HKSAR v. Ho Chi Fai and Others

DCCC 635/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 635 OF 2014

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REASONS FOR VERDICT

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Amended Charge (1)

Statement of offence

1.Conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and section 159A and 159C of the Crimes Ordinance, Cap 200.

Particulars of offence

2.Ho Chi Fai, Siu Cheuk Fung and Yu Sau Ping, on the 21^st day of March, 2014, in Hong Kong, conspired together and with another person to unlawfully traffic in a dangerous drug, namely, about 15 grammes of heroin hydrochloride.

Plea

3.D2 to D4 pleaded not guilty to the charge (1).

Introduction

4.The police mounted two observation posts, one being the podium on 4/F of a building opposite to the sitting-out area in question, with the other on the roof of a 12-storey building diagonally opposite to the said area.  Prosecution alleged that through observation, during the afternoon time on the day in question, there were five particular transactions between some males and a person, later known as an arrested person (AP).  For each transaction, it was seen that after exchange of money-like object, something was passed from the AP to the males (the alleged buyers).  For the last two transactions, two police decoys were deployed to conduct the transactions with marked money.

5.Prosecution further alleged that through observation, sometime after the last transaction, the AP handed some money-like object to D2.  D2 was later seen to hand some money-like object to D3.  Sometime later, D3 was seen to pass some money-like object to D4.  At a later time, the AP and D2 to D4 were intercepted.  Upon search, some drugs were found from the AP and the rear lane next to the said area.  Besides, the marked money used by the police decoys was found from D4.

Issue in dispute

6.Basically, the defence had no dispute as to the five alleged transactions.  The sole issue was whether the prosecution could prove conspiracy between D2 to D4 and other.  The credibility and accuracy as to the so-called chain handling of money like objects from AP to D2, then to D3 and up to D4 were under strong dispute.

Progress of trial

7.An admitted fact, together with the drugs seized, money found from the AP, D2 to D4, was produced as exhibits.

8.Prosecution called 9 witnesses.

9.D2 and D3 elected not to give evidence, nor calling any witness.

10.D4 gave evidence and called one witness.

Prosecution’s case

11.The most crucial evidence to prove conspiracy originated from PW1 and PW3.  Both of them observed from the roof of a building and a podium of a hotel that five alleged drug transactions were taken place between five males and AP in the sitting-out area.  For the last two transactions, they were conducted by two police decoys (PW4 and PW5) with drug seized.

12.It was alleged that about 10 minutes after the last transaction, D2 entered the said area where the AP gave something to D2.  Another 25 minutes later, D2 passed something to D3 in the said area.  Then further 20 minutes later, D3 gave something like money to D4 outside a park which was opposite to the sitting-out area.  About 10 minutes later, AP, D2 to D4 were intercepted and arrested by PW6 to PW9 respectively at various locations near the vicinity of the sitting-out area.

13.Upon search, some drugs were found from AP with cash of $1,960 found from the left pocket of his top garment. Cash of $1,430 was found from D2.  Cash of $10,390 and $1,100 were found respectively from the left front trouser pocket and the messenger bag of D3.  Cash of $41,017 was found from the messenger bag of D4.  The four marked hundred dollar banknotes used by the two police decoys were recovered from the cash of D4.

Defence case

14.D4 gave evidence that she was a drug addict with a record of possession of dangerous drug.  She needed to consume drug.  She submitted two recent urine test reports (D3A and D3B) showing that heroin was found in her urine.  In the morning and afternoon of the day in question, she called the AP several time intending to buy drug from him.  Eventually, she met him at the entrance of the sitting-out area and bought something from AP.  It costs $170.  She gave him a thousand dollar banknote and received the change of $830 from him.  She then left.  At the junction with Cheung Sha Street and Portland Street, she met D3 and greeted each other.  She smoked a cigarette.  She did not receive anything from D3.

15.The day before the incident was her birthday.  Her four children celebrated her birthday, with each giving her $5,000 as birthday gift.  She had with her another $10,000.  In the afternoon of the day in question, she played mahjong in a Mahjong School which was near to the said sitting-out area.  She won $3,000 odd dollars.  The lai-see (P24A) was given to her after playing the game as usual practice.

16.DW2 as called by D4 was her daughter.  She testified that the day before the incident, they (altogether 4 siblings) celebrated D4’s birthday.  Each of them gave $5,000 to D4 as birthday gift.  DW2’s evidence was not challenged by prosecution.

Analysis of evidence

Distance of observation

17.The observation post of PW1 was on the roof of a 12-storey building which was diagonally opposite to the sitting-out area in question.  With a usual height for a floor being 3 metres, plus a slope of being diagonally opposite, it would be more than 36 metres.  It was not a short distance.  According to PW1, there was no visual aid used.  With only naked eyes, the clarity of observation had to be restricted to certain extent.  It was particular so as to the gesture of exchange of something between hands during the transactions.

18.The observation post of PW3 was on the podium on the 4^th floor of the hotel opposite to the said area. However, from what he described about the positions of the alleged buyers and AP, his view was to certain extent obstructed either by the body of AP or the back of the bench.

19.From the photographs (D1) produced by D4, PW1 was not able to see the whole surrounding of the said area.  Some parts were obstructed by the big trees stretching over the area.  PW3 made the observation of the transactions through the gap of the bench and its canopy.

Mouth-covering with hand by alleged buyers

20.PW1 testified that the first three unknown alleged buyers and the first police decoy did cover the mouth after they received something from the AP.  However, in his witness statement, there was no mention at all as to such mouth-covering act by the alleged buyers. 

21.Prosecution sought to produce the Occurrence Book (P3) written by PW2 who simultaneously recorded the events as told by PW1.  PW2 also confirmed that he had written all what PW1 had told him. However, as shown in P3, it was recorded that only the alleged second and third buyer covered the mouth after receiving something from AP.  There was no mention of such act in respect of the alleged first and fourth buyers.

22.According to PW1, he admitted that such act was an important information and should be recorded.  The most logical deduction was that the record in the OB should be most accurate.  If it was the case, why did PW1 testify that for the first four transactions, all the alleged buyers did cover the mouth after receiving something from AP?  No reasonable explanation was offered to the court by PW1 as to such discrepancies. 

23.Further, by the act of mouth covering, the court was invited to draw the inference that the doer put something into the mouth.  It was inherently improbable that the first police decoy would put thing (the suspected dangerous drugs) into his mouth, in particular that that thing was taken out from the mouth of AP.  It was plainly unbelievable.

24.In addition, according to the evidence the first police decoy (PW5), after he received the dangerous drug from AP, he put in into his pocket.  There was no act of covering mouth at all.

25.PW3 affirmed that through his observation, for all transactions, no alleged buyer covered the mouth after receiving something from AP.

Gesture of Alleged buyers and AP during all transactions

26.PW1 said when the transactions were taken place, all alleged buyers were standing in front of AP and AP was also standing.

27.PW3 testified that while all alleged buyers were standing, the AP was sitting on the bench.

28.PW5 (the first police decoy) gave evidence that during transaction, while AP was sitting on the bench, he also sat next to him on the same bench. 

29.PW4 (the second police decoy) though testified that he first sat next to AP, he later stood up when he took out the marked money from his trouser pocket.  However, in his witness statement, it was recorded as “…... I received the pellet of suspected dangerous drug and put it into my right trouser pocket and then got up and left ..….”  This simply meant that all along, he was sitting down.  Once he put it into his pocket, he stood up and left.  His explanation offered to court was plainly unacceptable.

Money counting

30.PW1 testified that when D1 gave money-like object to D2 at 6:40 pm, D2 put it into the left trouser pocket and there was no mention of money counting.  When D2 handed money-like object to D3 at 7:05 pm, D3 put into his bag.  Again, there was no mention of money counting.

31.However, according to PW3, both D2 and D3 did count the money before putting it into the trouser pocket and bag respectively.

Talking between AP and D2 to D3

32.PW1 said that at 5:30 pm, when he saw D3 appearing, D3 talked to D2 outside the area.  He described no dealing between D2, D3 and AP.  However, PW3 described that at the same time, once D3 talked to D2, they entered the area and talked to D1.

Dealing between D3 and D4 at 7:25 pm

33.PW1 testified that at that moment, he could see that D3 gave some money-like object to D4 who then put it into her bag.  When he was asked to describe their acts of handing-over, he replied that he could not remember the details.  In my view, this act of handing-over was a piece of important evidence to implicate them.  If he could see it clearly, there was no reason why he could not remember the details.

34.Further, coupled with the fact that it was in mid March at 7:25 pm, it should be getting dark at that time. In the absence of visual aid, with street lamp still being off and observation under such a long distance, whether he could see it clearly was doubtful.

Same mistake made in the witness statement of PW1 and PW3

35.In respect of the first transaction at 3:55 pm, in paragraph 5 of their statement, they described the event as “one of the males ……”.  According to their testimonies, only one male was involved that transaction.  It was the first transaction, the memory should be very clear.  The chance of mixing up with other transactions should be rather low.  Secondly, according to them, there was no discussion between them.  If it was the case, it was hardly explainable that two officers committed the same mistake in their respective statement by reason of co-incidence.

Money seized from AP

36.There was no dispute that cash of $1,960 was found from the left pocket of AP’s top garment.  It was also alleged that once the AP received the money from buyer, he put the money in the same pocket where he took out some money like object to pass to the buyer as change. So, quite obviously, the proceeds of sale were kept in that particular pocket. It was further alleged that ten minutes after the last transaction, AP was seen to pass some money like object to D2.  According to the observation, there was no other transaction.  If it was the case, it was unreasonable for the actual trafficker to keep an amount of nearly two thousand dollars.

Scale of operation of trafficking

37.For the observation of nearly 4 hours, there were only 5 transactions involving not large quantity of drug and cash.  It was noteworthy to consider whether it was necessary to operate a small scale of trafficking activities with 4 persons.

Money found from D3

38.It was noted that among the $1,100 found from the bag of D3, there was a hundred dollar note with the serial No EQ 002002.  Though D3 had not given any evidence, it did arouse certain consideration.  It carried six digits of 002002.  This could to certain extent be described as special number. In my view, the chance of having a banknote with such similar special number by co-incidence was quite low.  It seemed to support the allegation as put by the defence.

D4’s evidence

39.Firstly, D4 had a previous record of possession of dangerous drug.  In her recent urine test reports, it shown that she had taken heroin.  It was probable that she was a drug addict.  She needed to buy drug for own consumption.  From the observation post of PW1, his view might be obstructed by the big trees stretching over the sitting-out area. PW3 confirmed that he did not pay all attention to AP.  The possibility of getting the marked money through the transaction with AP, though slight, could not be ruled out.

40.It was undisputable that the Mahjong School was quite near the scene.  D4 did possess the lai-see containing some money.  This to certain extent supported her version that she was a frequent customer of the School.  With the evidence from DW2 which was not challenged, the explanation given by her appeared not to be unbelievable.

Conclusion

41.The prosecution case solely relies on the credibility and accuracy of PW1 and PW3.  If their evidence is accepted, the court is invited to draw the inference of conspiracy from the chain-handling of money like object from AP to D4 via D2 and D3.

42.From what I pointed out in the analysis of evidence above, there are multiple inconsistencies between PW1 and PW3 and also between them and others.  The most obvious example is the different versions about the sitting position of the two police decoys.  On one hand both PW1 and PW3 maintained that they could see the transactions without any obstruction.  On the other, how come they would say that the two decoys were standing during the transactions.  The background of the two decoys is relatively neutral.  I have no hesitation to rule that the first police decoy (PW5) was telling the truth to the court that he was sitting next to AP during the transaction.

43.Judging from the circumstances of the case, I am of the view that the descriptions given by PW1 and PW3 may not originate from their individual observation.  The chance of exchange of information through communication aid may exist.

44.There are also examples of exaggeration. PW1 always described the money like object between hands. In my opinion, under such a long distance, with only naked eyes, one is difficult to see anything in exchange between hands.  PW3 always described that AP used his hand to cover his mouth.  However, under cross examination, he admitted that in fact AP’s back was facing his direction.  Under such situation, how he could see the act of covering mouth as the view was totally obstructed by AP’s head.

45.Having considered the discrepancies between PW1 and PW3, the quality of their evidence and also the circumstance of the case, I am led to conclude that the court is left with certain doubts as to the overall credibility and accuracy of their evidence. As the prosecution has failed to overcome the first hurdle, there are no concrete facts that the court can rely upon in order to draw the inference of conspiracy among the defendants.

46.I go on to say even there is some evidence, they are not sufficient to allow the court to draw the unique and irresistible inference of conspiracy among them.

47.Having considered all the evidence and circumstance of the case, I find the prosecution has failed to prove the case beyond reasonable doubt.

48.I accordingly acquit D2 to D4 in respect of the Amended Charge (1).