HKSAR v. Kong Man also known as Kong Chun Wai

DCCC 928/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 928 OF 2014

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one amended charge of trafficking in 15.19 grammes of cocaine and 11.70 grammes of herbal cannabis, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

Introduction

2.On the 3 September last year PC 16867 and SPC 48909 were on anti-burglary patrol in plain-clothes when they saw the defendant sitting in the driver’s seat of a private car JX6660 which was parked outside No. 1 Holly Road in Happy Valley.  The police found 14 tin foil packets of cocaine in the glove box of the car.  Later at the police station the police found 20 more tin foil packets of cocaine and the cannabis in the pocket of the driver’s door.

3.The prosecution case is that the defendant being the driver of the car was in possession of the cocaine and cannabis knowing them to be dangerous drugs and that the only inference to draw from the evidence, including the quantity and packaging of the drugs was that the defendant possessed the drugs for the purpose of trafficking.  The defence case is that the defendant had no knowledge of the presence of any drugs in the car. 

Evidence

4.The prosecution called both PC 16867 (PW1) and SPC 48909 (PW2).  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P6) including examination of the drugs; photographs (exhibit P4); the street value of the drugs and that the car was registered in the name of Ko Suk Chun.  The defendant elected to give evidence.  No witnesses were called on his behalf.

5.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  If what the defendant says is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

6.I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

Summary of the evidence

7.The finding of the drugs in the car is not challenged however the circumstances surrounding the finding of the drugs both at Holly Road and at the police station is challenged.  I will first set out a summary of the evidence.

Prosecution evidence

8.At 19:44 hours on the 3 September last year PC 16867 saw JX6660 parked 10 meters away outside No. 1 Holly Road.  The defendant was sat in the driver’s seat looking here and there which aroused the suspicion of PC 16867.  PC 16867 and SPC 48909 therefore approached the car and when they reached close to the driver’s seat they heard the sound of the car ignition.   

9.After PC 16867 produced his warrant card SPC 48909 asked the defendant what he was doing there.  The defendant replied he was waiting for a friend.  Asked where the friend lived the defendant replied Sing Woo Crescent.  SPC 48909 then asked the defendant to take them there to confirm he was telling the truth. 

10.The defendant appeared nervous and did not say anything.  At this time PC 16867 noticed the defendant kept looking at the glove box which is shown in photographs 7 & 8.  Suspecting the defendant was possessing burglary tools the glove box was opened.  A transparent plastic bag containing 14 tin foil packets was found inside the glove box.  These are shown in photograph 11.  I note there is a discrepancy in the evidence of the two police officers as to who opened the glove box.  I will address this discrepancy shortly.

11.PC 16867 unwrapped one of the tin foil packets to reveal a plastic bag which he suspected contained dangerous drugs.  When asked by PC 16867 what was inside the plastic bag the defendant replied he was not going to answer.  PC 16867 then arrested the defendant for possession of dangerous drugs.  Under caution the defendant said he had nothing to say.  The defendant was then taken back to the police station where he was searched and found in possession of HK$10,181; two mobile phones and the car key.

12.SPC 48909 drove JX6660 to the police station.  At 20:49 PC 16867 told the defendant he was going to search the car and asked whether there were any other dangerous drugs in the car.  The defendant said there was and took PC 16867 to the driver’s door where he pointed to a black plastic bag in the pocket of the driver’s door saying there was something inside the bag.  Photographs 8 & 9 show the black plastic bag in the pocket of the driver’s door.

13.PC 16867 opened the bag and found a re-sealable plastic bag containing 20 tin foil packets wrapped in newspaper.  These are shown in photographs 10-12.  PC 16867 also found in the pocket of the driver’s door the cannabis which was sealed in two plastic sheets and wrapped in “colourful” paper.  These are shown in photograph 13.  Asked by PC 16867 what they were the defendant did not say anything.  PC 16867 declared arrest on the defendant for possession of these drugs.

Defence evidence

14.The defendant testified that he lived in Tsuen Wan with his family including his parents; his younger brother; his wife and his daughter.  The mother also had a house in Tuen Mun where she lived with the younger brother.  The defendant is a light goods vehicle driver earning around $20,000 per month.

15.JX6660 belonged to the defendant’s mother.  All members of his family had access to the car including his father and younger brother who both have convictions for trafficking in drugs.  In cross-examination the defendant said a friend of his younger brother and the colleagues of his mother also had access to the car. 

16.On the 3 September the defendant was at home in Tsuen Wan when a friend called Tam Kwok Keung telephoned him asking him to go out for a meal.  Arrangements were made to meet at Holly Road in Happy Valley at 7:30 p.m. 

17.The defendant intended to drive to Happy Valley using the family car which was parked downstairs of their home.  Although all the family were at home at the time the defendant did not have to ask anyone for the key, which was kept in a receptacle on top of the cabinet. 

18.The defendant did not know who last drove the car.  In cross-examination the defendant said he did not make any enquiries of his family if anyone was responsible for the drugs. 

19.The defendant drove straight to Happy Valley arriving around 7:30 p.m.  1-2 minutes after stopping the car 2-3 people approached.  Without first knocking on the window, which was closed at the time, they opened the car door, took out their warrant cards and declared their police identity.   

20.When asked what he was doing there the defendant replied that he was waiting for a friend to have a meal together.  The defendant was then told by SPC 48909 to get off the car and go over to PC 16867 for a body search.  The defendant got off the car and went to the front of the car where PC 16867 searched him.  At no time whilst in the car did the defendant stare at the glove box.

21.While PC 16867 searched the defendant SPC 48909 searched the car.  During the search SPC 48909 held up a bag of things in his hand and asked the defendant what it was. The defendant said he did not know.  Suspecting the bag contained dangerous drugs SPC 48909 said he would charge the defendant.  Asked if he had anything to say the defendant said nothing. 

22.The defendant was then taken to the Happy Valley Police Station. Sometime before 9 p.m. the defendant was told he would be taken to the car park for a further search of the car.  The defendant was handcuffed while the police conducted a search of the car.  During the search the police found two packets of things and asked the defendant what they were.  The defendant replied he did not know.  The defendant was again told the police suspected they were dangerous drugs and that he would be charged.  Asked if he had anything to say the defendant again said nothing. 

23.The defendant was never asked if there were any other dangerous drugs in the car and did not point out where the drugs were in the car.  The defendant did not know there were any dangerous drugs in the car.    

Consideration of the evidence

24.I have carefully considered all the evidence and the submissions made by Mr Hemmings and Mr Davies.  I have no hesitation in rejecting the defendant’s evidence that he did not know that dangerous drugs were in the car.  I do not find his evidence credible. 

25.I find inherently improbable that someone, whether they be a family member or someone else with access to the car, knowing the car is used by others would leave dangerous drugs in the car, let alone the not insignificant quantity in this case of which the street value is admitted to be over $15,000, thereby running the risk the drugs would be discovered by someone else using the car who might very well dispose of the drugs.  Further I do not find credible that having been arrested the defendant did not make any enquiries of his family as to whether anyone was responsible for the drugs.    

26.I do not find credible the defendant’s evidence that on being shown the drugs both at Holly Road and in the car park of the police station he told the police he did not know what they were.  The evidence of the police officers was that on being shown the drugs at Holly Road the defendant said he was not going to say anything and in the car park of the police station he said nothing.  This evidence was not challenged.  Further at no time was it put or suggested to the police officers in cross-examination that the defendant had specifically said he did not know what they were.   

27.I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing. A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Credibility of PC 16867 & SPC 48909

28.As noted earlier whilst the finding of the drugs is not challenged the circumstances the drugs were found is challenged.  Mr Davies submits that the evidence of both police officers is not credible.

Finding of the drugs in the glove box

29.In cross-examination SPC 48909 agreed that the sequence of events leading up to the search of the glove box were not recorded either in his witness statement or in his note-book, including that the defendant was seen looking around; the conversation with the defendant as to what he was doing there; and that the defendant was seen looking at the glove box.  The post-record of the arrest was read out in cross-examination to show these matters had not been recorded.

30.The fact that PC 16867 did not record these matters in the post-record or in his witness statement leads me to approach PC 16867’s evidence as to what took place at Holly Road with caution.  PC 16867’s evidence however does not stand alone.  SPC 48909 also gave evidence of the conversation with the defendant and in cross-examination said he also saw the defendant looking at the glove box. 

31.I note no similar criticism was made against SPC 48909.  This however does not mean SPC 48909 is telling the truth.  The evidence of the two police officers differs as to who searched the glove box.  PC 16867 testified that SPC 48909 searched the glove box by leaning over the driver’s door which was closed whereas SPC 48909 testified that PC 16867 searched the glove box at a time when the car door was open. 

32.I accept the evidence of SPC 48909 given in answer to the court that at Holly Road only the glove box was searched and that having found drugs they needed to return to the police station where a full search of the car would take place.  Had the police conducted a cursory search of the car at Holly Road they could not have failed but to have discovered the drugs in the pocket of the driver’s door.  I am satisfied so I am sure both police officers saw the defendant looking at the glove box and that was why the glove box was searched and having found the drugs returned to the police station before conducting a full search of the car.   

33.In cross-examination SPC 48909 said that on hearing the car ignition they knocked on the window of the driver’s door.  When there was no response from the defendant SPC 48909 opened the door and turned off the ignition to ensure their safety.  I accept this evidence which I find to be both a logical and credible account of what happened on approaching JX6660.

34.I accept the evidence of SPC 48909 that whilst the defendant was still sat in the driver’s seat PC 16867 searched the glove box and found the drugs.  I am satisfied PC 16867 is mistaken in his recollection that SPC 48909 searched the glove box.  SPC 48909’s evidence is also consistent with the post-record made by PC 16867 in that the post-record, as read out in cross-examination, recites that the defendant was sitting in the driver’s seat when PC 16867 found the drugs in the glove box.  In cross-examination PC 16867 agreed that the post-record was read to the defendant and that the defendant signed and agreed.  I reject the defendant’s evidence he was taken out of the car before the drugs were found.  

35.Having carefully considered all the evidence I am satisfied so I am sure PC 16867 saw the defendant looking around which aroused his suspicion; the police officers then approached the car and on almost reaching the driver’s door they heard the sound of the ignition being turned on; the conversation with the defendant was as testified by the police officers; the police officers saw the defendant keep looking at the glove box and that whilst the defendant was still sat in the driver’s seat PC 16867 searched the glove box and found the drugs.

Finding of the drugs in the pocket of the driver’s door

36.In cross-examination PC 16867 and SPC 48909 agreed that the conversation PC 16867 had with the defendant prior to finding the drugs in the pocket of the driver’s door was not recorded in either their note-books or witness statements.  The post-record of the arrest and the witness statement of PC 16867 (which were read out in cross-examination) recorded that the defendant pointed out there was still dangerous drugs inside the storage compartment of the lower inside of the driver’s door.  SPC 48909 said he also stated in his note-book and witness statement that the defendant pointed out where the drugs were. 

37.In final submission Mr Davies says that the defence was only made aware of these oral admissions in court.  The courts have said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement (see HKSAR v Lau Ho Yin CACC 288/2011 & HKSAR v Chan Yuk Ling CACC 102/2012). 

38.The defendant refused to sign this post-record.  This Mr Davies submits is indicative what was written down in the post-record did not happen.   There is however no evidence before the court as to why the defendant refused to sign. 

39.In my view whilst it clearly would have been better if the details of what was said were included in the post-record I am satisfied this is not a case where the defence were unaware admissions were said to have been.  I am satisfied by reciting in the post-record the defendant pointed out there were more drugs in the pocket of the driver’s door the defendant was made aware of this alleged admission.  

40.I accept the evidence of the police officers that the defendant pointed out that there was more drugs in the car and pointed specifically to the driver’s door. The fact that in re-examination when asked whether the reference to pointing out in the post-record was a verbal or physical pointing out PC 16867 replied verbal not physical does not cause me to doubt the evidence of PC 16867 or SPC 48909. In answer to the court having reminded PC 16867 of his evidence-in-chief PC 16867 confirmed that the defendant both verbally and physically pointed out where the drugs were.  Nor does the fact that the defendant refused to sign this post-record cause me to doubt the evidence of the police officers. 

41.In respect of what happened at Holly Road and in the car park Mr Davies submits the events described by PC 16867 and SPC 48909 could not have occurred within one minute or within two minutes at the most.  The police officers say they first saw the car at 19:44 some 10 meters away and arrested the defendant at 19:45.  In the car park the defendant was asked at 20:49 if there were any other drugs in the car and was arrested at 20:50.

42.I have carefully considered this evidence.  Whilst describing what happened in court takes longer than 1-2 minutes I am satisfied the events described by PC 16867 and SPC 48909 could have occurred within that time span.  The initial arrest was a fast moving incident comprising of approaching the car; a brief conversation with the defendant; the finding of the drugs and a quick search of the defendant outside the car before he was arrested.  That PC 16867 and SPC 48909 described these events as happening within 1-2 minutes does not cause me to doubt their evidence. 

43.Similarly in the car park asking the defendant if there was more drugs in the car; approaching the car and pointing out the location leading to the finding of the drugs followed by the declaration of arrest are events which would not take very long.  That PC 16867 and SPC 48909 also described these events as happening within 1-2 minutes does not cause me to doubt their evidence. 

Possession and knowledge

44.Taking into account the defendant was the only person in the car; the drugs were easily accessible in the glove compartment and the pocket of the driver’s door together with the inherent improbability that someone would leave such a quantity of drugs in the car thereby running the risk the drugs would be discovered by someone else using the car who might very well dispose of the drugs, I am satisfied so I am sure the only inference to draw is that the defendant possessed the drugs knowing that they were dangerous drugs.

45.The inference is strengthened by the evidence that the defendant turned on the engine; appeared nervous and said nothing when asked to take the police to where his friend lived and in particular was seen to keep looking at the glove box and at the police station pointed out the drugs in the driver’s door. 

46.In drawing this inference I have carefully considered the defendant’s evidence that both his father and younger brother have convictions for trafficking in drugs. As stated earlier in rejecting the defendant’s evidence I find inherently improbable that someone, whether they be a family member or someone else with access to the car, knowing the car is used by others would leave dangerous drugs in the car, let alone the not insignificant quantity in this case of which the street value is admitted to be over $15,000, thereby running the risk the drugs would be discovered by someone else using the car who might very well dispose of the drugs.  The fact the defendant’s father and brother have convictions for trafficking in drugs does not cause me to doubt the only inference to draw is that the defendant possessed the drugs knowing that they were dangerous drugs. 

Trafficking

47.There being no direct evidence of actual trafficking I have examined the circumstances surrounding the arrest of the defendant to determine whether the only inference to draw is that the defendant was trafficking in dangerous drugs. Taking into account there were two different drugs; the quantity of the drugs; the packaging of the cocaine in 34 separate tin foil packets found in two different places close to the driver; and that the drugs were found in a car in a public street and not in the residence of the defendant, I am satisfied so I am sure the only inference to draw is that the defendant possessed the cocaine and the cannabis for the purpose of trafficking.

48.I also note there is no evidence to suggest that the defendant is a consumer of drugs (see Lee Chun Tat v HKSAR CACC 271/2005 and on appeal to the Court of Final Appeal in FAMC 52/2006).

49.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Davies both individually and collectively.  Nothing said by Mr Davies causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted of trafficking in dangerous drugs.