HKSAR v. Chau Man Chun
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DCCC 776/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 776 OF 2014 -----------------------------------
---------------------------- Reasons for Verdict ---------------------------- 1.There are two defendants in this case. D1 pleaded guilty to his charge of trafficking in dangerous drugs contrary to s.4 of the Dangerous Drugs Ordinance, Cap.134 on the first day of trial and was sentenced on the same day. This Reasons for Verdict deals therefore only with the trial of D2 on charge 2, attempting to traffic in a dangerous drug. Background 2.Patrolling Police officers spotted 2 men in the sitting-out area at the junction of Shanghai Street and Shan Tung Street at around 11:34pm on 7 June 2014. One of the men was seen counting money. When the Police officers approached them to investigate, they turned and walked away. The officers shouted for them to stop and they did. Upon search, a transparent re-sealable plastic bag containing crystallized substances was found from the bag that one of the men was carrying. Police officers suspected them to be dangerous drugs and declared arrest and cautioned that man. It is not disputed that this man was D1. 3.Under caution, the other man said that someone gave him $7,500 to get some ‘coke’(可樂). The Police officer asked that man if by ‘coke’ he meant cocaine and that man said ‘yes’. Police officers thereby declared arrest on him for trafficking in dangerous drugs and cautioned him. At a subsequent video recorded interview, this man confessed that he was offered $1,100 by someone to collect cocaine from D1 that night. It is the prosecution’s case that this other man was therefore attempting to traffic in the dangerous drug that was found on D1 at the time of their arrest. It is not disputed that D2 was this other man. Issues 4.The prosecution relies on the utterance of D2 under caution about someone giving him $7,500 to collect the cocaine, as well as the later admissions made in D2’s video recorded interview. 5.The issues are therefore whether the prosecution can prove beyond reasonable doubt that D2 made the confessions voluntarily and that they are true. After deciding on the weight to accord to D2’s admissions, the next issue is whether the confessions would be sufficient evidence to prove beyond reasonable doubt that D2 was attempting to traffic in the dangerous drug found on D1 at the material time. Prosecution case Admitted facts 6.Facts were admitted pursuant to s.65C of the Criminal Procedure Ordinance, Cap.221 by the prosecution and D2 and are found in exhibit P-21. 7.It is admitted fact that D1 was arrested at 11:38pm on 7 June 2014 by PW2 for possession of dangerous drugs; that the drug found on D1 was 23.55g of a solid containing 22.34g of cocaine; that the street value of the dangerous drug is $25,128 and that D2 has a clear record. PW1 SPC33290 8.PW1 was patrolling at around 11:34pm on 7June 2014 together with his colleague PC16214 (PW2) in the vicinity of the junction between Shanghai Street and Shan Tung Street when he spotted two men in the sitting-out area to his left. They were standing facing each other, with one man counting money. 9.PW1 found that suspicious behaviour and so proceeded with his colleague into the nearby small lane. When they were almost at the middle of the lane, the two men suddenly turned around and wanted to walk away quickly. 10.PW1 immediately walked towards their direction and shouted for them to stop. They did stop. PW1 got up to them and asked them what they were doing. Neither of them answered. PW1 then led them back out from the small lane to Shanghai Street. There PW1 and his colleague asked for their identity documents. They complied and it is not disputed that the two men stopped by the Police officers were D1 and D2. 11.While PW1 stood guard over them, his colleague PW2 searched one of them (not disputed to be D1) and from his black sling bag round a transparent re-sealable bag containing crystallized substances, contents of which was later found to be cocaine. 12.PW2 declared arrest on D1 for possession of dangerous drugs and cautioned him. PW1 then approached D2 and conducted a simple search on him. PW1 then cautioned D2 and asked him what happened. Under caution, D2 said that “$7,500 was given to me to take some ‘coke’ (可樂), the goods were not yet fetched but I was intercepted by you people and arrested”. 13.PW1 asked D2 whether by ‘coke’ he meant cocaine and D2 said ‘yes’. 14.PW1 then declared arrest on D2 for trafficking in dangerous drugs and administered another verbal caution. Under caution, D2 said “Ah Sir, give me a chance, don’t arrest me.” 15.PW1 then told PW2 about D2’s arrest whereupon PW2 declared arrest on D1 for trafficking in dangerous drugs and administered another caution. 16.The arrests were reported and a Police vehicle was arranged to pick up D1 and D2 and it bring them to Mongkok Police station. They arrived there at 12:44am on 8 June 2014, whereupon D2 was brought before the Duty Officer and PW1 reported the matter to him. It is PW1’s evidence that D2 did not make any complaint or request when he was brought before the Duty Officer. 17.PW1 signed out D2 at 12:46am to conduct a search on D2. Nothing of significance was found apart from $1,090.50 cash. D2 was returned back to the Duty Officer’s custody at 1am. 18.At 2:42am, PW1 signed out D2 for a post-recorded statement. At 2:43am, a Notice to person in custody (Police.153) was issued to D2. At 2:50am, PW1 took the post-recorded statement (P-10) with D2 and finished at 3:05am. The voluntariness of this statement was challenged and the special issue was dealt with according to the Alternative Procedure. 19.In the post-recorded statement, D2 signed against a record of what he had said to PW1 under caution at the scene of his arrest as true and accurate. A copy of the post-recorded statement was given to D2 at 3:10am and he did sign in receipt. D2 was returned to the custody of the Duty Officer at 3:15am. 20.PW1 next saw D2 when the dangerous drugs involved in this case was being sealed in a tamper proof bag and handed over to the Duty Officer at 3:48am in front of D2. 21.It is PW1’s evidence that neither himself nor to his knowledge anyone had used force, inducement or threat against D2 at any time. PW2 PC16214 22.PW2 was the colleague who was patrolling with PW1 as mentioned in PW1’s evidence. His evidence confirmed that of PW1. 23.PW2 said he also heard D2 said to PW1 that “$7,500 was given before to get some ‘coke’, he not yet gave the goods to me but was intercepted by you people and was arrested” PW2 then heard PW1 asked D2 if coke meant cocaine and D2 answered “yes”. 24.PW2 then dealt with D1 and then stood guard over D1 and D2 while waiting for Police vehicle to pick them up to go back to Mongkok Police station. PW2 and D1 left the scene first while PW1 and D2 waited for another Police vehicle. PW2 had no further contact with D2. 25.As far as PW2 was aware, cash of $8,446.90 was found on D1 when he was searched at the Police station. 26.It is also PW2’s evidence that neither himself nor to his knowledge anyone had used force, inducement or threat against D2 at any time. 27.During cross-examination, it was pointed out to PW2 that, at the scene of his arrest, D2 had said to PW2 the following: “Ah sir, I just came out to make a repayment, I know nothing about it.” PW2 agreed that D2 did say that to PW1, but he was not clear if PW1 replied to that or not. PW2 later on in re-examination clarified that this was mentioned by D2 during initial questioning, before PW2 had searched and arrested D1 and before PW1 had started to question D2. 28.It was also pointed out to PW2 in cross-examination that he did not record in his witness statement that D2 had said to PW1 words to the effect that someone had given D2 $7,500 for him to get some ‘coke’, that he was arrested before the goods were given to him and that D2 had answered ‘yes’ when being asked by PW1 if ‘coke’ meant cocaine. PW2 explained that he did not so record because it was not words spoken by the person (D1) that PW2 himself was arresting. PW2 confirmed that he did hear the said exchange although he had not written it down in his witness statement. PW3 DPC12401 29.PW3 was the Police officer who conducted a video recorded interview with D2 on 8 June 2014 between 7am and 7:12am. 30.PW3 took D2 from the report room and brought him to interviewing room MK001 at around 6:47am that day. Between 6:48 and 6:58am, PW2 issued a Notice to person in custody to D2. The video recorded interview began at 7am. PW3 would therefore had had about 12 minutes with D2 prior to the start of the video recorded interview. 31.DPC4977 (PW4) was the other person present during that 12 minutes and throughout the video recorded interview. He was waiting in the interview room when PW3 and D2 arrived at the room. 32.It is PW3’s evidence that there were no other conversations material to the case other than that recorded in the video recorded interview, and that neither himself nor anyone to his knowledge had applied force, inducements or threats against D2 at any time. D2 did not make any complaints or requests during the time that PW3 was with him. 33.After the video recorded interview was finished, at around 7:17am, the master disc was sealed inside a valuable property envelope in front of D2 and later a copy of the disc was given to D2 who signed in receipt. PW3 and PC7489 then proceeded to take fingerprints and photos from and of D2. D2 was eventually returned to the report room at 7:36am. PW4 DPC4977 34.PW4 was the Police officer who was present with PW3 when the video recorded interview was conducted. 35.PW4 confirmed that in the 10-15 minutes before the commencement of the video recorded interview, PW3 had issued the Notice to person in custody to D2. He confirmed that PW3 had explained the contents of the Notice to D2 as well as handing over the Notice to D2 for him to read himself. It is PW4’s evidence that during the time that he and PW3 were with D2 inside the interview room, there were no other conversations other than those relating to the Notice, and no one had used force, inducement or threat on D2 at any time. 36.The prosecution’s case closed after PW4’s evidence, subject to the court’s ruling on the Special Issue. There was no no case submission on the Special Issue and I ruled that there was a case on the Special Issue for D2 to answer. 37.D2’s rights were explained by his legal representatives and he elected to give evidence on the Special Issue. D2’s evidence on the Special Issue 38.D2 is 17 years old. 39.It is D2’s evidence that, on the night that he was arrested, after he was intercepted by PW1 and asked what he and D1 were doing there, D2 answered that he had come out “to make repayment to him” (我出來還錢給他). Then he was told to produce his identity card and searched. 40.PW2 searched D1 and found suspected dangerous drugs on him. PW2 asked D1 what it was and verbally cautioned D1. 41.It is D2’s evidence that PW2 then went over to talk to him, asking him what on earth they were doing there, to which D2 replied, ‘I really made repayment to him’. PW2 then asked D2 if there was a transaction going on. D2 said he really didn’t know, that he ‘really came out to make repayment’. Then PW2 told D2 not to play tricks on him, that he was a Police officer and there was nothing he had not seen. D2 answered that he ‘really came out to make repayment’, that he really knew nothing at all. 42.D2 denied that he had said to PW1 words to the effect that he had been given $7,500 earlier to buy some ‘coke’, that he was intercepted and arrested before he could be given the goods. It is D2’s evidence that PW1 did not ask him if ‘coke’ meant the dangerous drug cocaine, nor did D2 answer ‘yes’. 43.In relation to the post-recorded statement (P-10), it is D2’s evidence that PW1 told him that PW1 had written everything for him all to his advantage and not to tell anybody about it because PW1 had committed an offence in doing that. PW1 then read out the contents to D2. When the post-recorded statement exhibit P-10 was shown to D2 in the witness box, he said that he had no idea if it was the same one that PW1 had read. 44.In any event, after reading out the contents, PW1 told D2 to sign by holding the document in PW1’s left hand, with his index finger pointing at the position that he wanted D2 to sign, thus covering up the area where the words ‘coke is a dangerous drug’ is, meaning that D2 was not able to see those words when he put his signature on the document. 45.It is D2’s evidence that PW1 did not read back to him the full contents of the post-recorded statement. PW1 only read the first paragraph and a small part of the second paragraph. 46.In relation to D2’s signature after the first paragraph, D2 said PW1 said at that time to him that he had even written down the mitigation for D2 (求情都幫你寫埋啦), and that PW1 was helping him and told D2 to sign. D2 did so sign. PW1 however did not read the first paragraph of page 2 to D2. 47.It is D2’s evidence that he at this stage asked to see his mother and lawyer and PW1 said to him that he will be able to do so after D2 had signed. PW1 said words to the effect that D2 must sign, if not, he will not be allowed to sleep and not be allowed to see his mother and lawyer. 48.In relation to the declaration that D2 understood about the statement and that he had nothing to add or alter that he had written in his own handwriting at page 3 of the post-recorded statement, D2 said that it was PW1 who told him to write according to what PW1 said. PW1 also said for D2 to sign and that after he had signed he will be ‘all right’ and that D2 would still be able to alter or amend anything any time even after he put his signature down. 49.Although the first declaration states that D2 had read the contents of the statement, in fact it was not true. D2 explained that he was very frightened at that time and PW1 just produced a piece of paper and told D2 to copy down what was on the paper. PW1 told D2 that after copying that and signing it, he would be allowed to see his mother and lawyer. Since PW1 is a Police officer and D2 trusted him, he truly thought that he would be ‘all right’ and be allowed to see his mother and lawyer after he signed. 50.When asked why he wrote down the second declaration and signed against it, D2 gave a similar explanation as regarding the first declaration. 51.When asked why D2 put his signature down again at the bottom of the page with the declarations, he explained that it was because PW1 had told him that after he signed he will be ‘all right’ and that he could alter anything any time. 52.After D2 had completed the statement, PW1 never read through the document for D2. In particular, PW1 never read back the parts about how D2 said he was given $7,500, that ‘coke’ meant the dangerous drug cocaine, nor D2’s answer ‘yes’. 53.After the statement was done, D2 was brought into a ‘cell’, where he proceeded to read the actual contents of the post-recorded statement. 54.At this stage of D2’s examination-in-chief, Mr. Sammy Ho for D2 moved on to ask D2 about what happened at 6:45am on 8 June 2014 when D2 was taken to the video recorded interview room by PW3. This is relevant as later on, D2 gave evidence as to events that happened while he was in the ‘cell’ that was not mentioned in his evidence in-chief. 55.It is D2’s evidence that before the commencement of the video recorded interview, PW3 had asked him ‘to follow what was said in the previous statement’. PW3 told D2 that he will ask D2 some in depth questions, like who D2 was helping and how D2 came to know that person. As for that person’s name, height or build, D2 could just make it up by imagination. 56.D2 claimed that he then told PW3 that he wanted to amend or alter the statement that PW1 took from him earlier. PW3 told D2 that the statement could not be altered at that moment. D2 then asked PW3 if he could have his mother with him during the video recorded interview, whereupon PW3 told D2 that since he was already 16, he was not allowed to do so. 57.According to D2, when he was inside the video recorded interview room, a Notice to person in custody was indeed given to him but PW3 did not read through any of the 1 to 9 notice points to him. From the time that PW3 issued the Notice to him at 6:48am to 10 minutes later when D2 signed on the Notice, PW3 told D2 about what he would be asking D2 in the video recorded interview, that is to say, about who D2 was helping, the name of the person, where D2 came to know that person, and that D2 could just make up by imagination the name, height or build of that person (高矮肥瘦自己作 ). 58.D2 said he was shocked upon hearing PW3 said that, but he chose to follow PW3’s instructions because PW3 said he would help him to say that it was the first time D2 committed an offence, and the sentence would be lenient. 59.PW4 was present throughout that conversation between D2 and PW3. It is D2’s evidence in-chief that PW4 also said something to D2 before the video recorded interview commenced, and before the Notice to person in custody was issued at 6:48am. PW4 told D2 to say he was helping ‘Ah Lung’, that D2 worked for Ah Lung and that D2 came to know him in Sham Shui Po I-One, and to say that Ah Lung saw that D2 was not working and so asked D2 to take something for him. 60.During cross-examination, D2 for the first time mentioned that upon reading in the post-recorded statement in the cell that he had signed to confirm that he was given $7,500 to get some cocaine, D2 tried to inform the Duty Officer. 61.D2 said in the witness box that he used the intercom inside the cell to tell the Duty Officer that he wanted to alter his statement, and that he wanted to see his mother and lawyer. The Officer responded by saying that he will arrange for D2, but in the end there was no response. D2 said he had no idea about the time but that would be 1 or 2 minutes after he had received the statement. 62.D2 said he made 3 or 4 such requests, including requests made to the Duty Officer and a patrolling officer. Later on, D2 said he made only 3 requests. Again, this was never mentioned by D2 in his evidence before. 63.The next time that D2 used the intercom to communicate with the Duty Officer was in the morning, when the Officer gave the same response to D2. 64.It is D2’s evidence that the next time he made a similar request was to the patrolling officer who brought D2 lunch on the afternoon of 8 June 2014. D2 said he told the officer that he wanted to see his mother. The officer told D2 that he will ask the Duty Officer about it. The officer returned about 10 minutes later and told D2 that the Duty Officer had refused his request. 65.As a result of this evidence that was disclosed only in D2’s cross-examination and because this particularly serious allegation was never mentioned in D2’s grounds for objection in relation to D2’s confessions, the prosecution later applied to and was allowed to re-open the prosecution case to call rebuttal evidence. 66.It was pointed out to D2 that regardless of his unanswered requests to see his mother on 8th June, D2 did in fact see his mother at around 5pm on 9June. D2 was then asked whether he told his mother on that occasion that he wanted to see a lawyer. D2 said he did not because he was frightened, because the Police told him that it would be a waste of money even if D2 retained a lawyer. D2 could not remember which Police officer said that to him, but it was said by either PW3 or PW4 prior to the commencement of the video recorded interview. When asked why D2 did not mention this piece of evidence earlier, D2 said he only remembered it just now. Rebuttal evidence 67.As mentioned above, after the close of D2’s case on the special issue, the prosecution applied to re-open their case and called 2 Police officers to rebut the evidence of D2 alleging failure on the Police officers’ part to entertain the defendant’s requests to amend his statement, see his mother and see a lawyer. D2 did not object to the calling of such rebuttal evidence. Nevertheless, I made the ruling that is appended at the end of this Reasons for Verdict. PW5 Station Sergeant Ho Kam Ming 68.PW5 was the Duty Officer on duty between 11pm 7 June and 07:45am the following morning. 69.It is PW5’s evidence that he did receive D2 at 12:45am on 8 June 2014. After the Police officer reported the matter to PW5 and presented D2 to him, the Police officer brought D2 to the report room for further dealing. During PW5’s shift, D2 was never put inside a detention cell, but sat in one of the 10 odd chairs inside the report room for people in detention, and waited for his bail to be dealt with by the Officer in Charge of D2’s case. 70.It is PW5’s evidence that at no time did D2 make any complaints or requests to him either directly or via the intercom system, or related through another Police officer. It is also his evidence that although there might be time when he himself would be away from the intercom, if D2 did use the intercom or otherwise and conveyed his wish to see a lawyer, the matter would be reported back to himself and he would have dealt with it fairly. PW6 PC1526 71.The witness statement of PC1526 was read into evidence pursuant to s.65B of the Criminal Procedure Ordinance, Cap.221 as part of the prosecution’s rebuttal evidence. PW6 was the Police officer who delivered breakfast and lunch to D2 on 8June, both occasions being after the making of D2’s video recorded interview. In gist, PW6 had never received any requests from D2 asking to amend his statement, see his mother or see his lawyer. 72.At the end of D2’s case on the Special Issue and having heard closing submissions from D2’s counsel, I made the ruling to admit the post-recorded statement and the video recorded interview into evidence. At the time, as is customary, I did not give full reasons, which are now included as below. Ruling on the Special Issue 73.It is for the prosecution to prove beyond reasonable doubt that the defendant had in fact confessed to PW1 at scene, as post-recorded in P-10. It is also for the prosecution to prove beyond reasonable doubt that the defendant had voluntarily taken part in the video recorded interview and that the defendant had voluntarily given the answers that he gave in the interview, and that the contents are accurately recorded. 74.The defendant is of clear record and that has been taken into consideration as to the defendant’s credibility and his low propensity to make false allegations against the Police officers when deciding on my ruling. 75.I find PW1, PW2, PW3, PW4, PW5’s (Station Sergeant called in rebuttal) and PW6 (PC1526, whose witness statement was read into evidence pursuant to s.65B of the CPO) honest and reliable witnesses. For those witnesses who gave live evidence, I find that their evidence were not shaken in cross-examination. There is only one discrepancy between PW1 and PW2’s evidence. PW1 said the defendant did not mention to him that the defendant was there to make a repayment. PW2 said the defendant did say that. 76.I find that this is not a significant discrepancy. If PW1 and PW2 are conspiring to lie about how they had dealt with the defendant, the first thing that they would seek to get right would be what the defendant said at scene. It would have been easiest just to say that the defendant did not say anything about repayment. It is possible that either one of the witnesses was wrong in his recollection as to whether the defendant did mention repayment at scene, but still not affect their overall credibility and reliability as to whether D2 did say the incriminating words. 77.The evidence of PW1 and PW2 as to what the defendant had said under caution at scene and that it was correctly stated in the post-recorded statement is supported by the defendant’s own expression in the video recorded interview when the contents was read back to the defendant and he said he understood. Nothing in the defendant’s reaction as seen in the video recorded interview suggests that the defendant was disputing what was read back to him. This is of course subject to the defendant’s allegation that he was told by the video recorded interview Police officers to not make any comments and objections. 78.I find this part of the defendant’s evidence not true. The defendant never mentioned that either PW3 or PW4 had told him to not comment or object to the post-recorded statement in the video recorded interview during his evidence-in-chief, nor during the early part of his cross-examination. It was only mentioned by the defendant when being cross-examined as to why he did not raise any objection during the video recorded interview. 79.I also find the defendant not a truthful witness in relation to whether he had made requests to the Duty Officer. The fact that he had made requests to see a lawyer to the Duty Officer was never mentioned in his evidence-in-chief. Despite the supplemental grounds of objection furnished by Mr. Ho for D2 on the morning of the calling of rebuttal evidence, relying on either the ‘incompetence’ (counsel’s own word, not the court’s) or forgetfulness of counsel and those instructing him, the fact remains that the defendant himself never mentioned those facts in his evidence-in-chief. 80.Furthermore, according to the evidence of PW5, the Duty Officer on duty between 11pm and 0745am of 7th and 8th June 2014, no such requests had been made, either via the intercom to himself or otherwise. I find it inherently improbable that such a serious failure on the Duty Officer’s part and such a fragrant infringement of the defendant’s right by the Duty Officer could have slipped the defendant’s mind. I find that the only irresistible inference must be that the defendant had made up this part of his evidence while in the witness box. 81.The defendant mentioned in his evidence-in-chief that PW4 had also taught the defendant to say that the defendant was helping Ah Lung, that the defendant worked for Ah Lung, that the defendant came to know Ah Lung in Sham Shui Po in I-One arcade, and that Ah Lung saw that the defendant had no work and so asked the defendant to take something for Ah Lung. This according to the defendant was said by PW4 before the Notice to Person in Custody was issued to the defendant. 82.This was never mentioned in the defendant’s grounds of objection and it was not put to PW4 during counsel’s cross-examination of PW4. In fact, both in the grounds of objection and in cross-examination of PW4, those words were only attributed to PW3 and not PW4 as well as PW3. 83.I find that the defendant was lying in court about those words being said by the prosecution witnesses. I find that the evidence of PW3 and PW4 is the truth and no such words had been said by PW3 and PW4 to the defendant. The defendant on his own accord and voluntarily gave the answers he did in the video recorded interview. 84.This finding is supported by the following observations as well. At the beginning of his video recorded interview, D2 confirmed that he could take part in the interview, that he did not need a lawyer, and had read out his own rights. Furthermore, according to the video recorded interview footage, D2 showed no reaction of being surprised at all when what he allegedly said under caution at scene was read back to him during the beginning of the video recorded interview. 85.Mr. Ho in his closing submissions urged the court to exclude the confessions on the ground of unfairness since the defendant had not had enough sleep and would have been tired. I have considered whether this was the case and concluded that it is clear from the video recorded interview that D2 was fully aware of his rights and that he did not appear in any way to be unwell or unfit to take part in the video recorded interview. 86.I find that the prosecution had proved beyond reasonable doubt that PW1, 2, 3, 4, 5 and 6 are credible witnesses. They had never used any force, inducement or threat against the defendant in order to get the defendant’s confession. 87.I had carefully considered the evidence and the submissions that had been made and I was satisfied beyond reasonable doubt that the defendant’s post-recorded statement and the defendant’s video recorded interview were made voluntarily. I did not consider that this is a case where I should exercise any general discretion to exclude the statements on the grounds of unfairness. 88.Upon my ruling on the Special Issue, the prosecution formally closed its case. There was no no case submission from D2 on the General Issue and I ruled that there was a case for D2 to answer on charge 2. D2’s rights were explained by his legal representatives and he elected to give evidence on the general issue. D2’s evidence on the General Issue 89.It is D2’s evidence that on 7 June 2014, he was at the sitting-out area between Shan Tung Street and Shanghai Street junction to make a repayment for his friend, Tam Ho Tin (譚浩天), in the amount of $7,500, being repayment to D1. 90.D2 did not know D1 before that night. The $7,500 was given to D2 by Tam on Thursday, 2 days before. That night, Tam called D2 and asked if D2 was free the coming Saturday night. D2 replied that he was and asked what the matter was. Tam asked D2 if he could help him to repay his friend. D2 asked Tam why he did not go himself, and Tam said he had something else to do on Saturday and so was not free. D2 agreed to do it. 91.Tam then asked D2 to go downstairs and wait for him at the road junction so that Tam could give him the money first. D2 lived in Yiu Tung Estate in Shau Kei Wan but he had no idea where Tam lived. D2 did go downstairs and Tam did come and gave him the $7,500. Tam told D2 that the person whom D2 was to repay was Tang Kwong Fung and that Tang will call D2. D2 confirmed that Tang was D1 in this case. 92.D2 held on to the $7,500 for 2 days and nothing happened to it. On the night of the repayment, D1 called D2 and said they will meet at the sitting-out area at the junction of Shanghai Street and Shan Tung Street. 93.D2 did not receive anything for helping Tam to repay D1. Tam was introduced to D2 by D2’s friend. D2 did not know what Tam does, but know that he was 18 years old. 94.D2 was asked about the contents in his video recorded interview and he confirmed that he did not say those incriminating things and that Ah Lung actually does not exist. 95.As for the cash $1,090 that was found on D2 at the time of his arrest, D2 explained that it was money from his mother. His mother, who works as a masseur, would give him $3,000 every two weeks as living expenses. 96.During cross-examination, D2 first of all confirmed what he said in the witness box in relation to the Special Issue was true and he adopted that evidence as part of his evidence on the General Issue as well. 97.D2 was asked if he tried to contact Tam Ho Tin to give evidence for him. D2 at first said that he had asked Tam to be a witness in court but Tam did not agree. When counsel for the prosecution asked if Tam had told D2 why not, D2 said that he ‘could not locate him.’ D2 then clarified that what he meant was that he intended to call Tam as a witness but failed to locate him. D2 said he tried to contact Tam via the communication software ‘WhatsApp’. 98.It is D2’s evidence that he did not ask Tam what the $7,500 repayment was for. He did not know if it was an urgent repayment or not. The time of the meeting with D1 for the repayment was set by D1 and D2 had no idea why D1 chose that time. 99.When asked whether D2 had telephoned Tam Ho Tin to tell him about how the repayment went, D2 at first said he did not so attempt. When asked why he did not, D2 answered that he ‘could not make phone calls’. D2 then claimed that the phone number had changed and D2 was not able to locate Tam. 100.D2 was then asked about paragraph 30 of his video recorded interview where he claimed that he was told he could earn some quick money. D2 said he was taught to say that by the ‘CID’, DPC12401(PW3). It was then pointed out to D2 that there was nothing in the Grounds of Objection prepared by defence counsel that claimed that the Police officer or any Police officer taught D2 to say the answer in paragraph 30. To that, D2 replied that “what I said in the whole video recorded interview was taught by them”. Findings 101.It is for the prosecution to prove the elements of the offence. D2 is of clear record and I have taken that into consideration when deciding on his credibility. I have also taken into consideration the fact that D2 is of good character may mean that he is less likely than otherwise might be the case to commit this crime he is being charged with now. Findings as to D2’s admissions 102.D2’s verbal admissions, its post-record and his video recorded interview have been produced into evidence. It is for the prosecution to prove that the admissions made by the defendant were in fact made and that they are true. D2’s case is that he did not make the verbal admissions at scene, and that he did not make the admissions in his video recorded interview himself as it was the Police officers who taught him what to say. 103.As I have already, through the Alternative Procedure, ruled that the defendant did in fact make the admissions, I will now have to find whether they are true and what weight to give them. Relevant admissions in D2’s video recorded interview
104.I find what D2 said in the video recorded interview about how Ah Lung gave him a call and asked D2 to fetch something for him for a reward of $1,100 true. I find that someone did telephone D2 and ask him if he was going to ‘fetch the stuff’ and so D2 went to the meeting place. 105.I find that D2 did arrive at the sitting-out area to meet with D1 and did hand over $7,500 to D1. I accept as true that D2 did not know who D1 was. 106.I find that D2 did admit that he was paying the $7,500 to D1 to pick up some ‘coke’ (可樂). I find that D2 did say that he knew ‘coke’ was the dangerous drug cocaine. 107.I find that I can give full weight to D2’s admissions referred to above and find therefore that by the time D2 was stopped by the Police officers, D2 had in fact already paid $7,500 to D1 in order to collect the cocaine for one ‘Ah Lung’. Prosecution witnesses’ credibility 108.As far as it is relevant to the General Issue, I find that PW1 to PW5 are honest and reliable witnesses. I further find that the evidence of PW6 that was read into evidence is also true and accurate. 109.I find that D2 did voluntarily say the following when he was being questioned by PW1 under caution at scene. When D2 was asked what he was doing there, D2 answered with words to the effect that he had been given some money by someone to hand over to D1 in order to collect some ‘coke’. 110.This fact was confirmed in D2’s later video recorded interview, when the contents of what he said was read back to D2 and D2 did not raise any objection as to the accuracy and truthfulness of what was read to him in the interview. D2’s credibility 111.I find D2 not an honest or reliable witness. I find D2’s story about how the Police had taught him to say everything in his video recorded interview inherently improbable for the following reasons. 112.By the time of the video recorded interview, two significant events had taken place. First was that D2 was already aware that he had been tricked by PW1 into signing the post-recorded statement, contents of which are entirely false, especially the part where the Police officer said D2 told him that he was there to pay money for ‘coke’. 113.As for the second event, if D2’s story is to be believed, after D2 realized the trickery of PW1 while inside the detention cell, D2 had made at least 2 requests via the intercom to the Duty Officer, the first one being just 1 to 2 minutes after being placed inside the cell, asking to be allowed to amend his statement, to see his mother and to see a lawyer. None of his requests had been answered. In fact, although the Duty Officer had said he will arrange for it, as it turned out, the Duty Officer was also lying, because according to D2, in the end there was no response. 114.So when D2 was brought to the interview room by PW3, he must be well aware that the Police officers are out to frame him and are not going to treat him with any fairness. Anyone would have realized that he was in big trouble and being set up by the Police, even someone of D2’s age (16 years and 7 months) at that time. 115.Yet, despite all that, when PW3 and PW4 told D2 to make up a fictional character, to give that person a fake name and invent how that person looked, D2 did it without questioning the Police officers. 116.According to D2’s own evidence, he said he signed in the post-record of PW1’s notebook because he trusted PW1 as a Police officer. This trust would have completely evaporated by the time D2 was to take part in the video recorded interview because of the two events mentioned above. Yet, D2 appeared calm and collected throughout the video recorded interview. He gave the answers of his own accord. There was no hesitation at all when D2 came up with the character of Ah Lung and the story of how he contacted D2 to invite D2 to make a quick buck by helping him to collect something. 117.As for D2’s evidence on the General Issue as to how he was at the sitting-out area just to make a repayment for Tam Ho Tin, I find that not to be true. 118.Given that I have found what D2 said under caution at scene and in his video recorded interview is true, it must by implication be the only logical conclusion that what D2 said in the witness box about being there to make a repayment untrue. 119.This conclusion is supported by the fact that D2’s story in the witness box is most unconvincing. It is supposed to be D2’s evidence that ever since the night of the incident, D2 had been unable to contact or locate Tam Ho Tin, the person who was supposed to have asked D2 to repay the $7,500 to someone. This raises two questions. 120.First, if Tam Ho Tin knew that D2 and D1 were arrested on the night that the repayment was supposed to have taken place, it is inexplicable why Tam Ho Tin would not contact or try to contact D2 through their common friends to see what had happened. According to D2’s evidence, Tam Ho Tin never tried to contact himself or their common friends. 121.Secondly, if Tam Ho Tin did not know that D2 and D1 were arrested on the night of the alleged repayment, why hasn’t D2 been able to contact Tam Ho Tin since? It is D2’s evidence that he did make the phone calls but Tam Ho Tin had apparently stopped using the phone number that D2 was calling him at. It would have to be pure coincidence that Tam Ho Tin had changed his number shortly after D2 had made a repayment for him. Even if that was the case, any normal person in the position of Tam Ho Tin would have followed up with a phone call, or even WhatsApp (or other text based communication phone software) message, to D2 to see how the repayment went. According to D2, Tam Ho Tin never did that. 122.Therefore, either under the scenario of Tam Ho Tin knowing that D2 was arrested or not knowing, it is extremely strange that D2 would suddenly have lost contact with Tam after the night of the repayment and D2’s arrest for trafficking in dangerous drugs. 123.For the above reasons, I find D2’s version of what happened inherently improbable and I disbelieve him in relation to his evidence given in court as to how he was just there at the material time to make a repayment to D1 on behalf of one Tam Ho Tin. Verdict 124.As I mentioned above, I do however find that D2 was telling the truth when he told PW1 that he was given the $7,500 by someone to pay for some ‘coke’. I also find he was telling the truth in his video recorded interview about how that person was Ah Lung and that D2 was to receive $1,100 for his trouble. 125.I find that D2 therefore knew that he was paying for cocaine and that D2 did pay the $7,500 to D1 for the cocaine that was found on D1 upon their arrest on the night. This finding is supported by the fact that all the cocaine was contained in just one re-sealable plastic bag, the fact that there were no other plastic bags found on D1 that would have allowed the cocaine to be split up. I find that it is an irresistible inference that the whole bag of cocaine found on D1 was to be handed over to D2 upon receiving the $7,500 from D2. It was only because of the interference of the Police officers PW1 and PW2 that disrupted the transfer. I find therefore that what D2 had done in handing over the $7,500 in order to collect the cocaine from D1 was more than mere preparation and that D2 was in fact attempting to traffic in the dangerous drugs of cocaine that was found on D1’s person. 126.I find that there are no lawful excuses for D2’s attempting to traffic the dangerous drug. 127.I find that D2 did on 7 June 2014 at the sitting-out area near the junction of Shanghai and Shan Tung Street, Mongkok, Kowloon, attempt to unlawfully traffic in a solid containing 22.34g of cocaine, and I convict D2 of charge 2 accordingly.
Appendix 1 Ruling on prosecution’s application to call rebuttal evidence It was never mentioned in the grounds of objection nor D2’s evidence-in-chief that the Duty Officer of the Police station had ignored D2’s request to amend his post-recorded statement, to see his mother and most importantly to see a lawyer. This evidence first came out in D2’s cross-examination. During D2’s evidence-in-chief, no questions were asked by his counsel in relation to this serious allegation of the Duty Officer ignoring repeated requests for legal representation. I ruled that although the evidence of the Duty Officer and the officer who had delivered the meal to the defendant at the relevant time would have been available to the prosecution from the beginning, the relevance of their evidence only arose as a result of D2’s evidence in cross-examination. I therefore exercised my discretion and allowed the prosecution to call rebuttal evidence on whether the Duty Officer and one other Police officer did fail to entertain the defendant’s requests to amend his statement, to see his mother or to see a lawyer. | ||||||||||||||||||||||||||||
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Further hearings and rulings under DCCC 776/2014