HKSAR v. Chu Kin Shan Christopher

DCCC497/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 497 OF 2013

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REASONS FOR VERDICT

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1.The defendant faced one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong. It was alleged by the prosecution that the defendant had unlawfully trafficked in 34.32 grammes of a powder containing 27.17 grammes of ketamine outside the Waldorf Shopping Centre at No. 1 Tuen Lee Street, Tuen Mun on 21 March 2013.

2.The defendant pleaded not guilty to the charge, but admitted possession of the ketamine in question at the material times and place.  His plea to the lesser charge was however not accepted by the prosecution.

Issue

3.It was common ground that the defendant was in possession of the ketamine in question.  It was also not disputed that the prosecution had not adduced any direct evidence to prove that the defendant had sold or supplied the drug to anyone, or that he had dealt in or with it in any other way.  The prosecution however contended that the only reasonable and irresistible inference to be drawn from all the circumstances of this case was that the defendant possessed such ketamine for the purpose of trafficking, and that it was not true and could not be possibly true that the defendant had the drug for his own consumption.

The trial

4.As part of the prosecution’s evidence, the prosecution and the defendant had admitted certain facts pursuant to section 65C of the Criminal Procedure Ordinance (Exhibit P14).  The exhibits referred to in the Admitted Facts were also produced by consent.  The prosecution called 2 witnesses to testify.  They were PC58430 (PW1) and PC3466 (PW2).  The defendant did not object to the production of any of the prosecution exhibits except the video-recorded interview of the defendant.  This interview was recorded in a DVD disc (Exhibit P4) and transcribed into writing with certified English translation (Exhibit P5 & P5a).  I adopted the alternative procedure to determine their admissibility. 

5.Mr. William Allan, counsel for the defendant, submitted that the defendant had no case to answer on the special issue after the end of the prosecution evidence.  I rejected the submission.  The defendant then gave evidence on the special issue and called 3 witnesses, including his mother Madam Maria Teresa MEDEIROS (DW2), his step father Mr. Oscar Felix, BENAVIDES GONGORA (DW3) and a legal clerk Mr. Ng Chi Yung (DW4).  As part of the defence case, a photograph of the defendant taken by the police shortly after the defendant had finished the video-recorded interview was produced (Exhibit D1). The prosecution and the defendant had also admitted certain facts pursuant to section 65C of the Criminal Procedure Ordinance (Exhibit D2). 

6.Having considered the evidence and submissions from the prosecution and the defence, I admitted Exhibits P4, P5 and P5a into evidence.

7.After the prosecution had closed its case, Mr. Allan asked for time to consider whether or not he would make a submission of no case to answer.

8.When the hearing resumed, Mr. Allan made an application for me to recuse from hearing this case and to order a trial de novo.  Mr. Leslie Parry, Counsel on fiat for the prosecution, opposed the application.  Having considered the submissions from both parties, I refused the application.  This was the 1^st recusal application.

9.Mr. Allan then submitted that the defendant had no case to answer on the trafficking charge.  I ruled that the defendant had a case to answer. Mr. Allan then asked for time to consider whether or not an application for stay of proceedings was to be made.

10.When the hearing resumed, Mr. Allan did not apply for stay of proceeding but made the 2^nd recusal application.  Mr. Parry also opposed it.  Having considered the submissions from both parties, I refused the application.

11.The grounds raised by Mr. Allan in support of each recusal application and the reasons for my rulings are stated in Appendix A.  I would not read out Appendix A but it forms part of the Reasons for Verdict and will be made available to the parties in writing.

12.The defendant then elected to testify in the general issue.  He also called his mother (DW2) and his natural father Mr. Chu Hon Chi (DW5) to give evidence.  Another set of facts were also admitted by the prosecution and the defendant pursuant to section 65C of the Criminal Procedure Ordinance (Exhibit D4).

Facts admitted or not in dispute

13.It was clear from the Admitted Facts (Exhibit P14), the defence case put by Mr. Allan in his cross-examination of PW1 and PW2, and the testimony given by the defendant that the circumstances in which the defendant were stopped, searched and arrested were not in dispute.

14.About 7:48 p.m. on 21 March 2013, while PW1 and PW2 were making observation outside Tower II, Waldorf Shopping Centre, No. 1 Tuen Lee Street, Tuen Mun, the defendant was walking in the direction of Waldorf Shopping Centre from Tuen Mun Town Plaza in hurried paces.  At the same time, he was looking around and pressing his hand against his left front trouser pocket.  When the defendant got to a guard booth, he stopped but kept on looking around and pressing his hand against his left front trouser pocket.  PW1 and PW2 then went up to intercept the defendant for enquiries.

15.After PW1 had produced his warrant card and revealed his police identity to the defendant, PW1 told the defendant what he had observed earlier about him.  He further said that he suspected that the defendant was in possession of dangerous drugs and demanded to conduct a search on him.  PW1 then searched the defendant and found 3 transparent re-sealable plastic bags containing the ketamine in question (Exhibit P1). 

16.PW1 then placed his right hand on the left shoulder of the defendant and declared arrest of him for the offence of trafficking in a dangerous drug.  However, before PW1 could administer a caution on the defendant, the defendant pushed off PW1’s hand and ran in the direction of Tuen Mun Town Plaza.  PW1 and PW2, together with Sergeant 59051, chased after the defendant and attempted to subdue him.  They managed to stop the defendant on and off, but the defendant kept on running towards Tuen Mun Town Plaza.  It was only with the help of another team of police officers in the vicinity that PW1 managed to press the defendant onto the ground.

17.After PW1 had subdued the defendant, he noticed that the defendant had a patch of redness of about 4 cm in diameter on the middle of his forehead.  There was no bleeding or abrasion.  The redness was sustained by the defendant when he struggled with the police officers.  He was not beaten or injured by the officers deliberately.  PW1 asked the defendant whether he needed to see a doctor.  The defendant said there was no need.

18.An ambulance then arrived.  An ambulance man asked the defendant whether he needed medical attention.  The defendant declined the offer and signed a form to confirm.

19.After the ambulance had left, a police vehicle arrived.  PW1 took the defendant to the police vehicle.  Inside the police vehicle, at around 8:17 p.m., PW1 cautioned the defendant for the offence of trafficking in dangerous drugs.  Under caution, the defendant said, “Ah sir, I bought the “k chai” for my own consumption only.  I did not sell it to others.”[1] 

20.The defendant was then taken back to Castle Peak Police Station. PW1 travelled in the same car as the defendant but PW2 did not.  During the journey to police station, the defendant did not make any request to PW1 or any other police officers inside the vehicle.

21.Upon arrival at the Castle Peak Police Station at 8:33 p.m., PW1 reported the case to the Duty Officer Station Sergeant Lee Siu Yue who weighed the ketamine in question in the presence of the defendant. 

22.PW1 then conducted a body search on the defendant.  He found that the defendant had with him cash HK$897.40 (Exhibit P9), one mobile phone with a SIM Card and a memory stick (Exhibit P10, 11 & 12), and one mobile phone without a SIM Card (Exhibit P13). 

23.PW1 then explained and issued to the defendant a Notice to Person in Police Custody or Involved in Police Enquiries (Exhibit P7), with PW1 reading the Notice to the defendant and let the defendant read it himself with both of them signing on the Notice subsequently.

24.Between 9 p.m. and 10:15 p.m. on 21 March 2013, PW1 post-recorded the arrest and caution of the defendant as well as the defendant’s reply under caution in his police notebook (Exhibit P3).

25.A government chemist examined Exhibit P1 and found that the 3 re-sealable plastic bags contained a total of 34.32 grammes of a powder containing 27.17 grammes of ketamine. 

26.The ketamine in question had a street level value of $4,084.  It was however clear from the witness statement of Detective Inspector Lo Kwok-kin (Exhibit P15), which was admitted into evidence pursuant to section 65B of the Criminal Procedure Ordinance, that this street level value was calculated on the basis of an average retail price of $119 for each gramme of powder containing ketamine, but this average retail price was obtained from data relating to the retail price of powder containing ketamine sold in 5 grammes or below.

Ruling for admissibility of the defendant’s video-recorded interview

27.It was apparent from the recital of the common grounds in evidence that the defendant did not really dispute the prosecution evidence except those parts of the evidence of PW1 and PW2 that had or might have a bearing on the admissibility of his video-recorded interview.

28.However, by now, it was clear that the admissibility of the defendant’s video-recorded interview should not have been an issue at all. It was because the defendant had testified that he adopted the statements he had made during this video-recorded interview to be part of his evidence on the general issue.  He also maintained that what he had said during this interview were true.  Mr. Allan had also asked me to attach full weight to what the defendant had said during this interview.  It was therefore academic for me to state my reasons for admitting this interview into the evidence. 

29.In any event, for whatever it was worth, I set out the reasons with reference to the evidence adduced during the hearing of the special issue in Appendix B.  Likewise, I would not read out Appendix B but it forms part of the Reasons for Verdict and will be made available to the parties in writing.

The background of the Defendant

30.The defendant was born on 9 September 1993.  He was therefore 19 years old at the time when he was arrested for the present case on 21 March 2013.  His mother was DW2.  His father by blood was DW5.  His step father was DW3.  He had 3 younger half brothers.  After DW2 and DW5 had divorced when the defendant was a child, custody of the defendant was given to DW2.  The defendant lived with DW2, DW3 and the half brothers in Tuen Mun until about 2010 when they moved to Tung Chung.  DW5 was living in Kin Sang Estate, Tuen Mun.  The defendant visited DW5 from time to time and occasionally stayed overnight with DW5 in DW5’s home in Tuen Mun.

The defendant’s evidence on the general issue

31.The defendant was the only witness who was in a position to give direct evidence on the purpose for which he possessed the ketamine in question.

32.The defendant testified that in the afternoon on 21 March 2013, he went to the China Travel Agency in Ho Fuk Tong, Tuen Mun from his home in Tung Chung to apply for a home visit permit.  He was however unable to get the home visit permit because when he arrived at the Agency at after 5 p.m., it had already been closed for business. 

33.The defendant further testified that he purchased the ketamine in question shortly after 6 p.m. on that day (but precise time could not be recalled) for his own consumption.  He said that when he was in Tuen Mun Town Plaza at that time, a person called Ah Kit approached him and asked him if he would buy some ketamine.  He did not know Ah Kit prior to this occasion.  Ah Kit said it would be cheaper if he would buy more at one time.  Ah Kit then sold the 3 packets of about 30 to 40 grammes of ketamine to him at the price of $1,800.  The money he used to buy the ketamine was given to him by his family members.  He bought the ketamine for his own consumption.  He took ketamine by way of sniffing with his nose.  He consumed ketamine 2 to 3 times a week and 3 to 4 grammes each time at a cost of $200 to $300.  He had taken ketamine for 5 years.  After he had purchased the ketamine, he intended to go to Waldorf Shopping Centre to have a meal before going home.

The directions

34.I directed myself that the burden was on the prosecution to prove the charge against the defendant beyond reasonable doubt.  Although the defendant had given evidence and called witnesses, it did not mean that he had the burden to prove what he had testified was true or might be true.  It was trite law that he needed to prove nothing.  However, since the defendant had testified, I had to take into account everything that he had said when I was considering the issues of fact that I had to determine.

35.In his oral testimony in Court as well as in his out-of-court statements made at the time of his arrest and during his video-recorded interview, the defendant maintained that he possessed the ketamine in question purely for his own consumption.  These out-of-court statements were mixed statements because each of them contained an incriminating part (i.e. the defendant confessed to possession of the drug), as well as an exculpatory part (i.e. he explained that he had the drug only for his own consumption).  For this reason, I had to consider the whole of each out-of-court statement when I decided where the truth lay.  In other words, I had to regard each of these out-of-court statements made by the defendant not only as evidence of consistency but also as evidence of truth.  In addition, these out-of-court statements supported or tended to support not only the truthfulness of one another but also the truthfulness of the defendant’s oral testimony in Court.  If what the defendant had said on any of these occasions (be it inside or outside Court) was true or might be true, it would mean that the prosecution would not be able to prove the trafficking charge beyond reasonable doubt, and the defendant could only be convicted of simple possession of the drugs.

36.On the other hand, even if the defendant’s oral testimony and all his out-of-court statements were completely rejected on the ground that none of them was true or might be true, it did not mean that the prosecution had discharged its burden of proof.  I still had to consider the whole of the evidence and determine whether or not the evidence that I accepted was sufficient and cogent enough to make me sure of the guilt of the defendant before I could convict him of the trafficking charge.

37.When all the prosecution witnesses and the defendant & his witnesses were giving evidence, I had closely observed the demeanour of each one of them.  I bore in mind that the credibility of a witness and the reliability of his evidence could not be decided solely on the basis of his demeanour.  In determining whether a witness was honest and whether his evidence was truthful and reliable, the more useful guiding tool was to consider the inherent probability and credibility of his evidence, and to find out whether it was consistent or in conflict with the proven or incontrovertible facts.

38.As the prosecution had no direct evidence to prove that the defendant possessed the ketamine in question for the purpose of trafficking, it was asking this Court to draw such an inference from all the circumstances of this case.  In discharging my function as a jury, I noted that I was entitled to infer the existence of other facts from facts, but I had to bear in mind the two essential prerequisites.  First, the primary facts upon which I might draw any inference of facts had to be either facts admitted by the defendant or facts found to have been proved beyond reasonable doubt.  Second, no inference of facts could be drawn against the defendant unless that inference was the only reasonable and irresistible inference arising from the facts admitted or proved.  On the other hand, even if pieces of facts each on its own would not be sufficient to support any inference of facts to be drawn, they might be taken together to form a body of facts upon which a proper inference of facts might be drawn.  It was because circumstantial evidence works cumulatively, in geometrical progression, eliminating other possibilities[2].

39.The defence had provided details of the defendant’s previous convictions of drug offences and the sentences imposed on him.  It was clear that the defence made these disclosures just because it wanted to make the point that the defendant had been a drug abuser for a long period of time so as to strengthen the weight of his evidence that he had the ketamine in question for his own consumption.  That was the only use that could be made of this piece of evidence, and I was conscious that no adverse inference of any kind could be drawn against the defendant from his criminal record.  His past history did not show or tend to show that he had committed the offence charged.  Nor did it have any adverse effect on the weight of his evidence or his credibility as a witness. 

40.In particular, I further reminded myself that although the defendant had been dealt with by me before, he only appeared before me on a charge of simple possession of ketamine and not trafficking, and that he had been honest enough to admit his guilt on that occasion.  I would only regard this fact supportive of the defence case and not otherwise.

41.In the course of his evidence, PW1 said he found the defendant’s appearance matched the information he had obtained from the briefing by his inspector.  This piece of evidence was only relevant to why PW1 paid attention on the defendant at that time.  It had no probative value in proving the charge against the defendant, and no adverse inference of any kind against the defendant could be drawn from it.  Besides, since the defendant did not dispute that PW1 had stopped him, I would simply ignore this piece of evidence.

Evaluation of the evidence

42.It goes without saying that if the prosecution failed to prove beyond reasonable doubt that the defendant’s evidence was untrue and could not possibly be true, the defendant had to be acquitted of the trafficking charge.

43.Before I proceeded to analyze the evidence, I would first of all deal with Mr. Allan’s submissions based on the judgment given by the Court of Final Appeal in Chan Chuen Ho v HKSAR[3].  The passage relied upon by Mr. Allan (which I would not repeat but had been cited in his written submissions) had been pointed out by the Court of Final Appeal in Lee Chun Tat v HKSAR[4] that that passage was given in the context of whether or not the proviso should be applied (see paragraph 6 of the judgment).  It was not meant to say that an inference of trafficking could never be drawn in the circumstances as detailed in that case.  The Court of Final Appeal also emphasized that it was for the tribunal of facts to decide whether the circumstantial evidence in each case was sufficient to establish an irresistible inference of trafficking (see paragraphs 7 and 8 of the judgment).  In HKSAR v Chan Wai Lam[5], the Court of Appeal expressed the sentiment that it was regrettable that defence counsel often cited Chan Chuen Ho when the judgment was not properly understood.

44.I would now turn to the various issues that shed or might shed light on whether or not the defendant possessed the ketamine in question for his own consumption.

The defendant as a ketamine user on the day of his arrest

45.I accepted the defendant’s evidence and found as a fact that he had been consistently consuming ketamine for 5 years prior to his arrest in the present case save for the various periods of time when he was incarcerated.  I accepted that the defendant started abusing ketamine at the age of 14.  In August 2010, in March 2012 and in June 2012, the defendant was arrested on three occasions for possession of ketamine in the Tuen Mun area, and he was charged and convicted of the offence of possession of a dangerous drug respectively in Cases No. TMCC2850/2010, TMCC1428/2012 and TMCC1777/2012. Before the defendant was sentenced in each case, a drug addiction treatment centre (DATC) suitability report was called for, and he was found to be a drug dependent addicted to ketamine on each and every occasion.  He was put on probation for 18 months in Case No. TMCC2850/2010.  He was sentenced to be detained in a DATC in Case No. TMCC1488/2012 on 15 June 2012.  He was also sentenced to be detained in a DATC in Case No. TMCC1777/2012 on 13 July 2012.  He was released from the centre on 5 March 2013.

46.I also found that the defendant had taken ketamine again shortly after his discharge from DATC.  The Admitted Facts (Exhibit D4) proved conclusively that on 6 March 2013, i.e. one day after the defendant’s release, a DATC officer conducted a random urine test on the defendant inside the defendant’s home.  The test result was negative to ketamine.  On 19 March 2013, i.e. 2 days before the defendant’s arrest in the present case, another random urine test was conducted on the defendant also inside his home.  The test result was positive to ketamine.  There was therefore only one inference, i.e. the defendant had consumed ketamine on at least one occasion if not more between the two urine tests.  The defendant testified that he had relapsed into taking ketamine at the time of his arrest.  The Admitted Facts (Exhibit D4) also proved conclusively that the defendant was transferred from custody in Pik Uk Detention Centre on 27 May 2013 to a DATC under a supervision recall order.

47.In light of these facts, I had no doubt whatsoever that at the time when the defendant was found in possession of the ketamine in question, he was a ketamine abuser even though he had been released from DATC for just 17 days after a detention of not less than 9 months[6].

48.This finding however worked in favour of the defendant only in the sense that the prosecution could not negate completely the possibility that the defendant possessed the ketamine in question for his own consumption.  It did not amount to conclusive proof that he had the drugs for his own consumption since it also did not negate completely the possibility that he possessed the drugs for the purpose of trafficking.  It was because it was not unusual to find a person addicted to drug to engage in drug trafficking at the same time for the sake of making money to feed his addiction or for some other purposes[7].

The defendant’s purpose of going to Tuen Mun on the day of arrest

49.The defendant said both in his evidence and during his video-recorded interview that he went to Tuen Mun for the purpose of applying for a home visit permit to go to mainland China.  He said his mother wanted him to go there.  DW2 also testified that when she went to the mainland, she wanted to take the defendant along with her so as not to leave him unsupervised in Hong Kong.  She further testified that she had personally seen the defendant using his computer to fix an appointment with the China Travel Agency for him to attend its office at 4:30 p.m. on that day to apply for the home visit permit.

50.It was however a fact that the defendant had not applied for a home visit permit from the China Travel Agency on that day.  The defendant testified that he had actually gone to the office of China Travel Agency in Ho Fuk Tong, Tuen Mun, but by the time of his arrival, it had already closed for business.  He said he could not recall the time he got there but it would be after 5 p.m.  He said he did not know its closing time before his arrival there.

51.Mr. Parry queried why the defendant only arrived at the China Travel Agency after 5 p.m. when he knew that the appointment was 4:30 p.m.  Mr. Parry also queried why DW2 did not accompany the defendant to go to the China Travel Agency to apply for the home visit permit when she was well aware that the defendant would be going to Tuen Mun which had to be a “dangerous area” because the defendant had been arrested in that area 3 times for possession of drugs.  Mr. Parry submitted the truth was that the defendant did not go to Tuen Mun on that day to apply for his home visit permit but to traffick in drugs.

52.Mr. Allan submitted that the evidence showing that the defendant was going to Tuen Mun on the day in question for applying his home visit permit had not been disproved because the police had not made enquiries with the Travel Agency.  I did not regard it as a valid criticism.  Prior to the commencement of the defence evidence on the general issue, the defence had never disclosed that the defendant had booked an appointment with the China Travel Agency via the defendant’s computer.  The police could not have checked something that they had no information or clue.  On the contrary, if the defendant really had booked the appointment via his computer, he should have no difficulty in producing the record from his own computer but none was produced in this trial.  Of course, the defendant had no burden to prove anything.  The point I wished to make was simply that if anyone was to be criticized for not proving or disproving the alleged computer record, it should be the defence because only the defendant and DW2 had knowledge of this matter if their evidence were true.

53.In any event, I did not consider checking with the China Travel Agency important.  The defendant was questioned shortly after his arrest during his video-recorded interview and he said that he went to Tuen Mun from Tung Chung because he had to apply for a home visit permit, and he was able to tell the police at once the correct address of the travel agency, i.e. in Ho Fuk Tong of Tuen Mun.  The amount of cash on him also showed that he did have sufficient money to apply for a home visit permit.  In light of these matters, I did not think I could reject his evidence in this respect to be untrue and could not possibly be true.

54.In coming to this view, I had not lost sight of Mr. Parry’s criticism on DW2’s evidence, but I was not sure that DW2 was telling lies to me in this respect.  DW2 said she had planned to accompany the defendant to apply for the permit, but she had to let the defendant go to Tuen Mun alone since someone called her to do some translation work.  Mr. Parry questioned why she would not have cancelled the defendant’s appointment with the travel agency, or why she did not stay away from the translation work.  However, in my view, DW2 was a housewife.  If she was presented with an opportunity to earn some money by doing some translation work, I could see why she would not forsake that opportunity.  More importantly, as DW2 had said repeatedly in her evidence, she had not thought of the defendant relapsing to ketamine so soon, bearing in mind that the defendant had just been released from DATC and had therefore been cleared of the drugs, and that the defendant had told her that he was not meeting his dubious friends.  As a mother, she could not be criticized for having on the one hand the worries that her son might go back to drugs if he was unsupervised, and demonstrating on the other hand to her son that she still trusted him. 

55.In light of this analysis, I would accept that when the defendant left his home in Tung Chung, he was going to renew his home visit permit, but he was late and unable to do so.  However, this finding did not necessarily mean that he did not have the ketamine in question for the purpose of trafficking.  In order to commit the offence of trafficking, he needed not take the drugs from his home in Tung Chung to Tuen Mun.  He could also obtain the drugs in Tuen Mun before or after he had failed to apply for his home visit permit and then trafficked in them.  The only relevant moment of time was the time when he was found in possession of the ketamine in question, and the only question to ask was whether or not the facts proved or admitted at that moment of time would lead to the only reasonable and irresistible inference that the defendant had the drugs for the purpose of trafficking.

The person selling the drugs to the defendant

56.In his video-recorded interview which he adopted as part of his evidence, the defendant described the person selling the drugs to him as Ah Kit, about 1.7 metres tall, thin and having black and long hair.  Under cross-examination, he admitted that Ah Kit was a stranger to him.  He did not have his telephone number, and he had not asked for it.  The defendant agreed that he had paid virtually all his available cash to this stranger when he just believed that actual ketamine rather than baking powder was sold to him by this stranger.

57.Mr. Parry submitted that the defendant’s evidence raised the question why he would effectively spend all his then available cash on drugs from a stranger when the drugs sold to him were of undetermined quality and purity.  He questioned why the defendant did not keep the phone number of Ah Kit, try out a little bit of the drugs, and go back to Ah Kit asking for more if he was satisfied with the drugs.  The defendant’s reply was that Ah Kit told him that if he bought all the drugs at one time, it would be cheaper.

58.I recognized the force of Mr. Parry’s submissions.  It would not make sense for the defendant to pay $1,800 to a total stranger when he did not know whether this stranger was actually selling ketamine to him. However, in my view, it might not be correct to say that the defendant knew nothing of the drugs sold to him.  It was because the ketamine in question were contained in 3 transparent re-sealable plastic bags.  The conditions of the drugs were readily apparent.  The defendant could see the quantity and feel the weight by holding the drugs.  Also, by that time, he had abused ketamine for 5 years.  Hence, he had the experience to tell, from the appearance of the substance inside the bags, whether it was ketamine or not, even though he might not know precisely its purity.  In other words, the defendant might not be fooled so easily by this stranger.  Furthermore, Mr. Parry’s suggestion that the defendant should have tried out a bit of the drugs before he purchased the bulk was unrealistic.  If there was a sale and purchase, it was an illegal one and everything had to be done in a fast and covert manner.  After all, as the defendant had said in evidence, he had to buy the drugs in one go in order to buy them at a cheaper price.

59.Furthermore, even if the defendant’s evidence was unconvincing in the way as submitted by Mr. Parry, the reason might well be that the defendant was hiding the identity of his drug supplier even if that person was someone known to him rather than he did not buy the drugs at all. There might be a lot of reasons why the defendant did not want to make the disclosure.  For instance, he wanted to obtain drugs from the same drug supplier in the future, or he did not want the drug supplier to take revenge on him, or simply he did not want to assist the police.  In my view, even if the defendant was lying when he said this Ah Kit was a stranger to him, it did not necessarily mean that he had not purchased the drugs from his supplier, even though he did not reveal who that supplier was.

60.For these reasons, I did not find that the defendant’s evidence about the person selling him the ketamine in question showed or tended to show that he could not be a purchaser of the drugs.  Of course, on the other hand, I was not bound to accept the defendant’s evidence that he purchased the drugs from Ah Kit.  The truthfulness of this part of his evidence hinged upon his general credibility as a witness.  If the prosecution succeeded to demonstrate that he was a dishonest person economical with the truth for matters against his interest, this Court was still entitled to reject this part of his evidence, and find that he was not a purchaser of the ketamine in question.

The price paid by the defendant to purchase the drugs

61.The defendant testified in Court that he had paid $1,800 for the ketamine in question.  I noted the discrepancy between what he said in Court and during the video-recorded interview.  In the interview, he said he had paid “about $1,800” (counter 80).  Although “$1,800” and “about $1,800” clearly did not carry the same meaning, I would assume that it was just a slip of tongue on the part of the defendant during the video-recorded interview.  I would treat the two versions consistent.

62.According to the Admitted Facts (Exhibit P14), the ketamine in question had a street level value of $4,084.  It meant, on a simple mathematic calculation, that the defendant was able to obtain the ketamine in question at just 44% of the street level value.  There was a discount of 56%.  The defendant’s evidence was therefore in line with what he had said during the video-recorded interview that he purchased ketamine in that quantity because Ah Kit told him that “it would be a bit cheaper if (I) bought more at one time”. 

63.Mr. Parry submitted that if what the defendant had said were true, it would not be just “a bit cheaper”, and that it was difficult to believe that a dealer would sell drugs at half price to a complete stranger or indeed to anyone.

64.In my judgment, I could not say for sure that the defendant could not have purchased the ketamine in question at the price as he said.  It was clear from the statement of Inspector Lo that the street value of $4,084 was calculated on the basis that the average retail price for each gramme of ketamine powder at the material times was $119.  This retail price was of course just an average price, meaning that the drugs could be sold at a higher as well as a lower price.  In addition, Inspector Lo was working on the data obtained from sale of ketamine in 5 grammes or below.  It meant that he was not making the calculation on the basis of ketamine sold in bulk for example nearly 35 grammes as in the present case.  Hence, I could not rule out the possibility that the street level value of the ketamine in question could be lower or substantially lower than $4,084.  In addition, there could be many reasons why a drug dealer would sell below the market price to a complete stranger, and he might even sell at a large discount, depending on factors like whether he needed money for immediate use or whether he wanted to dispose of the drugs immediately for whatever reason.  In my view, it was difficult for me to conclude beyond reasonable doubt that the defendant could not have purchased the drugs at a price equivalent to just 44% of the street level retail price. 

65.Mr. Parry further argued that the $1,800 purchase price alleged by the defendant fit too coincidentally with the money he claimed he had possessed as to be believable.  I had reservation with the correctness of this argument because the defendant could have said he purchased the drugs at any other sum like $1,600 or $2,000 because according to his evidence if true (which I would deal with in greater detail later), he had been given sums of money after his discharge from DATC, and the aggregate amount of these sums far exceeded $1,800.  After all, if the defendant were a drug trafficker and he was lying when he said he had the drugs for his own consumption, it was unlikely that he would have exposed his lies by claiming that he purchased the drugs at a price that was unrealistically lower than the market price.  It was because he knew the price at which he would sell the drugs, and he could just tell the police that he was buying at that price. 

66.Of course, the fact that the defendant said that he had spent $1,800 to buy the drugs did not necessarily mean that there was actually a purchase by him or that he did purchase at that price. Furthermore, even if the defendant did purchase the ketamine in question in exactly the circumstances as he had testified, it did not necessarily mean that he must have purchased them for his own consumption.  He could have purchased them for the purpose of sale or sharing with others, or partly for sale or sharing and partly for his own use.

67.All in all, I found the submissions focusing on the price which the defendant said he had paid for the drugs shed little light on whether he had the drugs for the purpose of trafficking or for his own use.

The packaging of the ketamine in question

68.The ketmaine in question were put inside 3 transparent re-sealable plastic bags.  The Government Chemist Certificate (Exhibit P6) certified the nature and the weight of the drugs but no breakdown was given as to the weight of the drugs in each plastic bag.  From the photograph taken of the drugs (Exhibit P2), it appeared that there were two larger bags apparently containing similar quantity of ketamine in each of them, and one smaller bag of ketamine. The packaging of the drugs could hardly shed light on whether the defendant possessed the drugs for trafficking or for his own use.  The ketamine in question could certainly be sold by a drug trafficker in those packaging, and the person buying from this drug trafficker would of course receive the drugs in the same form.

The quantity of the ketamine in question

69.Mr. Parry did not take issue that the defendant was a ketamine user at the time of his arrest, but argued that the defendant had exaggerated the amount of ketamine consumed by him in order to explain why he had possession of this relatively large quantity of ketamine.  Mr. Parry raised two grounds to support his argument.

70.In respect of the first ground, Mr. Parry pointed out that the defendant had said during the video-recorded interview that he took ketamine by way of sniffing 2 to 3 times a week, and that he took 3 to 4 grammes of ketamine at the cost of $200 to $300 each time.  In addition, the defendant had testified in Court that he did not consume these 3 to 4 grammes in one go, but it took him more than 10 sniffs to consume them.

71.Mr. Parry submitted that the defendant could not have on each occasion consumed ketamine in the quantity as he had testified.  He pointed out that although no expert had been called to give evidence on the typical dosage, this Court could take judicial notice of the quantity of ketamine consumed by ketamine users.  Mr. Parry referred to paragraph 64 of the judgment in the case of Secretary for Justice v Hii Siew Cheng[8], which stated inter alia, “Experienced users who have developed tolerance can use up to a gramme or more of ketamine during the course of a single evening”, which was much less than the 3 to 4 grammes the defendant said he would consume on each occasion.  Mr. Parry therefore submitted that the defendant’s evidence was not believable.

72.I agreed with Mr. Parry that I could refer to the judgment in Hii Siew Cheng and take judicial notice of the typical dosage of a ketamine user as the Court of Appeal in that case had heard and accepted evidence on this subject[9]. The difficulty however was the imprecision of the quantity specified in the judgment about this typical dosage.  It was stated in the judgment that an experienced user who had developed tolerance could use ketamine “up to a gramme or more”.  Its meaning must be that some users could consume more than one gramme of ketamine, but as to by how much more, it was not clear.  In addition, it stated that an experienced user with developed tolerance could use ketamine up to a gramme or more “during the course of a single evening”.  What would be the position if the abuser consumed ketamine not only in the evening but for the whole day?  Did these words “the course of a single evening” mean the whole day already?  The evidence of the defendant was that he would take more than 10 sniffs on each occasion.  His evidence certainly did not exclude the possibility that he spent more time than an evening to sniff the 3 to 4 grammes of ketamine that he had stated in his testimony.

73.Mr. Parry further submitted that it would be even more difficult for this Court to believe the defendant’s evidence in this respect when the fact that he was just released from DATC was taken into account.  During his 9 months’ detention, the defendant could not possibly use any ketamine, and he had to be physically free from the drug when he was discharged from DATC.  It was also beyond dispute that there was only a lapse of 17 days from the day of his release up to the time of his arrest.  Mr. Parry therefore submitted that the defendant did not and could not have the time to re-develop his tolerance. Hence, the defendant’s evidence that he, being not an experienced user any more, could have consumed ketamine on each occasion in a quantity which was 3 to 4 times the amount consumed by an experienced user with developed tolerance had to be devoid of truth.

74.However, I also noted from the judgment of Hii Siew Cheng that ketamine user could be a compulsive user of the drug.  Paragraph 64 of the judgment quoted the research result related by Professor K Lee to the Court of Appeal in his evidence, i.e. “anecdotal evidence is however present that ketamine is far more likely to be associated with compulsive use than other psychedelic drugs (Jansen, 2001).”  In other words, other than physical urge, psychological factor might also play a part in determining the quantity of ketamine used by a ketamine user.  For this reason, it would not be surprising that a compulsive user might use an amount of ketamine exceeding, or even far exceeding, the average amount so long as the dosage was not lethal.  There was certainly no evidence before this Court, and no evidence had been adduced and accepted in other cases including Hii Siew Cheng, that a ketamine user could not have used 3 to 4 grammes of ketamine a day, or else fatalities would result. 

75.For these reasons, I could not rely on Hii Siew Cheng alone to hold that it was impossible for the defendant to use 3 to 4 grammes of ketamine on each occasion as he had testified.  On the contrary, the credibility of the defendant’s evidence seemed to be enhanced by certain evidence accepted in Hii Siew Cheng.  In paragraph 94 of the judgment, the Court of Appeal quoted the evidence of Professor K Lee who described a typical recreational dosage to be ranging from 10 to 250 milligrammes when taken nasally.  The defendant testified that he took more than 10 sniffs of ketamine on each occasion.  If he sniffed 250 milligrammes of ketamine in each dose, it would mean that he consumed more than 2.5 grammes on each occasion, and this was consistent with his evidence that he consumed 3 to 4 grammes of ketamine each time.  In my view, it seems unlikely that the defendant was aware of what Professor K Lee had told the Court of Appeal, and hence he was not making up his evidence according to the evidence of Professor Lee.  Hence, when the defendant was able to tell the correct number of sniffs that he had to take before he could consume 3 to 4 grammes of ketamine tended to confirm that he did have that consumption experience, thereby corroborating his evidence that he had been a user of ketamine in that quantity.

76.The second ground raised by Mr. Parry was that it defied common sense for the defendant to have purchased ketamine for own use in a quantity that would have last him for a long period of time when he was well aware that he would be recalled to DATC at any time.  Mr. Parry pointed out that the ketamine in question would provide somewhere between 130 and 340 doses (at dosages of between 10 to 250 milligrammes per dose as reported in Hii Siew Cheng).  Mr. Parry argued that since the defendant had a random urine test on 19 March 2013 and the defendant knew as admitted by him under cross-examination that the test result had to be positive and he had to be recalled to DATC, it was absolutely nonsensical that he would have bought a large quantity of ketamine 2 days after the test, knowing that he would not be able to consume all the ketamine himself as he would be back at DATC.

77.The submission of Mr. Parry had its attraction.  However, the defendant’s evidence in response to this criticism of his evidence could not be ignored.  He said that he purchased the drug because he needed it and it was cheaper, and that although he knew the result of the urine test would be positive, it would not be very soon for him to get back to DATC since the test report had not yet been released.  The defendant had to be right.  Surely, it would take time for the test report to be issued.  The Correctional Services Department (CSD) had to take further time to consider whether to recall the defendant, and then CSD officers had to take another period of time to locate the defendant and take him into custody.  By then, the defendant might have already consumed all the ketamine he had purchased.  Some calculation would illustrate this point.  The defendant testified that he consumed 3 to 4 grammes of ketamine on each occasion.  It meant that the 34.32 grammes of ketamine would be sufficient for his use on 9 to 12 occasions; and since it was also his evidence that he would take the drugs for 2 to 3 times a week, the quickest time for him to consume all of them would only be 3 weeks.  After all, even if he could not consume all but only use say half of the drugs before he was recalled to DATC, it would just mean that he was consuming ketamine at the usual street retail price as if he had never been given a discount.  In other words, the defendant did not lose out even if he were recalled to DATC without consuming all the ketamine he had purchased.

78.For these reasons, I could not say for sure that the defendant could not have consumed ketamine in the quantity as he had testified to. 

The defendant’s financial ability to purchase the drugs

79.The defendant admitted that he was unemployed and financially dependent on his family members at the time when he was found in possession of the drugs.  Nevertheless, he testified that he had used the money given to him by his family members to purchase the ketamine in question.  This was also what he had said during the video-recorded interview.

80.The defendant, his mother (DW2) and his biological father (DW5) gave evidence on this aspect and their evidence basically corroborated each other.  Their evidence could be summarized as follows.  On 5 March 2013 when the defendant was discharged from DATC, he was paid $600 for the work he had done in DATC.  About one or two days after his release, DW2 gave $1,000 to the defendant for him to buy new clothes and shoes.  In addition, within a week of the defendant’s release, DW5 gave another $1,000 to the defendant.  DW2 also gave the defendant $200 to $300 a day for his expenses when he went out.  DW5 had also on one occasion given $300 to the defendant.  On the day of the defendant’s arrest, DW2 gave the defendant $800, $600 of which was for renewing the home visit permit which should cost $500 odd, and the remaining $200 was for food and travelling of the defendant.

81.Mr. Parry submitted that it was simply unrealistic that the defendant could have been provided with such sums of money for use.  He pointed out that if DW2 had given the defendant $200 to $300 a day, it meant that she would have given him $6,000 to $9,000 a month, but it was doubtful whether she had the money because she was only a housewife and her source of money, according to her evidence, was from her husband and the defendant’s step father DW3.  However, DW3 was only a football coach who had to support a family of 6 persons and they were just living in government housing.

82.In considering this submission, I noted that neither the defendant nor DW2 had been asked about the monthly income of DW3.  Besides, DW2 had testified that she could not accompany the defendant to go to the China Travel Agency in Tuen Mun on the day in question because she had some translation work to do.  Presumably, DW2 could earn some money on part-time basis like from the translation work although she was a housewife.  It was also not clear how much savings the defendant’s family had since no question had ever been asked. Furthermore, the defendant had enjoyed his liberty for only 17 days before he was kept in custody again.  In other words, DW2 had paid him less than $5,100 for his daily expenses in addition to the $1,000 for buying new clothes and shoes.  This aggregate sum of money was not so large that it was intrinsically impossible for DW2 to provide the defendant financially in this way.

83.Mr. Parry also submitted that DW2 could not have given so much money to the defendant because she had testified that she would not give much money to the defendant so that he would start buying drugs again.  Mr. Parry pointed out that it was DW2’s evidence that the defendant had not used the $1,000 she had given him to buy new clothes and shoes, and that when she noticed that the defendant had not done so, she asked the defendant for the return of the money, but the defendant refused to do so, and yet PW2 still gave the defendant daily expenses of $200 to $300 a day, and she gave him $800 on 21 March 2013.  Mr. Parry submitted that the evidence of DW2, if true, would have meant that she had effectively put money in the defendant’s hand but exercising no control over how he would use the money, and her action was simply inconsistent with her evidence that she would limit the defendant’s money to prevent him from buying drugs.

84.Under cross-examination, DW2’s evidence in reply to this point was that she had never thought of the defendant buying drugs again so soon after a 9 months’ detention.  She also testified that when she noticed the defendant had not bought any clothes or shoes, she asked the defendant about the $1,000, and the defendant let her see his wallet and she could see that the money was inside.  Although the defendant had declined to return the money to her when she asked him to do so, the defendant assured her that he would save up the money.  She maintained that she still gave daily expenses of $200 to $300 to the defendant because the $1,000 was for buying new clothes and shoes.

85.In my view, whether or not DW2 was acting inconsistently was not the issue.  The real issue was whether she had provided the money in the way as she and the defendant had testified.  Her evidence had to be understood in the context that she did not realize or expect that the defendant had relapsed to drugs so soon.  I could not say this could not be her state of mind, bearing in mind that the defendant had really been cut off from any kind of drugs for the past 9 months, and if she had really seen the $1,000 inside the defendant’s wallet, that would lead her to believe that the defendant had not misused the money even though he had not used it for buying new clothes and shoes as directed by her.

86.Furthermore, it was understandable that a mother could hold ambivalent attitudes towards her son.  On the one hand, she did not want her son to have the money to buy drugs.  On the other hand, she wished to provide for his financial needs.  At that stage, she undoubtedly perceived that her son needed new clothes and shoes as well as daily expenses when he went out.  Her evidence was that she had only gone out with the defendant for only 2 to 3 times during the 17 days before he was kept in custody again.  It followed that she had to give him money to spend when he was going out alone.  For these reasons, I could not say for sure that the evidence of DW2 could not be possibly true.

87.DW5 had testified that he gave $1,000 to the defendant.  I did not find his evidence shaken under cross-examination.  Although he was a person holding a registration card for people with disabilities, he testified that he was employed as a driver and earned $13,000 to $20,000 a month.  He therefore had the means to give money to the defendant.  After all, the defendant was just discharged from custody.  For a biological father to give money to a son who had been incarcerated for 9 months and hence unlikely to have earned any money himself to satisfy his needs, it was just a very natural thing for DW5 to do.  I could not find fault with his evidence.

88.In summary, I was not in a position to reject the evidence of the defendant, DW2 and DW5 that the defendant had been provided with the various sums of money as stated in their evidence.  It followed that I could not rule out the possibility that the defendant had the financial ability to buy the ketamine in question.  Hence, I could not come to the conclusion that the defendant had to be trafficking in the drugs on the ground that he could not have the money to buy the drugs for his own consumption.

89.This finding of course did not rule out the possibility that the defendant had the drugs for the purpose of trafficking.  The fact that the defendant had or might have the money to buy the drugs did not amount to proof that he had actually used the money to purchase the drugs in the manner as he had testified.  In addition, even if he had purchased the drugs as he had testified, he could have purchased the drugs for the purpose of sale or supply to others. 

The defendant’s movement after purchase of the drugs

90.The defendant testified that after he had failed to apply for his home visit permit, he did not return home immediately because he just wished to hang around for a while, and that there was no particular reason for him to hang around.  He confirmed that he purchased the ketamine in question in Tuen Mun Town Plaza shortly after 6 p.m, but he could not be more specific with the time when he bought the drugs other than it was shortly after 6 p.m.  He agreed that he then hanged around in Tuen Mun until 7:48 p.m.  He said he did not go home immediately after the purchase because he was thinking of getting something to eat.  In his video-recorded interview, the defendant said that after he had purchased the ketamine, he intended to go to Waldorf Shopping Centre to have a meal before going home.  Mr. Parry put to him that he knew how risky it was for him to hang around in Tuen Mun with the ketamine on him since he might be arrested.  The defendant replied that he did not realize this would happen.

91.Mr. Allan submitted that the fact that the defendant did not return home immediately after purchasing the drugs was hardly surprising because he would not go back to the home of his mother and his step father to take and use the drugs.  If what Mr. Allan meant was that the defendant would not consume ketamine inside the premises where his mother and step father were living, there was no evidence from the defendant to that effect.  Furthermore, if the defendant did not take the drugs inside the premises where his mother and step father were living, which was in fact also his home, the fact that he was in possession of more than 34 grammes of ketamine would have pointed to the inference that he had the drugs for the purpose of trafficking rather than self consumption because it would be impossible for him to consume all the drugs before going home, meaning that he would have to dispose of the drugs elsewhere before going home, and he would not have just thrown them away bearing in mind that he had paid $1,800 to buy the drugs.  This was certainly not the evidence of the defendant.  I found Mr. Allan’s submission unhelpful to the defence case.

92.Under further cross-examination by Mr. Parry, the defendant said that he could go back to his home in Tung Chung by taking Route No. E33 bus.  He agreed that the bus stop for E33 bus was right next to Tuen Mun Town Plaza where he bought the drugs, and that it would take him only 5 to 10 minutes to walk from Tuen Mun Town Plaza to that bus stop.

93.On the basis of such evidence, Mr. Parry submitted that if the defendant had really purchased the ketamine in question for his own use, he would have left the area immediately and returned to his home in Tung Chung by taking the Route No. E33 bus because he was well aware of the risk of lingering in Tuen Mun where he had been arrested three times for possession of dangerous drugs, and that the bus stop for Route No. E33 bus was within a distance of at most a 10 minutes’ walk.  Mr. Parry submitted that the defendant would not have lingered in the Tuen Mun area if he had just purchased the drugs for his own use, and his action led to the only reasonable and irresistible inference that he had the ketamine in question in his possession for the purpose of trafficking.

94.In my view, there was considerable force in the submissions of Mr. Parry.  On the defendant’s own admission, he was in possession of the ketamine in question at least from “shortly after 6 p.m.” onwards.  From the undisputed evidence of PW1, it was around 7:48 p.m. when the defendant was seen coming from Tuen Mun Town Plaza.  In other words, the defendant had lingered inside Tuen Mun Town Plaza for more than one hour after the purchase of the drugs before he left that shopping mall.  After he had left, it was also clear from the evidence that he did not go to the nearby bus stop to take the E33 bus home when he clearly knew the location of the bus stop at which he could have taken bus home.  Instead, he was heading in the direction of Waldorf Shopping Centre.  He explained both in his video-recorded interview and in Court that he was intending to have a meal there.  However, I was satisfied beyond reasonable doubt that the defendant’s explanation was not true and could not possibly be true.  It was because the undisputed facts showed that although he was walking in the direction of Waldorf Shopping Centre, when he reached a guard booth, he did not continue his way to Waldorf Shopping Centre, but he stopped there and kept on looking around.  If it were true that he was heading for Waldorf Shopping Centre for a meal, he would not have behaved in that manner as he had done.  The only reasonable and irresistible inference from his action was that he was waiting at that location for some person or persons at that point of time.

95.In my judgment, this was a formidable piece of evidence against the defendant.  An ordinary drug addict having just purchased a large quantity of drugs for his own use would realize that it was risky for him to stay in public place for any period of time because he was exposing himself to the possibility of being arrested by police at least for the offence of possession of a dangerous drug, not to mention he might even be arrested for the offence of trafficking.  He might not be afraid of being arrested, but surely he did not want to lose the drugs which he needed to satisfy his addiction and for which he had just paid a large sum of money.  It was therefore just reasonable to expect an ordinary drug addict in such a situation would have immediately gone to a place where he found it safe and/or convenient to off-load the drugs from his person and store the drugs there, and yet at the same time, he could have easily retrieved the drugs from that place for his later use.  The commonest choice of action was of course going home.  The fact that the defendant had lingered around in a public place with over 34 grammes of powder containing ketamine in his possession for more than an hour, and that he would continue remaining in a public place for another period of unknown length of time when he was waiting at the guard booth, was inconsistent with what an ordinary drug addict would do.

96.The only question I needed to resolve further was whether or not the defendant would behave in the same way as an ordinary drug addict.  To answer this question, I had to consider the subjective state of mind of the defendant and I could not approach this question from an objective point of view.  I had to take into account the defendant’s background.

97.On this particular point, I could not lose sight of the fact that the defendant had demonstrated that he was a reckless young man who paid no heed to the danger he would certainly face.  The defendant was released from DATC on 5 March 2013.  He knew as admitted by him in evidence that he was subject to supervision.  He knew that he could not take drugs again and that random urine tests would be conducted on him to verify that.  He was actually tested on the very next day after his release on 6 March 2013.  Yet, he paid no heed to the possibility of further urine tests.  He just took ketamine again. He just couldn’t care less that his breach of DATC supervision would be found out and that he would be recalled to DATC so long as he had the immediate enjoyment of ketamine.  This 19 years old young man had therefore demonstrated that he could behave irrationally and that he was reckless to the consequences of his acts.  When I considered the possible behaviour of the defendant, I could not say for sure that he would necessarily behave in the same way as any other ordinary drug addict would have done.  He might know the risk of being arrested for possessing a large quantity of ketamine in a public place, but I could not say for sure that he would not have ignored that risk.  In fact, when he said in evidence that he did not realize the risk for him to possess large quantity of drugs in public place, I could not say for sure that this was not his state of mind at that time.

98.Furthermore, the defendant had lived in Tung Mun for considerable period of time before he moved to Tung Chung in about 2010.  On the other hand, he was just released from DATC.  Under these circumstances, it might be possible that he would like to linger in the old neighbourhood and attractive shopping malls like Tuen Mun Town Centre which he had not had the chance to visit for the past 9 months. That might explain why he lingered inside Tuen Mun Town Plaza and its vicinity without any particular purpose or reason.  He had stopped at the guard booth after leaving Tuen Mun Town Plaza, and I had inferred that he was waiting there for some person or persons.  However, after a detention of 9 months, it was possible that he was eager to meet his old acquaintances for social purpose, even though he had the ketamine in question on his persons. In other words, the meeting could be for a purpose other than handing over of the drugs.

99.In my view, there was no doubt whatsoever that the defendant’s behaviour was very suspicious at the material times.  However, having taken into account the particular attributes of this defendant, I could not say for sure that the fact that he had lingered around with a large quantity of ketamine on his person in a public place for more than an hour and continued to do so without going home would necessarily lead to the only reasonable and irresistible inference that he had the drugs for the purpose of trafficking.

Conclusion

100.I had considered each argument in Mr. Parry’s submissions both individually and collectively.  There was no direct evidence of trafficking.  In addition, I was of the view that the circumstantial evidence was just short of leading to the only reasonable and irresistible inference that the defendant was in possession of the ketamine in question for the purpose of trafficking.  I find that the charge was not proved beyond reasonable doubt. 

101.Nevertheless, on the basis of the defendant’s guilty plea to simple possession of the drugs and the facts stated above, I found the defendant guilty of possession of the ketamine in question, contrary to sections 8(1) and (2) of the Dangerous Drugs Ordinance, Chapter 134.

Appendix A

The first recusal application

1. The first recusal application was made on the 8^th day of the trial after the prosecution had closed its case following my ruling that the defendant’s video-recorded interview was admissible in evidence.

2. This application was made on the ground of apparent bias because the defendant had been dealt with by me previously in another case, i.e. Case No. TMCC2850/2010 when I was sitting as the principal magistrate in Court 1 of Tuen Mun Magistracy. As I understand from Mr. Allan, the application was not made on the ground of actual bias.

3. The test and approach when an allegation of bias, or apparent bias, is raised was confirmed by the Appeals Committee of the Court of Final Appeal in Deacons v White Case Limited Liability Partnership & Others [10] as follows:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

4. In HKSAR v Habibullah Abdul Rahman (D2) [11], the Court of Appeal adopted the same test and approach except that it omitted the phrase “or a real danger” which had been dropped in the case of Porter v Magill [12] as pointed out by Ribeiro PJ in Deacons.

5. In Wong Tai Wai v Commissioner of Correctional Services[13], the Court of Appeal stated, in paragraph 41, as follows:

“The test for apparent bias is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there is a reasonable apprehension of bias. This is the test endorsed by the House of Lords in Porter v Magill, which modified slightly the formulation for apparent bias in R v Gough and moved away from the test of “real danger of bias” from the reviewing court’s own view to that of “reasonable apprehension of bias” or “a real possibility of bias” from the perception of a fair-minded and informed observer, to bring the common law rule into line with the Strasbourg jurisprudence.”

6. I would therefore firstly set out the circumstances which the defendant said gave rise to the risk of bias against him if I continued hearing this trial.

7. Mr. Allan initially asked the prosecution to obtain information to confirm the accuracy of the factual basis of his application. As I perceived it, the quickest way to confirm the facts was to look at the court case file. With the consent of the parties, I directed my clerk to obtain the relevant case file by fax from Tuen Mun Magistracy. In order to ensure that I should not know anything that I need not know, I directed that all the documents should not be shown to me but to counsel for both sides directly for their consideration. Later, my clerk told me that the case file contained not only the charge sheet, the summary of facts, the criminal record of the defendant and the pre-sentencing reports, but also the handwritten notes made by me as well as other magistrates. I directed my clerk to pass onto counsel all documents including my handwritten notes but not those notes made by other magistrates. I directed that if either or both counsel wished to read the notes made by other magistrates, he had to apply to me or to the magistrates concerned for permission first. As it turned out, both counsel needed not refer to the notes made by the other magistrates.

8. While I had not read any documents containing in the court file for Case No. TMCC2850/2010, I understood from Mr. Allan’s submissions that I had dealt with the defendant in the following manner.

9. On 27 August 2010, the defendant appeared before me and was represented by a duty lawyer. On that day, the prosecution did not ask for plea to be taken from the defendant but applied for an adjournment to obtain a government chemist certificate. It opposed bail to be granted to the defendant on the ground that he committed this offence whilst on probation. The duty lawyer then applied for bail for the defendant. I refused the application and remanded the defendant in custody until 24 September 2010 for the prosecution to obtain a government chemist certificate.

10. On 24 September 2010, the defendant appeared before me again. He was represented by Mr. Allan upon the instructions of a private firm of solicitors. On that day, the defendant pleaded guilty to the charge laid against him and agreed to the summary of facts prepared by the prosecution. I convicted the defendant on the basis of his plea and the admitted facts. I was then made aware of the defendant’s criminal record which showed that he committed the offence whilst he was serving his probation order imposed in Case No. FLCC211/2010. Mr. Allan then mitigated for the defendant during which he told me about the defendant’s background. I then adjourned sentencing until 13 October 2010 and called for a number of reports. These reports included a report from a probation officer on the defendant’s suitability for probation or community service order, a report from the Commissioner of Correctional Services on his suitability for detention in a drug addiction treatment centre, a rehabilitation centre, a detention centre or a training centre, and a report from the Young Offender Assessment Panel for its advice on sentencing the defendant. I remanded the defendant in custody pending preparation of those reports. I also directed that the court file for Case No. FLCC211/2010 was to be made available at the time of sentencing so that the defendant’s breach of probation could be dealt with at the same time.

11. According to Mr. Allan, these were the only two occasions when I dealt with the defendant in this previous case. On 13 October 2010, the defendant did not appear before me but another magistrate Mr. Stephen Smout with Mr. Allan still representing him. Mr. Smout sentenced the defendant to probation for 18 months.

12. At the time when the first recusal application was made, Mr. Allan did not tell me what charge had been laid against the defendant in Case No. TMCC2850/2010. He also did not tell me what offence had been committed by the defendant for which he was put on probation in Case No. FLCC211/2010. I did not ask for the information because I did not want to know anything that I needed not know or any of the parties did not want me to know.

13. Nevertheless, from what Mr. Allan had told me, I could infer from the fact that the prosecution had asked for time to obtain a government chemist certificate that a drug offence was the subject matter of Case No. TMCC2810/2010. On the other hand, I was certain that I did not sit in court on 13 October 2010, or else the defendant would not have been sentenced by Mr. Smout. For this reason, I was absolutely certain that I had not read any of the pre-sentencing reports on the defendant. Nor had I read the court file for Case No. FLCC211/2010. Hence, I did not know and could not have remembered anything about that other offence committed by the defendant.

14. It was on the basis of these facts and circumstances that I considered whether I should accede to this recusal application.

15. In asking me to recuse myself, Mr. Allan pointed out that while I might have forgotten, the defendant correctly remembered that he had been dealt with by me on these two previous occasions. Mr. Allan submitted that it would be unsafe and dangerous for me to continue with the trial because the defendant’s credibility and the truthfulness of his evidence were to be determined by me, but I had previously heard matters highly prejudicial against him since I had convicted him in one case, and heard that he had breached the probation order imposed in another case. Mr. Allan was of the view that it would be impossible for me to direct myself properly when I embarked upon the decision process. Mr. Allan further submitted that a reasonable man would under these circumstances perceive that there was a real danger that I was biased against the defendant and that the defendant did not receive a fair trial. Mr. Allan stressed that justice had to be seen to be done. He said that the defendant would have a genuine sense of grievance if he were convicted by me, and that the defendant would appeal on this point. Mr. Allan therefore considered the safest course to take was for me not to continue with the trial for the sake of protecting myself and the defendant. Mr. Allan further told me that this trial was a re-trial, and he did not want to argue this point in the Court of Appeal and got another re-trial.

16. I refused the application for the following reasons.

17. First, while I accepted that I had dealt with the defendant on two previous occasions, it was just because this was what the court record had shown, but I had no recollection whatsoever of this defendant and the offences committed by him that formed the subject matters in the two cases TMCC2850/2010 and FLCC211/2010. It was impossible for me to remember the defendant or any of his cases because (a) there had been a lapse of time for nearly 4 years and 4 months from the time he last appeared before me on 24 September 2010 and the commencement of this trial on 13 January 2015, and (b) I had dealt with not just him but a huge number of other defendants. I had sit in the plea courts of various magistracies for over 10 years (and I could not recall precisely), and the number of defendants appearing before me each year could not be less than one thousand. In fact, after this defendant had last appeared before me, I continued sitting in the plea court of Tuen Mun Magistracy for about 6 months, and subsequently I sat in the plea court of Kwun Tong Magistracy for about another 6 months, and I sat in the District Court for the remaining periods of time in between and up till now. It meant that over a thousand defendants had come before me after I had last dealt with this defendant. In light of the passage of time and the number of defendants appearing before me, there was simply no way whatsoever that I could have remembered this defendant or any of his cases unless there was some unique feature in him or in his cases, but I had not been informed of any. When I remembered nothing about this defendant or any of his cases, it must follow that I could not be influenced by something that I was not even aware of, and hence there was simply no basis whatsoever for anyone to think that I would be or might be biased against him. In my view, a fair-minded and informed observer would not perceive that there was a real possibility that I was biased against this defendant.

18. I might just add that a fair-minded and informed observer would not doubt my statement that I did not remember this defendant or any of his cases. I was absolutely sure of this conclusion because not even Mr. Allan remembered that he had represented this defendant when this defendant appeared before me on 24 September 2010. This recusal application was made on the 8^th day of this trial. I asked Mr. Allan why the application was not made at the outset especially when he was the counsel representing the defendant before me in the hearing of 24 September 2010. Mr. Allan’s reply was that he had represented so many clients and asked me back how he could have remembered. He further said that it was only in the afternoon of the 7^th day of the trial when the defendant reminded him that I had dealt with the defendant before. In my view, Mr. Allan had been the defendant’s advocate in TMCC2850/2010. They had a special relationship under which Mr. Allan as a barrister had a duty to take care of the interest of his client the defendant, and Mr. Allan was paid a reward for performing this duty. When all these matters were taken into account and yet Mr. Allan still could not remember having appeared with this defendant before me, I was sure that any fair-minded and informed observer would not think that I could have performed better than Mr. Allan, and remembered dealing with this defendant about 4 years and 4 months ago when at all times I had no relationship whatsoever with him other than the fact that he was just one of the many defendants coming before me over the years, and when the number of defendants appearing before me must have exceeded that of Mr. Allan’s clients by a very big margin.

19. Second, there is clear authority to support the view that even if I had dealt with the defendant before, I could still deal with him in this trial even though I had to assess his credibility as a witness and the truthfulness of his evidence. The Court of Appeal in Habibullah Abdul Rahman (D2) cited with approval a passage from the judgment in the case of Locabail (UK) Ltd. v Bayfield Properties Ltd. (leave to appeal)[14],

“By contrast, a real danger of bias might well be thought to arise if …, or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue proceedings before him the judge expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind … The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias in the case in which the objection is raised, the weaker (other things being equal) the objection will be.” (Emphasis added in italics)

20. From what Mr. Allan had told me about the dealings I had with this defendant, I had ruled adversely against the defendant on his bail application, but that determination did not hinge upon a decision on his credibility or the reliability of his evidence. The defendant was refused bail because it had been alleged by the prosecution that he had committed a further offence whilst on probation. At that stage, I was entitled to take into account the prosecution allegation without holding a trial. Furthermore, that the defendant was on probation at that point of time was an objective fact that was not and could not be challenged, and that the prosecution had true and sufficient evidence against the defendant was confirmed by the defendant’s guilty plea in due course. Furthermore, the fact that I had convicted the defendant of the offence charged also did not hinge upon a decision on his credibility because he pleaded guilty and there was no trial. On the contrary, I must have accepted that he was telling me the truth when he told me that he admitted the facts presented by the prosecution that formed the basis of his conviction. According to the passage in the judgment of Locabail quoted above, even if I had commented adversely on the defendant or found his evidence unreliable, it without more would not found a sustainable objection of apparent bias, but there was more reason for me to find no basis of apparent bias in the present case because in all the previous dealings I had with this defendant, I had never determined or commented on his credibility as a witness or on the veracity of his evidence. There was also a lapse of time of nearly 4 years and 4 months.

21. Third, contrary to what Mr. Allan had submitted, I could see no difficulty in directing myself not to be affected by my past dealings with the defendant so as to treat him in any way adverse to him. When the time for deliberation of verdict came, I would surely in the capacity of a judge direct myself that I should ignore all extraneous considerations, prejudices and predilections, and that I should decide the verdict only on the basis of the evidence properly adduced in this trial. A professional judge is adept, by training and experience, at reaching decisions by objective appraisal of the facts.

22. Fourth, from what Mr. Allan had told me about Case No. TMCC2850/2010, I could infer that I had convicted the defendant of a drug offence upon his guilty plea. I did not know the detail of the convictions, both in terms of the charge and of the facts supporting that charge because Mr. Allan did not tell me at the time when he made the first recusal application. However, for what I knew or could infer about this defendant and Case No. TMCC2850/2010, these were not matters prejudicial to the defendant’s defence in this trial because he admitted he had the ketamine in question in his possession at the outset of the trial, and he only denied possessing them for the purpose of trafficking. The fact that I had convicted the defendant of a drug offence would not permit me to speculate that he had a trafficking conviction, and Mr. Allan never told me that I should disqualify myself because I had dealt with this defendant on a trafficking charge. On the other hand, if the defendant was convicted by me of possession of dangerous drugs, this was surely a point working in his favour because his conviction tended to show that he had a drug addiction problem in or since 2010, and hence it was possible that he had the ketamine in question for the purpose of his own consumption only.

23. For these reasons, I came to the firm conclusion that even though I had dealt with the defendant in two previous hearings in the manner as particularized by Mr. Allan, a fair-minded and informed observer apprised of all circumstances would not perceive a real possibility that I would be or might be biased against the defendant or that he would not or might not have a fair trial.

24. Mr. Allan told me that the defendant would have a sense of grievance if I continued hearing this trial. I presumed that this sense of grievance would only arise if I found him guilty of trafficking instead of simple possession of the ketamine in question since he had already offered to plead guilty to possession. However, whether or not I should recuse from hearing this trial was to be determined from the perception of a fair-minded and informed observer and not that of the defendant.

25. Mr. Allan further submitted that the safest course to take was to order a new trial before another judge so as to protect me and the defendant. However, this was not the right approach to take. It was my duty to hear and determine the case allocated to me. It would be wrong for me to yield to tenuous or frivolous objection and I must not accede to unfounded recusal application: see Locabail, at page 479A to 480A.

26. After I had refused the application, Mr. Allan submitted that the defendant had no case to answer on the trafficking charge. I ruled that the defendant had a case to answer. Mr. Allan then said that he was considering making an application for stay of proceedings.

The second recusal application

27. On the 9^th day of the trial, Mr. Allan did not apply for stay of proceedings. Instead, he made the second recusal application on the ground that the defendant wished to call me as a defence witness, and that it would not be possible for me to act as both the trial judge and a defence witness.

28. In the course of his submissions, Mr. Allan gave me details of the facts presented by the prosecution and admitted by the defendant in Case No. TMCC2850/2010. In that case, the defendant pleaded guilty to possession of about 10 grammes of powder containing about 8 grammes of ketamine which were found by the police inside his right trouser pocket. He admitted under caution that those ketamine were for his own consumption. Mr. Allan pointed out that Case No. TMCC2850/2010 and the present case had many factual similarities. He said that other than the quantity of drugs in Case No. TMCC2850/2010 was less than that in the present case, all other matters were identical, for instance, all these offences occurred in Tuen Mun, all suppliers who provided drugs to the defendant were in Tuen Mun, the drugs possessed by the defendant were all ketamine, and the defendant admitted under caution that he had the ketamine for his own consumption in each and every of these cases. Mr. Allan submitted that it would be to the defendant’s advantage if all these facts were known to the trial judge in the present case because these matters would show that the defendant had a drug problem for many years since 2010, and that the best witness to give evidence on all these matters would be me. He submitted that I was the best witness because as the magistrate convicting the defendant, I had full knowledge of the facts relating to Case No. TMCC2850/2010, and having heard his mitigation for the defendant, I was also fully aware of and could give evidence on the defendant’s background and his addiction to ketamine since 2010. Mr. Allan stressed that it was important for the defendant to adduce evidence in this trial to show that he was addicted to ketamine at the time of his arrest, and that the defendant believed that he had a right to call all material witnesses including me as his witness in this trial for his defence. Upon this premises, Mr. Allan submitted that I had to recuse myself from hearing this case further because I could not place myself in the conflicting positions of being the trial judge and being a witness at the same time.

29. I refused the applications for the following reasons.

30. First, while the defendant had a right to call witnesses whom he considered could give evidence in support his defence, those witnesses had to be in a position to give material and admissible evidence. Although I was the magistrate convicting him of the offence of possession of dangerous drugs in Case No. TMCC2850/2010, I did not personally witness how he committed the offence. For instance, I did not personally see the defendant putting the drugs in that case into his trouser pocket, nor did I personally see how a police officer searched him and found those drugs. I was also not in a position to say that the drugs found in his possession were ketamine. I only personally saw and heard the defendant pleading guilty to the charge and admitting the facts presented by the prosecution on 24 September 2010. Other than proving what had happened in Court, I could not give admissible evidence on the facts relating to the offence committed by the defendant. I could not give admissible evidence on the background of the defendant or the length of time he had been addicted to ketamine even though I had heard submissions from Mr. Allan on these matters during his mitigation. It was because I could not give hearsay evidence. If Mr. Allan’s submission that I was the best witness for the defendant had any basis, I would say that he would have been an even better witness because not only he also saw and heard what I had seen and heard in court on 24 September 2010, but also he had an added advantage over me in that he had taken instructions from the defendant directly before and after the defendant had appeared before me. If Mr. Allan’s submissions were correct, the defendant should have called Mr. Allan rather than me to testify. Of course, I was not saying that Mr. Allan should withdraw from this trial on this ground because, as I saw it, Mr. Allan like me was also not in a position to give admissible evidence on the offence committed by the defendant in Case No. TMCC2850/2010, or on the background and the drug addiction of the defendant.

31. Second, if the defendant wanted to prove that he had been convicted of the offence of possession of a dangerous drug in Case No. TMCC2850/2010, and that he wanted to place before this Court the facts admitted by him in that case, it did not require me to give evidence because, firstly, the court record spoke for itself, and secondly, counsel for the prosecution Mr. Parry had made it clear that the prosecution was willing to admit these facts under section 65C of the Criminal Procedure Ordinance. Mr. Allan objected to the offer made by Mr. Parry on the ground that the defendant should not be forced to admit facts, and that it would be of tactical advantage to the defence if I were to give evidence orally for the defendant. I was of the view that Mr. Allan was completely wrong in his objection. Mr. Parry did not force the defendant to admit facts. Mr. Parry was just saying that the prosecution was willing to admit what the defendant wished to prove in relation to Case No. TMCC2850/2010, so that it would not be necessary for any evidence to be called regarding those matters. In my view, if the defendant and/or Mr. Allan rejected the offer from the prosecution to admit what they wanted to prove, it was of course entirely a matter for them. However, if they really declined the offer from the prosecution, the so-called wish of the defendant to call me as a witness to prove his conviction in Case No. TMCC2850/2010 and the facts pertaining to that offence was nothing but a pretext to ask me to recuse myself from this trial after I had ruled against the defendant in the first recusal application. I would not allow this to happen. I found the second recusal application had no basis whatsoever and it was refused accordingly.

Appendix B

1. I have carefully considered the evidence and the submissions put before me by the prosecution and the defence in the hearing of the special issue.

Denial of the defendant’s 3 verbal requests to telephone his mother

2. The defendant had testified that he had requested PW1 on three occasions to let him make a phone call to his mother so that his mother might arrange a lawyer for him, but his requests were denied. According to his evidence, the 3 occasions all happened inside Castle Peak Police Station: (1) after the ketamine in question were weighed, he was taken into an interview room. He asked PW1 in the presence of PW2 to allow him to make a call to his mother, but PW1 told him that he was required to give a statement at that moment of time, and that his request would be dealt with later; (2) when PW1 was making a post-record of the defendant’s arrest and caution in his notebook inside the interview room, the defendant asked PW1 again to allow him to call his mother, but PW1 said that he was writing the statement for the defendant at that time, and he would allow the defendant to make the call later; the defendant said that when he was making this request, PW2 was going in and out of the room; (3) after the post-record, PW1 told the defendant that a video-recorded interview would be conducted with him in a while. When they together with PW2 were taking a lift to go to the video-recording interview room, the defendant asked PW1 inside the lift in the presence of PW2 whether he could make a phone call to his mother, and PW1 told him that they would talk about this matter later on, and the defendant was still unable to contact his mother.

3. PW1 denied the defendant had made such requests. He said that if the defendant had really asked to be allowed to make a phone call to his mother, there was no reason why the defendant could not have done so, and the police would have agreed to his requests.

4. I found the defendant’s evidence inherently incredible and untrue, and that his evidence could not possibly be true.

5. It was common ground in evidence that the defendant had been properly cautioned at the scene of his arrest. PW1 had already informed the defendant that he had a right to remain silent and PW1 was following the proper police procedure. It was also common ground that despite that caution, the defendant had chosen to make an oral statement. If so, why would PW1 do anything improper to force the defendant to take part in the video-recorded interview when the defendant had already demonstrated that he was willing to make a statement?

6. Likewise, it was common ground in evidence that PW1 had served and explained to the defendant his rights as a person in custody according to the Notice (Exhibit P7). It was therefore clear that, firstly, the defendant was fully aware that he had a right “to have a lawyer present during any interview with the police” and “to be given reasonable opportunities to communicate with a relative or friend by telephone”; and secondly, PW1 was again taking the proper step to ensure that the defendant was aware of his rights in addition to his earlier caution to the defendant. It was also important to note that it was not disputed in evidence that the Notice was issued to the defendant inside an interview room after the ketamine in question had been weighed. Hence it coincided exactly with the time when the defendant said he made his first request to PW1 to allow him to call his mother by phone. In my judgment, if PW1 was denying the defendant’s request to telephone his mother, why would he at or around the same time of his denial inform the defendant of his right to call his relative by phone? It would be even stranger that the defendant would not have insisted upon his right to call his mother there and then when he was informed by PW1 of his right.

7. Furthermore, I could not find any reason why PW1 would have denied the defendant’s request. It was common ground in evidence that the defendant had already admitted voluntarily that he was in possession of the ketamine in question. Of course, at the same time, the defendant denied he had the drugs for the purpose of trafficking, but it was clear not only from the evidence of PW1 and PW2 but also from the evidence of the defendant that the officers had never tried to cause the defendant to admit to trafficking. In other words, I could see no motive for PW1 and/or PW2 to deny the defendant the chance of telephoning his mother.

8. In addition, I could not see any reason why the defendant would believe that PW1 would allow him to make a phone call to his mother after the video-recorded interview when all his 3 requests were denied by PW1. There was no reason why he did not realize PW1 was just fooling him by saying every time that his request would be entertained later. It was incredible that he would have participated in the video-recorded interview if he had been subject to the treatment by PW1 as he had alleged.

Coaching of the defendant

9. The defendant further testified that before the video-recorded interview commenced, PW1 told the defendant to give certain answers to some questions that would be put to him in the interview. He testified that PW1 told him that when he was asked in the video-recorded interview if it was necessary for him to engage a lawyer, he should say “no need”; when he was asked if he had any request to make, he should say “no”; and when he was asked if he was fit enough to take part in the interview, he should say he was fit. The defendant agreed that the 3 sets of questions and answers appearing at counters 11 and 12, counters 15 and 16, as well as counters 23 and 24.

10. Mr. Allan acting on instructions had put the defence case on this point to PW1 and PW2. The officers denied all the defence allegations.

11. I had no doubt that the defendant’s evidence had no truth at all. Under cross-examination, the defendant agreed that other than the 3 sets of questions and answers he had identified to be a result of PW1’s coaching, the other answers were given by him voluntarily. If so, he was not coached in respect of his answer to the question appearing at counter 33 of the transcripts, but the defendant said he was “willing to” answer the questions (see counter 34). It would be very strange that PW1 would not have coached the defendant to say that he was willing to answer questions which was the most important question to ask for the sake of giving an appearance of voluntariness to the interview, especially if it were true that he had deliberately coached the defendant to say he did no need a lawyer and he had no request to make. In addition, the defendant had been asked twice whether he needed to see a doctor, and he declined both (see counters 43 to 46). According to the defendant, he was coached to say he did not need a lawyer. Nowhere in his evidence did he say he was coached to say he did not need a doctor. If the defendant was suffering from pain and headache at that stage according to his evidence (which was an issue I would deal with later), there was no reason why he said he did not need a doctor, and no reason why PW1 would not have coached him to say so. If there had been coaching on the part of PW1, I would have expected that the defendant would be subject to a more extensive coaching but it was certainly not the case. I found the evidence of the defendant in this respect inherently incredible and rejected it.

Suffering from pain and headache due to head injury, tiredness, sleepiness & hungriness

12. It was common ground in evidence that the defendant had during the course of his struggle with the police sustained a patch of redness of about 4 cm in diameter in the centre of his forehead as shown in the photograph (Exhibit D1), and that he had not been subject to any form of unlawful police violence. It was also common ground that the redness was still visible even after conclusion of the video-recorded interview.

13. Mr. Allan submitted that the defendant was suffering from a “serious, nasty head injury”. I did not accept the submission. On the contrary, the undisputed or undisputable evidence pointed to the contrary.

14. First, there was no dispute in evidence that after PW1 had subdued the defendant and noticed the redness on his forehead, PW1 asked the defendant if he needed medical attention, and the defendant said no need. It was also common ground that an ambulance arrived at the scene of arrest, and an ambulance man asked the defendant if he needed to see a doctor. Not only the defendant declined the offer, he had also signed a form to confirm his decision. When it was put to the defendant by Mr. Parry that if the injury had really troubled him a great deal, he would have accepted medical attention at that stage, his reply was, “I don’t know’, and later said that “it could be the case that I was not that troubled (by the injury) after he had been arrested, but for sure there was this problem when I was back in police station”.

15. Second, the defendant’s evidence that the pain and headache only surfaced later at the time when he was in police station could not be possibly true. He was unable to tell at what point of time when his pain and headache emerged. On the contrary, PW1 and PW2 had both testified that the defendant had been asked inside the police station in the presence of the Duty Officer whether he needed medical attention, and the defendant declined. The evidence of PW1 and PW2 in this respect had never been challenged by Mr. Allan in his cross-examination. When Mr. Parry put to the defendant that he had declined the offer for medical attention inside the police station, his only reply was that he could not remember. I was of the view that he was putting forward evidence inconsistent with the instructions he had given to his counsel. I found that PW1 and PW2 were telling me the truth when they said the defendant was asked the third time whether he needed medical attention when they were reporting to the duty officer inside Castle Peak Police Station, and the defendant declined.

16. The fact that the defendant had declined offers of medical attention to his head injury three times led to the only reasonable and irresistible inference that he was not suffering from any real injury that would have caused him any pain or headache. What he had sustained was just a patch of redness of about 4 cm in diameter in the centre of his forehead.

17. The falsity of this defence allegation must also be aptly demonstrated by the video footage of the interview. From the video footage, it was clear that, during the whole interview, there was not a single moment at which the defendant showed any grimace of pain on his face, nor did he make any gesture to indicate that he was feeling painful or having headache, like rubbing his forehead to soothe his pain. I was satisfied beyond reasonable doubt that when the defendant said in his evidence that he felt painful and headache in his head afterwards was a fabrication made up by him.

18. On the issue whether the defendant was tired or sleepy during the interview, the video footage again clearly showed that he was not sleepy or tired. There was absolutely not a moment of time he showed any sign of tiredness or sleepiness. He had not yawned at all during the entire interview. His answers were clear and spontaneous. On the issue of dinner or refreshment, it was true that PW1 had said he did not know if the defendant had been provided with food or refreshment. However, it did not follow that the defendant had not been provided with any. The defendant had made no request for food during the interview. He had been asked if he needed water (counter 25), and he said no need (counter 26). If he were really hungry, there was simply no reason why he would not have used that opportunity to ask PW1 for food or refreshment. After all, nowhere in his evidence did it say that he had been coached not to ask for anything to eat. On the contrary, he had confirmed verbally that he was well enough to take part in the interview (counters 23 and 24) which I found to be a reply given by the defendant himself rather than as a result of coaching by PW1.

Conducting the interview in the middle of the night

19. PW1 agreed that the interview took place in the middle of the night. PW1’s evidence was that he considered it unnecessary to defer the video-recorded interview to the following morning or take a break or let the defendant rest because he had at the very beginning of the interview asked the defendant if he was physically fit to take part in the interview and the defendant said he was well enough (Counters 23 & 24). I found no basis to challenge PW1. I agreed entirely with his evidence under cross-examination that the person who knew the best whether he could take part in the video-recorded interview was the defendant himself. The defendant needed not to be a doctor before he could tell whether he was suffering from pain or any other kind of discomfort.

20. Mr. Allan suggested that the video recorded interview could have been deferred to the following morning. The basis of this submission was that the defendant had a head injury causing him pain and headache, and that he was tired and sleepy. I had already rejected these allegations. Furthermore, even if the interview was not conducted at that time, another complaint could have easily made against PW1 on the ground that there was no reason to defer the interview and detain the defendant overnight for the interview when the defendant was physically fit to take part. A complaint could have been made on the ground that a prolonged but unnecessary detention had sapped the will of the defendant and put pressure on him to make a statement. In my view, the voluntariness of a statement did not depend on the timing when the interview was conducted. It depended purely on whether or not the interviewee was given a genuine choice to decide whether or not he would take part in the interview. If he felt that he had no problem with his physical and mental conditions and was willing to take part in the interview, I could see nothing wrong with PW1 conducting the interview at 11:47 p.m. In any event, whether close to 12 midnight amounting to late hours was debatable. In my view, it varied from people to people since it all depended on individual life style. Midnight might not be late to the defendant at all. As I had said before, he did not show any sign of tiredness or sleepiness in the video.

21. Furthermore, the video-recorded interview lasted for 22 minutes only. I could not see the timing at which the interview was conducted, as well as the length of the interview, cast doubt on the voluntariness of the interview or amounted to unfairness or oppression on the defendant.

Questioning of the defendant by other officer instead of by PW1 and PW2

22. PW1 agreed that during the video-recorded interview, there were two occasions when someone knocked at the door of the interviewing room, and on each occasion, a piece of paper was slipped in and received by PW2 and then handed over to PW1. PW1 testified that the paper was from Sergeant 59051 who was monitoring the video-recorded interview in the room next door. He also said that the two pieces of paper contained questions that the Sergeant wanted him to clarify. PW1 agreed that he had not let the defendant read the paper, or told him that the questions were from the Sergeant.

23. It was put to PW1 that it was not fair and oppressive to the defendant since the whole questioning was controlled by the Sergeant. Mr. Allan submitted that this was not an interview but an interrogation because on two occasions when PW1 was about to finish the interview, his senior officer was not happy with the answers given by the defendant and directed PW1 to continue with the questioning. PW1 denied that his superior was not happy with the defendant’s answers. He maintained that it was just a case that clarification had to be made with the defendant.

24. I did not agree with Mr. Allan’s submissions. After the first knocking of the door, the questions asked by PW1 of the defendant concerned the following matters: (1) the defendant’s employment status; (2) the location where the defendant would go to for the sake of applying for a home visit permit; (3) the quantity of drug consumed by the defendant each month; (4) the amount of money spent by the defendant on each occasion when he took drug; (5) the length of his drug addiction; (6) the reasons why the defendant had redness on his forehead. After the second knocking, the questions asked by PW1 were on the following matters: (1) the source of money with which the defendant purchased the drug; (2) the quantity of ketamine the defendant consumed on each occasion; (3) the amount of money he spent and the quantity of drug he took on each drug taking occasion; (4) the reasons why the defendant did not know if his head had bumped into anything; (5) whether or not the defendant’s family members knew that the defendant used the money they gave him to buy drugs. It was quite clear from the transcripts that PW1 had actually omitted these questions, and I had no doubt whatsoever that it was not the case that the Sergeant was not happy the answers already given by the defendant, and he wanted PW1 to ask the defendant the same questions again, hoping that the defendant might change his answers.

25. Mr. Allan put to PW1 that the whole interview was stage-controlled by the Sergeant which was denied by PW1. PW1 agreed that he had not put down that Sergeant had asked him to ask some questions, but I did not agree that PW1 had failed to keep a proper record of the interview because it was not necessary for him to do so. Even though PW1 had been reminded by the Sergeant what other questions to ask, it was still PW1 who decided whether or not to ask those questions, and if so, it was still PW1 putting the questions. If Mr. Allan’s contention that PW1 should not have asked those questions but another interview should be held were correct, it would be just subjecting the defendant to consecutive interview or even interviews which not only were wholly unnecessary but also might be prejudicial to the defendant’s interest. Putting the defendant going through successive interviews could or might by itself amount to pressure or oppression on him. Mr. Allan’s suggestion in fact might jeopardize the voluntariness of the interview. I did not find any unfairness or oppression to the defendant in the way the interview was conducted with him.

House search of the defendant’s home

26. Mr. Allan had cross-examined PW1 and PW2 at length about the house search, e.g. how many officers entered the house, which part of the premises had been searched, who of the defendant’s family members were inside the house at that time, etc. Mr. Allan criticized the evidence of the officers for they could not remember details of the matters they had been questioned about and alleged that they had been untruthful. In my view, it was not surprising at all that there were details of this house search that PW1 and PW2 could not have remembered. First, the house search took place nearly 2 years before this trial and it would not be surprising that the officers could not remember the details, especially the minor ones. Second, they might not even try to remember the details at the time of the search or store the details in their memories because nothing incriminating against the defendant or relevant to the charge was found inside the house search. As far as the result of the house search to the police as well as the prosecution was concerned, it was of no value.

27. On the other hand, I was sure that the defendant’s evidence that the police officers had walked into his home for only two steps, took a look and left to be utterly untrue. He said that the police officers only searched his house with their eyes and that there was no actual search. In my view, it was inherently incredible that a team of police officers taking the defendant back home for a search would not have conducted the search at all, although I accepted that they might just search part and not the whole of the premises so as not to disturb every person inside the house unnecessarily. After all, the whole purpose of the trip was to conduct a house search, and the officers could not have known whether the defendant had kept any illegal items like drugs or drug paraphernalia. Furthermore, it was stated in paragraph 10 of the Admitted Facts (Exhibit P14) that “the defendant’s home was searched with his consent at 01:20 hours on 22 March 2013 with nothing suspicious found”. The Admitted Facts clearly referred to a house search. After the Admitted Facts had been read out, I asked the defendant specifically and the defendant confirmed verbally in open court that he understood the Admitted Facts and he confirmed that he admitted them. Hence, when he stated in his evidence that the officers had only looked at his home and had not actually searched his home, it was inconsistent with what he had admitted and must be untrue.

28. I also did not find the evidence given by DW2 and DW3 on the special issue to be truthful. Their evidence was to the effect that had the police carried out a search in their home, they would have been woken up. DW2 testified that she was sleeping on a sofa inside the living room of her home and she did not see, and hence did not speak to any police officer inside her home, as testified to by PW1. DW2 said she only felt there was someone inside her house but when she opened her eyes, there was no one there. Her evidence was not consistent with the Admitted Facts that a house search had been conducted. The evidence of DW2 and DW3 was also inconsistent with one another. While DW3 maintained that no police officer searched his home and he was sleeping at that time, he said he had a little dog which would bark if any stranger had entered the house, but he had not been so woken up. If he were correct, it would have meant that no stranger had entered the house, but DW2’s evidence was that someone had actually entered her home but left before she opened her eyes.

29. All in all, the evidence relating to this house search had no direct bearing on the special issue under consideration except that it touched upon the general credibility of PW1 and PW2 on a subsidiary matter. It was because by the time when the police officers set off from police station with the defendant to search his home, the video-recorded interview had already been completed. In any event, for reasons already given, I did not find the defence allegation and evidence had the effect of damaging the general credibility of PW1 or PW2 or the reliability of their evidence.

PW1 and PW2 having lunch and staying in conference room together

30. On the second day of PW1’s evidence (i.e. 15 January 2015) when he was still subject to the cross-examination by Mr. Allan, during the lunch break at about 2:15 p.m., PW1 and PW2 were seen sitting inside a conference room outside the court room where this trial took place, and that they were sitting opposite to one another. PW1 and PW2 agreed that this had happened. A statement of Admitted Facts was produced to prove this fact (Exhibit D2).

31. DW4 had further given evidence that on this occasion, he also saw PW2 holding a pink notebook, the notebook was open, and the direction of PW2’s eyes were towards the notebook. DW4’s evidence suggested that PW2 was reading his police notebook with PW1 sitting opposite to him inside this conference room.

32. PW1 admitted that he was with PW2 in that conference room for about 30 to 40 minutes, but he maintained that he had not paid attention to what PW2 was doing at that time. PW1 further revealed that he had in fact had lunch with PW2 during the lunch adjournment. He said he did not know he could not have lunch with PW2. He maintained that on both occasions, he had not discussed the case with PW2.

33. PW2 also admitted that he had lunch with PW1. He admitted that he knew that PW1 was giving evidence under cross-examination at that time. He said that PW1 was his very good friend and had known each other for 10 odd years, but they had not seen each other for a long time. Coincidentally, PW1 had decoration done to his home, and PW2 had decoration to be done, hence they talked about that. PW2 admitted that it was his negligence to have lunch with PW1 since he had not avoided bringing suspicion to himself, but he maintained that he had not discussed the case during lunch with PW1.

34. PW2 also admitted that he had stayed in the conference room with PW1 after lunch. He said he read newspaper and took a rest inside the room, and PW1 was fiddling with his phone. It was put to PW2 that at about 2:10 to 2:15 p.m., he was opening his notebook with PW1 sitting opposite to him inside the conference room, and that PW1 was looking at his telephone and PW2 was opening his notebook in the full view of Mr. Allan and DW4. PW2 denied that he was reading his notebook. He maintained that he was reading his newspaper and taking a rest. He further said that he had kept his notebook in his pocket. Under re-examination, he said that he had read his notebook once after returning from lunch. He said the time should be after 2 p.m. but he was definite that he did not read the notebook at 2:15 p.m. when he was reading his newspaper.

35. I noted that paragraph 1(2) of the Admitted Facts (Exhibit D2) had stated that “a complaint by the Defence was made to Prosecuting Counsel Mr. Leslie Parry on Fiat at around 2:16 p.m. on 15 January 2015 that … PW2 was seen reading his police notebook”. It was an admission by the prosecution that a complaint in those terms had been made by the defence. It was not an admission that PW2 had read his police notebook as alleged by the defence. I would deal with this point together with the next point raised by the defence.

PW2 reading his notebook during the course of his evidence

36. On 4^th day of the trial (i.e. 16 January 2015) when PW2 returned to the witness box to be further cross-examined by Mr. Allan, he admitted that he was reading his notebook on a bench outside court while he was waiting to give evidence. He said that he did not know he could not read his notebook without asking for permission from the Court first after he had started his evidence. He admitted that he was reading his notebook in the full view of Mr. Allan, Mr. Parry and the OC Case.

37. I would deal with these two matters raised by the defence together.

38. In my view, as to what had happened on 15 and 16 January 2015 concerning the conduct of PW1 and PW2, the events had no direct bearing on the special issue. The events that took place in January 2015 did not shed light on the events on 21 March 2013 when the video-recorded interview was conducted. Its only relevancy was to test the general credibility of PW1 and PW2 as a witness.

39. In my view, if PW1 and PW2 had been dishonest and they had discussed the case or their evidence against the defendant during lunch on 15 January 2015, they would not have revealed to the Court that they had lunch together when this fact was unknown to anyone including the defendant and his legal representatives. If they had discussed the case or their evidence against the defendant after lunch, they would not have done so inside the conference room when they could be seen by people outside the room because the room door had an open window. Had PW2 known that he could not read his notebook when he was giving evidence, he would not have done so when he was sitting on a bench just outside court in the full view of prosecuting counsel and defence counsel. Mr. Allan’s submission that PW2 as a police officer must have known the rule was just as absurd as suggesting that a lawyer must have known all the legal principles. The admissions made by PW1 and PW2 indicated that they were truthful and honest.

40. Much point was made that PW2 was seen reading his notebook on both days. However, it was clear even from the defence case put to PW2 that he was not discussing with PW1 with the help of his notebook on 15 January 2015. It was put to PW2 that he was looking at his notebook when PW1 was looking at his telephone, and the two of them were sitting opposite to one another. It was also clear that PW2 was not hiding himself when he was reading his notebook on 16 January 2015. In addition, there was no indication or hint whatsoever that the evidence of PW1 and/or PW2 had changed after their lunch and conference room gatherings, or as a result of PW2 reading his notebook. There was no indication at all that they departed from their earlier witness statements, or they amended their evidence given in court to make them consistent with one another. In short, there was absolutely no evidence or hint that they had collaborated to give evidence, not to mention collaborating together to give false evidence. I did not find the general credibility of PW1 and PW2 damaged as a result of these incidents.

Conclusion

41. In my judgment, the evidence of PW1 and PW2 had not been shaken under cross-examination. Each of them appeared to me to be an honest and truthful witness, and his evidence on the material issues could be relied upon. Their evidence provided clear and undoubted proof that, from the time when the defendant was stopped by the police up till the conclusion of the video-recorded interview, no force, threat, inducement, pressure or any other kind of improprieties had been used on the defendant to cause him to participate in the video-recorded interview and/or to cause him to make statements during the interview when he was unwilling to do so. On the other hand, I did not accept the evidence of the defendant on the alleged police improprieties before conclusion of the video-recorded interview. As to the evidence of DW2 and DW3, I rejected their evidence on the special issue. I had no reason to doubt the credibility of DW4, but I accepted that PW2 had read his notebook inside the conference room with PW1 opposite to him, which was in fact the evidence of PW2 given during re-examination, though he did not agree with the timing put to him by the defence. In my view, even the evidence of DW4 did not prove that there was discussion or conversation between PW1 and PW2 while they were inside the conference room, and it was clear that there was no evidence whatsoever that they collaborated together to give false evidence. There was no ground which caused me to doubt the credibility of PW1 and PW2 as a whole. Nor did I worry the reliability of their evidence relating to the special issue.

42. I had carefully considered the evidence and the submissions put before me by the prosecution and the defence. I was satisfied beyond a reasonable doubt that the defendant participated in the video recorded interview in question voluntarily, and that all the statements made by him during the interview were made by him voluntarily. In addition, I did not find any ground upon which I should exercise my general discretion to exclude any of the statements made by the defendant. Accordingly, I ruled that the defendant’s video-recorded interview (Exhibit P4) and the related transcripts (Exhibit P5) and certified English translations (Exhibit P5a) admissible in evidence.

[1] PW1 had also arrested and cautioned the defendant for another offence and the defendant had made a reply under caution.  I did not recite this part of evidence because these matters were not relevant to this trial.

[2] DPP v Kilbourne [1973] AC 279; The Queen v To Luen-shun [1995] 1 HKCLR 318.

[3] (1999) 2 HKCFAR 198.

[4] FAMC No. 52/2006.

[5] CACC172/2014.

[6] The defendant had to be remanded in custody for DATC suitability report before he was actually sentenced to DATC on 15 June 2012 in Cases No. TMCC1488/2012.  The normal period for preparation of report was 14 days.  It meant that the defendant should have been kept in custody since around 1 June 2012.  From that time onwards until the defendant was discharged from DATC on 5 March 2013 after serving the two orders made in TMCC1488/2012 and TMCC1777/2012, the defendant had been incarcerated for not less than 9 months.

[7] If any authority is needed, see the comment of D. Pang J. stated in paragraph 21 of the judgment of the Court of Appeal in HKSAR v Chan Wai Lam (CACC172/2014).

[8] [2009] 1 HKLRD 1.

[9]  R v Cheng Ping Chiu (Crim. App. No. 162/1993); HKSAR v Au Yeung Fu (CACC208/2000).

[10] (2003) 6 HKCFAR 322

[11] CACC302/2008 – date of handling down reasons for decision: 30 June 2009.

[12] [2011] UKHL 6.

[13] [2010] 4 HKLRD 409.

[14] [2000] QB 451, at page 480.

Please refer to CACC285/2013 for the relevant appeal(s) to the Court of Appeal.