HKSAR v. CHAN TAK WAI AND ANOTHER

DCCC 1306 /2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1306 OF 2011

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Reasons for Verdict

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Introduction

1. D1 and D2 are jointly charged with the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). It is pleaded that D1 and D2, on 17 October 2011, in a private car bearing registration number PT6400 (the “Car”), near lamppost no.AA7090, outside Ban Fung House, Fung Tak Estate, Wong Tai Sin, Kowloon, unlawfully trafficked in 96.55 grammes of a powder containing 41.52 grammes of ketamine.

2. The prosecution called four prosecution witnesses, namely PC6168 (“PW1”), PC7118 (“PW2”), PC5954 (“PW3”) and PC50578 (“PW4”). The prosecution also produced twenty items of exhibits, including twenty bags of ketamine, Government Chemist’s Certificate, two sets of Admitted Facts, photographs and sketches.

3. After I ruled that there was a case to answer for each of the defendants, D1testified. A set of Admitted Facts and criminal conviction records of Wong Wai-lok (“Wong”) and Lui Cheuk-hang (“Lui”) were produced as Exhibits D1, D1A and D1B respectively. D2 elected not to give evidence. In analyzing evidence in this case, I bear in mind that it is D2’s right to remain silence.

The prosecution’s case

4. At about 3:15 am on 17 October 2011, PW1 and PW4 were on board a police vehicle (“EU-K7”) as passenger and driver respectively performing anti-crime patrol. Both of them were in uniform. After they had turned to Fung Lai Road for 4 to 5 meters, they saw the Car parked on the opposite lane of Fung Lai Road. D1 and D2 were on board of the Car as driver and front seat passenger respectively. The defendants took a look at PW1 and PW4, and then looked back to the direction ahead of them. D1 then drove the Car away quickly. As it aroused the suspicion of the police, they gave chase.

5. Upon reaching the junction of Po Kong Village Road and Fung Tak Road, the police saw the Car again. They moved slowly behind the Car and stopped at a distance of 1 meter behind the Car. At that time, PW1 saw D2 in the front passenger seat of the Car bend down his body with both of his hands moving forward and backward for about 10 seconds. D2 then touched the centre console of the Car with his hands. Having seen D2’s movements, the police signaled the Car to stop. PW1 also informed the other police vehicle (“EU-53”) for assistance.

6. The Car stopped near lamppost no.AA7090 outside Ban Fung House, Fung Tak Road. EU-K7 stopped in front of the Car.

7. PW1 alighted from EU-K7 and approached D1 who was sitting at the driver seat of the Car. PW1 told D1 that PW1 suspected that the Car was a stolen car. At that time, EU-53 arrived at the scene and parked behind the Car. There were four police officers in EU-53, including Sgt 49127, PW2 and PW3. PW1 reported the matter to Sgt 49127. He also related the matter to PW2 and asked PW2 to keep guarding D1. PW1 then walked to the front passenger seat of the Car to see if there was anything beneath that seat. PW1 looked from the outside into the floor of the front passenger seat but there was nothing suspicious. PW1 then told D1 and D2 to alight from the Car and walk to the pavement. The defendants complied with PW1’s request. The police conducted a search on the defendants but nothing incriminating was found.

8. PW1 then walked towards the driver seat of the Car to see if there were any signs/marks that the door locks or the key barrel were prised open. He entered the Car from the driver seat but did not see any anything showing that the Car had been tampered with. However, on top of the case in between the driver seat and the front passenger seat of the Car (in the area marked with a red “X” on Exhibit P12), PW1 found an identity card of Lui’s. The police therefore made enquiries of Lui’s identity card with the defendants who were arrested for possession of an identity card belonging to another person. At that time, D1, D2, PW1 and PW2 were standing on the pavement next to the Car as shown in Exhibit P9. Under caution, D1 told PW2 that the identity card belonged to “Ah B” who left the identity card in the Car a few days ago.

9. PW3 then conducted a search of the Car. When PW3 was searching the front passenger seat of the Car, PW1 noticed that D2 became very nervous and stared at the position where PW3 was searching. PW1 therefore told PW3 to make a thorough search of that area. As a result, PW3 carried out a closer search and found about 2 cm of the corner of a plastic bag was protruding out from the side of the brown plastic cover surrounding the centre console of the Car. PW3 also noticed that the brown plastic cover did not fit in to the centre console properly and there was a 1 cm gap between the brown plastic cover and the centre console. The length of the gap was about 10 cm. PW3 lifted up the brown plastic cover and found a large blue edged plastic bag containing 20 packets of dangerous drug hidden inside the centre console and under the brown plastic cover at the area marked with a pink “X” in Exhibit P18. The defendants were therefore arrested and cautioned of possession of a dangerous drug. Under caution, D1 said that the bag did not belong to him and he knew nothing; D2 said he was completely clueless.

10. Later on, PW1 made enquiry with D1 as to the owner of the Car. D1 told PW1 that the Car owner was Wong who was D1’s friend, and that D1 borrowed the Car from Wong on 16 October 2011. PW1 was confirmed by Wong that the Car belonged to Wong who lent the Car to D1.

11. The 20 packets of dangerous drug were subsequently found to contain 96.55 grammes of a powder containing 41.52 grammes of ketamine.

12. The basis of the prosecution’s case of drug trafficking is that the defendants were in possession of the dangerous drug for the purpose of trafficking.

D1’s case

13. D1 admitted that he was the driver of the Car at the material time but he denied knowledge of the drug seized by the police.

14. According to D1, he borrowed the Car from Wong at about noon on 16 October 2011 and then he parked the Car at Fung Wong Tsuen. At about 1 am on 17 October 2011, D1 called D2 because D1 was upset with his (D1’s) girlfriend. D1 wanted to have a drink with D2 so that D1 could chat with D2 about his (D1’s) problem with his (D1’s) girlfriend. D1 then went to collect the Car from Fung Wong Tsuen and picked up D2 at Man Yue House.

15. After D1 had picked up D2, D2 said he did not want to go out for a drink. D1 therefore drove D2 to Fung Lai Road where he pulled up the Car and had a chat with D2. Having chatted in the Car for about 1 hour odd, D2 said he was sleepy and asked D1 to drive him home. D1 therefore drove the Car away from Fung Lai Road. Before returning to D2’s home at Man Yue House, D1 was driving towards Fung Tak Estate because he wanted to buy some beer at an OK convenience store in Fung Tak Estate. Whilst on his way to the convenience store, a police car approached them and signaled him to pull up the Car. D1 therefore pulled up the Car at the bus stop. D1 said it was the first occasion he had noticed that police car.

16. After D1 had pulled up the Car at the bus stop, PW1 approached him and asked D1 if there was something fishy on D1. PW1 also asked D1 to produce the Car key, his driving licence and identity card. PW1 then asked D1 to alight from the Car. D1 complied and went to the pavement.

17. After D1 had got off the Car, PW4 walked towards D2 who was on the front passenger seat of the Car. PW4 asked D2 to produce his identity card. D2 also got off the Car.

18. Several minutes later, another police car arrived at the scene. PW2 and PW3 alighted from that police car and approached D1 and D2 at the pavement. There at the pavement, PW1 made enquiries with D1 whilst PW2 made enquiries with D2. At the same time, PW4 was searching the Car and subsequently found Lui’s identity card from the Car.

19. PW1 asked D1 for an explanation for the presence of Lui’s identity card in the Car. D1 replied that he was not clear, but that he knew Lui and had Lui’s telephone number and home address. D1 told PW1 Lui’s telephone number and home address but PW1 ignored him and did not take any record of what D1 said.

20. PW1 then asked D1 to board a police car in which a further body search was conducted on D1. Inside the police car, PW1 asked D1 whether he was the owner of the Car. D1 answered in the negative and said that he had borrowed it from a friend. D1 gave Wong’s contact number to PW1 who managed to contact Wong.

21. After PW1 had spoken to Wong, D1 and PW1 got off the police car and stood at the pavement. At that time, D1 saw PW3 and PW4 sitting in the Car seemingly looking for something. D2 was also taken to the police car for a further body search. Afterwards, D2 came back to the pavement. When both D1 and D2 were on the pavement, PW3 and PW4 got off the Car and PW4 said nothing was found. Then PW1 and PW2 arrested D1 and D2 for possession of an identity card belonging to another person. D1 replied that he had Lui’s telephone number and home address and suggested that the police could call Lui or go to Lui’s home. At that stage, PW1 asked D1 for Lui’s telephone number. D1 gave it to PW1. PW1 called but no one answered.

22. Then D1 and D2 were taken to the police car. When they got on the police car, D2 asked for water and D1 asked for his wind-breaker from the Car. After their requests had been acceded to by the police, PW2 suggested to search the Car again before going to the police station. At that stage, D1 and D2 were still inside the police car and did not witness the search.

23. When D1 got off the police car and walked to the pavement with D2, he saw PW3 come out of the Car holding a bag of things. PW3 said there was no need for D1 to say anything, and that they would talk when they went to the police station. Subsequently D1 and D2 went to Wong Tai Sin Police Station.

24. D1 testified that he did not know how the bag of things was found by PW3 from the Car, and that he had never noticed that bag or any part thereof since he had got the Car from Wong.  

D2’s case

25. D2 did not testify. That is his right. No adverse inference will be drawn against D2 for his remaining silence.

26. D2’s case (from the time when D1 drove off the Car from Fung Lai Road until the time when PW3 found the drug) as put forward by his counsel during cross-examinations on prosecution witnesses basically tallies with D1’s case. As I have just set out D1’s case, I will dispense with repeating D2’s case in these Reasons for Verdict.

Analysis of evidence

27. I have the following observations on D1’s evidence:

(i) D1 alleged that he called D2 at about 1 am on 17 October 2011 because D1 was upset with his girlfriend, that he wanted to have a drink with D2 so that D1 could chat with D2 about his problem with his girlfriend, and that he wanted to chat with D2 because D2 was an understanding person and could analyze things. D1 alleged that he called D2 at 1 am on 17 October 2011 despite he thought D2 might be asleep because D2 said a lot of comforting things to him and he thought talking to D2 would release his emotion. Given D1’s testimony that he called D2 at 1 am for the purpose of talking about his problem with his girlfriend because D2 was an understanding person who could analyze things, say comforting things and let D1 release his emotion, D1’s testimony in cross-examination by the prosecution that he was not clear about D2’s occupation defies common sense and logic.

(ii) During cross-examination by the prosecution, D1 testified that he had known Wong for one odd year. At first D1 said he had not borrowed Wong’s car before. After a few questions by the prosecution, D1 changed his evidence and testified that he did not remember whether he had borrowed Wong’s car before because it was a long time ago. D1 then changed his evidence again and testified that he might have borrowed Wong’s car before. I find D1’s testimony in this respect inconsistent. Further, on the basis that D1 had known Wong for one odd year only, I refuse to accept D1’s explanation that he did not remember if he had borrowed Wong’s car before because it was a long time ago.

(iii) D1 testified that:

(a) when he had taken possession of the Car originally (12 noon on 16 October 2011), he noticed that Lui’s identity card was already placed next to the driver seat;

(b)Lui was someone he knew but he did not remember how long he had known Lui; and

(c) despite he had Lui’s contact number, he did not call Lui to notify Lui that his identity card was in the Car because he thought it was none of his business and he did not want to get involved in the business between Wong and Lui.

On the basis that D1 was a friend of Lui and D1 had Lui’s contact number, it defies common sense that D1 did not contact Lui and notify Lui that his identity card was in the Car. I refuse to accept D1’s explanation in this respect.

In light of my aforesaid observations on D1’s evidence, I do not find D1 credible or reliable. I refuse to accept D1’s evidence.

28.  Despite I have refused to accept D1’s evidence, the prosecution still has the burden to prove beyond all reasonable doubt all the requisite elements in the present charge against D1.

29.  It is D2’s right to remain silence. The prosecution has the burden to prove beyond all reasonable doubt all the requisite elements in the present charge against D2.

30. In this connection, I have the following observations on the prosecution’s evidence:

(i) PW1 testified that when the defendants noticed EU-K7 in Fung Lai Road, D1 drove off the Car very quickly. However, PW1 was unable to say how quickly D1 drove off the Car. Further, during cross-examination by D1’s counsel, PW1 testified that it took less than 1 minute for EU-K7 to see the Car again at the junction of Po Kong Village Road and Fung Tak Road when the Car stopped in front of a red traffic light. In this connection, I note that when PW1 first noticed the Car in Fung Lai Road, EU-K7 was travelling on an opposite direction and it had to reverse before it could chase after the Car. On the basis that PW1 could not tell how fast the Car was travelling at the material time, that EU-K7 had to reverse before it could chase after the Car, and that it only took less than 1 minute for EU-K7 to see the Car again, I have doubt that the Car was travelling at a fast speed at the material time.

(ii) PW1 testified that when the Car stopped at the junction of Po Kong Village Road and Fung Tak Road, he saw D2 touch the centre console area of the Car with his hands. However, it transpired during cross-examination by D1’s counsel that in PW1’s first witness statement made at 7 am on 17 October 2011, there was no mention of D2’s hands touching the centre console area. PW1 only mentioned it in his second witness statement made on 25 November 2011. PW1 explained that he forgot to put it down in his first witness statement. In this connection, I find that if the bag of drug was found hidden inside the centre console and under the brown plastic cover, it is obvious that D2’s hands touching the centre console area is an important piece of evidence to link up D2 with the bag of drug. I have difficulty to accept beyond all reasonable doubt that PW1 would forget to mention this important piece of evidence in his first witness statement if the touching of the centre console did happen. I am not sure beyond all reasonable doubt that PW1 really saw D2 touch the centre console with his hands. Indeed, PW1 testified that when he was conducting a preliminary search of the Car, he only took a glance at the centre console. If PW1 did see D2 touch the centre console with his hands and if PW1 found such action suspicious, one wonders why PW1 did not search the centre console area initially.

(iii) PW1 testified that when PW3 was searching the front passenger seat of the Car, D2 became very nervous and stared at the area where PW3 was searching. During cross-examination, PW1 conceded that he should expect the defendants to look at the area of the Car where it was searched. PW1 also conceded that it was his subjective opinion to say that D2 was nervous. Indeed, when someone is stopped by the police and his car searched by the police, it is possible that someone is nervous because he knows something illegal in his car may be discovered by the police. However, it is also possible that someone innocent is nervous merely because of the presence of a group of police officers at the scene, his being stopped and investigated and his car being searched twice. I therefore do not place any weight on PW1’s evidence that when PW3 was searching the front passenger seat of the Car, D2 became nervous and stared at the area where PW3 was searching.

(iv) PW3 testified that when he was searching the front passenger seat of the Car, he found about 2 cm of the corner of a plastic bag protruding out from the side of the brown plastic cover surrounding the centre console of the Car, and he noticed that the brown plastic cover did not fit in to the centre console properly. However, it transpired during cross-examination on PW3 by D1’s counsel that PW3 did not mention those matters in his first witness statement made at about 9:40 am on 17 October 2011. PW3 only mentioned those matters in his second witness statement made on 25 November 2011. In this connection, the 2 cm protusion of the corner of a plastic bag is an important piece of evidence to show both defendants’ knowledge of the bag of drug. I have difficulty to accept beyond all reasonable doubt that PW3 would miss this important piece of evidence in his first witness statement if there was such a 2 cm protusion from the side of the brown plastic cover at the material time. I am not sure beyond all reasonable doubt that when PW3 was searching the front passenger seat of the Car, PW3 found about 2 cm of the corner of a plastic bag protruding out from the side of the brown plastic cover surrounding the centre console of the Car. After all, during PW1’s 2-minute preliminary search of the Car, PW1 did not discover the 2 cm protusion of the corner of a plastic bag from the side of the brown plastic cover.

Conclusion

31. The prosecution does not have any direct evidence to show that D1 and/or D2 had knowledge of the dangerous drug. The prosecution relies on circumstantial evidence to invite this court to draw an irresistible inference that D1 and/or D2 had knowledge of the dangerous drug. The circumstantial evidence relied on by the prosecution includes:

(i) PW1’s evidence that when the defendants noticed EU-K7 in Fung Lai Road, D1 drove off the Car very quickly;

(ii) PW1’s evidence that when the Car stopped at the junction of Po Kong Village Road and Fung Tak Road, he saw D2 touch the centre console area of the Car with his hands;

(iii) PW1’s evidence that when PW3 was searching the front passenger seat of the Car, D2 became very nervous and stared at the area where PW3 was searching; and

(iv) PW3’s evidence that when he was searching the front seat passenger of the Car, he found about 2 cm of the corner of a plastic bag protruding out from the side of the brown plastic cover surrounding the centre console of the Car, and he noticed that the brown plastic cover did not fit in to the centre console properly.

I have already analyzed the aforesaid four pieces of evidence and concluded that I refuse to rely on them.

32.  Without the aforesaid four pieces of evidence, the prosecution case is merely that in the early hours on 17 October 2011, a bag of dangerous drug was found hidden inside the centre console and under the brown plastic cover of Wong’s car in which D1 and D2 were the driver and passenger respectively. Whilst it is highly suspicious that D1 and/or D2 had knowledge and control of the dangerous drug, I am unable to draw an irresistible inference that such was the case.

33. As I am unable to draw an irresistible inference that D1 and/or D2 had knowledge and control of the dangerous drug, the prosecution has failed to satisfy this court beyond all reasonable doubt that D1 and/or D2 was/were in possession of the drug. As such, the prosecution has failed to satisfy this court beyond all reasonable doubt all the requisite elements required in the charge of drug trafficking against D1 and/or D2. I therefore acquit both defendants on the charge.