HKSAR v. Lee Chun Hei

DCCC 144/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 144 OF 2015

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one count in trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, cap 134.

2.The particulars of the charge are that on 5 December 2014, the defendant unlawfully trafficked outside Ta Chuen Ping Street Public Toilet, Kwai Chung, a dangerous drug, namely 104 grammes of a powder containing 92.4 grammes of ketamine.

The prosecution case and the background

3.PW1 led her team to Ta Chuen Ping industrial area on an anti-dangerous drugs operation.  She had information of drug-taking activity in the open air car park of that area.  The whole team went there at about 2.30 pm.  They split up and took up various posts in the area.  PW3 and PW4 were together in the public car park near the public toilets.  All police officers were in plainclothes.

4.PW3 and PW4 saw the defendant drive into the car park in a white private vehicle, SA 8236.  He was alone.  He stopped his vehicle, jumped out and went to the public toilet.  The two prosecution witnesses then moved closer to the vehicle and waited for the driver to return. The defendant did return, but stood by his closed driver door looking around. He checked his mobile phone; PW3 opined he was waiting for someone.

5.PW3 and PW4 approached the defendant with the intention of searching him.  PW3 revealed his police identity.  He noticed the defendant looked nervous and his front right trouser pocket bulged out.  He saw a corner of a transparent plastic bag sticking out of this pocket.  He searched the defendant whilst PW4 stood close by guarding the scene.  He found four large packets and one smaller packet of transparent plastic resealable bags containing white powder.  The seventh photograph of Exhibit P8, a photo album, show all the bags clearly.  PW3 handed all the five bags to PW4, who became the Exhibits Officer.  PW3 then searched the defendant’s left front pocket and found a transparent resealable plastic bag that contained 50 smaller similar empty bags.

6.PW3 arrested the defendant and cautioned him. Under caution the defendant said, “Ah Sir, please give me a chance.  The “K-chai” you found in my trouser pocket was bought for my own and others’ consumption.”  This verbal admission was challenged.

7.Nothing suspicious was found in the white private vehicle, which was later that day returned to its rightful owner who had lent it to the defendant.

8.At Kwai Chung Police Station, the defendant was taken before the Duty Officer in the report room.  The drugs were sealed in a tamperproof exhibits envelope in front of the defendant who signed it.  The drugs were analysed and the average street value of 92.4 grammes of ketamine in December 2014 was $14,872.

The defence case

9.The defence allege the police framed the defendant for this offence.  He was never in possession of any ketamine nor was he ever searched, arrested or cautioned.  His arrest was unlawful.  He did not make any admission at the scene.

10.He was assaulted and threatened at the scene by several police officers.  He only signed a post recorded statement because he had been previously maltreated.  He did not sign the statement nor POL 153, a notice to persons in custody, voluntarily.  The grounds of objection were submitted and marked MFI-1.  The challenge was dealt with by way of the Alternative Procedure.

The issue

11.The issue in this case is credibility.  Even if I rejected the defence case and did not believe he was framed for this offence I still had to be sure beyond reasonable doubt the prosecution’s evidence is credible and reliable enough to prove the charge.  Credibility and reliability of the prosecution witnesses and the defendant are the crux of the case, the only issue.

The prosecution case and witnesses

12.The prosecution relied mainly on the arresting officer, PW3, and the Exhibits Officer, PW4, his partner that day.  There were many other police officers called as part of the special issue, tendered for cross-examination for that purpose.

PW1 - Woman Inspector, Shie Ching-yee

13.This officer led her team, a special duties squad of Kwai Chung District, to the Ta Chuen Ping industrial area on 5 December at about 2.30 pm.  She had previously received information that a couple were seen inhaling dangerous drugs in a vehicle in the open air car park of Ta Chuen Ping Street, Kwai Chung.  She briefed her team to be on the lookout for suspicious vehicles and persons.  They were on an anti-dangerous drug operation.  The team of nine proceeded to that area and split up.  PW3 and PW4 were paired up and hung around the open air car park observing their surroundings surreptitiously.  They did not know where the rest of their team were except that they were nearby.

14.PW1 got information that an arrest had been made for trafficking dangerous drugs.  She made her way to that car park and was told the defendant, who she saw with PW3 and PW4, had five packets of dangerous drugs found in his trouser pocket.

PW2 - Station Sergeant, Lam Sze-wai

15.PW2 was the Duty Officer on duty in the report room of Kwai Chung Police Station when the defendant was brought in by PW3 and PW4.  He was told of the offence and shown the exhibits seized.  He weighed the five packets of ketamine in front of the defendant and told him the total weight was just over 100 grammes.  He looked the defendant over and saw no visible injuries or any cause for concern.  The defendant made no complaint to him.

PW3 - PC 8721, Kwok Tsz-kin

16.PW3 and PW4 hung around the open air car park with the public toilet in it to observe cars and people in that area.  Within half an hour of being there PW3 saw a white vehicle, SA 8236, driven by the defendant into the car park, stop and the defendant hurried into the public toilet.  He and PW4 went closer to the vehicle to have a look and wait for the defendant to come out.  The defendant had drawn attention to himself.

17.When the defendant returned to his vehicle he did not get in.  He stood by the driver’s door, looked around him and checked his mobile.  PW3 had the impression the defendant was waiting for someone.  PW3 wanted to make inquiries of the defendant so approached him.  He asked the defendant what he was doing there, but got no response.  He then revealed his police identity and warrant card and proceeded to search the defendant.

18.PW3 then noticed the defendant’s right front pocket was bulging and saw some plastic sticking out of it.  He went straight to this pocket and pulled out five packets of white powder.  He handed the bags to PW4 for safekeeping as the Exhibits Officer.  He then continued to search and found a bag with 50 smaller transparent resealable plastic bags in it. These bags are often used for packing dangerous drugs.

19.The defendant was then arrested and cautioned by PW3.  The defendant did make an admission under caution.  He said, “Ah Sir, give me a chance.  The ketamine found in my trouser pocket I bought for mine and others’ consumption.”  Only after this did PW3 and PW4 notify their team of the arrest made and the team arrived to assist them.

20.Later the defendant was taken to Kwai Chung Station, and after reporting the case to the Duty Officer and the drugs were dealt with by the Duty Officer in front of the defendant, PW3 began a post recorded statement.  Just before that, he read a POL 153 to the defendant, let him read it, before the defendant signed it with full knowledge of his rights.  The POL 153 is Exhibit P9.

21.The post record, once written out, was read to the defendant.  The defendant copied the declaration at the end of it and then signed it after also having read it himself (Exhibit P10).

PW4 - PC 33887, Lau Kwok-shu

22.His evidence mirrored PW3’s evidence.  He said he noticed the white vehicle, SA 8236, drive past him and into the car park. He saw the defendant, wearing a black jacket, blue jeans and white shoes, jump out and go into the public toilet.  PW3 had also noticed this and both officers went closer to observe the vehicle and the defendant. 

23.PW3 decided to approach and intercept the defendant; PW4 followed suit.  He stood guard whilst PW3 made inquiries of the defendant and then searched him.  PW3 handed him the drugs and empty plastic resealable bags that he found.  PW4 put the exhibits in exhibit bags and then into his own shoulder bag until they returned to the station.

24.After the defendant was arrested by PW3, other colleagues were informed and arrived quickly to assist.  He was with PW3 and the defendant when they reported to the Duty Officer at the station.  PW4 then recorded down the weight of all five bags when they were weighed by the Duty Officer in front of the defendant.  He then dealt with the dangerous drugs and later watched the defendant sign on the exhibit bag containing the drugs in the presence of the Duty Officer.  This was done after PW3 had finished the post recorded statement in his notebook.  The Duty Officer kept the dangerous drugs after this procedure.

PW5 - Sergeant 50895, Law Sai-man and other prosecution witnesses

25.PW5, as well as PW6 to PW9 were tendered for cross-examination.  The defence case according to MFI-1 was put to this witness and all the others.  The allegations were all denied.  All these witnesses describe that they were all in the vicinity separately patrolling when they heard of the defendant’s arrest in the car park and made their way to assist. They deny the defence case that the whole team conspired to frame an innocent man, falsely picking up the defendant and accusing him of trafficking ketamine, five packets the police supplied for the purposes of this conspiracy.

26.No prosecution witness said they knew of or had come across the defendant before the material day.  No one agreed the car park was the only target and that the entire team were laying ambush around this car park.  All gave evidence that they only made their way to the car park after being informed PW3 and PW4 had made an arrest.

27.It was specifically put to PW7 that he visited the defendant in Lai Chi Kok Detention Centre after he was arrested.  He agreed and explained the first visit was to obtain a DNA swab from the defendant.  The second visit was as a result of the defendant’s mother calling the office and telling PW7 that the defendant wanted to see them as he had something to tell the police.

28.PW7 denied giving the defendant his personal mobile telephone number and telling him to call if he had any information.  PW7 was sure that he drove the police van into the car park after the defendant was arrested, not before.  He also disagreed with the allegation that at the defendant’s request they did not interfere with the car owner and only framed the defendant.

The special issue

29.The defendant gave evidence, but called no witnesses.  He described driving to this car park and waiting for a colleague he had arranged to meet.  He got out to get something from the rear of the vehicle when PW7 ran at him, twisted his left arm, pushed him against the car and handcuffed him.  PW8 appeared and both officers led him to the public toilet nearby.  The three of them stood still inside the toilet in silence for about 30 seconds before leaving it to return to a private car that belonged to the police.  It was parked at the entrance of the car park and the defendant was put inside this vehicle.  He was once grabbed around the neck by PW3 whilst in the car.  He realised he was about to be falsely accused of some crime and then he was told by PW5 that he was to be charged with trafficking dangerous drugs.  He told the police that even if they wanted to frame him not to mess with the car owner; he had only borrowed his friend’s car.  No one replied to this request.

30.At the police station he explained he said nothing to the Duty Officer because he was grabbed around the neck at the scene, he was sworn at, and if he complained the car and car owner would be detained. The same reason he signed his name on the bag of dangerous drugs put in an exhibit bag.

31.The defendant denied he was arrested or cautioned at the scene.  He certainly did not say anything under caution.  The post recorded statement was signed involuntarily.  He says whilst PW3 wrote in his notebook, he offered to admit possession of the drugs.  PW3 did not answer him.  He then said he would only admit self-consumption and buying for others’ consumption, he would not admit trafficking.  He said he glanced at the finished statement and saw the same said offered admission, so he signed it and wrote out the declaration as directed.

32.Under cross-examination, the prosecution applied, pursuant to section 54(f)(2) of the Evidence Ordinance, cap 221, to question the defendant about his previous convictions.  The defence case was a serious allegation against an entire team of officers; it was more than a robust denial of the offence.  The defence did not object to this application and I granted it.

33.The defendant was cross-examined about his four previous convictions which included three for possession of dangerous drugs, twice in 2009 and once in 2014, respectively.  He admitted he was familiar with the arrest process and knew what would happen before the Duty Officer. He knew the drugs would be examined by the Duty Officer and he would be told of the circumstances of the arrest.  He, despite discovering the drugs he did not possess weighed over 100 grammes, still did not complain to the Duty Officer.  He did not complain later to any statutory body, such as CAPO, because he felt it would be futile.

34.He agreed when he signed the POL 153, Exhibit P9, he was already familiar with its contents, knew his rights, was given a copy of it immediately and had an opportunity to read it.

35.He agreed when PW3 began to make a post recorded statement he knew what it was.  He agreed he wrote the declaration at the end of it voluntarily and understood the declaration.  He did not read the entire statement, but saw the admission recorded before he wrote the declaration.  He agreed he was happy with that statement so he signed it.

36.He explained when asked why he would admit possession of dangerous drugs and sign the notebook that he was afraid the car owner would be arrested and the car confiscated.  He agreed no officer made this threat to him and this was his own fear and own thoughts.  He agreed he was willing to spend years in prison just so the car owner would not get in trouble.

My Ruling on the special issue

37.The sole issue to be determined in relation to the post recorded statement and the oral admission made was a question of voluntariness.  If the prosecution proved beyond reasonable doubt on the whole of the evidence that they were voluntarily made, they were admissible.  If, for any reason, they were not made voluntarily, they were inadmissible.  If they were made under oppressive circumstances then they were not made voluntarily. A voluntary statement can still be excluded if it was obtained by unfairness or trickery.

38.Here, there were no principles of law in issue and no discretion to be exercised.  The only question is whether I believed one set of witnesses or the defendant.

39.I did not believe the defendant.  His evidence was weak and unbelievable.  He was certainly not frightened by the police according to his own version of events.  On a reading of MFI-1, he answered the police back on every occasion.  Of course, one cannot read tones in his written responses, but when he repeated those responses in the witness-box, he was assertive and agreed he was not scared.  He says he was only scared when he saw the officers lifting fingerprints from the vehicle.  He did say the arm around his neck scared him a bit.  Clearly, his fear for the car owner was a self-generated fear.  He agreed no officer threatened to frame his friend or confiscate the car.  In fact, he said a police officer asked for his friend’s contact details to come and collect the car.

40.His evidence why he signed P9 and P10 was not credible.  His unsolicited offer to admit possession and then a further offer to agree he bought dangerous drugs for his and others’ consumption beggars belief.  I am sure the admission recorded was an accurate post record of his voluntary oral admission made under caution; not a fabrication by PW3 at the defendant’s own suggestion or initiation which was accepted by PW3.

41.I rejected the submission the defendant was very scared and that a fear of prejudice existed.  It was further said his “mind was zapped”.  This submission was not supported by the defendant’s own evidence in the witness-box.

42.I rejected the suggestion he was picked out at the car park and persecuted for no reason.  I am sure the stop and search was legitimate and carried out by PW3, assisted by PW4.  No other officer became present or involved until after the arrest of the defendant and his admission made under caution.

43.I am sure the police witnesses were telling the truth and there were no material discrepancies in their evidence that led me to doubt their credibility or reliability.  This includes particularly PW3’s evidence.  He was criticised for not writing all details in his statement, such as the defendant went to the toilet after alighting from his vehicle.  He only wrote he saw the defendant return to his vehicle from the toilet.  He omitted other details such as they moved closer to the vehicle for a look.  He saw the defendant look around, look at his mobile and when he stopped the defendant he saw a bulge in his pocket.  The omissions of such details did not in my finding mean his evidence was unreliable or not credible.

44.I carefully considered all of the evidence relating to the manner and circumstances in which the defendant made a verbal admission under caution and not long later signed a post recorded statement. My consideration included all the allegations made by the defendant and put by defence counsel.  I was satisfied as to the voluntary nature of the post recorded statement, P10, and was satisfied when I ruled on the special issue that if the defendant did utter the words after caution, he uttered them voluntarily.  I admitted P10 into evidence.

45.I am sure P9, POL 153, was served properly and signed by the defendant with full knowledge of his rights, designed to give him protection.  I was further satisfied there were no grounds upon which I should exercise my discretion to exclude the record or admission.

The general issue and the defence case

46.It was put to all police officers that they conspired together to frame the defendant for trafficking over 100 grammes of ketamine, placed in five plastic bags.  It was put to the officers that the defendant was targeted and totally innocent.  It was denied by police witnesses that they were all around the car park as opposed to scattered in the area and along Ta Chuen Ping Street.  The allegations that the defendant was jumped, cuffed and taken to the toilet for no reason was denied, as was the suggestion he had no drugs on him, but five packets was produced to hand to the Duty Officer, attributed to the defendant.  It was put to the police the defendant was not searched, arrested, cautioned; not detained lawfully.  It was also suggested he was verbally abused, physically manhandled and forced to sign a POL 153, notice to persons in custody, as well as a post recorded statement, P9 and P10.  Police officers vehemently denied the above allegations put to them in cross-examination.

47.The defendant gave evidence in the special issue, but elected not to give evidence in the general issue.  This is in no way an adverse inference on the defendant.  The prosecution has the duty to prove the case against the defendant beyond reasonable doubt.  The defendant has no duty to prove anything, least of all his innocence.

My Findings

48.There are no issues of law in this case.  If I find the defendant had possession of the dangerous drugs in his pocket and 50 small, plastic, resealable transparent bags in the other pocket, I will find he was unlawfully trafficking in that amount of ketamine.  I will take into account the time and place he was searched, the quantity of ketamine and the fact it was only in five bags.  The find of 50 smaller bags, often used for packaging ketamine is highly relevant.  The only inference I could draw is that he was in possession of the ketamine for the purpose of trafficking.

49.As previously identified, the issue is one of the credibility of witnesses.  I carefully considered and compared the evidence of the prosecution witnesses.  I find them to be credible and there being no material discrepancies in their evidence.

50.No one knew of the defendant before his arrest and nor was it put to any witness they knew the defendant or bore him a grudge.  To suggest not one or two officers, but at least nine officers conspired to frame a stranger and produce over 100 grammes of ketamine to make out a case against him is not substantiated nor believed.

51.It was submitted by defence counsel that the fact the police did not take a photograph of the defendant wearing his jeans with the dangerous drugs in his pocket cast doubt on the evidence they were ever in his pocket.  It was submitted there was no proof that the drugs would have fitted in that pocket.  It was a mystery no photograph was taken of him wearing them and this was because the dangerous drugs did not fit in his pocket, never having been in his pocket.  I rejected the submission as a weak attempt to discredit the prosecution evidence.  I rejected the submission there were doubts, mysteries and anomalies in the prosecution case that prevented the prosecution proving the charge beyond reasonable doubt.  I am sure they succeeded in this burden of proof to the appropriate standard.

52.I will mention that despite my knowing the defendant’s previous convictions, I did not place weight on this knowledge when rejecting the defendant’s evidence.  I rejected it due to its inherent improbability, not because he had previous convictions for possession of dangerous drugs.  This knowledge did not add weight to the prosecution’s evidence either.

53.Accordingly, in reaching my verdict I have carefully considered the evidence of the prosecution, the defence and submissions of both counsel.  Nothing said by defence counsel causes me to doubt my findings.  I am satisfied the prosecution witnesses were credible and there were no material discrepancies that caused me any concern nor made me doubt my findings.  The prosecution has proved all elements of the offence beyond reasonable doubt.

54.The defendant is convicted as charged.