the long bench was Fei Mang, who handed over the cocaine in transparent resealable plastic bags to PW1. Fei Mang told PW1 to pay him $6,500 as arranged by D2. PW1 paid the money to Fei Mang. Fei Mang asked PW1 to go to Cheung On House, on the pretext of looking for Ah Fai on the 7th floor if questioned by the caretaker, so that PW1 could conceal the cocaine on his body. Fei Mang left first. PW1 went into Cheung On House on the said pretext to the caretaker and concealed the cocaine on his body on the 2nd floor. 12.At 1845h, D2 rang up PW1 to see if PW1 had received the cocaine. PW1 replied yes and hung up. 13.At 1920h, PW1 arrived at the safe house and handed over the bags of cocaine to the exhibit officer. 14.A government chemist certificate was prepared after examination of the drugs received from the exhibit officer. The contents were cocaine with a trace of ketamine. The police estimated the retail values of the cocaine and ketamine to be $14,450 and $11 respectively. 15.The defence admit the chain of evidence. 16.D1 and D2 each has a clear record. Special issue 17.D1’s counsel challenges the identification arrangement[1] by the police on 11 October 2013 in which D1 was allegedly picked out by PW1 as Fei Mang among an ad hoc line-up comprising 14 other participants at the said park. Eight participants were arrestees whereas 6 others were ordinary citizens who happened to be at the park. The prosecution does not offer any reason to me, save perhaps for convenience’s sake on the part of the police, for making such an arrangement in lieu of a formal identification parade. I am informed that D1, aged 15 at the time, was not explained of his right to refuse to take part in the identification arrangement or, if he elects to take part, he could object to any participants on the ground of apparent dissimilarity in outward appearance relative to him. I find this identification arrangement totally unfair and improper. I refuse to admit evidence of identification of D1 based on it. Half-time submissions 18.Upon my refusal to receive such identification as evidence, the prosecution closes its case without any proof that D1 was Fei Mang. The defence makes a submission of no-case. The prosecution cannot resist. I rule no case to answer in regard to D1. D1 is acquitted of the charge. D2 has no submission. There is a case to answer. D2’s case 19.D2 elects to give evidence. He calls no witnesses. He is 19 years of age. He admits knowing PW1 at a bar at Minden Avenue, Tsim Sha Tsui, on 14 June 2013. It was the first time they met. He admits probably seeing PW1 on subsequent occasions. He denies having told PW1 he had dangerous drugs to sell to PW1’s friends. He says his mobile phone number during June to October 2013 was 5316 3454, which he had given PW1 for contact. He has no idea of 6144 9592, the mobile phone number which PW1 alleges he has given PW1. My findings 20.There is no evidence of the circumstances in which PW1 and D2 came to know each other or how close they became. I can only regard PW1 as a new acquaintance of D2 as at 14 June 2013. As contended by D2’s counsel, it is not credible for D2 to tout drug purchase from a new acquaintance at a bar. 21.The police had not bothered to obtain phone records regarding 6144 9592, in particular for 4 October 2013, where PW1 and D2 had a number of phone conversations, timed by the exact minute, to address the handing-over of the cocaine. This phone number had been a vital link between PW1 and D2 on the one hand and most probably between D2 and Fei Mang on the other hand. I am not sure whether PW1’s evidence is credible, particularly as to whether he had used this phone number 6144 9592 to make contacts with D2 to bring about the actual transaction. 22.In the premises, D2 is acquitted of the charge.
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