HKSAR v. MAHABUL ALAM KHAN

DCCC 930/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.930 OF 2012

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Reasons for Verdict

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1. The defendant faces one charge of trafficking in dangerous drugs and one charge of possession of dangerous drugs (charge 1 and 2). He pleaded not guilty to charge 1 but guilty to charge 2. The defendant admitted to the amended summary of facts in relation to charge 2 and was duly convicted. This Reasons for Verdict concerns only charge 1.

Background of case

2. The defendant was spotted by Police officers, who were acting on information, to have left a plastic bag next to a rubbish bin outside the 7-11 convenience store at the junction of Luard and Jaffe Road in Wanchai. Shortly after the defendant leaving the bag there, plainclothes police officers went into the store and apprehended the defendant. Upon search, an already opened instant cup noodle was found in the plastic bag. Inside the cup noodle was a white tissue wrapped around a small transparent re-sealable plastic bag. Inside the transparent bag were yellow coloured crystalline solids which were later confirmed to be methamphetamine hydrochloride.

3. The defendant was arrested for trafficking in those dangerous drugs.

Issues

4. It is the prosecution’s case that the defendant possessed the methamphetamine hydrochloride in relation to charge 1 for the purpose of trafficking. They rely on the evidence of 2 Police officers, PW1 and PW2, who saw how the defendant had carried and then put down the plastic bag on the ground next to the rubbish bin. They also saw the defendant entering the 7-11 store afterwards and then stood near the entrance of the store looking out on to the street. It would appear that the prosecution is asking the court to draw the inference that in so leaving the plastic bag on the street while keeping an eye on it, the defendant must be waiting for someone to come to collect it and if that was the case, it must be inferred that the defendant must have been trafficking in the dangerous drugs.

5. The credibility and reliability of PW1 and PW2 are in issue.

6. The defendant elected not to give evidence nor call any defence witnesses. It is the defendant’s case that the prosecution has failed to prove the credibility and reliability of PW1 and PW2. Furthermore, even if they could, the facts are not sufficient to allow this court to draw the irresistible inference that just by leaving the bag on the ground next to the rubbish bin the defendant must have been waiting for someone to collect it and therefore must have been trafficking in the dangerous drugs. The defence suggested that there can be other reasonable inference to be drawn, but did not provide any. In any event, it is for the prosecution to prove beyond reasonable doubt that the inference of trafficking can be drawn.

Evidence

7. It is admitted facts that the defendant was arrested by PW1 at 3:35pm on 18^th July 2012 near the junction of Luard and Jaffe Road in Wanchai. It is also admitted facts that the defendant had freely and voluntarily taken part in a video recorded interview. In fact, the only relevant part in the video recorded interview to the trial of charge 1 is that the defendant denied any knowledge of the bag or its contents. It is admitted fact that the street value of the dangerous drugs in relation to charge 1 is HK$19,902.

PW1 PC6994 Law Chi Lau

8. Officer Law was the arresting and cautioning officer of the defendant. He was on plainclothes duty on 18^th July 2012. It is his evidence that at around 3:28pm, while at the vicinity of the junction of Luard and Jaffe Road conducting interception and search duty, he saw a man walking along Luard Road towards Jaffe Road direction. He said the man was holding a plastic bag in his right hand and was looking scared and suspicious. PW1 saw the man put down the plastic bag beside the orange coloured rubbish bin outside the 7-11 convenience store on Luard Road and then entered the 7-11 store.

9. When the man was inside the 7-11 store, Officer Law was not able to see what he did inside. Officer Law next saw the man standing at the entrance of the 7-11 store, staring at the white plastic bag that he had put down earlier. Officer Law saw the man looked at the bag for at least 30 seconds.

10. Officer Law then went with his colleagues to reveal their Police identity and brought the man out of the 7-11 store. Police officer PC58717 (PW2) picked up the said plastic bag and searched the bag in front of the man. Inside the bag was a cup noodle which was already opened. Inside the cup were a white tissue paper and a white re-sealable plastic bag with some yellow coloured crystalline solid inside. There were also 2 packets of lemon tea and 4 cans of beer inside the plastic bag.

11. Officer Law then searched the man and subsequently arrested him. It is not disputed that the man whom Officer Law arrested was the defendant.

12. The crystalline solid found inside the plastic bag was later handled by PC58717. Officer Law confirmed that exhibit P-8 was the white plastic bag that he saw the defendant put down next to the rubbish bin. Officer Law also confirmed that photo 2, 3 and 4 were the cup noodle, the white tissue and the re-sealable plastic bag that he found in the white plastic bag respectively. According to Officer Law, the re-sealable plastic bag was wrapped in the white tissue when he looked.

13. Officer Law confirmed that photo 12 was the rubbish bin where he saw the defendant put down the white plastic bag at.

14. In cross-examination, Officer Law was first of all asked if he had read his own witness statement prior to coming to court. Officer Law said he did not, and that he had never read it prior to giving evidence. It was then pointed out to the witness that he was seen reading a 2-page document about one hour before the hearing. Officer Law admitted to that but claimed that he no longer remembered what that document was about or whether it in fact had 2 pages. Officer Law was however able to say that it was not related to the present case.

15. It is Officer Law’s evidence that he had prepared his own witness statement independently and without reference to any other material except for his own Police notebook. He confirmed in evidence that the time of 1800 he had put on his statement was the time that he had started to prepare his statement. Officer Law was then cross-examined on how long it would have taken him to prepare his 19^th July 2012 statement, but he could not give any assistance to the court.

16. Officer Law gave a definite answer when being asked if he had referred to other Police officer’s statement when writing his own statement in that he had not.

17. It was then pointed out to him that his statement was more or less identical to the witness statement of officer PC58717, his colleague who was together with him on duty that day. The similarities are highlighted and produced as exhibits D-1 and D-2. Officer Law did not, and he could not have, deny the similarities but did not offer any explanation for them, despite being adamant that he had not read PC58717’s statement prior to or while making his own statement.

18. Officer Law was then questioned about the timing of the making of his witness statement. As mentioned above, it is PW1’s evidence that he had started to prepare his witness statement at 6pm. Yet, according to the Police notebook of Officer Law, he had recorded that he ‘finished’ his shift at 6:06pm on the same day.

19. It was pointed out to Officer Law that if he went off work at 6:06pm, he could not have started to prepare his own statement at 6pm. Officer Law’s response was that he could still have gone on with his work after going off duty, because it was for his supervisor to decide when he went off work and not for him to decide. When it was pointed out that Officer Law himself had written that he had gone off work at 6:06pm, Officer Law said that he had done the statement at 6:00pm and then went off work at 6:06pm, which was not the ending time although it was the time he clocked off work, and he had carried on to work on his statement after his shift had ended.

20. It is Officer Law’s evidence that on the day and at the time of the defendant’s arrest, the defendant was the only person who had been arrested in relation to this case. Mr. Morley for the defendant then read out the name of Phan Phai Kritsada and asked if Officer Law had any recollection of this name. Officer Law said he did not know the person with that name. When it was pointed out to him that a person with that name had been arrested on that day and at around that time, Officer Law said no such arrest had been made. This part of his evidence will be relevant when considered together with the evidence of his colleague PW4.

PW2 PC58717 Officer Chan

21. Officer Chan is the exhibit officer of this case. On 18^th July 2012 he was on plainclothes duty. He was at the vicinity of the junction of Luard and Jaffe Road at 3:26pm when he saw a South Asian male wearing a white long sleeve shirt, black trousers and black shoes carrying a white plastic bag in his right hand walking along Luard Road.  When the man got near Jaffe Road, Officer Chan saw him put down the white plastic bag on the ground next to a rubbish bin.

22. Officer Chan kept watch over the bag while other officers were responsible for keeping an eye on where the man was going. At that time, PW2 was about 15 meters from the plastic bag, with nothing blocking his view.

23. Later on, the other team members watching that man saw him entered the 7-11 store nearby. Officer Chan’s colleague PC6994 (PW1) went up to intercept the man and together with Officer Chan, PW1 in front of the man picked up the white plastic bag that the man had put down earlier.

24. From the time Officer Chan saw the man put down the plastic bag to when it was picked up later in front of the man, no one had touched the plastic bag.

25. PW2 then opened the plastic bag in front of the man to inspect the objects inside. Inside the plastic bag was a half opened cup noodle. Inside the cup noodle was a white tissue wrapped around a transparent re-sealable plastic bag which had some yellow coloured crystalline solid inside.

26. After everything had been searched, the man was arrested. PW2 confirmed that the man arrested was the defendant.

27. The defendant was then brought back to Wanchai Police station. The re-sealable plastic bag together with the crystalline solid found inside were kept by PW2. The exhibits were then photographed and in front of the defendant sealed in a tamper evident envelope. PW2 confirmed exhibit P-2 is the crystalline object he had seen before, and that the tamper evident envelope is the one he had used and signed on. The defendant refused to sign on the envelope.

28. After the crystalline solid was sealed in the envelope, PW2 handed over the envelope to Station Sergeant Yuen (PW5) for his custody. The envelope was taken out by PW2 from the Station Sergeant’s custody at 8:53pm when the defendant was interviewed. It was then returned to the night shift Duty Officer, Acting Station Sergeant Siu (PW6) at 11:19pm for his handling after the interview had concluded.

29. In cross-examination, Officer Chan was also asked about his witness statement. Officer Chan first of all confirmed that the time he recorded on the statement of 5pm was the time he commenced preparing his statement. It took him roughly about 1 to 1.5 hour to prepare the statement. It would have been finished sometime between 6 to 6:30pm.

30. PW2 was then asked to look at his notebook. In relation to the 19^th July 2012, 5pm entry, PW2 stated that he had completed the admin work (“finished”), that he was at no.6 O’Brien Road at 5:30pm and finished by 5:40pm. There was then a debriefing at 6pm and he went off duty at 6:06pm.

31. It was pointed out to PW2 that he would not have had time to finish his witness statement if the entries in his notebook are correct. PW2 was not able to give a comprehensible explanation of the timing of the preparation of his witness statement. PW2 was also not able to give any meaningful answer as to when actually did he finish his witness statement.

32. Upon being shown D-1 and D-2 and pointed out how similar his witness statement is to that of PW1’s, Officer Chan disagreed that there was much similarity. Officer Chan nevertheless denied colluding with PW1 or anyone in the preparation of his own statement.

PW3 Fong Chuen Yuk

33. PW3 Ms. Fong was the shop assistant of the relevant 7-11 store at the material time. Whilst on duty that day, at around 3:20pm, she was working next to the cash register which was next to the main entrance. She saw a South Asian male entered the store and picked 2 cans of beer and went up to pay for them. Then she saw the man stood by a goods shelf next to the main door, looking out onto the street. PW3 did not pay attention as to how long the man had been looking outside. Then Police officers in plainclothes arrived and the man was arrested.

PW4 PC476 Leung Kar Chun

34. On 18^th July 2012, PW4 Officer Leung was on duty. He arrived at Jaffe Road at 2:30pm. Officer Leung was tendered by the prosecution for cross-examination.

35. It is Officer Leung’s evidence that he had recorded in his own witness statement that a man was arrested on that day by the name of Phan Phai Kritsada. It is his evidence that this was the man whom he saw standing at the location inside the 7-11 convenience store facing the direction of Luard Road and the same man who was intercepted by himself together with his colleagues PC6994 (PW1) and PC58717 (PW2). This was also the same man to whom they had shown the plastic bag.

36. Officer Leung knew the man’s name because he was told by PW1 that the man’s name was Phan Phai Kritsada after he had been arrested by PW1. It was PW1 who had reported to Officer Leung about the arrest of this man. This evidence is to be considered against the relevant part of the evidence of PW1 where he had no recollection whatsoever of this name.

PW5 Station Sergeant Yuen Chung Yer

37. PW5 is the Station Sergeant of Wanchai Police station. He was on duty between 3-11:45pm on 18^th July 2012. At around 6:10pm, PC58717 PW2 brought the defendant to him and put some suspected dangerous drugs as an exhibit into a tamper evident envelope. PW5 then signed on the tamper evident envelope which was given a serial number of A1999551 and produced as exhibit P-2 in this case. PW5 then took over possession and custody of the envelope, which was put inside the safe of the Police station, with PW5 keeping possession of the key.

38. At 11:12pm, PW5 handed over his shift to another Police officer Station Sergeant Siu Pak Heng. During the time when the envelope was in PW5’s possession and custody, to his knowledge, the contents of the tamper evident envelope had not been tampered with.

39. In cross-examination, PW5 was asked about paragraph 6 of his witness statement, where he recorded that at 6:17pm, PW2 handed over the suspected dangerous drugs to him for safekeeping. Then at 11:12pm, Acting Station Sergeant Siu took over from his shift and PW5 wrote in his witness statement that he had handed over the envelope to Acting Station Sergeant Siu.

40. PW5 took the opportunity to clarify that it was wrongly stated in his witness statement that he had handed over 2 envelopes to Mr. Siu. In fact, he did not hand over the envelopes. The reason for this mistake was that at 11:12pm, the 2 tamper evident envelopes were in fact not inside the safe and so they were not handed over to Sergeant Siu (according to the evidence of PW2, the tamper evident envelope was not returned until 11:19pm that night).

PW6 Sergeant Siu Pak Heng

41. PW6 was the Acting Station Sergeant of Wanchai Police station between 11pm 18^th July 2012 and 7:45am the following day. He took over the night shift from PW5 Station Sergeant Yuen. He remembered that at around 11:19pm, PW2 PC58717 gave him 2 tamper evident envelopes, A1999551 and A1999552. After he checked that no one had tempered with the envelopes, he put them back into the Police station safe.

42. At 7:10am the following morning, PW6 handed over his duty to Sergeant 34554. Between his taking possession and custody from PC58717 and the changing of shift, PW6 confirmed that no one had tampered with the 2 envelopes.

43. In cross-examination, PW6 was asked about his witness statement about the lack of description of the contents of the tamper evident envelope. PW6 said he had just forgotten to put that into his witness statement, but he did put down everything in his notebook. PW6 confirmed that on the night of 18^th July, he did deal with other dangerous drugs which were not related to the present case.

Findings

44. It is for the prosecution to prove beyond reasonable doubt all the elements of the offence. They rely mainly on the evidence of PW1 and PW2 to prove that the defendant was carrying the bag and had put it down by the rubbish bin. They also rely on the witnesses’ observation of the defendant after he had made the drop to ask the court to infer that the defendant must have been waiting for someone to pick up the bag. The prosecution case therefore hinges on the credibility and reliability of PW1 and PW2.

45. I find PW1 and PW2 not honest or reliable witnesses. I find that they did not tell the truth in relation to the preparation of their own witness statement. I find the significant and substantial similarities between the wordings of their witness statements show that there must have been some copying and consulting between them. If the time on the statements are to be believed then it would have been PW1 who must have consulted and copied from PW2’s witness statement. But given the fact that I find that they are not telling the truth about the preparation of their witness statement, this may actually not be the fact.

46. I find both PW1 and PW2 evasive in their evidence about the actual timing of the making of their witness statements. I find it very strange that neither PW1 nor PW2 could give a concrete answer as to when exactly they had finished their individual witness statement. If they had each prepared their own statement independently without consulting other materials except their own Police notebook, they must be able to say when they had finished it.

47. I find it incredible that in the case of PW1, he had recorded that he went off duty on the night at 6:06pm, just 6 minutes after he said he had started to write his own witness statement. I do not accept his explanation about how he continued to work on his statement after going off duty. Had he done that, he should also have recorded that in his Police notebook since the making of witness statement was part of his job duty.

48. In relation to the part of cross-examination where PW1 was being asked by Mr. Morley about what PW1 had been reading outside the courtroom, I find that PW1 was not telling the truth when he told this court in the witness box that he forgot what he had been reading. Given the fact that it was just about 1 odd hour before PW1 began to give evidence in court, I find it incredible that PW1 could have so forgotten. It is highly likely that PW1 was reading his own witness statement to refresh his memory, which he is entirely entitled to do. I do not know why, if that really was the case, did PW1 find it necessary to lie about it.

49. In the case of PW2, it is also incredible in that he said he commenced writing the statement at 5pm, yet his notebook entries showed that he was out on duty on the street at 5:30pm and then had gone off duty at 6:06pm. It is not PW2’s evidence that he had brought his statement along with him while outside and continued to write it. Given that PW2 said he would have needed around 1 to 1.5 hour to finish his statement, I cannot see why PW2 was unable to give a meaningful answer as to when he actually finished the statement.

50. And then there is the unreliability of the evidence of PW1. According to PW4 and as recorded in his own witness statement, it was PW1 who told PW4 that a person in the name of Phan Phai Kritsada was arrested at the material time and place where the defendant had appeared and had been arrested. Yet PW1 had no recollection whatsoever about that name, and there was no mention at all of this name in PW1’s own witness statement.

51. Even if we accept that the defendant was the only person who was arrested on that day at that time and so Phan Phai Kritsada might have been the name that the defendant had given, this failure by PW1 to have any recollection about that name goes to show two things.

52. It goes first of all to show that PW1 could no longer recall the events of that day. PW1 must have relied on his witness statement to refresh his memory, despite PW1 saying in the witness box that he had not. Since there was no mention in his witness statement about the Phan Phai Kritsada name, PW1 failed to mention anything about this name in evidence.

53. The second thing we can see is that PW1 had not recorded fully what had happened at scene on that day in his witness statement and so the statement is an unreliable record of events on the day.

54. If it were in fact the defendant who was arrested and had given this as his name, it would be material to record it in PW1’s notebook and witness statement. If there was actually another person by that name who was not the defendant but was arrested by PW1, he also ought to have recorded that fact in his notebook and witness statement.

55. Yet the witness statement has neither of that information. But for PW4, this court would not have known just from the evidence of PW1 or PW2 that someone by that name had been arrested at scene. Even at this stage, we do not know who that person was, or if it was in fact another person.

The cumulative effect of PW1 and PW2’s evidence

56. On its own, even if PW1 and PW2 had copied off one another’s witness statement, it may not necessarily mean that the officers’ evidence is incredible or unreliable. However, when the witnesses choose to conceal that fact by lying in the witness box, which they were clearly doing, then the officers’ credibility is put into serious doubt.

57. The question is can the court still rely on the evidence of Police officers who are willing to lie to the court in order to cover up their wrongdoing. My finding is that I cannot.

58. I find that the fact that PW1 and PW2 had decided to lie about the preparation of their own witness statement tainted their credibility to such an extent that this court cannot honestly rely on their evidence to convict the defendant of the charge without wondering whether that was the only lie they are telling. Perhaps they are telling the truth about the part where the defendant had put the bag down, but then again perhaps they are not.

59. On the other hand, I find that there is nothing in relation to the handling of the tamper evident envelopes by the relevant officers on duty as Duty Officer. I accept PW5’s explanation that he had made an honest mistake about handing over the envelopes to PW6.

60. For the sake of completeness, I find that, even if the prosecution had been able to prove that PW1 and PW2 are telling the truth about the dropping of the plastic bag by the defendant on the ground next to the rubbish bin, without further evidence, I may not be prepared to infer that the defendant must have been waiting for someone to collect the plastic bag and that the defendant must therefore have been trafficking in the dangerous drugs inside.

61. Although there is evidence that the street value of the drugs was HK$19,902, I do not have evidence as to the earning capacity of the defendant or other such material evidence. In any event, I think the Police might just have acted slightly too soon on this occasion. If someone did show up and picked up the bag, the prosecution will have a much stronger case. Having said that, I fully understand the difficulties the Police may have to face in investigating cases such as the present one and do not mean to criticize.

Verdict

62. Nevertheless, for reasons given above, I find that the evidence of PW1 and PW2 had given this court plenty to be doubtful about and I will grant the defendant the benefit of this doubt and acquit him of charge 1.