HKSAR v. CHAN YUK LAN

DCCC 855/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 855 OF 2014

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REASONS FOR VERDICT
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1.  The defendant pleads not guilty to a charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It is alleged that the defendant on 25 August 2013, at the rear lane, Hoi Hing Building in Tai Kok Tsui, unlawfully trafficked in dangerous drugs (DD), namely 4.10 grammes of mixture containing 2.43 grammes of heroin hydrochloride and 2.95 grammes of crystalline solid containing 2.82 grammes of methamphetamine hydrochloride, “ICE”.

2.  This verdict will be divided into two parts: The first part concerns the full reasons for admitting the defendant’s video-recorded interview (VRI, P15) together with the transcripts, ie the special issues whilst the second part deals with the general issues. 

3.  I bear in mind the onus of proof always rests on the prosecution.  The standard of proof is beyond reasonable doubt.  The defendant has nothing to prove whatsoever.  In the course of the trial[1] I became aware that the defendant is not a person with good character.  As a professional judge I am able to disregard any potential prejudice that might have arisen from such disclosure.  I hereby reiterate that I have not in any way been affected by that piece of information, and will not hold anything against the defendant. 

REASONS FOR ADMITTING EXHIBITS P15 (DVD), P16 (CHINESE TRANSCRIPTS) & P16A (CERTIFIED ENGLISH TRANSLATION OF P16)

4.  On day 4 of the trial, I gave brief oral reasons for admitting P15 together with its transcripts P16 and P16A into prosecution evidence and promised that I would give full reasons towards the end, which I now do.  Here special issues have been dealt with by way of alternative procedure.

5.  The prosecution has two burdens to meet insofar as special issues are concerned: First, whether or not it has proved beyond reasonable doubt that the record of interview (this time VRI) was obtained in the manner as described by the interviewer, DPC 5271 (PW5). Secondly, whether the alleged admissions were made by the defendant voluntarily, ie free from force, inducement and threat and that this court should not exercise its residual discretion to exclude those admissions on the ground of unfairness.  The defendant, on the other hand, does not bear any burden of proof.   

Grounds of objection

6.  Defence counsel (“DC”) has prepared a comprehensive “Grounds of objection to the admissibility of the VRI”, to which I am grateful.  It was alleged that prior to the commencement of the interview, the following conversations took place between DPC 5271 and the defendant:-

(i) DPC 5271 told the defendant that the present offence only involved a small quantity of DD and she would be fined upon conviction.

(ii) She should admit to possession for her own consumption, which would make his job easier.

(iii) She should make up name(s) and say in the VRI that she purchased the DD from them.

(iv) If the defendant co-operated with the police by taking hints from him and did what she was told, she would be granted bail quickly.

DC argues that the above allegations, if true or possibly true, constitute threat and/or inducement whereby the VRI and the transcripts should be found inadmissible evidence. Alternatively, he invites the court to exercise residue discretion to exclude those confessional statements on the ground of unfairness.

Prosecution case

7.  On special issues the prosecution called only one witness, DPC 5271.  The court heard that on 26 August 2013 he was attached to DCS 1, Mongkok District.  At 1741 hours, he was assigned to conduct an interview with the defendant, whose identity is not in dispute. Prior to the interview he served a “Notice to Person in Police Custody or Involved in Police Inquiry” (Pol 153, P14[2]) on the defendant.  He read the contents over to the defendant as she was not wearing any glasses at the time.  The defendant appeared to understand the Pol 153 so she signed on it as acknowledgement.  DPC 5271 then proceeded to interview the defendant, the course of which was filmed and recorded in a DVD PP15.  The defence does not dispute the accuracy of both transcripts which were produced as PP16 (Chinese) and PP16A (certified English translation).   

8.  The interview was between 1805 hours and 1902 hours on 26 August 2013.  The DVD was played in open court, which DPC 5271 confirmed that it showed what transpired during the interview. He said no police officers including himself had ever used any violence, made any threat or offered any inducement prior to the interview.

9.  At the outset of the cross-examination, DPC 5271 conceded that he did not state on P14 the time when the defendant acknowledged receipt.  He also did not cross out “(*have read/have had read over to me)” as appropriate.  However, he disagreed that he simply asked the defendant to sign the notice without letting her know its contents.  In PP16A, at 8, the defendant did say she “did not quite” understand”[3] the contents.  In response, DPC 5271 took the trouble to go through the Pol 153, item by item with her.  He denied that it was the first time ever he read it over.  DC then went on to put the allegations as mentioned above to DPC 5271, who categorically denied each of those.

Defence case

10.  Upon finding a case to answer on special issues, the defendant elected to give evidence.  She told the court that right after being retrieved from the detention cell, DPC 5271 mentioned something about his boyfriend “Ah Wai” who had also been arrested by the police.  She began to worry about the wellbeing of Ah Wai as the police might cause trouble to him.  However, she did not make further inquiry about him. She then gave evidence to support her allegations as set out in the Grounds of Objection.  For allegation (i), the defendant added that DPC 5271 had mentioned about getting probation.

11.  Concerning P14, she said DPC 5271 never read its contents over to her, nor did she read it because she did not wear any glasses at the time.  At 235-238, DC asked why she admitted that the purse was hers.  The defendant said she could not give an answer, adding that she simply wanted to get bail by making what she described as “quick admissions”.  303-306, the defendant said she simply made up the name “Ah Kwan” as the seller of the drugs.  It was DPC 5271 who asked her to make up that story.  In fact the whole matter had nothing to do with her, and it was the interviewer, who made her to confess involuntarily.

12.  In cross-examination, the defendant appeared to be evasive at times.  For example, she said she could not recall whether she did sign on P14.  She also could not recall whether she had told DPC 5271 anything about her presbyopia problem.  She could not remember whether P14 had ever been read over to her.

13.  The defendant also changed evidence about DPC 5271 mentioning about getting probation.  She retracted from her earlier version that DPC 5271 mentioned about both fine and probation.  In 745-750, the defendant mentioned about sharing the DD with others, which contradicted her allegation that DPC 5271 asked her to admit only simple possession.

My ruling

14.  After close of the defence case on special issues, both PC and DC made a short submission.  PC stresses that DPC 5271 is a credible witness, whose evidence is clear and succinct, and he has not been shaken in cross-examination.  The defendant, on the other hand, is not an impressive witness and her testimony should be rejected.  DC, quite naturally, submits the otherwise, adding that the defendant’s testimony is capable of belief, which means PP15, PP16 and PP16A should all be removed from prosecution evidence.

15.  I have carefully considered all the evidence and submissions of counsel.  I accept PC’s submissions that DPC 5271 is an honest and credible witness.  His evidence is straightforward, and DC has not undermined it in any way in cross-examination.  I accept his testimony in entirety.  The defendant’s evidence, on the other hand, is not believable which must be rejected.  Not only that she had changed evidence, she also seemed to have forgotten many things whilst giving evidence.  She was evasive by claiming lack of memory.  She went back and forth several times, the details of which has been set out earlier[4]. Some of her “fear” was self-generated and was inexplicable.  For example, DPC 5271 never said about doing anything bad towards Ah Wai, why would she worry about him at all?  Strange enough she did not ask how Ah Wai would be treated if she did not co-operate.  She simply kept everything to herself.  In my judgment, that is completely illogical.               

16.  In the circumstances, I reject the defendant’s evidence on special issues.  None of her allegations was made out. I attach full weight on PW5’s evidence, which means that the prosecution has succeeded to prove its case on the double burdens that I have mentioned.  The admissions in P15 (together with the transcripts P16 and P16A) were made by the defendant voluntarily and there is no reason for me to exercise my residual discretion in the defendant’s favour.

GENERAL ISSUES

Undisputed Facts

17.  There are two sets of Admitted Facts, respectively marked as P10 and D2.  D2 is a short fact for production of a defence photo album D1 as evidence, which also informs the court that of all the persons arrested by the police, only the defendant has been charged with the present offence.  P10 is also not very long, which concerns the admission of some formal evidence including photo album P9 and Government Chemist Certificate P8.  It also tells the court of the street value of the DD involved in this case, and that nothing of suspicion was found during the search of D’s residence.

Prosecution case

18.  The prosecution called a total of 3 prosecution witnesses for general issues. PC 10967 (PW1) was not present in the rear lane.  Instead, he went up to the premises at Room C, Flat B6, Hoi Hing Building.  He told the court that he, PC 8551 (PW2), SGT 2386 (PW3) and some other police officers attended the scene to investigate a suspected unlawful detention case.  The police party was separated into different teams, which had different duties to perform.  He later produced a sketch P11 (certified English translation P11A) showing the layout of the premises.  He seized 2 “ICE pots” P1 and P2, ie apparatus fit for inhaling ICE, as exhibits.    

19.  During cross-examination, PC 10967 confirmed that 2 males respectively called Lee Keung and Lam Kwok Shing[5] were arrested by his colleagues in the premises.  He had gone inside the bedroom, shouted out to the window to alert his colleagues downstairs that someone had escaped to the eaves.  As regards seizure of exhibits, PC 10967 confirmed that he also found a key and a red handbag which contained 4 letters addressed to “Nip Hoi-lai”.  Ms Nip was in fact the head of the household. 

20.  The key witness is in fact PC 8551 who said he stopped and searched the defendant at the rear lane of Hoi Hing Building, Tai Kok Tsui/Mongkok[6]. PC 8551 saw the defendant climbing down from the eaves along the water pipes. He then helped her down to the ground.  Later he searched the defendant’s handbag P12 and then the coin purse inside P13, where he found the DD comprising P3–P5 (heroin) and P6 (ice).  Inside the handbag cash of HK$40,468.70 and RMB7,136.20 P7[7] was also found.  Upon arrest, the defendant did not have anything to say under caution.

21.  The defence case put to PC 8551 was that the defendant was never in possession of the DD because there was no coin purse in her handbag.  PC 8551 denied.  It was further put to him that the police officers swore at the defendant and were very abusive.  He again denied such accusation. 

22.  SGT 2386 was tendered for cross-examination.  He was beside PC 8551 when the defendant’s handbag was being searched.  He denied defence suggestion that the coin bag that contained the DD was never inside.

23.  The rest of the prosecution case is the VRI.  Under caution, the defendant admitted that:-

(i) The DD was mainly for her own consumption: 218 & 503-506.

(ii) She repacked the DD with Ah Lai: 388-424.

(iii) She shared some of the DD to Ah Lai for free, who would later consume them: 508-522 & 531-540.

24.  After making bulk purchase she went to the premises to share the expenses: 743-750.

Defence case

25.  The defendant elected to give evidence on general issues.  She also called a defence witness Mr Lam Kwok Shing.

26.  The defendant testified that at around 10:00 pm on 24 August 2013 she went up to the premises looking for Ah Lai (a female) who owed her some money.  Upon entry she found there were 5-6 people inside whom she did not know.  Ah Lai then took the defendant to her bedroom.  Suddenly the defendant saw Ah Lai go out of the window and down to the eaves.  She did not know what happened but decided to follow suit. However, she dared not jump down so she was stuck.  Police officers swore at her before helping her down.  At that juncture, she saw Ah Lai also being stopped by the police.

27.  The defendant denied that she was ever searched at the rear lane.  She denied that she had the coin bag in her handbag, hence denied possession of the DD.  The things she said in the VRI were untrue as she had been forced to admit.   

28.  Mr Lam said he went up to the premises with her girlfriend, who obtained some ICE from Ah Lai for consumption.  He saw the defendant arrive later in the same night, and she went into a room with Ah Lai.  He said the police had come on two separate occasions. Shortly before the second occasion, Ah Lai came out of the room and asked all the people to hand over the drugs to her.  She then returned to the room.  He did not know what happened to both Ah Lai and the defendant afterwards.  

Issues before the court

29.  The issues before the court are basically factual.  Although it is a one-against-one situation, I do not lose sight of the cardinal principles that the onus of proof always rests on the prosecution.  The defendant has no duty to prove her innocence.  I also reiterate that before reaching any decision on both the facts and the law, I have carefully considered all the evidence adduced before me and submissions advanced by counsel.

30.  There has been some argument on whether or not the presumption under section 47 of the Dangerous Drugs Ordinance, Cap 134 arises.  Both sides seem to suggest that I am obligated as a matter of law to direct myself on the issue of presumption, and to decide whether or not the defendant has successfully discharged the evidential burden by giving evidence in court.

31.  With respect to both PC and DC, the issue of presumption is indeed a non-issue in this case.  The principal evidence to establish the defendant’s knowledge comes from the VRI, where the defendant made full admissions to the nature of the DD she was alleged to be in possession of.  Defence version, on the other hand, is not that the defendant did not know what the items found in her handbag was.  Rather, she denied physical possession totally.  There is not even a shred of evidence of lack of knowledge about the nature of the drugs coming from the defence case. 

32.  In the circumstances, if I am to accept the prosecution version of the events, it follows necessarily that the defence version must be rejected.  The prosecution would have succeeded in proving not only the defendant’s physical possession of the DD, but also her knowledge of the nature of them.  At the opposite pole, if I accept the defence evidence, or that it casts reasonable doubt on the prosecution case, the issue of knowledge will be non-existent, the reason being that the prosecution cannot prove possession.  

Findings of facts

33.  I deal firstly with the evidence of the prosecution.  I accept the prosecution submissions that all the police witnesses are telling the truth.  In particular, the key witness PC 8551 impresses me as a both fair and reasonable witness, who gives simple and straightforward evidence in court.  DC has not been able to shake his evidence in any way by cross-examination.  PC 8551’s testimony is consistent with that of SGT 2386, who I also find as a credible witness.  The so-called discrepancy raised by the defence, ie how the defendant was assisted in getting down, is very minor, which has no impact on their reliability whatsoever.

34.  DC invites the court to consider the fact that both PC 8551 and SGT 2386 did not make a record of Ah Lai and most importantly Ah Lai who being the tenant of the premises was not arrested and prosecuted.  In my judgment, that is only red herring.  Here I am to determine the innocence or guilt of the defendant, but not to speculate on things that are not before the court.  It may be for one reason or another, operational or otherwise, that the police decided not to arrest Ah Lai.  That matter does not concern the court at all.  I am duty bound to adjudicate this case based only on the evidence adduced in this court.  

35.  As to defence evidence, I find that Mr Lam’s testimony does not assist much.  He was not aware of what happened inside the bedroom, let alone the incident at the rear lane.  Even if his evidence is supportive of the defendant’s evidence for a very small part, which is about incidents before the arrival of the police, it does not help the defence case a lot.  I say this because the defendant’s testimony is not accepted.  The reasons are as follows:-

(i) Having ruled the VRI in as part of the prosecution evidence, I am prepared to attach full weight on the admissions made by the defendant. There is no reason why I should not do so. In that regard, the evidence the defendant gave in court, so far as it conflicts with the version in the VRI, would carry less weight as being previous inconsistent statements.

(ii) The so-called $3,000 “mahjong debt” owed by Ah Lai, was never mentioned in the VRI, which I find to be a recent invention.

(iii) The defendant is very evasive when being cross-examined. For example, she said she could not recall saying 388[8], which is sheer non-sense as everybody in the court has seen the video. She also avoided answering the PC’s question that: “Does it go with everything in the VRI?” by replying “I don’t know.”

36.  In the circumstances, I reject the defence evidence in its entirety.

VERDICT

37.  Having carefully evaluated all the evidence, I find that the prosecution has succeeded in proving the charge against the defendant beyond reasonable doubt.  I find as a fact that the defendant was in possession of the DD as particularised in the charge when being intercepted, she admitted knowing the nature of the drugs, and she possessed them for her own consumption and also for sharing with Ah Lai. 

38.  The defendant stand up.  You are guilty of the offence of trafficking in DD.