HKSAR v. LAU KWOK KUEN AND OTHERS

DCCC 664/2020

[2021] HKDC 1481

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 664 OF 2020

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REASONS FOR VERDICT

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1.  D2 pleads not guilty to one joint charge of trafficking in 6.06 grammes of cocaine together with Lau Kwok Kuen (D1), contrary to section 4 of the Dangerous Drugs Ordinance[1].

Introduction

2.  In summary at around 9:27 p.m. on 10 March 2020 police officers including DPC 18563 and DPC 9392 saw private car WP 3605 enter Po Tat Estate in Sau Mau Ping.  D2 was driving the car whereas D1 was sat in the rear passenger seat.

3.  When the car stopped outside the rubbish collection centre and Leung Ka Ki (D3)  approached, the police intercepted D3 and asked D1 and D2 to alight from the car. DPC 9392 searched the car and found cocaine in the driver’s door, in the storage compartment between the front seats together with cash $98,089 and on the driver’s seat. 

4.  The prosecution case is that D1 and D2 were in possession of the cocaine for the purpose of unlawful trafficking. 

5.  The defence submit that the evidence is insufficient for the court to draw the inference that D2 was in possession of the cocaine. 

Evidence

6.  The prosecution called two witnesses DPC 18563 (PW1)  and DPC 9392 (PW2).

7.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including the finding of the drugs in the car[3]; photographs[4] and that D1’s father was the registered owner of the car[5].  I will refer to the admitted facts as I review the evidence. 

8.  D2 elected not to give evidence.  No witnesses were called on his behalf.  No adverse inference is drawn against D2 for remaining silent.  That is his right. This proves nothing one way or the other.   On the other hand, this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution. 

9.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D2 has to prove nothing.  I direct myself that I must be sure of the guilt of D2 before I can convict. 

10.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

11.  The court record shows that on 17 June 2021 D1 failed to attend court and that on 19 November 2021 D3 pleaded guilty to possession of a dangerous drug found on him[6].  No evidence has been adduced in the trial of D2 that D3 was found in possession of a dangerous drug and that he pleaded guilty to possession.  I direct myself the fact that D3 has pleaded guilty to possession of a dangerous drug has no bearing on the case of D2.  The prosecution has to prove the charge laid against D2[7].  

Prosecution evidence

12.  The prosecution case has largely been admitted including the finding of the cocaine in the car WP 3605 (“the car”).  The following is a summary of the prosecution case together with the evidence of DPC 18563 (PW1)  and DPC 9392 (PW2).

13.  Admitted in evidence is that on the evening of 10 March 2020, a team of police officers were on an operation in Po Tat Estate in respect of a suspected conspiracy to defraud case concerning D1 and D3[8].

14.  DPC 18563 and DPC 9392 confirmed they were members of the team.  In cross-examination DPC 18563 stated that the operation had nothing to do with trafficking in dangerous drugs; D2 was not a suspect in the conspiracy and that based on the information given by Senior Inspector Ng the police went to Po Tat Estate because they believed D1 and D3 would be entering and leaving Po Tat Estate.

15.  Admitted in evidence is that at around 9:27 p.m. the police team saw the car enter Po Tat Estate; D2 was the driver and D1 was sat in the rear passenger seat; the car stopped outside the rubbish collection centre with the engine kept on; about one minute later D3 approached the car; when D3 was preparing to get on the car he was intercepted by DPC 17545 and DPC 18563 then requested D1 and D2 to alight from the car[9].

16.  DPC 18563 testified that after D1 and D2 alighted from the car he was responsible for guarding the car to ensure no one put anything in the car or took anything out.  DPC 18563 handed over the handling of the car to DPC 9392 so a search of the car could be conducted. 

17.  Admitted in evidence is that DPC 9392 conducted a search of the car and found suspected dangerous drugs inside the storage place at the bottom part of the driver’s door; inside the storage compartment between the front seats[10] and inside a chewing gum metal box inside a black handbag found on the driver’s seat[11]. 

18.  Admitted in evidence is that inside the storage place at the bottom part of the driver’s door was one transparent re-sealable plastic bag containing nine transparent re-sealable plastic bags all containing suspected dangerous drugs (exhibit P1)[12].

19.  In evidence DPC 9392 testified that he took all the photographs, exhibit P6. 

20.  DPC 9392 identified photographs 4 and 5 as showing the location where the suspected dangerous drugs were found in the driver’s door.  Photographs 6-8 show the transparent re-sealable plastic bag and photograph 9 shows the nine transparent re-sealable plastic bags after DPC 9392 took them out of the bigger transparent re-sealable plastic bag.

21.  In cross-examination DPC 9392 agreed that in photograph 5 apart from the transparent re-sealable plastic bag there was another item with a strap inside the storage place at the bottom of the driver’s door.  DPC 9392 had no recollection of what this item was. When asked by Mr Fong whether he could remember if that item was placed next to the transparent re-sealable plastic bag or covered the transparent re-sealable plastic bag, DPC 9392 replied, “It was under the bag”.   

22.  Admitted in evidence is that inside the storage compartment between the front seats was one transparent re-sealable plastic bag containing twenty smaller transparent re-sealable plastic bags all containing suspected dangerous drugs (exhibit P2)[13].  Also admitted in evidence is that cash $98,089 was found inside the storage compartment between the front seats (exhibit P5A)[14].

23.  In evidence DPC 9392 identified photograph 10 as showing where the suspected dangerous drugs and money were found inside the storage compartment between the front seats.  DPC 9392 stated that the transparent re-sealable plastic bag containing twenty smaller transparent re-sealable plastic bags had the No. 20 written on the bag. 

24.  Photographs 11-13 show the transparent re-sealable plastic bag; photograph 14 shows the twenty smaller transparent re-sealable plastic bags after DPC 9392 took them out of the bigger transparent re-sealable plastic bag; photograph 15 shows the storage compartment and photograph 16 shows a document which was found in the storage box. 

25.  In cross-examination DPC 9392 confirmed that when he first conducted the search of the storage compartment between the front seats, the storage compartment was closed at that time and that there were other items inside apart from the money and the dangerous drugs.

26.  In answer to the court DPC 9392 explained that photograph 15 was taken after he had removed the suspected dangerous drugs from the storage box.    

27.  Admitted in evidence is that inside a black handbag (exhibit P4)  found on the driver’s seat DPC 9392 found a chewing gum metal box containing a transparent re-sealable plastic bag containing some suspected dangerous drugs and a HK$20 banknote containing some suspected dangerous drugs (exhibit P3)[15].

28.  Also admitted in evidence is that inside the black handbag (exhibit P4)  DPC 9392 also found cash $3,305.10 (exhibit P5B), D1’s home entry permit, a Bank of China bank card belonging to D1 and D1’s driving licence[16].

29.  In evidence DPC 9392 identified photographs 17-19 as showing the metal box and photographs 20-26 as showing the contents of the metal box. 

30.  In answer to the court with reference to photographs 17, 18 and 19 DPC 9392 explained that when he found the black handbag, the handbag was zipped up and the contents were inside the bag and not as shown in the photographs.  DPC 9392 said the handbag was found on the driver’s seat in the position shown in photograph 3. 

31.  At the end of his evidence DPC 9392 said that the persons stopped and detained by the police were present to see the search of the car. 

32.  Admitted in evidence is the Government Chemist Certificate confirming that the suspected dangerous drugs found in the car were all cocaine (exhibit P7)  [17].

Ownership of WP 3605

33.  Admitted in evidence is that at the material time D1’s father was the registered owner of the vehicle and that the father said only he and D1 would drive the car and that he did not know anything about the dangerous drugs found in the car[18]. 

34.  Admitted in evidence is that under caution D2 stated that the car belonged to “Ah Kuen”[19].

Fingerprints and DNA

35.  Admitted in evidence is that fingerprint testing was conducted on each of the packets of suspected dangerous drugs with the result that no complete prints were revealed and therefore no comparison could be made to sample prints of D1, D2 or D3[20]. 

36.  Also admitted in evidence is that DNA testing was also conducted on the packets of suspected dangerous drugs and none was found[21].

Discussion

37.  I have carefully considered all the evidence and the oral and written submissions of Mr Laskey and Mr Fong[22].

38.  Mr Fong submits that the evidence is insufficient for the court to draw the inference that D2 was in possession of the cocaine.  In support of his submission Mr Fong relies on the judgment in HKSAR v Kon Kwok Cheung[23].

39.  In summary the facts of that case reveal that the police intercepted a car in which the applicant (D2)  was sitting in the driver’s seat and the registered owner (D1)  was in the front passenger seat.  The police searched the car and found hidden in three separate places cocaine, herbal cannabis and ecstasy.  No drugs were found on the applicant[24].

40.  None of the drugs were visible to anyone in the car.  The herbal cannabis was found in a box in the boot of the car.  D1’s thumbprint was found on a book in that box.  The largest quantity of drugs was found in a rucksack which was placed on the rear passenger seat.  A palm print of D1 was found on a paper bag inside the rucksack[25].

41.  No fingerprints of the applicant were found and no other forensic evidence linked the applicant to the drugs[26].

42.  Taking into account, inter alia, that there was no evidence when the applicant began to drive the car or in what circumstances he came to drive the car; that the car belonged to D1 and not the applicant; D1’s finger and palm prints were on items in close proximity to the drugs and there was no evidence of the applicant’s fingerprints upon or near the drugs, the Court of Appeal said the circumstantial evidence was not sufficient from which an irresistible inference could be drawn that the applicant was a party to the possession of the drugs[27]. 

43.  Whilst there are similarities with the facts in HKSAR v Kon Kwok Cheung, including that D2 is not the registered owner of the car; it is unknown when D2 began to drive the car and in what circumstances he came to drive the car and that personal items of D1, the son of the registered owner and who was sat in the rear passenger seat,were found in the handbag (exhibit P4)  which contained some of the cocaine, I am satisfied that there are material differences. 

$98,089

44.  $98,089 was found in the storage compartment between the front seats together with the twenty re-sealable plastic bags containing cocaine.  This is a very substantial sum of money to be carrying.  I am satisfied that there is no realistic possibility the money was for reasons other than for drug dealing. I am satisfied the finding of this sum of money together with the drugs is both relevant and probative to the issue of whether D2 possessed the drugs for the purpose of trafficking[28].

45.  Whilst the applicant in HKSAR v Kon Kwok Cheung was found in possession of $12,830 this was not found together with the dangerous drugs. 

The cocaine found in the driver’s door

46.  Unlike the drugs found in HKSAR v Kon Kwok Cheung not being visible to anyone in the vehicle, the cocaine found in the driver’s door was in my view clearly visible.  

47.  I disagree with Mr Fong that the transparent re-sealable plastic bag found inside the storage place at the bottom part of the driver’s door was placed together with another item with straps in a concealed way, or at least not in a place where it was necessarily visible to any drivers and readily discovered[29].

48.  I accept the evidence of DPC 9392 given in cross-examination that the other item with a strap was under the transparent re-sealable plastic bag containing the cocaine.   Photographs 3-5 in my view clearly show that the transparent re-sealable plastic bag was not concealed by the other item and was clearly visible to the driver.

49.  I find inherently improbable that anyone would be allowed to drive the car with drugs clearly visible and close at hand and with other drugs together with a very substantial sum of money easily accessible to the driver, unless the driver was a party to the possession of the cocaine. 

50.  I am satisfied so I am sure the only inference to draw is that D2 was in custody and control of the cocaine, knowing it was cocaine[30].

51.  Mr Fong also relies on the fact that there is no evidence of D2’s fingerprints or DNA on any of the packets of suspected dangerous drugs[31].   The admitted evidence is that fingerprint testing and DNA testing was conducted with the result that no complete prints were revealed and no DNA was found.  I am satisfied in the circumstances the absence of fingerprints and DNA evidence is a neutral factor[32].

52.  After careful consideration I find that the absence of D2’s fingerprints and DNA on any of the exhibits does not cause me to doubt the only inference to draw is that D2 was in custody and control of the cocaine, knowing it was cocaine. Nor does the fact that the registered owner of the car was D1’s father and that personal items of D1 were found in the handbag (exhibit P4)  which contained a very small quantity of cocaine cause me to doubt this is the only inference to draw.

53.  I have also considered the submission of Mr Fong that the observation of the car lasted only one minute and that it is not known when D2 began to drive, in what circumstances he came to drive and what he was doing in the car during the one minute the police observed the car prior to interception[33]. This submission does not cause me to doubt the findings I have made. 

Possession for the purpose of unlawful trafficking

54.  There being no direct evidence of actual trafficking I have examined all the circumstances to determine whether the only inference to draw is that D2 possessed the cocaine for the purpose of unlawful trafficking. 

55.  Taking into account the quantity of the cocaine contained in a total of thirty transparent re-sealable plastic bags, I am satisfied so I am sure the only inference to draw is that D2 possessed the cocaine for the purpose of trafficking.  I also note there is no evidence to suggest that D2 is a consumer of drugs[34]. 

56.  In reaching my verdict I have carefully considered everything said on behalf of D2 by Mr Fong both individually and collectively, including that D2 was not a suspect in the police operation and that the operation was not concerned with dangerous drugs.  Nothing said by Mr Fong causes me to doubt the findings I have made. 

57.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D2 is convicted as charged.