HKSAR v. Ip Tsz Yau

DCCC 70/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 70 OF 2015

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Reasons for Verdict
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1.The defendant pleaded not guilty to one count of assaulting a Police officer, contrary to section 63 of the Police Force Ordinance, Cap.232 and two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Background

2.Police mounted an anti-narcotics operation and laid ambush outside the defendant’s home in Shui Moon House, Tin Shui Wai, Tuen Mun. The defendant was apprehended in the corridor outside his flat. The defendant allegedly pushed a sergeant against the wall in the process, causing the sergeant to suffer a minor injury (charge 1).

3.The defendant was searched and drugs contained in a bag were allegedly found from inside the defendant’s underpants (charge 2). A house search was then conducted at the defendant’s home and further drugs and cash of $21,000 were found on a computer desk inside the defendant’s bedroom (charge 3).

4.It is the prosecution’s case that the defendant was cautioned at scene and confessed that the $21,000 and ketamine found on the computer desk inside the flat was his and for his self-consumption. The defendant denied making such a confession and accused the Police of fabricating the confession and his signature.

Issues

5.It is the prosecution’s case that at the time of his arrest, the defendant was wearing a yellow jacket and blue jeans. The bag of ketamine in charge 2 was found inside the defendant’s underpants.

6.The defendant’s case, however, is that he was wearing a pair of black shorts and white t-shirt, with no underpants. It was only after the defendant was brought back into his home and at the defendant’s request that he had put on underpants and changed into the jacket and jeans.

7.The defendant made some serious accusations against the Police. It is the defendant’s case that he was never in possession of any of the dangerous drugs allegedly found on his person and in his bedroom. He never assaulted any Police officer. Instead of being searched in the corridor outside his flat, the defendant was brought to the rear staircase where he was threatened to confess and where a sergeant took out a bag of things, presumably dangerous drugs, and told the defendant to admit that it was his.  The defendant was also assaulted there.

8.It is the prosecution’s case that the defendant was alone at the time of his apprehension outside his flat, and that there were nobody else in the vicinity. The defendant gave evidence himself and called two defence witnesses to corroborate his evidence as to his attire at the time he was subdued in the corridor outside his flat, and that two of the defendant’s friends were also present at the scene of apprehension and that those two friends themselves were held by the Police officers in the rear staircase for 3 hours before they were allowed to leave.

9.Although the defence witnesses’ evidence do not say directly as to how the Police had threatened the defendant and planted the drugs against the defendant, their evidence, if accepted, would cast a reasonable doubt on the credibility of the prosecution witnesses. The court will have to consider whether the prosecution witnesses’ wrong description of the attire of the defendant, and their failure to acknowledge the presence of the two friends of the defendant was an act of lying or mere forgetfulness on the part of the witnesses. If the wrong description and failure to mention was deliberate, the court will then have to consider whether such conduct would render the rest of the evidence of the prosecution witnesses unreliable and incredible.

Summary of Prosecution evidence

10.PW1 PC9486, PW2 PC8245 and PW3 Sergeant 58794 gave evidence for the prosecution.

PW1 PC9486

11.On 9 November 2014, they together with 5 other police officers carried out an anti-narcotics operation at the 4^th floor of Shui Moon House in Tin Shui Wai.

12.At around 7:52pm, PW1, PW2 and PW3 were standing at a corner of the lift lobby on 4^th floor when the defendant came out of flat 409 and walked towards the officers’ direction. PW1 immediately walked out of their corner, approached the defendant and told him that he was a police officer.

13.The defendant immediately turned around towards flat 409. PW1 together with his teammates immediately went up to stop him and PW1 showed the defendant his police warrant card again, explaining to him that they found him looking suspicious and asking the defendant to show his proof of identity.

14.At that moment, the defendant used both his hands to push against the chest of PW3 Sergeant 58794 causing him to bump against the wall behind him. PW1 and PW2 went up to stop the defendant, who kept on waving around his limbs and struggling.

15.The defendant was eventually pressed on to the floor and subdued by the police officers and handcuffed by PW1. After the defendant had calmed down, he was brought back on his feet. PW1 conducted a quick pat down search of the defendant and noticed something bulging around his waist area. Upon a more careful search, PW1 found a bag stuffed between the defendant’s waist and his underpants. PW1 took out the bag and found that it was a transparent re-sealable plastic bag. Inside were 12 other transparent plastic bags. Inside each of the 12 bags was some white powder. PW1 suspected that they were the dangerous drug ketamine.

16.PW1 also found 5 keys, one mobile phone and an identity card belonging to the defendant from his trousers pocket. PW1 then arrested and cautioned the defendant for assaulting a police officer and trafficking in dangerous drugs. Under caution, the defendant said he had nothing to say. PW1 immediately wrote down what the defendant said under caution in his notebook and then released the handcuff on the defendant’s right hand to let him sign in his notebook for confirmation.

17.PW2 took over the bags with suspected drugs, the keys and the phone for safe custody.

18.Meanwhile, PW1 showed a search warrant for flat 409 to the defendant and explained to him the contents of the warrant as well as the rights he was entitled to. At 8:02pm, in the presence of the defendant, PW2 used the keys seized from the defendant to unlock the gate and wooden door of flat 409. There was no one inside the flat.

19.PW1, PW2 and PW3 then entered the flat. PW1 asked the defendant which room was his and the defendant pointed it out. PW1 then entered that room and saw a re-sealable bag with white powder inside, two mobile phones and a stack of money on the computer desk inside the room. The money was later counted and found to be cash of $21,000.

20.PW1 cautioned the defendant again and asked the defendant to whom the bag, phones and money belonged. The defendant said words to the effect that the ‘K chai’ was for his self-consumption and the money was also his. PW1 immediately recorded what the defendant said in his notebook and then showed the defendant what he had recorded. PW1 then released the handcuff on the defendant’s right hand for him to sign against the record. PW1 then handed over the found items to PW2 for his safe keeping.

21.PW1 continued to search the flat until 9:30pm but nothing suspicious was found and he left the flat with the defendant at 11pm to go to Tin Shui Wai[1] police station, and later to Tuen Mun police station.

22.According to PW1, at the time the defendant was first seen in the corridor outside flat 409, he was wearing a yellow jacket, blue jeans and flip flops. The defendant did not have any cash, octopus card or credit card on him.

23.It is the evidence of PW1 that in the course of subduing the defendant in the corridor, someone did open the door from inside the flat opposite to 409 and asked what was going on. PW1 however just focused on dealing with the defendant and did not pay attention to that person and have no idea if that neighbor said or did anything at all.

24.It was pointed out in cross-examination to PW1 that he did not record in his first notebook that the drugs were found inside the defendant’s underpants.

25.According to PW1, he did read out the contents of the second notebook entries but the defendant had refused to sign against it to confirm.

PW2 PC8245

26.PW2 was one of the team members mentioned in PW1’s evidence.

27.At around 7:52pm, PW2 was with PW1 and PW3 near the lobby on the 4^th floor of Shui Moon House conducting observation when PW1 suddenly went towards the corridor outside flat 409. PW2 and PW3 followed and then saw a man outside flat 409. The man was wearing a yellow jacket, zipped up, blue jeans and flip flops and was walking towards the witness. He was later identified as the defendant.

28.PW2 saw that the moment PW1 told the defendant that they were police officers, the defendant turned around to leave. PW2 and his colleagues went up to stop him. PW1 repeated that he was a police officer and showed the defendant his warrant card. PW2 and PW3 also showed their warrant card.

29.When PW1 demanded to conduct a body search on the defendant, he suddenly used both his hands to push towards the chest area of PW3 and caused him to fall against the wall behind him. The defendant at once turned around to run away but PW2 and his colleagues apprehended him, who kept on waving around his arms trying to ward them off. PW2 and PW1 then subdued the defendant by pressing him on to the floor.  PW1 handcuffed the defendant and then helped him up. When PW1 proceeded to search the defendant, he found from the right side of his waist near his underpants, a transparent re-sealable plastic bag. PW2 saw the search clearly because he was standing right next to them.

30.PW1 continued to search the defendant and found from his pants some keys, a mobile phone and an identity card. PW1 then declared arrest on the defendant and cautioned him. PW1 then handed over the items found on the defendant to PW2 for him to seize them as exhibits.

31.PW2 then saw PW1 showed a search warrant to the defendant, explaining the contents of the warrants and his rights. PW1, PW2 and PW3 then took the defendant into flat 409, with PW2 using the keys found from the defendant to unlock the gate and wooden door of the flat.

32.There was no one inside the flat. They asked the defendant which room he occupied and he told them. PW1 then searched the room in front of the defendant. PW2 saw him found a transparent plastic bag with white powder inside, 2 mobile phones and some cash from on top of a computer desk inside the room. PW1 then cautioned the defendant for trafficking in dangerous drugs. The found items were then handed over to PW2 for his custody.

33.PW2 was the police officer that drew the P-18 sketch of the flat. Room 3 on the sketch is the room that the defendant said was his.

34.During cross-examination, PW2 confirmed PW1’s evidence that the handcuffs on the defendant had been released for him to sign his name. The first time the defendant was asked to sign was in the corridor outside flat 409 after PW1 had declared arrest on the defendant. The second time was inside flat 409 after the suspected bag of drugs was found on the computer desk. PW2 saw the defendant signed in the notebook of PW1.

35.It is PW2’s evidence that when he first intercepted the defendant, he did not see anyone else at the scene. PW2 however did see a neighbor in the opposite flat of 409 turned up to make enquiries at the time when the defendant was being subdued.

PW3 Sergeant 58794

36.PW3 is the sergeant mentioned in the evidence of PW1 and PW2.

37.At around 7:52pm on the night in question, PW3 saw the defendant being stopped by PW1 and PW2 at the corridor near flat 409. The defendant was wearing a yellow jacket, blue jeans and flip flops.

38.PW3 saw PW1 showing the defendant his warrant card. At that moment, the defendant turned and tried to go back to the direction of flat 409. The three police officers immediately went up to stop him and then showed him their warrant cards again.

39.When PW1 demanded to see the defendant’s proof of identity and requested to search his person, the defendant suddenly used both hands to push on PW3’s chest area, causing him to fall backwards against the wall behind him. As a result of the push, the back of PW3’s left hand suffered an abrasion and bled. It is admitted fact that PW3 was later taken to Tuen Mun Hospital where he was examined by Dr. Wong who found a fresh abrasion to PW3’s left hand.

40.PW3 did not witness the search of the defendant by PW1 because he did not think it was necessary for him to do so. He was later told that a transparent re-sealable plastic bag was found.

41.PW3 later entered flat 409 with the defendant. PW1 asked the defendant which room was his and then PW1 conducted a search of the room.

42.During cross-examination, PW3 confirmed that there were no other people outside flat 409 at the material time other than the police officers. He did see a resident who came out from the flat opposite 409. The man stayed for about 1 minute.

Summary of defence evidence

The defendant’s evidence

43.The defendant fully understood his rights and elected to give evidence.

44.The defendant is 32 and was working as a delivery worker on a casual basis, earning about $5,000 per month. The defendant voluntarily disclosed in his evidence-in-chief that he has 6 previous criminal convictions for possession of dangerous drugs, with the most recent being in 2007.

45.The defendant has been living in flat 409 for almost 20 years.

46.On 9 November 2014, at just before 8pm, the defendant was home alone when he received a phone call from his childhood friend ‘Ah Chiu’. The defendant had lent $1,000 to Ah Chiu two weeks ago and Ah Chiu called to say that he had arrived at the 4^th floor lift lobby to repay the money.

47.The defendant therefore brought his wallet, mobile phone and keys and went out to the lift lobby wearing a white t-shirt, black shorts and flip flops. The defendant was not wearing any underpants.

48.At the lift lobby, the defendant saw his friend Ah Chiu with his friend Ah Ming. Ah Chiu handed over $1,000 to the defendant. The two chatted for about 1 minute and then the defendant turned around to go home. Suddenly someone put a hand on his shoulder from behind and pulled him. The defendant recognized him as the PW3 Sergeant. Then another 2 or 3 people who claimed they were police officers came out and pressed him on to the floor between the lift lobby and the corridor of flat 409.

49.The defendant yelled out. He then saw his two friends being brought by the police to the corridor. The defendant called out to Ah Chiu to use his phone to video what was going on. PW3 however stopped Ah Chiu and told him not to do so. It must be pointed out here that this allegation was never put to PW3 in cross-examination.

50.Ah Chiu and Ah Ming were then ordered by the police to squat down. Then the defendant’s neighbor Mr. Kwan came out from the flat opposite to 409. The defendant was however unable to remember Mr. Kwan’s flat number.

51.Mr. Kwan came out and asked PW3 what was going on and PW3 told him that the defendant had assaulted a police officer. The defendant heard Mr. Kwan asking PW3 whether it was necessary for him to call an ambulance but PW3 said there was no need to do so. Again, this was not put to PW3 in cross-examination.

52.The defendant, despite being on the floor, told Mr. Kwan to keep an eye on what was going on. Yet again, this was not put to PW3 in cross-examination. Mr. Kwan talked for a short while with the police and then returned to his flat.

53.Meanwhile, Ah Chiu and Ah Ming were brought to the rear staircase by two police officers. The defendant is not able to say who the officers were.

54.Then PW2, PW3 and two other police officers took the defendant to another staircase on the other side. There, two police officers that had not given evidence, assaulted the defendant, saying that the defendant had offended their superior. The defendant did not give details as to this assault in his evidence-in-chief.

55.The police officers then pretended to make a phone call, asking the defendant if he believed that he was going to summons someone to come, saying something about getting something for the defendant, telling him to confess.

56.The defendant then saw PW3 took out a big transparent bag from the bottom of the mesh near the water meter room and brought it over to the defendant to show him, telling the defendant to confess.

57.The defendant told the officer not to frame him up. PW3 then swore at the defendant and said that since he had started doing “dd” case he had never lost. Then the sergeant took out a key to open the door to flat 409.

58.Then 2 police officers brought the defendant out of the staircase for a house search. On the way at the lobby, the defendant saw Mr. Kwan again. The defendant nodded to him.

59.The defendant was then brought back to his home at flat 409. During the search of his home, one of the police officers who gave evidence brought the defendant into one of the rooms. There the defendant saw some money and white powder on the computer desk. Then the police officer told the defendant to confess. The defendant said he will not. The defendant was then told to sit in the sofa in the sitting room.

60.After a while, the defendant told the police that he felt cold and that he would like to change his clothing. The defendant was permitted to so and it was only then that the defendant had put on the yellow jacket and a pair of blue jeans. The defendant also put on a pair of white briefs. According to the evidence of PW1, the defendant was wearing a pair of black underpants with an elastic band. Counsel for the defendant did not challenge the colour of the underpants in cross-examination of PW1, just that why PW1 did not seize the underpants as exhibit.

61.The defendant then waited for police vehicles and was later brought to the police station.

62.It is the defendant’s evidence at first that prior to his arrival at the police station, he had not signed in any police notebook. The defendant however later confirmed in his evidence-in-chief that it is his signature at the 19:56 entry on page 117 of the first notebook of PW1. It is his evidence that he signed this inside the flat and not in the corridor as PW1 said.

63.When the defendant was later cross-examined, he claimed that the contents of this first notebook entry at page 117 was never read over to him. It is further the defendant’s evidence upon being cross-examined that when he read the page 117 entry, the 7 Chinese characters ‘trafficking in dangerous drugs’ (販運危險藥物罪) were not there when he was given the notebook to read. The defendant also claimed that the 4 Chinese characters ‘I have nothing to say’ (我無嘢講) were also not there when he was given the notebook to read. It is the defendant’s evidence that those characters were all written by the police officer. The fact of the missing characters was never pointed out to PW1 in his cross-examination.

64.The defendant however was not sure whether the place for the 7 Chinese characters were left blank or not. He was however sure that the place for the 4 Chinese characters were left blank when he read it. When the defendant was asked why he did not mention this to his legal representatives so that they could put this to PW1 when he gave evidence, the defendant explained that it was not until his own cross-examination that he could read the notebook and that before that he could not read the notebook. When asked if he had ever seen a copy of the notebook, the defendant answered that he did not remember.

65.The defendant denied that the signature on page 118 of the same notebook was his. He did however in his cross-examination agreed that the 3 Chinese characters were the characters in his Chinese name. He also denied that he had said words to the effect that the ketamine was for his self-consumption or that the money was his at all.

66.As for the cash that the police said were found on the computer desk, the defendant said that it was his money but that they were kept inside a drawer at the head of the bed. When asked by his counsel how much money that would be, the defendant answered “$21,000”. This differed with the version put to the prosecution witnesses by the defendant’s counsel, which was that there was only $20,000, with the $1,000 being repayment by Ah Chiu to the defendant made in the lift lobby.

67.The defendant was then asked about the $1,000 from Ah Chiu and he said that the police had seized it and he did not know what had happened to it.

68.It is the defendant’s evidence that he had never seen any dangerous drugs inside his home at any time on that day prior to his arrest, nor did he have any drugs on his person when he left his flat to meet Ah Chiu that day.

69.In cross-examination, the defendant further confirmed that he has a previous criminal conviction for taking conveyance without authority in 2005. The defendant said that he was not a drug addict in November 2014.

70.The defendant confirmed in cross-examination that it was PW3 who went up to stop Ah Chiu from taking a video. It was then pointed out to the defendant that his counsel never put that to PW3 in cross-examination.

71.The defendant said he did not ask his neighbour Mr. Kwan to take a video because he saw that Mr. Kwan did not have a phone with him. The defendant repeated that he did ask Mr. Kwan to pay attention to what was going on.

72.Counsel for the prosecution asked the defendant why he did not request an identification parade to identify the officers who brought Ah Chiu and Ah Ming to the rear staircase. The defendant explained as follows. As soon as he had received copies of the witness statements he had passed them on to his legal representatives. It was not until the prosecution witnesses had given evidence that the service number of the other officers was mentioned. It is the defendant’s evidence that he was sure he could identify those officers.

73.It is the defendant’s evidence that it was PW3 who had taken out a big transparent bag from the water meter that was near the mesh cover and said that he had never lost a ‘dd’ case. When asked if that was said in the presence of PW2, the defendant said that it was “at the back of PW2”, but that PW2 was close enough to have heard what was said by PW3. It must be noted that this was not pointed out to PW2 or PW3 in their cross-examination.

74.It was in cross-examination that the defendant first mentioned that he was searched in the rear staircase, and that the police officers had also seized the defendant’s wallet in addition to the keys and mobile phone the defendant had on him. It is the defendant’s evidence that since he did not have any pockets in his clothing when he left his flat, he simply carried everything in his hand, that is to say, the bunch of keys, the wallet and one mobile phone.

75.During the defendant’s cross-examination, it was suggested to him that when the defendant was brought inside flat 409, he pointed out to the police officers where his bedroom was. The defendant answered that he did.

76.At the end of the defendant’s cross-examination, I inquired with the defendant if he was allowed to see the Duty Officer when he was brought back to Tin Shui Wai police station. The defendant said he was allowed to see the Duty Officer, but he did not complain about what PW3 did to the Duty Officer, nor did he file any complaint about the sergeant or the other police officers at all. Neither prosecution counsel nor defence counsel had any follow up questions.

DW1 Mr. Kwan Yu Chan

77.Mr. Kwan is 59 and a construction and mechanical maintenance worker. He lives in flat 406, which is right opposite the defendant’s flat 409, in Shui Moon House, Tin Shui Wai. He has one previous conviction for fraud in 1987 when he was fined $2,000. The fraud he perpetrated was against his employer for payment of work that he in fact had not done.

78.Mr. Kwan has been living at flat 406 for about 23 years. He had known the defendant and his father for about the same length of time and has been their neighbour for over 20 years.

79.At around 8pm on 9 November 2014, Mr. Kwan was home having dinner when he heard some noise outside his unit. He opened the wooden door to have a look and saw some people outside. He asked what they were doing and one of them said ‘Police’. Mr. Kwan then opened the iron gate as well to see what was going on. He saw several people in the corridor, and 2 young men squatting in the corridor. Mr. Kwan did not know the young men but nevertheless asked them what was going on and one of the young men said something about how he did not put up a struggle and so there he was.

80.Mr. Kwan was then told by one of the Police officers that somebody was consuming dangerous drugs there. Mr. Kwan was surprised about that, and asked if the person lived on the same floor. At the same time, Mr. Kwan saw that someone was being pressed down on the floor in the corridor by people whom he believed were Police officers.

81.After the Police officers moved aside, Mr. Kwan saw that the person on the floor was the defendant. The Police officers asked him if he knew the defendant and Mr. Kwan said yes, and that he lived in the opposite flat. The defendant did acknowledge Mr. Kwan by addressing him. Mr. Kwan then asked the defendant what he was doing there and whether he needed to call the defendant’s father for him.

82.Police officers said since the defendant was an adult, there was no need to do so. One of the Police officers who was squatting down next to the defendant mentioned to Mr. Kwan that his leg was injured. Mr. Kwan could see the leg had what looked like a few dots of blood and asked if the officer needed a plaster or medicine. The officer said he did not need it.

83.A Police officer then wrote down the personal particulars of Mr. Kwan on something like a clipboard, including his name, telephone number and identity card information. Mr. Kwan then returned to his flat and continued with his dinner.

84.About 10 odd minutes later, Mr. Kwan went to bring the trash out. When he opened the door of his flat, he saw the defendant was being taken into room 409 by the Police. Mr. Kwan tapped on the defendant and asked if he was all right. Then the defendant entered into the flat and Mr. Kwan continued to take the trash out to the lift lobby. When there, he bumped into the Police officer who had taken his particulars earlier and Mr. Kwan asked him what happened. The officer told him that dangerous drugs were found in the rear staircase and that the Police were waiting for forensic people to come and examine it. Mr. Kwan told the officer to check carefully because something like that had never happened before. Mr. Kwan then returned to his flat.

85.It is Mr. Kwan’s evidence that the defendant was wearing a white t-shirt, flip flops, and a pair of dark coloured shorts that looked like boxer shorts.

86.After the incident that night, the Police had never contacted Mr. Kwan again. It is Mr. Kwan’s evidence that it was the defendant’s father who had asked him to come to court to tell what he saw, that he did not know anything about the defendant’s previous convictions, and that he was not lying to try to get the defendant out of trouble.

DW2 Chan Hung Chiu

87.Mr. Chan is one of the two young men whom Mr. Kwan saw squatting in the corridor that day, and is the ‘Ah Chiu’ mentioned by the defendant in his evidence.

88.Mr. Chan is 28 and lives in Tin Shui Wai. He is of clear criminal record. He works as a transportation worker. He had known the defendant for over 10 years and they are friends.

89.It is Mr. Chan’s evidence that at around 8 pm on 9 November 2014, he went up to the 4^th floor of Shui Moon House to repay $1,000 to the defendant. He had borrowed the money about 2 weeks ago. Mr. Chan went there together with his friend Leung Chi Ming (Mr. Leung was not called as a witness).

90.When they arrived at the lift lobby on the 4^th floor, since Mr. Chan did not want to go into the defendant’s home, he telephoned the defendant and told him to come out. The defendant did come out. At that time, the defendant was wearing a white t-shirt and black shorts. Mr. Chan could not remember what footwear the defendant had on.

91.Mr. Chan then gave the $1000 to the defendant who then turned to return home while Mr. Chan waited for the lift to leave. It was then that Mr. Chan saw two men rushed out from the landing of the staircase to get hold of the defendant. Mr. Chan and his friend were also held by another person who came out from the staircase on the other side.

92.After the men got hold of the defendant, they pressed him down to the ground in the corridor, near the flat opposite to the defendant’s room 409. Mr. Chan and his friend were then taken by someone, who had identified themselves as Police officers, to near the defendant’s flat and were ordered to squat down.

93.Mr. Chan remembered that the defendant asked him to use his mobile phone to take a video of what was happening but the Police stopped him from doing so. Then a neighbour came out to see what was going on. The Police told him that they were working, and later said that the defendant was in possession of dangerous drugs and had assaulted a Police officer.

94.Mr. Chan and his friend were then taken to the landing of the staircase that was nearer the defendant’s flat. There they were searched and their identity cards checked. They sat there and waited for about 3 hours before the Police allowed the two of them to leave via the staircase.

Findings

95.It is for the prosecution to prove beyond reasonable doubt all the elements of the offences. Although the defendant had voluntarily disclosed his previous convictions, it is not evidence towards the defendant’s guilt, merely his credibility as a witness, if at all.

96.I find the prosecution witnesses honest and reliable. I find that they have not been shaken under cross-examination.

The notebook entries

97.According to PW1, he had cautioned the defendant twice. The first time was while they were still in the corridor and when the drugs were found from inside the defendant’s underpants. In relation to this caution, the record that PW1 made was just that he had arrested the defendant for the offences of assaulting a police officer and trafficking in a dangerous drug. There was no mention in the record as to where the drug was found. For this, the defendant indicated he had nothing to say.

98.The second caution was administered after drugs were found inside the defendant’s room. In this record, PW1 had clearly recorded where the suspected drugs and the money were found, that is to say, “on a computer desk in your room”.

99.PW1’s explanation as to why there was no mention of finding the drugs from the defendant’s underpants is that the circumstances at that time did not allow him to do so, because he had to enter the flat to conduct a house search.

100.PW1 agreed that he did not serve a copy of this notebook entry where the defendant had allegedly confessed to the witness. PW1 explained that it was his ‘usual practice’ that such a copy would not be given to the defendant. A copy of the post-recorded notebook entry (“the second notebook”) was however given to the defendant.

101.In the second notebook, PW1 clearly sets out more details of the alleged assault and trafficking, specifically mentioning how the defendant had pushed Sergeant 58974 (PW3) against the wall and that the drugs were found in the defendant’s underwear.

102.I find that it is understandable that PW1 would not write down the full details of the arrest while still in the corridor. As he said in evidence, it was a contemporaneous record of what the defendant had said under caution. I accept PW1’s explanation that he had later on in his post recorded notebook entry set out in details what was said in the corridor.

103.I find that PW1 is telling the truth when he said he had given the notebook for the defendant to read and sign and that the defendant did sign both the signatures at page 117 and page 118 of the first notebook (P-14).

104.According to the defendant, in relation to the 11 Chinese characters at page 117 of PW1’s first notebook, they were left blank when he read them. Yet this significant fact was never put to PW1.

105.I also find it inherently improbable that the defendant had never read the notebook prior to giving evidence in court. It is his own evidence that he had been given a copy of the notebook, which he had passed on to his legal representatives. If that is the case, it is incredible that the defendant himself did not read the contents of the notebook before passing the notebook on to the lawyers. It is even more incredible that counsel preparing for trial would not show or refer the contents of the notebook to the defendant. I find that the defendant is not telling the truth when he said those Chinese characters were not there when he first read them at scene. I find that he is not telling the truth when he said that he did not say those things recorded in the notebook.

106.I find that the defendant did say the words as recorded by PW1 in his first notebook voluntarily. I find that it is an accurate record of what the defendant had said under caution after his arrests in the corridor and inside flat 409.

The defendant’s version of facts inherently improbable

107.I find the defendant’s version of how the police had brought him to the rear staircase to beat him up and frame him inherently improbable for the following reasons.

108.According to evidence of all the prosecution witnesses, they were aware of the presence of Mr. Kwan the neighbour who had come out from his flat to inquire about what was going on at the time. According to Mr. Kwan’s own evidence, he had called out to the defendant to ask him if he needed to call his father. This was when the defendant was still being pressed on the floor and was within earshot of the prosecution witnesses.

109.If that was the case, the police must have heard this and be aware that Mr. Kwan was someone who cared about the well being of the defendant. They would also be aware that Mr. Kwan knew who the defendant was and was familiar enough with the defendant’s father to know his phone number.

110.Given these facts, I find it inherently improbable that the police officers would still choose to bring the defendant to the 4^th floor rear staircase to beat him up and frame him, taking a huge risk of Mr. Kwan being able to hear or see what was going on and reporting the matter to the police or the defendant’s father.

111.Furthermore, it is not disputed that the defendant had the keys to the flat with him at the time and that the flat was empty. The police officers had a valid search warrant for the flat. Would it not be much easier, if the police officers were minded to frame the defendant, to simply bring the defendant into the flat, close the door and then beat him up and frame him? Why take the risk of doing it in the rear staircase at around 8 pm, when residents would be expected to be coming home or be home having dinner and likely to run into the police officers and hear any noises outside.

112.With the amount of drugs (154 g of powder containing 113.1g of ketamine) that the police are using to frame the defendant, and with an officer who had never lost a ‘dd’ case, it would be obvious to him that simply finding the drugs inside the defendant’s home would be enough evidence to bring a charge of trafficking in dangerous drugs against the defendant.

113.I also find it inherently improbable that PW1 would fabricate the defendant’s confession in the way that he supposedly did.

114.In relation to the drugs found on the defendant in the corridor, the defendant said he had nothing to say, which is his right and does not amount to a confession at all.

115.In relation to the drugs found on the computer desk inside the flat, the defendant’s confession was only as to its possession for self-consumption. The defendant did not confess to trafficking in the drugs.

116.If they are fabrications, they are useless fabrications and PW1 has left a lot of room for the defendant to maneuver. Why would the police officers conspire to do so much against the defendant in order to accomplish so little?

The defendant’s strong character

117.It is the defendant’s evidence in the witness box that as soon as he was pressed on to the floor in the corridor by PW3 and the other Police officers, he yelled out. The defendant was also able to call out to his friend Ah Chiu to use his phone to video the Police.

118.It is also the defendant’s evidence that while he was still pressed down, he saw his neighbour Mr. Kwan and the defendant was able to tell him to keep an eye on what was going on (Mr. Kwan’s evidence does not corroborate the defendant’s evidence on this particular point, which will be dealt with below).

119.If the above evidence from the defendant is true, then it is proof that the defendant is someone who is not afraid to speak up even when under pressure. Yet, there is no evidence from the defendant that he had shouted out for help when he was assaulted by the Police officers in the rear staircase. I find that the only reason that the defendant did not say that he had shouted out about Police brutality is because it did not happen.

120.Furthermore, despite being beaten up by Police officers and told to confess, the defendant refused to do so. If true, this would also go to show that the defendant is someone of principle, able to remain sturdy despite Police abuse.

No complaints

121.I find it inherently improbable then that someone of the defendant’s age, experience and strong character would choose not to complain to the Duty Officer at the Police station about how he had been assaulted and framed by the police officers and PW3.

122.According to the defendant’s own evidence, he has 7 previous convictions. It was not the first time that he had been to a police station. It was not the first time that he had been arrested by the police. It was not the case of, say, a teenager being arrested for the first time and too scared to complain to anyone about police impropriety. I find that the only reason why the defendant did not complain to the Duty Officer about PW3 framing him and police officers assaulting him is because it never happened. The defendant had made it up in order to discredit the evidence of the police officers.

Failure to point out specific facts in cross-examination

123.I find that the defendant had failed to, through his counsel, put important facts to the prosecution witnesses.

124.The defendant’s counsel did not point out in cross-examination of PW3 that the defendant had called out to Ah Chiu to take a video and then PW3 had went up to stop Ah Chiu from doing so. It was not pointed out to PW1 that the 11 Chinese characters on page 117 were not there when the notebook was shown to the defendant. It was not pointed out to PW1, PW2 or PW3 that while the defendant was still being pressed on the floor in the corridor, he had said to Mr. Kwan to keep an eye on what was going on.

125.I find the failure to put the relevant facts to the witnesses as one of the bases for finding that the defendant is not an honest witness.

The defence witnesses

126.In assessing the evidence of the defence witnesses I have first of all reminded myself that they are not independent witnesses. Mr. Kwan is a long time friend of the defendant’s father and they have been neighbours for some 20 years. Mr. Kwan watched the defendant grew up. Mr. Chan and the defendant went to school together and they have been friends for over 10 years. As such, I must be mindful of the possibility that they might not want to see the defendant in trouble.

127.Having seen and heard Mr. Kwan and Mr. Chan, I find the version of fact as told by them inherently improbable.

128.There is no reason whatsoever for the police officers to lie about the presence of Mr. Chan and Ah Ming, if they were really there. If the police are framing the defendant, and if Mr. Chan and Ah Ming were there, it would make no sense for the police to completely erase their presence. It would have been much easier for the police to take down their particulars and then send them away before proceeding to assault and frame the defendant.

129.Upon the basis that there was no reason for the police to lie about Mr. Chan and Ah Ming’s presence, there can be two explanations as to the absence of Mr. Chan and Ah Ming in the prosecution witness’ evidence. Either Mr. Chan and Mr. Kwan are lying about Mr. Chan and Ah Ming’s presence, or PW1, PW2 and PW3 were not aware that Mr. Chan and Ah Ming were there.

130.I find that it is unlikely that the police officers would not be aware of the presence of Chan and Ah Ming given the fact that the incident took place in the corridor on the 4^th floor. The only irresistible inference is then that Mr. Kwan and Mr. Chan lied about the latter’s presence at scene that day, and I do so find.

Discrepancies

131.In relation to the evidence of Mr. Kwan, I note first of all that there was no mention in the defendant’s evidence that Mr. Kwan had asked the defendant if he needed him to call his father. If Mr. Kwan really did say that to the defendant then it would be highly unlikely that the defendant would not remember it. It would also be highly unlikely that the defendant would refuse Mr. Kwan’s offer, given that it is the defendant’s case that he was being apprehended by the Police for no reason at all. The defendant was also already aware that he was going to be ill treated by the Police and so had the presence of mind to tell his friend to video what was going on. The defendant was supposed to have asked Mr. Kwan to keep an eye on things. If that is the truth, then an offer from Mr. Kwan to call the defendant’s father must have been most welcome. Yet the defendant supposedly did not take up the offer.

132.I also find it strange that Mr. Kwan would choose not to call the defendant’s father when the Police said there was no need to do so. Mr. Kwan has been a friend and neighbour of the defendant’s father for over 20 years. Mr. Kwan watched the defendant grew up. Mr. Kwan had no idea that the defendant has any drug related previous convictions. As far as Mr. Kwan was concerned, the defendant is just a normal young man. Yet there the defendant was, being pressed on to the ground outside his own home by plainclothes Police officers. Any reasonable person in Mr. Kwan’s position would have made the call to the defendant’s father, no matter what the Police or the defendant said.

133.Furthermore, Mr. Kwan said he had tapped the defendant’s head when he saw the defendant again later on when he was bringing the trash out. Yet, according to the defendant’s evidence, no such tapping was mentioned. The defendant’s evidence was that when he saw Mr. Kwan taking out the trash, the defendant merely nodded to Mr. Kwan.

134.Mr. Kwan was also wrong in his evidence about how PW3 sergeant had an injury on his leg, which Mr. Kwan was able to see because the sergeant had his pants rolled up. No injury to PW3’s leg was at all mentioned in the admitted facts. It was never put to PW3 that his leg was injured, or that he had shown his leg injury to the neighbour at scene. I find that the reason why Mr. Kwan got the place of the injury to PW3 wrong is because he is lying about the matter.

135.Having considered very carefully the evidence of Mr. Kwan, I find that he is not a truthful witness and I refuse to accept his evidence. I also find that given the inherent improbability of his evidence, Mr. Chan is also not a truthful witness and I refuse to accept his evidence as to the attire of the defendant on the day as well as his presence.

136.The burden is of course still on the prosecution to prove the elements of the offences, and given the contention put forward by the defendant, in particular the attire of the defendant on the day.

137.I find that there is no reason why the police officers would have to make up the attire of the defendant to frame him. As I mentioned above, if the police officers were to frame the defendant, all that they have to do is to say that the drugs were found inside the flat, or that the drugs were being carried by the defendant, perhaps strapped on his waist by the shorts and covered by the white t-shirt that the defendant alleged he was wearing. There is no reason why the police would have to do what the defendant alleged them to have done in order to frame the defendant.

138.I find that the prosecution has proved beyond reasonable doubt that the defendant was found in possession of the transparent plastic bag when he left flat 409. I find that the police officers did find from the computer desk of the defendant’s bedroom inside flat 409 another transparent plastic bag containing the additional dangerous drugs.

Charge 1

139.I find that the prosecution has proved beyond reasonable doubt that PW3 was in the due execution of his duty when he assisted PW1 and PW2’s interception of the defendant in the corridor. I find that the defendant did use both his hands to push PW3 on his chest area, causing him to fall back against the wall behind him. I find that PW3 did suffer an abrasion to his left hand as a result of the defendant’s push.

140.I find that the defendant did assault PW3 and find the defendant guilty of charge 1.

Charge 2

141.I find that the defendant was in possession of exhibits P-1 and P-2, which contained a total of 154g of a powder containing 113.1g of ketamine, when he was intercepted and searched by PW1 in the corridor of 4^th floor Shui Moon House. I find that given the quantity of drugs and the manner that the drugs were packaged and the fact that the defendant was leaving the flat with the drugs hidden inside his underpants, the only irresistible inference is that the defendant was in possession of the drugs for the purpose of trafficking. I find that the trafficking was unlawful.

142.I convict the defendant of charge 2 accordingly.

Charge 3

143.I find that the defendant was in possession of exhibit P-3, which contained 11.7g of a powder containing 8.2g of ketamine, when it was found on the computer desk inside the defendant’s bedroom in flat 409.

144.I find however that given the fact that the defendant has 6 previous convictions for possession of dangerous drugs, the fact that the ketamine was found inside the defendant’s home, the fact that the defendant had left the drug behind in the flat after bringing with him the large amount of drugs that was inside his underpants and found to be for trafficking, and more importantly, the defendant’s confession to PW1 that the drugs on the computer desk were for his self-consumption, there is a real possibility that those drugs were for his own consumption.

145.I grant the benefit of the doubt to the defendant and find him not guilty of trafficking in the drugs found on the computer desk.

Lesser offence

146.Given that the drugs were in fact found in the defendant’s bedroom and that the defendant had confessed to the possession of those drugs, pursuant to section 42(1) and Schedule 3 of the Dangerous Drugs Ordinance, I convict the defendant of the lesser offence of possession of dangerous drug under section 8(1)(a) and (2) of the same Ordinance.