HKSAR v. PANG CHI WING

DCCC 314/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 314 OF 2014

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REASONS   FOR   VERDICT

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The charges

1.  The defendant appeared before me and pleaded not guilty to three charges of “Trafficking in a dangerous drug” (Charge 1, 2 & 4) and also another charge of “Possession of apparatus fit and intended for the inhalation of a dangerous drug” (Charge 3).

2.  The subject matter of the dangerous drug in relation to Charge 1, Charge 2 and Charge 4 are methamphetamine hydrochloride, also commonly known as “Ice” and the apparatus referred to in Charge 3 is an Ice pot which is one inhaling device fit and intended for the inhalation of Ice.

3.  The fact of the prosecution case is simple enough.  The arrest of the defendant was as a result of an undercover police operation conducted by the Special Duty Squad of the Yuen Long District in relation to an anti-dangerous drugs activity.

4.  Apart from PW1 and PW2, the two police officers called to testify upon the request of the defence, the prosecution also tendered two detective inspectors and one sergeant for the purpose of cross-examination by the defence.

5.  The prosecution case is to a large extent already covered by the Admitted Facts (Exhibit P13) which deals with the arrest of the defendant, the seizure and the chain of the production of the dangerous drug, the examination of the drug by the government chemist, its estimated street value and the production of photographs showing the Ice pot.

6.  I shall adopt the Summary of Facts (Enclosed as Annex (1)) prepared by the prosecution in relation to the evidence of PW1 and PW2 and I do not intend to repeat their evidence in detail here.

7.  The defence also, in its written submission, had adequately covered the evidence of the other three more senior police officers when they were asked to come to the witness-box and being cross-examined by the defence counsel.

8.  I shall therefore go straight to deal with the issues of the case. 

Issues

9.  The burden is on the prosecution to satisfy me so that I am sure that in this case the defendant was at the material times in possession of the three packets of Ice and also the Ice pot and in relation to the trafficking charges, in so doing, he possessed those drugs for the purpose of trafficking.

10.  In this case, according to PW1 who posed as a customer of Ice, the defendant actually on three separate occasions had sold him the three packets of Ice and also on one occasion also directed him to retrieve an envelope from a designated letterbox inside a building which contained the Ice pot.  If the court accepts the evidence given by PW1, I will have no difficulty to find that the defendant is guilty as charged in all the four charges as the trafficking charges in fact were allegations of actual trafficking. 

11.  The defence took no issue with the fact that the defendant was picked out by PW1 in an identification parade (see paragraph 1 of the Admitted Facts).  In the trial, I have also specifically clarified with the defence counsel if there was any suggestion of impropriety of the identification parade and the answer was “no”. 

12.  The defence case as put was that the alleged transactions where dangerous drugs were sold by the defendant to PW1 never took place and that the defendant never gave away the Ice pot to PW1 as alleged.  In fact, according to the defence, the defendant had never met PW1 or PW2 and he never had any telephone conversation with PW1.  The case of the defendant was that the police had always targeted “Uncle Wing” and the police just fabricated the case against the defendant.

13.  The quality of the purported identification by PW1 of the defendant and therefore the correctness as well as the reliability of those identification evidence therefore also become the central issues of the case.

14.  In their final submission, it is note that the defence did not take any issue with the actual quality of PW1’s purported identification of the defendant.  Rather, they concentrated their attacks and criticisms on the general credibility of PW1 and the discrepancies of his testimony with the other police witnesses to try to say that PW1 is not an honest, credible and reliable witness in order to support their contention that there is a reasonable doubt in the case.

Evaluation of the evidence

15.  In my judgment, while it is the undisputed right of the defendant to remain silent and demand the prosecution to prove its case against him, the hard fact remains that there is not a single shred of evidence in this case to undermine, contradict or explain the evidence called by the prosecution including the identification evidence.

16.  The defence raised the issue of fabrication by the police which has been vehemently denied by all the police officers testified in this trial including PW1 and PW2.  There is no suggestion of any grudge between the defendant and this team of police officers and in my mind, there is simply no reason why the police should pick on the defendant if he was not even present at the scenes together with PW1.  What is more, to fabricate a trafficking of dangerous drug case like this would have involved the obtaining and production by the police of physical exhibits, namely, three packets of high purity Ice as well as an Ice pot.

17.  As said, the defence did not challenge the propriety of the subsequent identification parade at all.  There is thus always this perplexing problem which always exists in this case and that is how would PW1 then be able to identify the defendant in a properly held (and thus unbiased) identification parade, under the supervision of a chief inspector totally unrelated to the investigation of this case, if he had indeed never met the defendant before as suggested by the defence.  Thus one only needs to think deeper to realise the limit of the defence case.

PW1’s credibility

18.  Much of the defence criticisms of PW1’s testimony revolves around whether Uncle Wing was a targeted person during the briefing on 2 January 2013.  In chief, PW1 said that the police had not targeted anyone specifically and the name Uncle Wing was not mentioned in the briefing.  Under cross-examination and after reading back his witness statement, PW1 confirmed that the name Uncle Wing was indeed mentioned and that he was asked to see whether Uncle Wing would involve any dangerous drugs activities in the sex shop in Tung Yick Shopping Arcade. 

19.  The defence submitted that PW1 had changed his evidence and therefore he was dishonest.  In my judgment, this is but only a memory flaw on the part of PW1 when he first testified and he had already corrected himself under cross-examination and I can see that there is no reason for PW1 to conceal the mentioning of Uncle Wing in the briefing.

20.  I say this because one must remember that when the defence counsel first put to PW1 that there was already information received on 27 December 2012 that a person called Uncle Wing was selling dangerous drugs in Tung Yick Shopping Arcade, PW1 confirmed this suggestion without any hesitation and seemingly he made no attempt to deny this information.

21.  It is easy for the defence to say that the police was targeting Uncle Wing in the operation and it is therefore unreasonable for PW1 to forget that the same was mentioned in the briefing.  The truth is, unless and until this person Uncle Wing really appeared in the shopping arcade and attempted to sell dangerous drugs to PW1 posing as a customer, there is no way for the police to confirm the veracity of this information received.  That is why when PW1 was asked by the defence counsel who was the target in this operation, his answer was: “Anyone, anyone including Uncle Wing.”

22.  As later also succinctly explained by PW3, DSIP Fung, during cross-examination by the defence counsel facing the same question, DSIP Fung said it is simply not right to say that his team had already targeted Uncle Wing in this operation when at that stage they did not even know whether this person really existed or not.  Thus, it is not unreasonable for PW1 to deny Uncle Wing was targeted when he also did not know who or whether there was such a person as revealed in the information.

23.  Another discrepancy relied by the defence was that PW1 could not remember whether his team mate PW2 was there at the briefing or not.  PW1 also could not remember that he was asked to touch his head to show to PW2 if there was indeed a successful purchase of dangerous drugs.  In my judgment, this is only a minor discrepancy.

24.  As confirmed by PW2, they were not familiar with each other until PW1 later joined the operation.  PW1 could still remember that he was briefed to touch his head to signal a successful purchase from drug dealer.  His testimony in truth was that he knew that there would be a team member in the vicinity when he gave that signal.  It is only he could not remember that it was PW2.  However, whether he could remember that it was specifically PW2 or not was immaterial. 

25.  The argument made by the defence was further strained when they sought to rely on a photograph which apparently captured a notice posted outside the Tung Yick Shopping Arcade which states that the business hours of the shopping arcade was between 9 am to 9 pm.  It was submitted by the defence that PW1 therefore could not have entered the shopping arcade after 9 pm as he said in the evidence and that he was obviously not telling the truth here.  PW1 had said in his evidence that the gate of the entrance was still not closed when he left the shopping arcade at 9:18 pm.  I note also that there is nothing to contradict his evidence apart from this photograph of the notice produced by the defence.

26.  However, by showing the photograph to PW4 and asking him about the business hours of the shopping arcade, the defence submitted that PW4 had already confirmed that the shopping arcade’s opening hours were indeed from 9 am to 9 pm and because of that, he had already contradicted PW1’s evidence.  I disagree.  PW4 was telling the court no more than what was just stating in the notice as obviously captured in the photograph.  Its content about the business hours of course is hearsay and is thus inadmissible if its purpose is to prove the truth of the matter.  Even accepting for a moment that the normal business hours is exactly as stated in that notice, that does not also mean that the gate of the entrance of the shopping arcade would also be closed exactly at the same time according to the notice and especially on the night in question.

27.  The defence also questioned why there were two calling records by PW1 to the mobile number 66254978 allegedly used by Uncle Wing on 5 and 7 January 2014 after checking PW1’s mobile phone.  They submitted that it showed PW1 was clearly trying to contact Uncle Wing to incite a transaction on his own initiative because there was no fruitful transaction before 5 January 2014.  

28.  This submission ignored the fact that Charge 1 allegedly took place already on 2 January 2014 during which time PW1 had successfully purchased 0.68 grammes of Ice (P2) from the defendant.  PW2 had already intercepted the defendant there and then and he had also recorded down the defendant’s personal particulars onto his notebook.

29.  As to the calling record on 5 January, PW1 testified that he could not remember the purpose of that call but in any event, he had recorded this call on his police notebook so he was not trying to hide anything.

30.  For the call on 6 January which was not recorded on his notebook, PW1 said he believed that it was a call which was made inadvertently when the phone was placed inside his trouser’s pocket.  The defence questioned this explanation as according to the record, the call duration was zero.  They said PW1 could not explain why PW1’s phone was switched off after this call was made and they said such explanation defied any logic. 

31.  In my analysis, apart from switching off the phone, there are a whole host of scenarios to explain the situation when the duration of call was seen to be zero.  For example, the call was not connected at all due to poor reception or the defendant simply missed the call or chose to ignore the call. All the above scenarios are both logical as well as reasonable and I failed to see how it could undermine the credibility of PW1.  On the other hand, this submission by the defence to suggest that PW1 had switched off his phone after he had successfully made a call to the number is by itself so illogical.

32.  In relation to Charge 2 and Charge 3, the defence also was trying to argue that as PW1 was already working on overtime when there was no instruction given in the briefing about overtime, that supported the defence that the defendant never met with PW1 in relation to those two charges.  PW1 had already explained in cross-examination that in both occasions, he was told by his superior sergeant to remain on his duties and I could see nothing wrong with this ad hoc arrangement especially during police operation.  On the other hand, it would be a surprise if PW1 just left his duties and aborted the operation in the middle of it.

33.  Finally, as to Charge 4, the defence submitted that it is unbelievable that PW1 would just be so careless to pass the marked money to the defendant without getting the drugs at the same time.  This submission again ignored the fact that it was already not the first transaction between PW1 and the defendant and certain element of trust has already existed in their dealings with each other.  One can see from the evidence that not only could they recognise each other, they also showed favours to each other.  For example, according to PW1, an Ice pot was provided by the defendant to PW1 for free and for this reason, I could see nothing wrong for PW1 to first hand over the money and then waited for the drugs.  To insist on the otherwise would not only undermine the trust between them built upon those previous dealings but would also increase the suspicion on the part of the defendant and ultimately jeopardise the whole undercover operation.

34.  Thus, none of the above criticism or submission by the defence, either individually or cumulatively, was meritorious and they was thus unable to cast any doubt on the general credibility of PW1.  I find PW1 and indeed all the police officers are honest and reliable witnesses whose evidence I could rely.

Reasonable doubts

35.  Apart from the attack on PW1’s credibility, the defence also relied on some salient features of this police operation to submit that there is a reasonable doubt in this case.  One of the main thrust of their submissions on this part was the complaint that the police did not seize the CCTV recordings either in the shopping arcade or Ho Shun Fuk Building where the meeting between PW1 and the defendant had allegedly took place.

36.  The defendant has cited a number of authorities to support its contention.  I do not need to go into the details of any of those cases. Suffice it to say that the authorities submitted all concerned with material non-disclosure by the prosecution and I can hardly see the relevance of those cases to the present case when there is simply nothing to suggest that the police, or in fact anyone for that matter, has ever viewed the CCTV recordings and confirmed that the images depicted in any of the recordings had clearly contradicted the prosecution case. 

37.  To suggest that the images of those CCTV recordings must be able to support the defence case without actually viewing it was just speculative and fanciful to say the least.  If, on the other hand, the images would simply corroborate the police case, there is nothing for the defence to complain now if the police was already contended with the identification evidence by PW1 and felt that there was simply no need to rely and make use of any further CCTV evidence.

38.  As held by the Court of Appeal in HKSAR v Cheung Wai [1998] 4 HKC 249, an authority also relied upon and submitted by the defence:-

“In the present case, no one had seen the tape and therefore no one knew whether the evidence would have assisted the defence or merely have confirmed the prosecution case. Further, the court was satisfied that upon the facts, no fault could be laid on the prosecution for having failed to realise the potential importance of the tape before it was too late. As such, its absence had not deprived the applicant of a fair trial.”

39.  All that the defence could rely on was that there were CCTV cameras installed in the buildings and that was all.  There is no evidence as to whether the cameras were working properly or at all.  There might be no recording at all, or even if there was, the recording could be blank or indecipherable.

40.  For the avoidance of doubt, I do hold that PW4, DSIP Tam, could not be criticised for his decision to focus and concentrate on the identification evidence by PW1 against the defendant and made a decision not to seize the CCTV recordings.  To PW4 and to the police for that matter, any CCTV recording only served to strengthen its case against the defendant.  Therefore the police could not be blamed if in the present case they considered that there had already been strong and unequivocal evidence from PW1 and PW2 and what is more, the identity of the drug dealer was already established by the interception by PW2 of the defendant immediately after the first dangerous drug transaction in Charge 1.

41.  Based on the above, I fail to see how the defence could be prejudiced in any practical way.  This is not a material non-disclosure case by the prosecution and I fail to see how the absence of CCTV recordings can cast any doubt on the prosecution case.

42.  The same can be said about the absence of other evidence as suggested by the defence in their final submission such as the absence of marked money found on the defendant, the absence of the evidence as to whether the defendant was the registered owner of the mobile number 66254978 and the absence of defendant’s fingerprints found on any of the packet of the dangerous drug and so on.  I am sure the list is non-exhaustive but once again, by so doing, the defence was in fact inviting the court to speculate in order to rule in favour of the defence.  As a trier of fact, my task in court is to try the case on the evidence before me and I certainly refuse myself to be drawn into the realm of speculation.

43.  All the above submissions by the defence are devoid of any merit and can at best raise only fanciful doubts on the prosecution case.

The identification evidence

44.  As said, the defence never challenge the quality of the identification in this case.  Their attack was rather on the credibility of PW1.  According to PW1, he was tasked to pose as a customer to see if any drug trafficking activity did take place in the shopping arcade as revealed in the information received.

45.  I have already found that all the police officers called in the prosecution case were honest and truthful whose evidence I can rely.  I therefore have no difficulty of finding that in the first transaction, PW1 was able to observe the defendant within a close distance and in a calm and careful manner when he met with him at the minibus terminal located at Fuk Tak Street, Yuen Long in the evening of 2 January 2014.

46.  Further, the person Uncle Wing had also described himself to PW1 over the phone that he was riding a bicycle and was wearing a pair of grey shorts before hand and those descriptions matched exactly with the profile of the man which later turned up to meet with PW1.  According to PW1, the man was about 1.75 metres tall with white hair.  He later saw the same man on 11 January and also 13 January 2014.

47.  In the subsequent identity parade held on 11 February 2014, PW1 was thus able to pick out this same man and he was the defendant.  About five and a half months later on 12 June 2014, PW1 also identified the defendant in court as the man who sold Ice to him on three occasions.  His description about the appearance of the drug dealer also matches with the appearance of the defendant appearing before me.

48.  Apart from the first identification in Charge 1, the next two occasions when PW1 and the defendant met up were indeed more of a case of recognition. According to PW1, in Charge 2 and 3, the defendant saw him in the sex shop and the defendant recognised him and approached him asking if he would like to buy more Ice.  If the defendant could already recognise PW1, the same could also be said about PW1 and it was just a case of mutual recognition under the circumstances.

49.  The same can also be said in Charge 4 when the defendant saw PW1 and then asked him if he would like to purchase Ice again.

50.  I am satisfied beyond all reasonable doubt that in all these three occasions, it was the defendant who sold the Ice to PW1.  The identity of the defendant was established firstly by the close observation by PW1 in Charge 1 and later by the subsequent recognitions by PW1 in the following charges.  The identity of the defendant was further confirmed when during Charge 1, PW2 intercepted the defendant for enquiry after seeing the defendant and PW1 talking to each other in the minibus terminal.  The details recorded by PW2 were the personal particulars of the defendant including his name, identity card numbers and address.  That went to explain how and why the defendant was later arrested by the police on 2 February 2014 at Lok Ma Chau Boundary Control Point after the police operation turned overt.  Incidentally, the address provided by the defendant as jotted down by PW2, “Flat G, 8th Floor, Ho Shun Fuk Building, Yuen Long” is exactly where the letterbox referred to was located in Charge 3.

51.  The quantity and the chain of the evidence in relation to the dangerous drugs seized in this case were admitted by the defence.

52.  The three government chemist certificates in relation to the dangerous drugs seized in Charge 1, 2 and 4 were also admitted.

53.  Having found that it was the defendant who dealt with PW1 in all these occasions as mentioned in all the four charges, I am satisfied beyond reasonable doubt that in Charge 1, 2 and 4, the defendant was engaging in the actual trafficking of Ice by selling the three packets (P2 to 4) of Ice to PW1 and in Charge 3, he had in possession one Ice pot, an inhaling device fit and intended for the inhalation of Ice in his letterbox contained in an envelope and he had directed PW1 to retrieve it from the letterbox for the purpose of giving him to inhale the Ice he bought from him.

Conclusion

54.  The defendant is therefore guilty of all four charges (Charge 1 to 4) accordingly.

Annex (1)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 314 OF 2014

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SUMMARY OF FACTS

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Prosecution Opening

1st Charge

1. In relation to all charges (1-4) PW1 (PC 12842) was acting as an undercover police officer posing as a purchaser of dangerous drugs. At around 9:00 p.m. on 2nd January 2014, PC 12842 ("PWl") was briefed to posed as a potential customer and went to a sex toy shop located at Tung Yick Shopping Centre, Yu King Square, Yuen Long, New Territories, Hong Kong ("the Shop").   Upon arriving at the Shop, PWl saw a piece of paper, which bore a telephone number 6625 4978, stuck to door of the Shop. Later, PWl called the number 66254978 and a male answered the phone. PWl asked for ‘Uncle Wing’ and the male acknowledged he was Uncle Wing. PWl told Uncle Wing that his name was Eric and that his friend told him to look for Uncle Wing. Uncle Wing asked  PWl if he would like to purchase something. PWl answered  in the  positive. Uncle Wing then told PWl that he had Ice and the price was HK$300. Uncle Wing further told PWl to wait for his call.

2.  About half an hour later, Uncle Wing called PWl and told him that he was at a mahjong school near the post off ice in Yuen Long. Uncle Wing further told PWl to wait for him at the post office. Subsequently, Uncle Wing called PWl and gave a description of himself: that he was riding a bicycle and was wearing a pair of grey shorts and that he had already arrived at the minibus terminal located at Fuk Tak Street, Yuen Long, New Territories.

3. Upon arriving at the minibus terminal, PW1 saw the Defendant. The Defendant approached PWl and acknowledged that he was Uncle Wing. The Defendant asked PWl if he was Eric and he asked PWl to pay him first. PWl then paid the Defendant three one-hundred dollar notes. In return, the Defendant handed a re-sealable plastic bag containing 0.69 grammes of a crystalline solid containing 0.68 grammes of methamphetamine hydrochloride. Afterwards, the Defendant left the minibus terminal. While the Defendant was leaving the minibus terminal, PWl indicated to PC 7388 ("PW3") that the Defendant was the person who had just sold him the drugs. PW3 then intercepted the Defendant and made record of the Defendant' s personal particulars. After making enquiries with the Defendant, PW3 let the Defendant go.

4. The street value of the drugs was HK$308.43.

2nd and 3rd Charges

5. At 14.00 hours, PW1 arrived at Tung Yik Shopping Centre to conduct an anti-dangerous drugs patrol. At around 11:35 p.m. on 11th January 2014, PW1 again saw the Defendant who had sold him dangerous drugs previously on 2nd January (Charge 1). This time the Defendant recognized PW1 and approached him asking PW1 if he would like to purchase more Ice. PW1 replied in the positive and asked the Defendant how much the Ice was. The Defendant told PW1 the price of Ice was HK$300. The Defendant further told PW1 to wait for him at Ho Shun Fuk Building, No. 60 Sau Fu Street, Yuen Long, New Territories, Hong Kong.

6. Later in the same day, PW1 arrived at the outside of Ho Shun Fuk Building. At around 12:09 a.m. on 12th January 2014, the Defendant arrived at the building. He then gave PW1 a re-sealable plastic bag containing 0.32 grammes of a crystalline solid containing 0.32 grammes of methamphetamine hydrochloride. PW1 then paid the Defendant HK$300.

7. Afterwards, the Defendant asked if  PW1 wanted  an apparatus for inhaling Ice. PW1 replied yes and the Defendant asked PW1 to follow him and he would give him an ‘ice pot’ for free. PW1 followed the Defendant into the Ho Shun Fuk Building and was directed to pick up the apparatus from the letterbox of Flat G, 8th Floor, which was located at the lift lobby of the Ground Floor of Ho Shun Fuk Building. PW1 then walked over to the lift lobby and took out an envelope which contained an  apparatus  fit  and intended for inhaling methamphetamine,  from the letterbox of Flat G, 8/Floor. PW1 then left the building.

8. The street value of the drugs was HK$143.04.

4th Charge

9. At around 2:47 p.m. on 13th January 2014, PW1 went to the Shop and found the Defendant inside the Shop. The Defendant asked PW1 if he would like to purchase Ice again and he further told PW1 that the price of Ice was HK$300. PW1 then handed over HK$300 to the Defendant. Afterwards, the Defendant told PW1 to call him at 6625 4978 and he further told PW1 that he would call PW1 later. PW1 complied with the Defendant's instruction and made a call to the phone number 6625 4978. PW1 then left the shopping mall.

10. Later in the same day, PW1 received a call from the Defendant.  The Defendant told PW1 to meet him at the staircase of 2nd Floor, Tung Yick Shopping Centre, Yu King Square, Yuen Long, New Territories, Hong Kong. PW1 then went to the staircase on the 2nd floor. Upon arriving at the staircase on the 2nd floor of Tung Yick Shopping Centre, PWl found the Defendant waiting thereat. The Defendant gave PWl a re-sealable plastic bag containing 0.56 grammes of a crystalline solid containing 0.56 grammes of methamphetamine hydrochloride. After paying the Defendant HK$300, PWl left the staircase.

11. The street value of the drugs was HK$250.32.

12. On 2nd February 2014, the Defendant was arrested at Lok Ma Chau Control Point.

13. In the subsequent identification parade, PWl identified the Defendant as the person who sold him the dangerous drugs.

Dated this 10^th June 2014.

LIST OF PROSECUTION WITNESSES