HKSAR v. SINGH TANVEER

DCCC 158/2021

[2023] HKDC 109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 158 OF 2021

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REASONS FOR VERDICT

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1.  The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The defendant pleaded not guilty.  After due consideration of the evidence and submissions, I find the prosecution has failed to prove the charge beyond all reasonable doubt and the defendant is acquitted accordingly. Following are the reasons.

The prosecution case

3.  On 8 August 2020 at around 12:30am, the defendant was found staring at the backseat and trunk of a motorcycle parked at Blenheim Avenue.   The defendant ran away after he was alerted by the police officers.  The officers gave chase and subdued him on Middle Road; he was then taken back to the parked motorcycle.

4.  Upon checking, it was found that a key had been inserted in the keyhole near the back seat and the trunk under the seat was not locked.  A white plastic bag containing various items was found in the trunk, including: ketamine, MDMA and herbal cannabis came in different packing and quantities together with a grinder, an electronic scale and various packing materials.

The defence case

5.  SC8401 has been sold to Hardeep for $1,500 around 20^th to 21^st July 2020, $500 deposit has been received, ownership transfer pending full payment.  The items found were not belonged to the defendant.  He ran away from the officers to avoid being ticketed for not wearing a face mask.

Issues in dispute

1)  Did the defendant have possession of the dangerous drugs?

2)  Does section 47 apply in this case?

3)  If so, did the defendant have the dangerous drugs for trafficking?

Background

6.  The defendant was captured by the CCTV cameras installed at Blenheim Avenue.  The unchallenged CCTV footage shown that the defendant was not wearing a face mask at the material time.  He was riding his motorcycle WF9036 together with a passenger heading the Blenheim Avenue and parked the motorcycle at the back alley as shown on the sketch [Exhibit P28].  The identity of the defendant was not in dispute.

7.  Officers in uniform patrolling in the neighborhood happened to notice the defendant coming out from the back alley approaching the motorcycle parking space next to the exit of the back alley.  As PW1 found the defendant acting suspiciously, he shouted to stop the defendant, but the defendant turned and fled.  The officers chased and subdued the defendant outside East Tsim Sha Tsui Station Exit K (hereinafter referred as Exit K). 

8.  PW1 returned to the motorcycle parking space and noticed the motorcycle SC4801 parked thereat (hereinafter referred as the junction).  A key in a bunch of four [Exhibit P27] was inserted in the keyhole of the trunk of the motorcycle.  The trunk was unlocked, he lifted up the seat and found the dangerous drugs, grinder, electronic scale, and packing materials inside [Exhibit P1 to 14].  The chain of evidence related to the exhibits was not in dispute.  The chemist certificate was marked as Exhibit P17.

9.  The photos taken at the scene were admitted by consent and marked as Exhibit P20 (photo 32 to 45).

10.  The CCTV footage captured the presence of the defendant was admitted by consent and marked as Exhibit P21, the relevant screen captures marked as Exhibit P23.

11.  The defendant has a clear record, he was the owner of the motorcycles WF9036 and SC8401 at the material time.

Findings

12.  It is for the prosecution to prove the defendant’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendant has no burden of proof whatsoever.  The defendant has a clear record, it is less likely that he would commit a crime and more likely that he was telling the truth under caution, during the video recorded interviews and in his evidence. 

13.  That the defendant exercised his right to silence during the interviews would have no adverse inference whatsoever.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  No adverse inference is to be drawn unless it is “the only irresistible inference”.  Where there is any reasonable doubt, the benefit should go to the defendant. 

14.  PW1 observed the defendant for 2 to 3 seconds when he decided to stop and question the defendant.  According to the officer, the defendant approaching the rear of the parked motorcycle slowly during which he looked to his left and right.  He felt the defendant might touch the motorcycle and asked him what was going on.  The defendant looked into his eyes and slowly retreated several steps, he ordered the defendant to freeze but he turned and fled.  The officer later clarified he did not know which motorcycle the defendant was aiming at when he stopped the defendant. 

15.  The defendant was approaching to the rear of the motorcycle(s)  parked at the parking space when his behavior attracted the attention of the officer at the junction.  It was only the defendant’s behavior aroused PW1’s suspicion. The subsequent discovery of the dangerous drugs, grinder, electronic scale and packing materials inside the trunk of SC 4801 [Exhibits P1 – P14] and the keys was not in dispute (para. 2 and Para.3 of the Admitted Facts). 

16.  The CCTV footage did not capture the registration number of the motorcycles, but the footage suggested that at the material times, two motorcycles the second and the third one appeared at the screen parked at the parking space.  The first one and the fourth one (WF 9036)  which was riding by the defendant went into the back alley by Signal Hill Garden and parked there.

17.  The defence suggested the officers pretended to plant dangerous drugs on the defendant outside Exit K, and the officers denied.  The discovery of the dangerous drugs was not in dispute, the officers’ evidence remained consistent under cross-examination.  The incident happened almost two and a half years ago, since the officers did not make details record of all the conservations with the defendant at the material time, they were not able to recall the details of the conservation was understandable and this would not affect the credibility of the officers. 

18.  There were some discrepancies as to who returned to the junction first after the defendant was subdued outside Exit K.  According to PW3’s evidence he left Exit K at 00:48 hours and did a sweep search along the chasing route back to the junction, and PW1 agreed according to his statement he left Exit K with Sgt 2456 at 00:50 hours.  Yet according to PW1’s evidence he instructed PW3 to stay at the scene at 00:39 hours and when he returned to the junction with Sgt 2456 to do the search PW3 was not there, it was him who lifted up the back seat of the SC4801, and PW3 was at the junction at 01:05 hours helping him to guard the exhibits.  PW3 gave evidence that when he returned to the junction to guard SC 4801, he noticed the backseat of SC4801 was lifted up and he did not see PW1 lifting up the backseat.  Apart from the time as to when they left Exit K, their evidence as to the sequence of the event was consistent.  I considered the time discrepancy might be due to memory fault or time difference between the officers’ swatches.  I considered and accept their evidence as to the sequence of the event.

19.  The motorcycle parking space at the junction was not covered by any CCTV camera.  According to PW1, SC8401 was covered with a motorcycle cover and unless one got close to it, one would not notice a key was inserted to the key hole.  Although the keys seized were not checked against the trunk lock and ignition switch of SC8401, the circumstances as a whole suggested that a prior arrangement has been agreed upon, someone parked the motorcycle there, allowing the next one came over to have access to the items inside the trunk. 

20.  The CCTV footage and the officer’s evidence suggested that the defendant was walking out of the back alley and was a few steps to the motorcycle parking space near the entrance of the back alley when he was alerted by the officer. It was the defence case that the defendant ran away because he was not wearing a face mask at the material time.  The officers were not able to recall whether the defendant provided any explanation for fleeing at the scene. The defendant was specifically asked why he ran when he was stopping for a search in the first video recorded interview on 8 August 2020, of which he said “I don’t want to answer this” (counter 247 – 251). But the assertion that the defendant was not wearing a face mask was supported by the CCTV footage.

21.  The defendant was not handcuffed and he did not make any attempt to escape after he was subdued outside Exit K at 00:39 hours.  At 01:20 hours the defendant was handcuffed and escorted back to the junction.  When the defendant was cautioned at the scene, he denied the ownership of the dangerous drugs. And he told the officer during first video recorded interview that these things belonged to his friend Hardeep, a workmate at Deliveroo. He has known this friend for four to five months since he worked at Deliveroo. His friend wanted to keep these things in his bike and he did not know what these things were. He had his phone number but did not remember.  He did not want to answer why he fled when the police officer stopping him for a search.  SC 8401 belonged to him, but he did not know why the car key was inserted into the vehicle.  The vehicle only had one key and he refused to answer whether he handed the motorcycle key to anyone. The defendant was invited to have a second video recorded interview on 9 December 2020; he was basically exercising his right to silence throughout that interview.

22.  The defendant accused the officers pretended to plant dangerous drug on him, referring to a small packet of white power.  Why would the officers want to do so and in the manner alleged?  If the officer had the alleged packet all along, why not did so when the defendant was first subdued.  If the officer took it from the trunk, why he chose the packet and not the keys.  I considered and reject the defendant’s evidence that the officers pretended to plant dangerous drugs on the defendant.

23.  Defendant being the owner of SC8401, the only person noticed by the officer in the vicinity of the vehicle: (1)  Was he the one who put the items inside the trunk of SC8401?  (2)  Did he has the physical possession of SC8401 at the material time?  Does section 47 apply in this case?

24.  Was it a mere coincidence that the defendant just presence at the scene where his motorcycle was parked and someone put the dangerous drugs and packing materials inside the trunk without his knowledge?  If the items were not put inside the trunk by the defendant, were the dangerous drugs and/or the keys there for his collection?  Is the latter one the only irresistible inference?

25.  The defendant gave evidence as to how he got the SC 8401 and why he parted with it.  His evidence that he bought the motorcycle on 15 July 2020 was not challenged.  He gave evidence that he parked the vehicle at the parking space after he decided to sell it and he sold the vehicle to Hardeep around 20 – 21 July 2020; he has received $500 deposit when he handed over the vehicle together with the only car key to Hardeep.  He knew Hardeep was going to put things inside the trunk, he did not ask for details as he has sold the vehicle to him.  He would transfer the legal title to Hardeep after he receive the balance.  Hardeep was in the vicinity of SC8401 when he parked his WF9036.  All these details were relevant to answer why key of SC8401 was inserted in the keyhole of its trunk while the trunk containing dangerous drugs was unlocked.

26.  The defendant gave evidence that he had Hardeep’s phone number stored inside his phone, but he did not provide it to the Police during the interview, instead he said he did not remember.  According to his evidence the sale to Hardeep was a relatively straight forward transaction, but when he tried to explain the things inside the trunk were belonged to Hardeep, he made no mention of the sale at all and did not provide and any means of contact.  I had reservation as to his evidence that he has sold the motorcycle to someone in the same month he bought it and the identity of his friend “Hardeep”.   

27.  Yet there was a helmet below the seat of SC8401 which was covered with a motorcycle cover, a key in a bunch of four was inserted in the keyhole of the trunk, all these were consistent to defendant’s evidence that he had passed the physical possession of SC8401 to a friend.  The defendant already told the Police in his first interview that SC8401 only had one key, but the bunch of keys were not tested by the officers.  The defendant gave evidence that he had no knowledge of the rest of the keys. 

28.  According to the defendant’s evidence, the helmet and the cover were not his, up to 8 August 2020, SC 8401 was always parked in the free parking area in the junction, except changing form one to another parking space.  The CCTV footage shown that the defendant moving in and out the back alley after he parked WF9036 inside the back alley, on one occasion returned to his trunk to take out a folder and put it back.  The footage suggested that the defendant had interaction with someone at the scene, this was consistent with his evidence that he was there to socialize with other deliverers after work. 

29.  The defendant was not surprised that something was inside the trunk, he explained to the officer during the first interview that these things belonged to his friend Hardeep.  Whoever the “friend” was, the key of SC8401 was not with the defendant when he was intercepted.  The circumstantial evidence as a whole was consistent with the defence case that someone had the physical possession of SC8401 at the material time.   There was no evidence as to who put the items inside the trunk, there was a possibility that the person who put the dangerous drugs inside the trunk did not want to leave behind any connection with the motorcycle thus leaving behind the key.

30.  There was no direct evidence as to when the dangerous drugs were put inside the trunk.  The dangerous drugs were found inside the unlocked trunk of defendant’s motorcycle when PW1 returned to the junction.  The value of the dangerous drugs was estimated to be about $15,000.  The defendant has been at the scene over 5 minutes after he parked his WF9036 at the back alley, if the dangerous drugs were there already and he wanted to take possession of the items or the keys he could have done so.  Or were the things put there after the officers and the defendant left the junction?

31.  The defendant told the officer SC8401 had only one key in his first interview but the bunch of four keys was not tested by the officers.  The defendant, however, identified the key of SC8401 in the trial and said he had no idea about the rest.  The defendant gave evidence that the things were not his and he had no knowledge as to the nature of the substance.  He was not present when the things were put inside the trunk, he presumed these belonged to Hardeep who was also nearby at the material time.  His evidence was consistent with the DNA and fingerprint tests result. 

32.  The defendant said he paid no particular attention to SC8401 at the material time, he was only there to smoke.  It was very suspicious that he fled upon alerted by the officer, the defendant said he ran to avoid being ticketed for not wearing a face mask, the officers were not able to recall if that was the explanation provided by the defendant at the scene.  CCTV footage, however, supported the defendant’s allegation.  

33.  After due consideration, I have no reason to reject the defendant’s evidence that he has passed the physical possession of SC8401 to a friend and the items inside the trunk were not his and he was not present when the items were put there.  Section 47 is not triggered in this case.  The prosecution has failed to prove the charge beyond all reasonable doubt and defendant is acquitted accordingly.