HKSAR v. JAITEH MUSA AND OTHERS

DCCC 505/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 505 OF 2015

------------------

------------------

-------------------------------------

REASONS FOR VERDICT

-------------------------------------

Charges

1.  There are three defendants (D1 – D3) and five charges.

2.  Charge 1 is Offering to traffic in a dangerous drug, against D1 only.  D1 pleads not guilty.

3.  Charges 2-4 are Trafficking in a dangerous drug, against D1-D3.  (There is a named accomplice called Musah.)  D2 and D3 plead not guilty while D1 pleads guilty on the basis that he was trafficking on his own but not with others. Prosecution do not accept this saying.

4.  Charge 5 is Trafficking in dangerous drugs, against D3 only.  (Musah is a named accomplice.) D3 pleads not guilty.

Introduction

5.  Police officers saw D1-D3 and Musah often associating suspiciously around Luard Road and Lockhart Road of Wanchai (the Bar Area).  These suspects were put under watch. Two officers later posed as decoy buyers to buy dangerous drugs from D1. One failed; the other succeeded.

Charge 1(against D1 only)

6.  Shortly after midnight on 18 December 2014, Decoy Buyer 1 (PW1) was approached by D1 outside the Mes Amis Bar (Mes Amis). D1 asked PW1 if he wanted ‘coke’ (cocaine).  PW1 answered yes but D2 came up to say something to D1 in an unknown language.  D1 then told PW1 that there was no ‘coke’.  No deal was made.

Charge 2 (against D1-D3)

7.  On 21 January 2015, Decoy Buyer 2 (PW2) went to the junction of Luard Road and Lockhart Road. D1 approached him and sold him cocaine.  D2 was nearby.  D3 and Musah went to a rear lane.  There Musah fiddled with an air-conditioner while D3 acted as lookout at the entrance of the rear lane.  The two later went back to join D1 and D2.  Musah passed something onto D1, who put it into his trousers pocket.  Prosecution allege that was dangerous drugs for D1 to sell on and it came from that air-conditioner in the rear lane.

Charge 3(against D1-D3)

8.  About 20 minutes later, PW2 returned to the scene. D1 approached him again and sold him another packet of cocaine.  D2, D3 and Musah were nearby.

Charge 4(against D1-D3)

9.  Around midnight on 29 January 2015, PW2 was at the junction of Luard Road and Lockhart Road.  D1 approached him and sold him two packets of cocaine.  D2 stayed nearby while D3 and Musah went to the said rear lane.  Musah fiddled with the same air-conditioner while D3 again acted as lookout outside the rear lane

Charge 5 (against D3)

10.  Police found the drugs mentioned in Charge 5 in the rear lane.  Two small packets lied on the floor while more were found on the supporting frame of an air-conditioner. But that machine was about 10 feet away from the one Musah had been seen fiddling with.  Prosecution say Musah stocked dangerous drugs there.  D3 went with Musah to fetch the drugs but the former only stayed at the entrance of the rear lane as lookout.

Issues

11.  Prosecution say D1-D3 and Musah were in a joint enterprise of selling dangerous drugs in the Bar Area.  The drugs were stored at the rear lane.  Musah was responsible for fetching them.  D3 went with him as lookout.  D1 sold the drugs in the street.  D2 with D1 for trafficking purpose.

12.  D1 admits the trafficked in dangerous drugs twice on 21 January 2015 (Charges 2-3) and once on 29 January 2015 (Charge 4).  However, he says he did so on his own. 

13.  On Charge 1, D1 denies he was the peddler offering to sell drugs to PW1 on 18 December 2014.

14.  D2 and D3 deny any involvement in D1’s trafficking on 21 January 2015 (Charges 2-3) and 29 January 2015 (Charges 4).

15.  On Charge 5, D3 denies he dealt in any dangerous drugs with Musah.

Prosecution Case

16.  Prosecutor calls PW1-PW9, PW18 and PW19 to testify.  He also submits exhibits P1-P37.

17.  PW1 was the decoy buyer on 18 December 2014 (Charge 1).

18.  PW2 was the decoy buyer on 21 January 2015 (Charges 2-3) and 29 January 2015 (Charge 4).

19.  PW3 was the officer who stopped D1 and D2 on 18 November 2014 to find out their identity.  He also stopped D3 and Musah on 22 November 2014 to find out their identity.

20.  PW4 was the officer who made observation from Observation Post 1 (OP1); PW7 from Observation Post 3 (OP3); PW6 from Observation Post 2 (OP2) in relation to Charge 4; and PW5 from OP2 at other times.

21.  PW6 was also the exhibit officer on 29 January 2015. He found the drugs in Charge 5 in the rear lane.

22.  PW8 arrested D1 on 29 January 2015; PW5 arrested D2;  PW9  arrested D3 and PW18  arrested  Musah.

23.  PW19 was the officer who took the photos in P33.  The seven photos were taken from OP1, OP2 and OP3 to show how it looked like outside at night.

Dock Identification

24.  Of all the prosecution witnesses, only PW1 had been arranged to attend an identification parade.  He identified D2 as the man who spoke to the peddler on 18 December 2014 (Charge 1).

25.  However, the person alleged to be the peddler (D1) was not put on any identification parade. 

26.  There were also no identification parades held for any other prosecution witness to identify D1-D3 and Musah.  Prosecutor claims all the surveillance officers had seen D1-D3 and Musah many times.  They knew the four suspects well as T1, T4, T3 and T2 respectively.  They can recognize the four so there was no need to hold any identification parade for these officers.

27.  Prosecutor asks four surveillance officers (PW3-PW6) and the arresting officers to make dock identification of the defendants.

28.  Counsel for D1-D3 do not dispute the arrests but they object to the dock identification made by the surveillance officers. Counsel contend these officers cannot be said to be truly acquainted with the four suspects. They also complain the circumstances of the alleged previous sights/observations other than those on the charged dates are unclear.  Counsel say dock identification is thus unfair and inadmissible.

29.  I hold alternative procedure to determine the special issue of dock identification.  My determination is that dock identification in the present case is admissible.  It is a matter for the jury to consider what weight should be accorded to the identification evidence. (This is discussed in later paragraphs.)

Acquaintance

30.  Of the four surveillance officers making dock identification, PW3, PW5 and PW6 claim they had seen D1-D3 and Musah many times since mid-November 2014. The other officer PW3 says he had seen the four on a number of occasions since 17 December 2014.

PW3 (stop/search and observation)

31.  PW3 says he and his colleagues started to pay attention to suspicious drug activities in the Bar Area including Luard Road, Lockhart Road, Fenwick Street, O’Brien Road and Hennessy Road.  He and his colleagues would make observation during street patrol and licence check at the bars. That was usually done at night. Sometimes PW3 was on his own; sometimes he was with partners. 

32.  On 18 November 2014, PW3 saw four black males outside Mes Amis at the junction of Luard Road and Lockhart Road. (Police subsequently codenamed the four as T1-T4.  It is said T1 was D1, T4 was D2, T3 was D3 and T2 was Musah.)

33.  On this first occasion, PW3 saw T1-T4 communicating among themselves.  They also greeted foreigners passing by.  T1 was seen talking to a European male.  The latter took out a wallet and ­­­had hand contact with T1.  T2-T4 were nearby.  The European then left the scene.

34.  Later that night, PW3 and his colleagues stopped T1 and T4 outside Hay Hay Restaurant (Hay Hay), which was opposite to Mes Amis.  There was good lighting.   PW3 checked the identity documents of T1 and T4.  They were asylum seekers.  They produced recognizance papers (Form 8).  The documents bore the holder’s photo and particulars (see P31 for T1 and P32 for T4).  P31 belonged to Jaiteh Musa (D1) and P32 belonged to Barrow Samba (D2.)

35.  Nothing suspicious was found on T1 and T4.  They were released.

36.  In the early hours of  22 November 2014, PW3 saw T2 and T3 outside Hay Hay.  T2 and T3 talked to two black females.  T2 had hand contacts with those females.  The four then walked to the rear lane at No 72 Lockhart Road (the rear lane).  T2 went inside while the other three stayed at the entry.  After a minute, T2 came out and had hand contacts with the two females again. The two females then left the place. 

37.  PW3 stopped T2 and T3 outside Hay Hay.  The two were also asylum seekers.  Each produced a Form 8 document.  The documents bore the holder’s photo and particulars (see P29 for T2 and P30 for T3).  P29 belonged to Musah Hakeem Tahiru also called Tahiru Musa Hakem (Musah) while P30 belonged to David Jordan (D3).

38.  Nothing suspicious was found on T2 and T3.  They were allowed to leave.

39.  PW3 and his colleagues had further seen T1-T4 in the Bar Area.   

40.  PW3 says he had also made observation of the four over 10 times from OP1, which was situate at a four-floor podium of a building across the junction of Luard Road and Lockhart Road.  (PW1 marks that with a green X on P24B.)  Each observation was for about 2 hours at night.  PW3 would look down at the street with naked eyes.  He says there were street lights and nothing hindered his observation. T1-T4 were often seen hanging outside Mes Amis. 

18 December 2014

PW1 (Decoy Buyer 1)

41.  Shortly after midnight on 18 December 2014, PW1 arrived outside Mes Amis.

42.  At 0030 hour, PW1 was approached by a black male wearing a flat cap, dark jacket and light-coloured shirt.  He asked PW1 if he needed something.  PW1 replied in the positive.  The man then asked if PW1 was looking for coke (cocaine).  He said he had good stuff and asked for $1,000.  PW1 said he needed some.  At that juncture, another black male came up and said one word repeatedly to the first black male.  PW1 could not understand that language.  It sounded like “nunda nunda” or “cunda cunda”.  The first black male then changed to tell PW1 that there was no coke.  The two black men then left the scene.

43.  PW1 says the two men appeared in front of him for less than a minute.  There were street lamps and light from the bar.  He could recognize the second man as D2 in an identification parade on 4 March 2015. 

44.  Prosecution, however, have not arranged any identification parade in respect of the first man who is alleged to be D1.  Prosecutor concedes PW1 cannot be said to be truly acquainted with D1 in a one-off encounter.  He rightly does not ask PW1 to make any dock identification.

PW4 (OP1)

45.  That night, PW4 was briefed to man OP1.  He had never been there.  PW3 led him there. Before going up to the post, PW3 pointed out D1-D3 and Musah in the street to PW4.  PW4 had not seen the four previously so he spent about 15 minutes to recognize them from a distance of 15-20 feet.  He estimates he had spent 2 minutes on each man. Then he and PW3 went up to OP1.  PW3 later left him.

46.  At 0008 hour on 18 December 2014, PW4 from OP1 saw T1 talk to a foreigner outside Mes Amis. T4 stayed behind T1 while T2 and T3 crossed Lockhart Road and walked westward. PW3 saw T1 take out something from his trousers pocket to give the foreigner. The latter then disappeared.  (There is no evidence who this foreigner was or what he had got from T1.)

47.  T2 and T3 later came back.

48.  At 0030 hour, PW4 saw PW1 (Decoy Buyer 1) appearing outside Mes Amis.  T1 approached PW1.  T2 and T3 again crossed Lockhart Road and walked westward.  T4 was standing behind T1.  PW1 talked to T1 and then left.  T2 and T3 soon came back to join T1 and T4.

PW5 (OP2)

49.  PW5 was at OP2, which was at the first floor of a hotel opposite to the rear lane. 

50.  Before going up to OP2, PW5 saw T2 and T3 outside Hay Hay.

51.  Around 0009 hour, PW6 saw T2 and T3 appearing outside the rear lane.  T2 went inside while T3 remained at the entrance.  After one to two minutes, T2 came out.  The two men then went towards Hay Hay.

PW7 (OP3)

52.  PW7 was at OP3, which was overlooking the rear lane from a podium three to four floors above the ground. 

53.  Around 0010 hour, PW7 saw T2 enter the rear lane.  The latter fiddled with an air-conditioner mounted on the wall.  [PW7 marked that air-conditioner with a red arrow on Photos P33(1) and P14A (4-6).]  The officer could not see what T2 actually did with that fiddling.

21 January 2015

Around 10:35 pm

PW2 (Decoy Buyer 2)

54.  Shortly after 10:30 pm on 21 January 2015, outside Mes Amis PW2 was approached by an African male wearing a French cap.  The man asked PW2 if he wanted coke (cocaine).  He finally sold one packet to PW2 for HK$1,000.  It was P26, which was 0.38g of a solid containing 0.19g of cocaine.

PW4 (OP1)

55.  PW4 was at OP1.  Before taking up his post, PW4 went to Mes Amis to see if T1-T4 were there.  They were.

56.  Sometime after 10:30 pm, PW4 saw T1 talk to PW2.  T4 was behind T1.  T2 and T3 crossed Lockhart Road and walked westward. PW2 later left the scene.  T2 came back and had hand contact with T1.  T1 put his hand into a trousers pocket.  (It is not clear whether it was the right or left or front or back pocket.)

PW5 (OP2)

57.  PW5 saw T2 and T3 outside Hay Hay before he went up to OP2 at 10:30 pm. 

58.  From OP2, PW5 saw T2 and T3 appear at the rear lane.  T2 went inside while T3 stayed at the entrance. Later T2 came out and walked with T3 towards Luard Road.

PW7 (OP3)

59.  Shortly after 10:30 pm, PW7 from OP3 saw T2 enter the rear lane to fiddle with an air-conditioner. It was the same machine he had seen T2 tamper with previously.

Around 10:55 pm

PW2 (Decoy Buyer 2)

60.  About 20 minutes later after his first buy,  PW2 returned to the junction of Luard Road and Lockhart Road.  The same African male asked him if he wanted more.  PW2 paid HK$1,000 for another packet of cocaine P27. That was 0.34g of a solid containing 0.16g of cocaine.

PW4 (OP1)

61.  Around 10:55 pm, PW4 saw PW2 come back and talk to T1.  T2-T4 were in the vicinity.  After a minute, PW2 left the place.  T1 and T4 got together again.

29 January 2015

PW2 (Decoy Buyer 2)

62.  Around midnight, PW2 went to the junction of Luard Road and Lockhart Road. He met the same African male.  The man sold him two packets of cocaine P28. That was 0.73g of a solid containing 0.35g of cocaine.

63.  After PW2 had bought the drugs, police officers moved in.  PW2 told them about the seller and got him arrested.  [There is no dispute that D1 was the man who sold PW2 cocaine twice on 21 January 2015 (Charges 2-3) and once on 29 January 2015 (Charge 4).]

PW4 (OP1)

64.  PW4 went up to OP1 after 10 pm.  On the way, he saw T1-T4 outside Mes Amis.

65.  After midnight, PW4 saw T1 approach PW2.  T4 was behind T1.  T2 and T3 crossed Lockhart Road and went west.

66.  Around 0007 hour, PW4 saw T1 and T4 being arrested by his colleagues.  Later at the police station, PW4 saw four other arrested Africans including T2 and T3.  The other two were codenamed T5 and T6 in the operation.  (These two are not related to the present case.)

PW6 (OP2)

67.  Around midnight, PW6 from OP2 saw T2 enter the rear lane and T3 remain outside.  T2 came out later. The two were soon arrested by police.

PW7 (OP3)

68.  From OP3, PW7 saw T1-T4 appear near Mes Amis.  Later, he saw three foreigners go inside the rear lane to smoke while T2 was watching them at the entrance.  When the three foreigners left the rear lane, T2 also left.

69.  At about 0002 hour, T2 entered the rear lane and fiddled with the same air-conditioner. PW7 informed his colleagues through the beat radio.  Soon police made arrests.

Arrests

70.  On 29 January 2015, police arrested six Africans.  They were T1-T6. It is said that T5 and T6 were arrested at the other end of Lockhart Road near Fenwick Street.

71.  D1 was arrested by PW8 outside Mes Amis. (PW8 marks that spot with a red cross on P24F.)  D1 had the $2,000 he got from PW2 in Charge 4, another HK$1,602 and a mobile (5249 9772).

72.  D2 was arrested by PW5 on the pavement of Luard Road.  He had HK$1,239 and two mobiles (5669 7845 and 5918 7082).

73.  D3 was arrested by PW9 outside Hay Hay. (PW9 marks that spot with a red cross on P24G.)  D3 had HK$2,579.3, US$200 and two mobiles (6848 5223 and 6416 4339).

74.  Musah was arrested by PW18 outside No 72 of Lockhart Road. (PW18 marks that spot with a red cross on P24H.) Musah had some cash and two mobiles (6717 8279 and 6547 0577).

75.  No dangerous drugs were found on D1-D3 and Musah.

Call records

76.  Police checked the phone records of D1-D3 and Musah.  A summary P37 shows there were some calls between:-

D1 and D2;

D1 and Musah;

D3 and Musah.

77.  However, none of the calls was around the time of those offences in Charges 2-4.  The closest matches were those between D1 and D2 at 2146 hour and 2149 hour on 21 January 2015.  Yet they were about three-quarters and more than an hour before Charge 2 and Charge 3,  which took place around 2235 hour and 2255 hour respectively that night.

Dangerous drugs found in the rear lane

78.  On 29 January 2015, PW6 conducted a sweeping search of the rear lane.  He found two small packets of drugs on the ground [marked on P24I as (a) and (b); see Photos P14B (7-11)].  There were more drugs found on the frame of an air-conditioner [marked on P24I as (c); see Photos P14B (12-28)].  However, it was not the same air-conditioner which the OP3 officer PW7 points out as the one T2 had fiddled with previously.  The two air-conditioners were about 10 feet apart.

Dock identification

79.  In this case, only Decoy Buyer 1 (PW1) was asked to attend an identification parade on 4 March 2015.  He identified D2 as the man who spoke to the drugs peddler on 18 December 2014.

80.  There were no other identification parades held in respect of D1-D3 and Musah.  Prosecutor argues that the surveillance officers had often seen the four.  The officers can recognize the four so that dock identification is merely recognition.  Prosecutor submits it is a matter of weight for the jury.

81.  Four surveillance officers (PW3-PW6) made dock identification as follows:-

PW3 identifies D1, D2 and D3;

PW4 identifies D1, D2 and D3;

PW5 identifies D2 and D3;

PW6 identifies D3.

82.  The other surveillance officer PW7 has not been asked to make any dock identification.

83.  All Defence Counsel object to such dock identification.  They say the officers should not be regarded as acquainted with the faces of D1-D3.  It is far from a case of recognition.

84.  I hold alternative procedure to determine the dispute.  There is no evidence from the defence side on this special issue.  Prosecutor and all Defence Counsel have made written submission.

Ruling on special issue

85.  The case of Hoang Due Hoa & Others (CACC 667/1995) is good law on dock identification:-

“In a proper case dock identification could be allowed and was admissible in evidence. However, judges should not allow dock identification and prosecuting counsel should not seek to rely upon such, if the identification was the first time that the witness was called upon to identify an accused person unless there was some very good reason, the obvious one being where an accused had refused to attend an identification parade and no other proper means of identification had been possible before trial. Normally, the only time that a dock identification was permitted was in a true recognition case where the accused was known well to the witness and had been described by him at the time or shortly after the offence and so at trial, he simply confirmed that that was the person about whom he spoke. (See p 14D-E of the appeal judgment).”

86.  PW3, PW5 and PW6 say they had been putting T1-T4 under watch during street patrol, licence checks and observation since mid-November 2014; on PW4’s part, it was from 17 December 2014.  If these officers really saw T1-T4 that often and as clearly as they claim, they can be regarded as having been acquainted with the four so much so that any dock identification is mere recognition.

87.  I agree with Prosecutor that in such circumstance the dock identification evidence should be ruled admissible.  It is for the jury to decide what weight to be given to such evidence.

Case to answer on Charges 1-4

88.  I find D1-D3 all have a case to answer on Charges 2-4. 

89.  I also find D1 has a case to answer on Charge 1.

No case on Charge 5

90.  Prosecution allege the drugs found in the rear lane were in the custody and control of Musah, whose accomplice was D3.

91.  Musah was seen by PW7 to have fiddled with an air-conditioner [see his markings on P33 (1) and P14A (4-6)].  The exhibit officer PW6, however, only found some drugs in another air-conditioner about 10 feet away and some on the ground.

92.  Prosecutor says PW7 (the officer making observation from OP3) might be mistaken about the location of the air-conditioner.  And even if he is not mistaken, the drugs found in another air-conditioner and on the ground  can still be regarded as Musah’s.

93.  I disagree.  When PW7 gives evidence, he is adamant of the position of the air-conditioner Musah had fiddled with on several occasions.  It was always the same conditioner.  PW7 marks that as the first one next to a gated staircase entrance [see P33(1) and P14A (4-6)].  Though the officer makes mistakes a few times while giving other evidence, he is always able to correct himself in time.  He never appears unsure of the position of the air-conditioner.  Nor does he say Musah had tampered with any other machine or dropped anything onto the ground.

94.  The rear lane was a public place and the entrance was not gated.  Anyone could go there. PW7 had seen three foreigners enter the rear lane on the night of 28 January 2015.  Musah cannot be said to have exclusive control or use of the rear lane. It cannot be said that anything found there must be his.

95.  Even accepting the prosecution evidence at its highest, the jury cannot be directed to find those drugs named in Charge 5 must be in the custody or control of Musah and D3.   

96.  D3 is the only defendant in Charge 5. (Musah is named as an accomplice.)  I find D3 has no case to answer on this charge.

Defence case

97.  D1-D3 elect not to give evidence.  They do not call any witness.

98.  There are defence exhibits as follows:-

D1 is set of 3 photos showing D1’s current appearance;

D2 is set of 4 photos showing D2’s current appearance;

D3 is set of 4 photos showing D3’s current appearance;

D3-1 and D3-2 relate to seven photos taken by the defence side on 1 March 2016 around 10:00 pm to show the lighting condition and geography around Mes Amis, Hay Hay and the looking out from OP1 and OP2 at night.

99.  All defendants have clear records. (Of course, D1’s record must be viewed in light of his admission of trafficking in Charges 2-4.)

Final submission

100.  Prosecutor makes no final submission.  To summarize his case, he adopts the narrative of evidence set out in his Submission on the Special Issue of Dock Identification.

101.  Defence Counsel address on the unsatisfactory identification and insufficient link between D2, D3 and Musah on one end and D1 on the other over trafficking. 

102.  Counsel say Prosecution cannot prove beyond reasonable doubts that the other three had dealt in dangerous drugs with D1 (Charges 2-4).

103.  Counsel for D1 also says Prosecution fail to prove beyond reasonable doubts that D1 was the peddler on 18 December 2014.

Discussion

Identification

104.  PW3-PW6 make dock identification as follows:-

PW3: D1 as T1, D2 as T4, D3 as T3;

PW4: D1 as T1, D2 as T4, D3 as T3;

PW5: D2 as T4, D3 as T3;

PW6: D3 as T3.

105.  I have ruled such evidence admissible.  The question now is whether the surveillance officers are credible and accurate in their claims.

106.  These officers say they had seen D1-D3 and Musah on many occasions.  But apart from the two stop events on 18 November 2014 and 22 November 2014 plus the three decoy buy events on 18 December 2014, 21 January 2015 and 29 January 2015, they can provide no specific circumstances of the other alleged sights/observations.

107.  PW3 says he made observations from OP1 on the following dates before 17 December 2014:-

19 November 2014;

20 November 2014;

21 November 2014;

22 November 2014;

24 November 2014;

29 November 2014;

30 November 2014;

1 December 2014;

2 December 2014;

3 December 2014.

108.  Yet, his witness statement (MFI 2) lack details and contain only repetitive narratives.  For example,

20 November 2014

“At 1800 hours on 20 November 2014, I was on duty with District Anti-Triad Section 1 of Wan Chai Police Station.

Between 1805 hours and 1815 hours the same day, OC Case DSIP CHEUNG Ka-wing briefed our team to make observation on the narcotics activities in the vicinity of Lockhart Road and Luard Road in Wan Chai, keeping an eye on Africans trafficking dangerous drug in the bar area.

At 1820 hours the same day, I, together with our team, performed the said observation on the trafficking of dangerous drugs in the vicinity of Luard Road and Lockhart Road in Wan Chai.

At 2300 hours the same day, the observation was over.”

22 November 2014

“At 1800 hours on 22 November 2014, I was on duty with District Anti-Triad Section 1 of Wan Chai Police Station.

Between 1805 hours and 1815 hours the same day, OC Case DSIP CHEUNG Ka-wing briefed our team to make observation on the narcotics activities in the vicinity of Lockhart Road and Luard Road in Wan Chai, keeping an eye on Africans trafficking dangerous drug in the bar area.

At 1820 hours the same day, I, together with our team, performed the said observation on the trafficking of dangerous drugs in the vicinity of Luard Road and Lockhart Road in Wan Chai.

At 0100 hours on 23 November 2014, the observation was over.”

109.  There is no mention of the officer’s seeing T1-T4 during any of those observations from OP1, let alone what the suspects did. 

110.  There is no record of such in PW3’s investigation reports and his other witness statement (MFI 1, MFI 3 and MFI 4).

111.  Prosecutor confirms there is also no such record of in PW3’s notebooks.

112.  On request, Prosecutor produces the available records of PW4-PW6 (MFI 5 – MFI 22) for reference.  In those witness statements, investigation reports and notebooks, there is no mention of any observations of T1-T4 prior to the decoy buy nights.  The only exception is PW5’s witness statement (MFI 13), which states the officer’s duties between:-

18 November 2014 and 24 November 2014;

29 November 2014 and 4 December 2014;

9 December 2014 and 10 December 2014.

113.  Yet, like PW3, this officer’s records lack details and only contain repetitive narratives.  For example,

18 November 2014

“At 0930 hours on 18 November 2014, I was on duty for District Anti-Triad Section 1 of Wan Chai.

At 1900 hours the same day, I was instructed to carry out an anti-dangerous drug trading observation at Wan Chai bar area, targeting African or South Asian persons offering dangerous drugs to visitors to the abovementioned bar area for sale.

At 2200 hours the same day, the operation was over and I returned to the station.”

19 November 2014

“At 1800 hours on 19 November 2014, I was on duty for District Anti-Triad Section 1 of Wan Chai.

At 1805 hours the same day, DSIP CHEUNG Ka-wing, Officer-in-charge of the case, briefed the team on an anti-dangerous drug trading observation to be carried out at Wan Chai bar area, targeting African or South Asian persons offering dangerous drugs to visitors to the abovementioned bar area for sale.

At 1815 hours the same day, the briefing was over.

At 1820 hours the same day, I left Wan Chai Police Station to carry out the anti-dangerous drug trading observation at Wan Chai bar area.

At 2330 hours the same day, the operation was over.”

114.  While it would be unreasonable to ask the officers to detail what they saw on each observation, one should expect there is at least some reference of which suspect was seen and doing what on a particular day.  It would be still better if there is some description of the suspects’ appearance to facilitate identification.  However, all these are lacking.  The result is that while the surveillance officers say they saw T1-T4 on many occasions prior to the decoy buys, there are only reports of T1 and T4 being intercepted on 18 November 2014 plus T2 and T3 being intercepted on 22 November 2014.  There is no way to verify the officers’ claim of prior observations/sights.

115.  The surveillance officers say they can recognize D1-D3 and Musah.  But  no identification parade was held for them to point out which arrested persons were the ones they had seen in their surveillance.

116.  In light of the record problems and the absence of identification parade results, it is only fair to regard the surveillance officers’ claims of recognition as bald.

117.  D1 admits he sold the drugs in Charges 2-4 to PW2. That proves the OP1 officer PW4 is correct in identifying D1 as the seller on 21 January 2015 and 29 January 2015.  However, the 18 December 2014 incident (Charge 1) was an encounter more than a month before the other two dates. It was actually PW4’s first surveillance of T1-T4 on 18 December 2014. This observation by PW4 from OP1 was made around midnight. It was from a fourth-floor podium of a building diagonally across the Luard/Lockhart Road junction.

118.  In order to assist the court to assess the circumstance, both parties have taken pictures of OP1, OP2 and the vicinity of Mes Amis and Hay Hay on 1 March 2016 around 10 pm.  The prosecution album is P33 while that of D1-D3 is Exhibit D3-2.

119.  The prosecution photos are brighter than the defence ones when showing the same scene.  Counsel for D3 suggests that those prosecution photos have been over-exposed.  I agree.  The streams of light appearing at the bottom of Photo P33 (3) speaks strongly of such criticism.  On the other hand, the Photos D3-2 (1-6) show a generally dim setting of the area near Mes Amis and Hay Hay.  I accept that is an apt depiction.  It is clear that observation from OP1 in such circumstance was not as easy as PW4 claims. 

120.  Prosecutor submits PW4 correctly identifies the peddler’s companion as D2.  Yes, PW4 is right about D2 because the decoy buyer (PW1) has pointed out the same in a reliable identification parade.  However, it remains a different issue concerning the peddler.

121.  PW4 is adamant of seeing the peddler clearly. But that was his first surveillance in the operation and he had only spent about two minutes on T1’s face from a distance of 15-20 feet in not-so-bright condition. Now at mid-night, he observed from quite some distance people he believed to be the suspects he had seen earlier in the street. Did he really see the peddler’s face clearly?

122.  The decoy buyer PW1 says the peddler on 18 December 2014 wore a cap.  PW4 says no.

123.  PW1 saw the peddler right in front of him.  He can hardly be mistaken.  That means PW4 must be wrong about the cap.  If this officer could not get himself right on such distinctive feature of the peddler’s appearance – wearing a cap, how correct could he be about the face under that cap?

124.  I doubt if PW4 really saw the peddler’s face on 18 December 2014 as clearly as he now claims.

125.  Actually, my doubt is not confined to PW4’s or the other surveillance officers’ identification claims. The inexplicable obscurity in the officers’ records plus the unreasonable withholding of identification parades suggest there might be some kind of evidence streamlining or rigging rather than mere inadvertent omission.  Was it done for a bolstering purpose to make the observation and identification evidence unchallengeable?  Did the surveillance officers really and individually see what they claim in court?  Or some just vaguely saw someone/something but formed a conviction only with what they heard from colleagues on communication? I am not sure.

126.  Thus even though I have allowed dock identification,  I do not attach much weight to such unchecked evidence in the circumstance. (Prosecution should heed what their Lordships say in CACC 252/2009 Kong Wai Chun & Others. Even in a case of protracted surveillance, identification parades should be held for the officers to identify the suspects. )

127.  As a result, identification of D1 is in doubt in relation to Charge 1.

128.  Identification of D2 and D3 is also in doubt in relation to Charges 2-4. (D1 has admitted he was the drugs seller in these three charges.)

Drugs found in the rear lane

129.  Prosecution have another problem of proof in relation to Charges 2-4. This stems from their failure to prove Charge 5 (see paras. 90-96 for no case to answer on this charge). Prosecution cannot prove what the man (if he were really Musah) intended to do with his fiddling of an air-conditioner, where no drugs were found.  It cannot be proved Musah and D3 went to the rear lane to fetch drugs to bring to D1 and D2 for sale outside Mes Amis.

130.  Even if D1-D3 and Musah got together often in the Bar Area, there is no proof their association must be for trafficking in dangerous drugs there.  No drugs were found on D2, D3 and Musah.  There were some phone calls between D1 and D2, between D1 and Musah, and between D3 and Musah.  But those calls were nowhere near the time of D1’s trafficking acts in Charges 2-4 (see paras 76-77).

Verdict

131.  I rule Prosecution fail to prove beyond reasonable doubts that D2, D3 and Musah were D1’s accomplices in Charges 2-4. D2 and D3 are acquitted of Charges 2-4.

132.  I convict D1 of Charges 2-4 on his own plea that he trafficked in those drugs on his own.

133.  I also find Prosecution fail to prove Charge 1 against D1 beyond reasonable doubts.