HKSAR v. ALI RAZA

DCCC 255/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 255 OF 2014

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REASONS FOR VERDICT

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Introduction

1.  The defendant was charged with and tried before me for one charge of trafficking in a dangerous drug, namely 47.03 grammes of a solid containing 30.33 grammes of cocaine, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

The issue

2.  There was no dispute that the defendant was the person arrested by PC 12104 (PW1) on the staircase landing on the 3/F of the building at No 31 Sheung Heung Road, Kowloon.  The major, if not the sole, issue in this case is whether or not he was the South Asian male whom PW1 and his partner SPC 49110 (PW2) had previously intercepted in the back alley of No 5 San Ma Tau Street.  It was their evidence that the male carried in his hand a white plastic bag [P10] which was later found to contain, among other things, the dangerous drugs ([P1] and [P2]) the subject matter of the charge.  The defence case, which was put in the cross-examination, was one of wrongful identification in that the defendant was not the male who, according to the officers, had managed to escape from the scene of interception.  

3.  The defence did not take issue with the chain of exhibit from the time the dangerous drugs were sealed in the Report Room of Hung Hom Police Station up to the time they were produced in court.  That part of the prosecution case was covered by PW1’s evidence.  There was also no dispute about the nature of the dangerous drugs, their quantity and street value, such matters having been covered by the admitted facts.

The evidence

4.  As far as the main issue is concerned, the gist of the prosecution evidence is as follows:-

(a) At about 0104 hours on 26 December 2013, whilst on routine patrol duty in uniform, PW1 and PW2 saw from a distance of 4 to 5 metres a South Asian male in San Ma Tau Street near Mei King Street. There was then sufficient illumination from street lights. The officers kept the male under observation.

(b) The aforesaid male was wearing a black leather jacket, light blue jeans and black shoes. Under the jacket, the male was wearing a yellow top. He was 1.65 to 1.7 metres tall. He was seen holding a white plastic bag [P10] in his hand.

(c) All of a sudden, the male walked in a North East direction towards Kowloon City Ferry Pier Bus Terminus and that aroused the officers’ suspicion. The evidence of PW2 was that there was no other pedestrian on the street at the time and the bus service had apparently stopped.

(d) PW1 and PW2 went forward to intercept the male and they stopped him at about 0105 hours in the back alley of No 5 San Ma Tau Street. They noticed that he had a scar of 1 to 2 inches long on his right forehead. PW1 asked the male in Cantonese what he was doing and where he lived. The latter replied in non-fluent Cantonese saying “Nothing. Live in To Kwa Wan.” As he said that, he looked around and put [P10] behind his back.

(e) PW1 took over [P10] from the male. Whilst PW1 was checking its contents, the male sprinted away. Seeing that, PW1 put [P10] into the inner pocket of his police overcoat and gave chase. However, the male was a faster runner than he was and the distance between the two of them kept on increasing. The chase lasted for about 2 minutes. When PW1 reached Cheung Ning Street, he lost sight of the male. After that, PW1 went on to look for the latter in the vicinity.

(f) PW2 followed and also took part in the chase. However, he had to stop for a passing vehicle when he reached To Kwa Wan Road. By which time, PW1 had already crossed the road and was on the other side. Afterwards, PW2 walked along San Shan Road to search for the male.

(g) At about 0114 hours, from a distance of 5 to 7 metres, PW1 found at the entrance of No 31 Sheung Heung Street a male whose appearance and clothing were similar to the one he was looking for. Seeing the male enter the building, PW1 informed his colleagues and waited outside for their arrival. The building was an old Chinese style apartment building which did not have a main iron gate. It did not have lifts or escalators either.

(h) At about 0115 hours, PW2 and SPC 47364 (PW3) met up with PW1 and the three of them went upstairs. They found the defendant on the 3^rd floor staircase landing. At the time, the defendant was wearing a yellow top, a pair of light blue jeans and a pair of black shoes. However, he was without a jacket.

(i) PW1 and PW2 recognized the defendant as the South Asian male whom they had previously intercepted. As the defendant was without the black leather jacket, PW3 was briefed of the escape route and tasked to look for the jacket along the escape route.

(j) There and then, PW1 took out [P10] from his inner pocket and showed to the defendant the contents which consisted of the following:-

(i) a Marlboro cigarette box [P3] containing a re-sealable plastic bag [P1a] containing suspected dangerous drugs [P1];

(ii) two pieces of tissue paper [P4] wrapping a re-sealable plastic bag with a red line [P2a] containing suspected dangerous drugs [P2];

(iii) a white plastic bag with red Chinese characters [P9] containing a mobile phone charger with a cable [P8], a Capstan cigarette box containing cigarettes [P6] and a package of Tempo tissue [P7]; and

(iv) a Sony Ericsson mobile phone [P5].

(k) After that, PW1 conducted a body search of the defendant and found from his right front trousers pocket a Samsung mobile phone [P11] and from his left front trousers pocket a Nokia mobile phone [P12]. From the rear trousers pocket of the defendant, PW1 found a bunch of 4 keys and a wallet. Inside the wallet, there was $1,742 and a photocopy Form 8 issued by the Immigrant Department.

(l) PW1 asked the defendant whether he had any other identification document with him. The defendant replied in non-fluent Cantonese saying, “Lost”.

(m) At 0135 hours, PW1 arrested and cautioned the defendant for possession of dangerous drugs and failure to produce identification document. The defendant remained silent under caution.

(n) Afterwards, PW1 and PW2 took the defendant to meet up with PW3 at the opening to an alley of Cheung Ning Street near To Kwa Wan Recreation Ground where PW3 had found a black leather jacket [P14] lying on top of some iron racks. PW1 and PW2 recognised [P14] as the jacket previously worn by the defendant. PW1 asked the defendant whether [P14] was his. The defendant remained silent.

(o) At 0155 hours, the defendant was handed over to the duty officer of Hung Hom Police Station.

Evaluation of the evidence

5.  I remind myself that the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt.  The defendant has to prove nothing.

6.  The defendant did not give or call any evidence.  This is his right.  No adverse inference would be drawn against him because of that. 

7.  It is an admitted fact that the defendant has a clear record and this helps him as regards “propensity”: see Tang Siu Man (No 2) v HKSAR (1997-1998) 1 HKCFAR 107.  As regards “credibility”, however, the defendant did not give evidence and he did not rely on any pre-trial statements or answers given by him to the police and none had been produced: R v Vye [1993] 1 WLR 471.  Therefore, the “creditability” limb of the “good character direction” does not apply here.

8.  As identification is in issue, I remind myself of the guidelines in the case of Turnbull [1976] 63 Cr App R 132.  I am alive that a witness who is convinced in his own mind may, as a result, be a convincing witness, but may nevertheless be mistaken.  The same may also apply to a number of witnesses.  I have therefore to examine carefully the circumstances in which the identification by each witness was made.  How long did PW1 and PW2 have the person they said was the defendant under observation?  At what distance?  In what light?  Did anything interfere with the observation?

9.  Having observed the prosecution witnesses in the witness box, having considered the inherent probabilities of the case and the submission of defence counsel, I find that the prosecution witnesses are honest and credible.  My reasons are as follows:-

(a) The prosecution witnesses were unshaken under cross-examination and their accounts match on major and material aspects.

(b) The fact that PW1 did not mention in his witness statement that he had told his colleague about the route of escape and asked the latter to look for the leather jacket does not cause me to doubt that he had actually done so. This is a minor and unimportant omission. Also, I see no reason for PW1 to lie about this. Moreover, PW3 would not have left the building to look for the jacket unless he had been told to do so.

(c) PW1 gave evidence that he told PW3 about the route of escape. On the other hand, PW2 also said that he had done so. This, at first sight, appears to be a discrepancy. However, on closer look this may not be a discrepancy at all, as their evidence does not exclude the possibility of both of them having informed PW3 about the escape route. Even if it amounted to a discrepancy, I would not consider it as a material one which would affect my assessment of the credibility of the prosecution witnesses.

(d) PW1 said that the dangerous drugs were sealed in the presence of PW2 whilst PW2 said that he (PW2) had not attended to that. However, I consider this discrepancy between PW1 and PW2 as a matter of no moment. As I have said, the defendant does not dispute that the dangerous drugs were sealed in his presence at the Police Station before the Duty Officer. The defendant’s case, as put in cross-examination, was that he was not the male intercepted by PW1 and PW2, that he had not been shown the exhibits on the staircase landing and that he had nothing to do with [P10] and the dangerous drugs found inside. I should add that in relation to the few matters over which the evidence of PW1 do not agree with that of PW2, I accept the evidence of PW1 and give it full weight. This is because PW1 was the one who took the active role in questioning, chasing, arresting and cautioning the defendant. It was PW1 who seized all the exhibits. It was PW1 who kept the dangerous drugs until they were sealed in a tamper-proof envelope in the presence of the defendant. As such, PW1 would have a deeper impression of the incident than PW2. In any event, the discrepancies between PW1 and PW2, whether considered individually or taken as a whole, do not cause me to doubt the honesty or credibility of any of the officers.

(e) In assessing of the evidence of PW1 and PW2, I have taken into account the submission of Mr Polson for the defence that both PW1 and PW2 used metric measurements when they referred to distances and the height of the South Asian male and both of them happened to switch to imperial measurements when they referred to the length of the scar on his right forehead. However, I note that many people in Hong Kong who were brought up and educated in the colonial era would be accustomed to both metric and imperial measurements. I do not find anything exceptional that both PW1 and PW2 would express distance and height in metres but would use inches when referring to shorter things like the length of a scar. This does not cause me to doubt that there had been collusion between the two officers.

(f) On the other hand, there are marks of candour in the evidence of PW1 and PW2 in that they admitted that they had once lost sight of the South Asian male and that the defendant was not wearing a jacket at the time of arrest. If they had wanted to “improve” or “bolster” the prosecution case, they would not have given such details in their evidence. These details, in my view, would not be given unless they are true.

(g) As regards PW3, it was not put to him that he had not in fact found [P14] at the opening to an alley of Cheung Ning Street near To Kwa Wan Recreation Ground. In any event, I see no reason for him to lie about that.

(h) I have also taken into account that PW1 did not wear any latex gloves when he handled the exhibits on the 3^rd floor staircase landing and that the leather jacket had not been submitted for DNA examination. None of these cause me to doubt the credibility of the prosecution witnesses. It is one thing to say that the prosecution witnesses could have done better. It is quite another to say that they are not credible. In the present case, their failure to do better investigation pertains to the former rather than the latter.

10.  As regards the reliability of PW1’s and PW2’s identification of the defendant as the male they had intercepted in the back alley of No 5 San Ma Tau Street, I find that I can safely accept their evidence in this regard and give full weight to their evidence.  My reasons are as follows:-

(a) PW1 and PW2 had kept the South Asian male under observation for about 1 minute in sufficient lighting condition from a distance of 4 to 5 metres before they went forward to intercept him.

(b) Both of them had ample opportunity to observe that male at close quarters after he was intercepted. In particular, PW1 had spoken to him. Both PW1 and PW2 noticed that the male they intercepted had a scar on his right forehead.

(c) PW1 chased the male for about 2 minutes, during which time his attention was focused on the latter and therefore he had ample opportunity to form a firm impression of the built of the male.

(d) Both of the officers testified that they recognised the defendant as the person they had intercepted. The identification, which took place only a short time after the interception, is strengthened by the fact that the defendant is a South Asian and by the presence of a scar on his right forehead. In this regard, I note that there is no evidence as to whether or not the defendant has such a scar now. However, that is not the point. There was no suggestion in cross-examination that the defendant did not have such a scar at the time of the arrest. As such, the evidence of PW1 and PW2 that the defendant had the scar was not challenged.

(e) Both PW1 and PW2 were cross-examined on the basis that they had not in fact noticed any scar on the South Asian male and that they got the detailed descriptions of the defendant’s appearance (including the scar) only after the arrest, possibly at the Police Station. This suggestion was strongly denied by the two officers. In this regard, as aforesaid I have found that the officers were frank when they said they had lost sight of the defendant during the chase. I have also observed PW1 and PW2 giving evidence in the witness box. I find that both PW1 and PW2 are credible witnesses and that they do not have a tendency to exaggerate their evidence. I am satisfied beyond any reasonable doubt that the officers had noticed a scar on the right forehead of the defendant when they intercepted him in the back alley.

(f) The absence of DNA or fingerprint evidence does not lead inevitably to the conclusion that the defendant had not handled or in contact with the exhibits. See HKSAR v Tse Yu Hin (CACC 458/2012)

(g) I note that [P14] does not have distinguishing features. However, judging from the location where it was found, I have no doubt that it was the jacket worn by the defendant when he was previously intercepted by PW1 and PW2. It would be too much of a co-incident that someone else had left a perfectly usable black leather jacket at a location which tallied with the escape route and was in the vicinity of the building where the defendant was subsequently found. Even assuming that PW1 and PW2 had mistakenly identified [P14], this would not cause me to doubt their identification of the defendant which, as discussed above, was based on solid grounds.

In view of all the circumstances, I am satisfied that the risk of the defendant being wrongly identified can be safely disregarded.

11.  Based on the above findings, I am sure that at the material time the defendant was in possession of [P10] and its contents including the dangerous drugs.  In all the circumstances of the case, including his presence in the street in the small hours, the quantity of dangerous drugs and their substantial street value ($66,877), his possession of three mobile phones and cash of $1,742, I draw the inference, which I find to be irresistible, that the defendant had the dangerous drugs for the purpose of unlawful trafficking.  Therefore, I find the defendant guilty as charged.