HKSAR v. Kwok Wai Man

DCCC 385/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 385 OF 2014

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Reasons for Verdict

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1.D1 faces one joint charge with D2 (charge 1) and 5 trafficking in dangerous drugs charges alone (charges 2 to 6). D1 pleaded guilty to charges 1, 2 and 3, admitted to the summary of facts and was duly convicted on the 3 charges. At the request of the prosecution and with D1’s consent, charges 4, 5 and 6 are to be kept on court file, not to be proceeded with against D1 without the leave of court. This Reasons for Verdict deals only with D2’s trial on charge 1, being a charge for ‘Doing acts preparatory to or for the purpose of trafficking in substances believed to be dangerous drugs, contract to s.4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap.134[1].

Background

2.Operation ‘High Scorer’ began in June 2012 and PW1 Officer Law was deployed undercover to collect information on various criminal activities. The operation went overt on 28^th March 2014 and multiple individuals were arrested in relation to different alleged crimes. D1 and D2 in the present case were arrested for their part in an alleged night of drug trafficking on 16^th and 17^th November 2012 where D2 was the taxi driver while D1 was driven around to deliver drugs to different people. PW1 was with them throughout.

Issues

3.The first issue is PW1’s credibility and reliability. Whether PW1 is telling the truth when he said he heard D2 said things that would imply that D2 knew about the purpose of the taxi ride on the night in question, which was for D1 and PW1 to make drug deliveries.

4.If D2 did say those words and it could be implied that D2 knew the purpose of the taxi ride by Sunny and PW1 that night, can the prosecution then prove that the act of D2 driving D1 and PW1 around to different places were acts for the purpose of trafficking in substances believed to be dangerous drugs.

5.The prosecution must also prove that the only irresistible inference from the facts is that D2 himself believed that the substances that Sunny and PW1 were delivering were dangerous drugs. It is therefore in issue as to whether D2 did hear D1 and PW1’s conversations inside the taxi, including D1 talking about ‘K chai’, ‘Cola’ and D1 instructing PW1 to hide things on his person.

Summary of Prosecution Evidence

PW1 DPC 10029 Officer Law

6.Officer Law gave evidence under an immunity from prosecution. He was attached to the Duty Team of Airport Police Station before 7^th June 2012.

7.In June 2012, PW1 received instructions to take part in an undercover operation to collect information in the area of Kwai Chung and Tsing Yi area. The operation was given the name of “High Scorer” and it went overt on 28^th March 2014. PW1 gave evidence on what allegedly happened on 16^th and 17^th November 2012.

16^th November 2012

8.PW1 was in the Police safe house at around 6am and was briefed by his superior on the actions for the day. PW1 was instructed to go to the Kwai Chung and Tsing Yi area to collect evidence.

9.Later that night, at 8:56pm, PW1 was in Kwai Fong, inside Shing Fong Street Park chatting with 2 men when one South Asian male ‘Sunny’ and another man nicknamed ‘Shek Chai(石仔)’ also arrived at the park.

10.Sunny said to PW1, “Hey, Ah Bo, follow me outside to do something (喂阿寶跟我出去做啲嘢)” in fluent Cantonese. ‘Ah Bo’ was the nickname adopted by PW1 during the operation.

11.PW1 and Sunny left the park together and walked to the ground floor of Kwai Hei House of Kwai Fong Estate where Sunny told PW1 that he was to follow him later to get something in the Canton Road area.

12.At around 9:51pm, a red taxi DC3173 drove into the Kwai Hei House entrance area. PW1 saw 2 men in the rear passenger seat. He recognized one of them as “Sai Guai (細鬼)” Mo Chong Man (毛創文), but not the other man.

13.Sunny got into the taxi and sat in the rear seat next to Mo and the other man. After a while, Mo and the man got off the taxi. Mo then said to PW1, “Ah Bo, you follow big brother to go to work (阿寶你跟大佬出去做嘢)” PW1 said fine and then got into the taxi. He sat behind the taxi driver in the rear passenger seat and Sunny sat on PW1’s left. Just when the taxi was about to leave, Mo gave a mobile phone to Sunny and said to him, “Later on you use this phone to liaise with the customers (一陣間同啲客人聯絡就用我呢部電話打出去)”. Sunny replied that he got it.

14.Once inside the taxi, PW1 immediately paid attention to the driver license card, which said ‘Kwok Wai Man郭偉文’. It is not disputed by D2 that he was the driver of DC3173 on the night of the alleged offence.

15.It is PW1’s evidence that Sunny said to him that the driver was also one of their own working together, and that PW1 could just address him as ‘Man Gor (文哥)’ (自己人，一齊做野，你叫佢文哥就得啦) PW1 then greeted the driver and said “How are you Man Gor (文哥你好)”.

16.Sunny then told D2 to first go to the MacDonald restaurant in Tsui Ping Estate in Kwun Tong first.

17.While the taxi was on its way, PW1 asked Sunny what in fact were they going to do. Sunny replied that they were going to pick up some ‘K chai’ and then to deliver some goods. PW1 gave a strong reaction, expressed his disbelief and remarked that if they got caught it will be very ‘big wok (大鑊)’ and asked if he could choose not to do it. Sunny replied that since PW1 knew about everything, he had to do it, if not, he will get someone to chop him (你依家乜嘢都知道哂, 一定要做㗎啦，如果唔係我搵人斬你). PW1 then acknowledged that he had to do it. Sunny told him there was no need to be afraid, and that PW1 will be paid after the deliveries were done.

18.At around 10:11pm the same night, they arrived at the MacDonald restaurant in Tsui Ping Estate. PW1 saw Sunny talking on the phone while inside the taxi. Sunny then said to PW1 that they were getting off the car to pick something up. Sunny and PW1 got out of the taxi and walked slowly over to the restaurant.

19.After a while, an unknown male around 15 to 20 years old who was on the phone and holding a black chips tube shaped container, similar to Pringles chips, walked towards the restaurant.

20.Sunny told PW1 to go over to take over the container. PW1 did as he was told and took the container and then went back to the taxi with Sunny. Once inside, PW1 handed over the container to Sunny. Sunny opened it and took out 6 transparent plastic packets each about 2” x 3” in size and filled with white powder and gave them to PW1. Sunny said they were ‘K chai’ and told PW1 to put 2 inside each of PW1’s shoe and 2 inside his underpants in order to hide them and so that they would not be found by the Police. PW1 did not know how many packets were left inside the container as it was Sunny who dealt with them.

21.After PW1 had hid those 6 packets of white powder, he saw Sunny talking on the phone and PW1 heard Sunny asking about where the person was and that his goods were on the way.

22.Sunny then said to D2, “Now go to Kowloon Bay MegaBox and wait outside, then will take off to Kwun Tong side (宜家去九龍灣MegaBox外邊等，跟住出發過去觀塘嗰邊)” While on the way there, PW1 saw Sunny put 3 bags of white powder inside the container.

23.The taxi arrived at MegaBox at around 10:17pm. PW1 saw the taxi parked on the left side of another vehicle, RD8826. Sunny then told PW1 to lower the window on his side of the rear passenger seat. PW1 saw the front passenger window of RD8826 was also lowered. Sunny then threw the container into RD8826 through the said open window. Their taxi then drove away.

24.PW1 then saw Sunny talking on the phone again. PW1 heard Sunny asking about where to go and that they were on the way from Kowloon Bay. Sunny then told D2 to go to Hung Hom train station. PW1 then heard D2 said the following, “Next time you make an appointment don't say your actual position, it would be easy for someone to tell the Police, just say you are nearby would do (你下次約人唔好講自己個實際位置啦，好易有人報寸架，話喺附近咪得囉). Sunny replied, “Got it, Man Gor 知道啦文哥).”

25.During cross-examination, PW1 said that D2 turned his head to look back when he said those words, and it was right after Sunny had told D2 to go to Hung Hom.

26.It was also pointed out during cross-examination that there are minor differences between what PW1 said in court and what PW1 had recorded in his witness statement. In his statement, PW1 recorded this as what D2 had said:  “Hey you next time make an appointment don’t tell your position, it’s easy for someone to report to the Police, just say you were nearby (喂你下次約人咪講你自己乜嘢位置，好易有人報寸㗎，是但講你喺附近咪得囉)” (Expletives left out).

27.PW1 agreed and explained that first of all his memory was more fresh at the time of the making of the statement, secondly, although he was not able to repeat verbatim what D2 had said, PW1 was absolutely sure that he had captured the meaning of what D2 said accurately.

28.Sunny then told PW1 to ‘take out two packets of K chai’. PW1 complied and took out 2 packets from his right shoe and handed them over to Sunny.

29.At around 10:24pm, the taxi arrived at Hung Hom train station and stopped at the layby right next to the taxi stand. After a while, a black Mercedes Benz RT 4782 parked behind their taxi. Sunny got out of the taxi and got into the rear passenger seat of the Mercedes. After about 5 minutes Sunny got back out and came back into their taxi. Once back inside the taxi, Sunny handed over some cash to PW1 and told him to count how much money there was. PW1 did as told and counted $5,200. Sunny said it was the right amount and told PW1 to keep the money in his pocket for the time being. Sunny then spoke on the phone again, saying words to the effect of where should they be waiting. Sunny then told D2 to drive to Sa Po Road in Kowloon City.

30.On the way, Sunny told PW1 to give him two more packets. PW1 took out 2 of the packets from his left shoe and handed them to Sunny.

31.They arrived at Regal Oriental Hotel on Sa Po Road at around 10:50pm. Their taxi stopped behind another black Mercedes Benz NZ 2034. Sunny got out and walked up to the Mercedes and handed over 2 packets to the driver. Sunny then got back into their taxi and talked on the phone again.

32.Sunny asked the person on the other end where he or she was and then Sunny said he was on his way. After Sunny told D2 to drive to the taxi stand at Hoi Lai Estate in Cheung Sha Wan, he asked PW1 if he still had two packets of ‘K chai’ and told PW1 to hand them over. PW1 obeyed and took out the last 2 packets of white powder from his underpants and handed them over to Sunny.

33.Their taxi arrived at Hoi Lai Estate taxi stand at around 11:03pm. Sunny and PW1 got out of the taxi together and PW1 saw Sunny gave the 2 packets of white powder to a 20 to 30 year old man. PW1 and Sunny then got back into their taxi.

34.Back inside their taxi, Sunny said to D2, “Now go to Broadway Street in Mei Foo Sun Chuen, this person has already arrived (依家去美孚百老匯街，呢個人已經到咗)”.

35.Their taxi arrived at Broadway Street at around 11:26pm. A man of about 30 to 40 years old came into their taxi’s rear passenger seat and Sunny gave 2 packets of white powder to this man who then got out. The taxi did not move during this transaction.

36.Sunny then received a phone call, talked for a while and then to D2, “Don’t go yet, there’s something to collect, wait here (唔好走住，有嘢要回收，喺度等)”.

37.At around 11:38pm, one of the black Mercedes Benz that PW1 saw earlier (RT 4782) drove up behind their taxi. Sunny got out of the taxi and into that Mercedes. Sunny came back after a while holding a transparent bag with a yellow crystalline substance inside. Sunny told PW1 that it was ‘Cola (可樂)’ and that they still have to go out. It was PW1’s understanding at that time that the ‘Cola’ was in fact the dangerous drug cocaine.

38.Sunny told D2 to go to Chatham Court in Tsim Sha Tsui.

39.Their taxi arrived outside a sauna place on Chatham Court at around 11:53pm. Sunny got out and waited at the entrance of the sauna place for about 5 minutes and then came back into the taxi. Sunny handed a blue cigarette box to PW1 and said to him, “this last one case for you to do (最後一單俾你做)”.

40.Sunny then said to D2, “We now go to Cheung Sha Wan Lai Chi Kok Road (我哋依家去長沙灣荔枝角道).”

41.Their taxi arrived there at around 00:17am on 17^th November. A man of about 20 to 30 years old came into the rear passenger seat of the taxi and PW1 handed over the said blue cigarette box to the man who hid the box inside his own underpants before he got out of the taxi.

42.Sunny then said, “Finally all done. Man Gor drive us back to Kwai Fong Four Eyed Man first (終於都搞哂啦，文哥車我哋返去葵芳四眼佬先).” Four Eyed Man is a Chiu Chow restaurant.

43.Their taxi arrived outside the restaurant at around 00:55am. Before Sunny and PW1 got off the taxi, D2 said to Sunny, “No need to give me the taxi fare yet, I will sort it out with Sai Guai later (啲的士錢唔使俾我住啦，之後我會同細鬼計).” It is PW1’s evidence that the taxi meter was running since he first got in and the final fare was over $300.

44.PW1 and Sunny then got off the taxi and walked into the restaurant where he saw Sai Guai and 10 odd other people eating there.

45.They all left at around 1:13am. Outside the entrance of the restaurant, Sai Guai gave 2 $1,000 notes to Sunny and said that it was the wages for their delivery work for the day. Sai Guai told them to go down to ‘Double 8 (孖八)’to have a drink first.

46.PW1, Sunny and other people arrived at Tsuen Wan 88 Heaven Bar at around 1:30am. PW1 knew some of the people there. Sai Guai was also there. While they were there, Sai Guai said to PW1, “Ah Bo, wasn’t it refreshing making deliveries today. As I said, I will definitely be able to find you something to do, this time delivering K chai, later will have lots of things to do (阿寶，今日送嘢醒唔醒神先，嗱，我都話咗你知一定搵度嘢俾你撈，今次就送K仔，遲下大把嘢撈).”  PW1 stayed until around 4:05am and then they all left.

47.When PW1 and Sunny was at the entrance of 88 Heaven Bar at around 4:15am, Sunny handed 5 $100 notes to PW1 and told him to take it as his wage for making the deliveries for the day. PW1 took the money and left. The money was later handed over to PW1’s superior at the safe house later on in the day.

48.PW1 was the prosecution’s only witness and the prosecution case concluded at the end of his evidence.

49.D2 did not make a no case submission. I found that there was a case to answer in relation to charge 1.

50.D2 fully understood his rights and elected to give evidence in his own defence.

Summary of D2’s evidence

51.D2 is 38 and living with his girlfriend. He has been working as a taxi driver for about 3 years, and was working the night shift on 16^th November 2012, driving DC 3173 from 6:30pm to 6:30am the next day (as admitted in P-1 Admitted Facts).

52.D2 remembered that he had driven 2 people to a few places where they got in and out of the taxi, wasting a lot of time. One was a South Asian, D1, and the other one was PW1. D2 did not know that PW1 is a Police officer at that time.

53.The reason why D2 was driving those two was because he had received a call from one Ah Man (阿文) who told him to go over to pick them up and to drive them to Kwai Fong. D2 said in evidence that he now know Ah Man’s full name was Mo Chong Man (毛創文). Ah Man was actually a friend of D2’s girlfriend and it was the girlfriend who gave D2’s number to Ah Man. D2 therefore came to know Ah Man through his girlfriend. The special arrangement was for D2 to give a discount on the taxi fare.

54.When D2 was asked in his evidence-in-chief how many times he had met Ah Man up to 16^th November, D2 said there was just once. It was the time when Ah Man called for D2 to pick him up, but D2 cannot remember where he picked him up.

55.As for D1, it is D2’s evidence that he did not know D1, although he had seen him sitting with Ah Man at 88 Heaven Bar, which is the bar that D2’s girlfriend worked at, D2 did not greet D1.

56.On 16^th November, after D2’s taxi arrived at Kwai Fong, Ah Man and the other man who was in the taxi with him got off and D1 and PW1 got in. Then D1 told D2 to go to Kwun Tong and so D2 drove there.

57.It is D2’s evidence that the radio in the taxi was switched on, as well as the taxi console communicator. D2 was also wearing a Bluetooth earphone which was connected to his mobile phone, allowing him to take or issue orders and to chat with his colleagues and friends.

58.In relation to PW1’s evidence about what D2 said to Sunny, D2’s evidence is first of all that he did say something like that, but as to whether he actually said that, he could not remember. If he did say something similar, he would have been talking to his fellow taxi drivers about Police using undercover officers ‘releasing snakes (放蛇)’ to catch them for running discounted taxis, if D2 knew then he would notify his fellow taxi drivers.

59.When asked how the words he said was linked to that, D2 said that “some colleagues told where people were and the Police would go up to place undercover Police officers, and also if the actual position is known, then others can overheard the contents and would know.”

60.When D2 was asked to explain his answer, he said that he actually ‘don’t quite remember the actual detailed contents.’ He was talking with his fellow taxi drivers, and the words were generally in relation to avoiding being arrested by the Police, since discounted taxi is not legal.

61.In relation to PW1’s evidence about how D2 told Sunny no need to pay the taxi fare and that D2 will sort out with Sai Guai later, D2 said that he did not know the person was called Sai Guai, D2 just addressed him as Ah Man. D2 explained that because Ah Man was the person who called the taxi and so D2 had to calculate the fare with Ah Man.

62.When asked by his counsel why D2 did not collect the fare that same night, D2 said that, because Ah Man was not there, and usually Ah Man would pay the next time or would leave the money with D2’s girlfriend.

63.The fare for the night in question was around $400.

64.When asked if D2 felt strange how Sunny and PW1 had gone in and out of the taxi, D2 said he did feel strange, but he did not see what they were doing, he just saw them going in and out. It is D2’s evidence that he did see Sunny and PW1 take things into and out of the taxi. He however could not see what those things were, just that they were not offensive weapon or similar things and so D2 did not pay attention.

65.D2 did not talk with them inside the taxi, nor could D2 hear the conversations between Sunny and PW1 because D2 was wearing Bluetooth earphones in both his ears and also because both the radio and the taxi console communicator were switched on.

66.In relation to Ah Man, it is D2’s evidence that Ah Man and his friends would from time to time go to D2’s girlfriend’s 88 Heaven Bar, and sometimes when D2 visited his girlfriend he would see Ah Man and say hi. Prior to 16^th November, Ah Man would sometimes call D2 for use of his taxi, if Ah Man had the money then he would pay D2, if not, he would pay the next time.

67.At this point of his evidence-in-chief, D2 was asked again by his counsel up to 16^th November 2012 how many times he had seen Ah Man, to which D2 answered ‘a few times’, all at his girlfriend’s bar.

68.As for D1, it is D2’s evidence that he did not know Sunny (D1) but he had seen him sitting together with Ah Man inside 88 Heaven Bar for about 2 times.

69.During cross-examination, it was pointed out to D2 that in his evidence he at first said he had only seen Ah Man once before 16^th November, yet later on D2 said he had seen Ah Man a few times. D2 explained that because it was too long ago and he could not remember that clearly. He was however able to confirm in cross-examination that he had seen Ah Man more than once before 16^th November.

70.It is D2’s evidence that on the night of 16^th November, D2 picked up Ah Man first and took him to Kwai Fong and then Sunny and PW1 got into the taxi. No one had introduced either Sunny or PW1 to D2. Ah Man just said to D2, ‘give them a ride going out (車一車佢哋出去)’. Ah Man did not say where to take Sunny and PW1.

71.D2 had started the meter running when Ah Man and the other man first got into his taxi. The meter was kept running until Sunny and PW1 got out at Four Eyed Man restaurant. D2 did not issue a receipt from the taxi meter that night to either Sunny or PW1, nor did D2 say to them how much the fare was, although he knew that Sunny saw the meter, since Sunny had looked at D2 and said that the meter was about $400. D2 then said to Sunny that he will collect from Ah Man.

72.It was pointed out by prosecution counsel that given that it is D2’s evidence that his nightly intake would be around $1000 odd dollars, the $400 fare on 16^th November was quite significant. Since there was no printed receipt, counsel asked how D2 could trust Sunny to tell Ah Man the correct taxi fare. D2 answered that Ah Man had done it before and that Ah Man said he will be paying it.

73.It is D2’s evidence that he never heard Sunny introducing D2 to PW1 as Man Gor, that D2 was one of their own, that they worked together and that PW1 should address D2 as Man Gor. He could not have heard because he had the radio on. It was then pointed out to D2 that he however was able to hear Sunny when Sunny told D2 where to drive to. To that, D2 answered, ‘he had to tell me where to go, I had to hear it’ and that Sunny had called out to D2 and so he heard.

74.It was Sunny who told D2 where to stop the taxi each time they got to their intended destination.

75.In relation to the words allegedly said by D2 to Sunny, telling him not to give out their actual location, D2’s earlier evidence was that he might have said similar words but only to his colleague over his phone, and that was to remind his colleague that Police may be listening in on their conversation (勾線) or sending out undercover Police officers (放蛇). Counsel for the prosecution pointed out to D2 that placing undercover Police officers (放蛇), listening in on conversations (勾線) and reporting the matter to the Police (報寸) were totally different things. D2 disagreed, saying that it was just different usage and that taxi drivers have their own language.

76.D2 denied that he knew Ah Man was Sai Guai, or that he had said any of the things that PW1 said D2 did on the night in question. D2 also did not hear any of the conversations between Sunny and PW1 throughout the whole taxi ride.

Findings

77.It is for the prosecution to prove beyond reasonable doubt all the elements of the offence.

PW1’s credibility and reliability

78.I find PW1 honest and reliable. His evidence was not shaken at all in cross-examination. The alleged discrepancies between his evidence in court and what was recorded in his earlier witness statement are insignificant. I find that D2 in fact did say words to the effect that “Next time you make an appointment don't say your actual position, it would be easy for someone to tell the Police, just say you are nearby would do (你下次約人唔好講自己個實際位置啦，好易有人報寸架，話係附近咪得囉).”

79.I find that these words of D2 prove that D2 was aware of what D1 was doing and that D2 knew what they were doing was illegal or else he would not be telling D1 off for disclosing their location since he thought it would be easy for them to be reported to the Police. The words also suggest that D2 was giving advice to D1, whose response indicated submissiveness when he said “I know Man Gor (知道啦文哥)”.

80.I find that PW1 was telling the truth when he said that he did not hear any radio or the taxi console communicator inside the taxi that night. I find that if they had been on, and if the volume was so loud as to drown out the conversation between Sunny and PW1, PW1 would definitely have noticed it. The fact that he did not so notice could only be because either they were not on or that they were not at a loud volume.

81.I find that D2 did say to Sunny before Sunny and PW1 got of the taxi outside Four Eyed Man restaurant words to the effect that there was “No need to give me the taxi fare yet, I will sort it out with Sai Guai later (啲的士錢唔使俾我住啦，之後我會同細鬼計).”

D2’s credibility and reliability as defence witness

82.I find D2’s evidence in relation to his previous meetings with Ah Man prior to 16^th November inconsistent and unreliable.

83.In the beginning of D2’s evidence-in-chief, he said he had only met Ah Man once. Yet later on in his evidence-in-chief, D2 said he had seen D1 a few times in 88 Heaven Bar when D1 was with Ah Man, meaning that by inference D2 must have seen Ah Man more than once.

84.Furthermore, also in-chief, D2 explained why he did not collect the taxi fare from Sunny on the night because Ah Man was not there and that usually Ah Man would pay the next time or would leave the money with D2’s girlfriend. This part of his evidence tend to suggest that he had met Ah Man more than once or else he would not use the word usually.

85.Still later on in-chief, D2 said that Ah Man and his friends would ‘from time to time’ go to D2’s girlfriend’s 88 Heaven Bar and sometimes when D2 visited his girlfriend he would see Ah Man there and say hi. Again, this part of D2’s evidence tend to suggest that D2 had met Ah Man more than once.

86.Then D2 also said that Ah Man would sometimes call D2 for use of his taxi, if Ah Man had the money then he would pay D2, if not, then he would pay next time. This evidence implies that Ah Man had used the service of D2’s taxi on more than one occasion before. This part of D2’s evidence was given by D2 when he was asked by his counsel whether he knew Ah Man on 16^th November, therefore implying that the said events of Ah Man calling D2 for his taxi and would pay D2 if he had money and will pay next time if not took place prior to 16^th November.

87.Still later on in his evidence-in-chief D2 was asked again by his counsel how many times he had seen Ah Man prior to 16^th November. This time D2 said ‘a few times’ and the meetings were all at his girlfriend’s bar. This is inconsistent with the evidence he gave earlier, both in relation to the number of times he met Ah Man and as to the circumstances of their meeting.

88.I do not know why D2 is lying about his previous dealings with Ah Man and it is not for the court to speculate. I am however able to find that, based on the above observations, D2 is not a credible or reliable witness. I reject his evidence whenever they are contradicted by the evidence of the prosecution, either by way of the admitted facts or through the evidence of PW1.

D2’s acts being for the purpose of trafficking in the substances

89.I find that based on what D2 had said to Sunny in the taxi as proved by PW1 in his evidence; the action of D2 keeping the meter running after Sai Guai had gotten off the taxi and Sunny and PW1 had gotten on; the manner and circumstances that D2 had driven the taxi, that is to say, stopped next to another car for the drugs to be thrown over, in front or behind another car for Sunny to get out to make deliveries, stopping for others to get into the taxi and for Sunny to make the deliveries, the only irresistible inference is that D2 was doing acts for the purpose of trafficking in the substances that Sunny and PW1 were delivering or collecting.

D2’s belief of the substances to be dangerous drugs

90.I find that because of PW1’s evidence that D2 told Sunny not to disclose their actual location right after Sunny had spoken on the phone, it is an irresistible inference that D2 was in fact able to hear what Sunny was saying while Sunny was on the phone.

91.I find that it is then an irresistible inference that D2 must also have been able to hear the conversations between Sunny and PW1 while they were in the taxi. D2 must therefore have heard how Sunny had told PW1 that they were going to pick up some ‘K chai’ and to deliver some goods and that the 6 packets that Sunny told PW1 to hide on his person were ‘K chai’. D2 must also have heard when Sunny told PW1 to take out the packets of ‘K chai’ and when Sunny was asking PW1 for the ‘K chai’ in the taxi each time. D2 must also have heard when Sunny told PW1 after coming back into the taxi having been to RT 4782 black Mercedes that the yellow crystalline substance he got was ‘Cola’. I find that it is an irresistible inference that D2 must know that the ‘K chai’ and ‘Cola 可樂’ that Sunny was talking about were ketamine and cocaine.

92.Based on the fact that D2 saw fit to remind Sunny not to disclose their actual location over the phone lest someone might report to the Police; the fact that D2 had driven to multiple locations, stopping next to another car for things to be thrown in and for Sunny and PW1 to go in and out of the taxi to make contact with different individuals; and the fact that D2 was able to hear the conversations between Sunny and PW1, I find that it is an irresistible inference that D2 believed the deliveries and collections made by Sunny and PW1 that night were dangerous drugs, namely ketamine and cocaine.

Verdict

93.I find that the prosecution has proved all the elements of the offence, D2 did on the night of 16^th November and early hours of 17^th November do acts for the purpose of trafficking in substances he believed to be dangerous drugs together with D1 and Mo Chong Man. I convict D2 of charge 1 accordingly.