HKSAR v. LAU KIN KWAN

DCCC 673/2018

[2020] HKDC 507

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 673 OF 2018

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REASONS FOR VERDICT

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1.  The 1^st defendant (D1) has pleaded not guilty to the 3 charges in this case, namely,

(1) Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, concerning 1.47 grammes of ICE and 1.04 grammes of cocaine;

(2) Trafficking in dangerous drugs, concerning 21.18 grammes of ketamine and 3.06 grammes of deschloro-N-ethyl-ketamine; and

(3) Alternative to Charge 2, an offence of Tenant permitting premises to be used for the unlawful storage of dangerous drugs, contrary to section 37(1)(a) and (2) of the same Ordinance.

2.  The 2^nd defendant (D2) is jointly charged with D1 for Charge 2 to which D2 has already pleaded guilty[1].

3.  The prosecution have called 3 witnesses, namely, DPC7480 (PW1), DPC7245 (PW2) and DPC5874 (PW3) and relied on a set of Admitted Facts (Exh P9).  There are exhibits referred to therein and produced accordingly with which I shall deal in the below.

The prosecution case

4.  This case involves two locations as particularized in the charges.  Location 1 concerned a flat on 7/F (referred to as Room 711) of a residential building in Yuen Long.  Location 2 was a divided premises rented by D1.  It was also in Yuen Long.

5.  Chronologically, the present case is this.

6.  At around 1621 hours, PW1 was carrying out an anti-drugs operation with his colleagues (PW2, DSGT50161 and two detective officers) at Location 1 and they entered Room 711 in which they found a male and a lady.  This male was known to be the owner of the flat (“Owner”) and the lady was his girlfriend.  The police officers presented a search warrant and started to carry out a house search.

7.  About two hours later, at 1831 hours, a male known as Mr Tang (“Tang”) knocked the door of Room 711. At that time, the house search was still on-going.  The police stopped the search and let Tang to enter into Room 711 and put him inside one of the bedrooms. 

8.  Later at 1911 hours, the police completed the house search and came out from Room 711.  None of the above three persons was further detained or arrested.

9.  The above were revealed during the cross-examinations by defence counsel Mr Lau who was assisted by Ms Shek of counsel. 

10.  The prosecution evidence in chief of both PW1 and PW2 were fairly short.  The prosecution began to confirm with them that they were having an anti-drug operation in Room 711 and when they were leaving Room 711, a male (ie D1) was found behind the smoke doors, as shown in Photo 5 of Exh P5, diagonally opposite to the doorway of Room 711. 

11.  There was no evidence as to the distance between PW1 and D1 at that time.  There was also no evidence as to the lighting conditions. 

12.  There were two narrow vertical rectangular glass windows on the smoke doors and otherwise the smoke doors were made with non-transparent materials.  There was no evidence as to which part of D1’s head that PW1 was able to see at that time and through which of the glass windows that PW1 had an exchange of eye contact with D1 or how the former was able to note the demeanor of the latter.  PW1 however described that upon seeing him (ie PW1 leaving Room 711), D1 became evasive and D1 immediately moved his head backway. 

13.  PW1 then told this court that he and PW2 then followed D1 and intercepted D1 at the staircase behind the smoke doors leading to the 8/F.  PW1 and PW2 showed D1 their police warrant card and PW1 described that D1 looked scared and his hand was trembling.  D1 also pressed his right hand against the sling bag he was carrying. 

14.  PW1 asked D1 why he was there and D1 said “I am looking for a friend”.

15.  Body search was done and inside the sling bag, the subject drugs for Charge 1 (Exh P12 & 13) were found.  In addition, two mobile phones, 3 bunches of keys and a bag of suspected dangerous drugs (Exh P11) were also found inside the sling bag.  PW1 then arrested and cautioned D1.

16.  The following conversations took place between PW1 and D1 under caution:-

“Upon being cautioned:-

D1: Ah Sir, the stuff is not mine. It is YIM Chun’s.

PW1: What is the large packet of crystalline powder?

D1: No idea

PW1: What is the small packet containing a number of packets of white-coloured powder?

D1: No idea

PW1: Where can YIM Chun be found?

D1: Either at Room No.2, Flat I, 1/F, YY Building, Kau Yuk Road[2] or Tai Kei Leng Tsuen.

PW1: What about the three bunches homophone of door keys in the shoulder bag?

D1: All belong to YIM Chun.

PW1: Can you provide the address in full?

D1: I can take you guys Ah Sir to find YIM Chun[3].” (Emphasis added)

17.  PW1 confirmed that he then had recorded down the arrest in his notebook there and then.  The above conversations can be found in Exh P10, the Notebook of PW1.

18.  Under cross examination, PW1 confirmed that there was a search warrant for Room 711.  As mentioned in paragraph 6-8 above, PW1 confirmed that the police entered Room 711 at around 1621 hours when they first spotted the owner walking out of it.  He was brought back by the police into Room 711.  There was another lady inside it.  Room 711 was about 400 square feet.  There were two bedrooms.  The police executed the search warrant shortly after they entered the flat.

19.  At around 1831 hours, Tang knocked the door.  PW1 said he was focusing on carrying out the house search with PW2 at that time.  The police let Tang in but PW1 said it was not his decision to allow this to happen. 

20.  PW1 said “according to his recollection”, he did not talk to Tang.  He agreed that Tang was at one of the bedrooms inside the flat during the rest of the house search.  PW1 was not sure whether the search for that room had been finished by the time Tang started staying in that room but he confirmed that Tang was guarded by another officer when Tang was inside that room.  PW1 did not know if anyone had done a body search on Tang before he started staying in that room. 

21.  PW1 agreed that however, it was unusual for the police to have allowed someone to enter a premises which is under investigation or a search on the strength of a search warrant.

22.  Further cross-examination revealed that Tang said he was looking for the “owner” of the flat.  The teammate(s) of PW1 arranged Tang to wait inside the said bedroom. 

23.  PW1 also agreed that he had told Tang that he could leave anytime.  PW1 explained that he had forgotten about this conversation when he was first questioned about it in court. 

24.  The search ended at 1911 hours.  PW1 agreed that no dangerous drugs were found in Room 711. 

25.  PW1 denied that during the 2 hours and 50 minutes of house search, the police had pressed against the will of the owner, the lady and Tang to divulge drug-related information or turn in somebody for the police to arrest.  PW1 denied that as a result the police were expecting someone to show up.  PW1 also disagreed that, as put to him by the defence, D1 was first seen by PW1 and PW2 at the lobby of the 7/F. PW1 also denied that D1 was brought to the staircase by PW1 and PW2.

26.  Regarding the notebook entries of PW1, there was no mention that (a) D1 was first found behind the smoke doors; (b) D1 went up on the staircase from 7/F to 8/F; (c) D1 was stopped by PW1 on the staircase between the two floors; (d) he was brought back to the 7/F after the interception and (e) 2 mobile phones were retrieved or found inside the sling bag D1 was carrying.  PW1 accepted that there were these omissions.  In other words, PW1 was not saying that he thought he did not have to make record for such details.

27.  PW2 was one of the officers who had intercepted D1.

28.  PW2 said when the police were leaving Room 711, PW1 indicated to him that there was someone (ie D1) behind the smoke door.  He joined PW1 to chase after D1.  When they managed to stop D1 at the staircase, D1 was nervous and D1 had his hand pressing on the bag he was carrying.  Some enquiries were made and D1 told the officers that he was looking for a friend.  The body search on D1 was done in the presence of PW2 and he confirmed the finding of the drugs, the 3 sets of keys and the two mobile phones inside the bag.  D1 was taken to a police car and the parties were then heading to Location 2.

29.  Under cross-examination, PW2 confirmed that there were altogether 5 officers in the team.  They entered Room 711 at 1621 hours inside which they found the owner of the flat and a lady.  At 1831 hours, there was another male who came and knocked at the door of Room 711.  This male claimed that he was looking for the owner of the flat. Someone in the police team had asked this male (apparently it was Tang as referred to in the evidence of PW1) to enter the flat.  He was asked to stay inside a room which the police had just finished carrying out a search.  PW2 agreed that the search was completed at 1911 hours and that was the time when the police officers started to leave Room 711. 

30.  PW2 said it was not unusual for a male like this Mr Tang to be allowed to stay in a subject flat of police investigation or search under a search warrant.

31.  PW2 denied that the police had exerted pressure on the owner, the lady and Tang in order to force any of them to provide crime related information to the police or turn someone in for the police to arrest.  PW2 denied that they had found D1 at the lift lobby on 7/F.  Nor were the police expecting anyone to come with the possession of dangerous drugs.

32.  During cross-examination, it was revealed that PW2 had made records for the present case in two separate notebooks.  He was questioned about the omission to have recorded down the details of the arrest and the finding of items in the sling bag carried by D1.  PW2 in reply said he had these recorded in the second notebook.  It was revealed that both parties did not have any idea of the existence of this second notebook until PW2 mentioned about it in the witness box.

33.  PW2 first explained the omission by saying that there was not enough space in the rest of the available space of the first notebook.  When defence counsel questioned PW2 about the texts written in the remaining pages of the first notebook which comprised of some 12 pages, it was then known that those remaining pages in the first notebook were all about the present case. 

34.  The second notebook was issued to PW2 on 4 January 2018, some 5-6 days after he claimed he had used up the first notebook.  PW2 did not continue to write up the record from the beginning of the second notebook. 

35.  It was not the case of PW2 that he thought he did not have to make record of the details in a notebook, as the defence suggested that an officer should make such record in the notebook.  PW2 had chosen to skip the details in the first notebook. PW2 confirmed he did make such record in the second notebook.  He started at page 4 instead until page 40 and he said those additional entries was a record of the details of the arrest.

36.  PW2 later offered another explanation by saying that it was not a suitable circumstance for him to continue with the recording of what had happened in the first notebook when he was making entries regarding the other aspects of the present case.  It was until after 4 January 2018 that he found a suitable moment to add back those details in his new notebook.  PW2 further explained that it is because he had to do other jobs therefore he did not request for a new notebook as soon as the old one was used up.

37.  PW2 denied that the reason for not making a contemporary record about the details of the arrest in his first notebook was that D1 was not stopped and searched in the way PW2 had described.

38.  Under re-examination, PW2 said he had made a statement on 30 December 2017 in which he had recorded down the details of the arrest.

39.  Regarding PW3, suffice it to say, his evidence fills up the chain of seizures and identification of exhibits.  He was able to use one of the keys found inside the sling bag carried by D1 to open the door to Location 2.  He also drew the sketch and those explanatory notes which are collectively known and produced as Exh P8. There was no cross-examination.

40.  The set of Admitted Facts covers, inter alia, the street value of the respective drugs.  For Charge 1, it was around $1,800 and for Charge 2, it was around $30,688 (see Exh P4). 

41.  Based on the Admitted Facts, there were also DNA and finger prints found and examined:-

“6. DNA

(a) Upon examination, human DNA was found on the following items seized from the premises referred to in Charges 2 and 3:

(i) The surface of 1 plastic bag containing 5 plastic bags containing a total of 1.58 grammes of a powder containing 0.84 grammes of ketamine;

(ii) The surface of 1 plastic bag containing 14 plastic bags containing a total of 6.49 grammes of a powder containing 3.33 grammes of ketamine;

(iii) The surface of 3 plastic bags containing a total of 40.3 grammes of a solid containing deschloro-N-ethyl-ketamine;

(iv) 4 socks;

(v) 3 segments of tissue;

(vi) 2 gloves;

(vii) 2 plastic bottles; and

(viii) 1 razor.

(b) Upon examination as stated in paragraph 6(a) above, the defendant (D1)’s DNA was found on the inside surface of one glove. The location of the glove is shown in Photo 14 of Exhibit P6 and as item “P” in the sketch referred to below.

(c) Upon examination as stated in paragraph 6(a) above, Yim Chun-pong’s DNA was found on the following items:

(i) The surface of 1 plastic bag containing 5 plastic bags containing a total of 1.58 grammes of a powder containing 0.84 grammes of ketamine;

(ii) The surface of 1 plastic bag containing 14 plastic bags containing a total of 6.49 grammes of a powder containing 3.33 grammes of ketamine;

(iii) The surface of 3 plastic bags containing a total of 40.3 grammes of a solid containing 3.06 grammes of deschloro-N-ethyl-ketamine;

(iv) The inside surfaces of 4 socks. The locations of the socks are shown in Photo 25 of Exhibit P6 and as items “A”, “B”, “C “ and “D” in the sketch referred to below;

(v) The surfaces of 3 segments of tissues. The locations of the tissues are shown in Photo 25 of Exhibit P6 and as items “E” and “F” in the sketch referred to below;

(vi) The inside surface of 1 glove. The location of the glove is shown in Photo 25 of Exhibit P6 and as item “G” in the sketch referred to below;

(vii) The inside surfaces of the screw caps and the openings of the 2 plastic bottles. The locations of the plastic bottles are shown in Photo 13 of Exhibit P6 and as items “Q” and “R” in the sketch referred to below; and

(viii) The razor head of the razor. The location of the razor is shown in Photo 34 of Exhibit P6 and as item “T” in the sketch referred to below.”

and

“8. FINGERPRINTS

Yim Chun-pong’s left palmprint and right thumbprint are found on the inside of the wooden main door of the premises referred to in Charges 2 and 3; and Yim Chun-pong’s left thumbprint is found on the outside of a plastic bottle seized from the premises referred to in Charges 2 and 3.”

The defence case

42.  D1 elected to give evidence. 

43.  D1 said he lived together with his girlfriend in Shui Tsiu San Tusen, Yuen Long until early 2017.  In or about March 2017, he separated with her and they lived apart where D1 rented Location 2 and she rented a place in Wong Nai Tun Tsuen.

44.  In July 2017, D1 got back together with his girlfriend.  They chose to live together again, this time in Wong Nai Tun Tsuen because Location 2 was too small for them.

45.  Soon after, a friend called Yim Chun Pong whom D1 had known for over 10 years had contacted him. D1 used to call him “Yim Chun”.  This is in fact D2 who was looking for a place to stay after his recent release from the prison.  Since then D2 occupied Location 2 and he paid rent to the girlfriend of D1 who would make arrangement to pay the rent to the landlady.  Since then D1 did not go up there anymore and did not keep the keys of Location 2.

46.  In the afternoon of 29 December 2017, D2 called D1 and wanted to meet up for tea.  D1 and D2 then met up at a tea house in Yuen Long.  While they were having tea, a male friend of D2 approached D2 and the three of them sat together for tea.  When they had finished, that male (turned out to be Tang) told D2 that he was going to go to XX House[4], Yuen Long (Location 1) and D2 offered to give him a ride.  D1 was going to meet his girlfriend somewhere nearby and therefore he went together with them.

47.  When they arrived, Tang alighted and went upstairs.  D1 and D2 stayed at the place where the car was stationed for smoking and chatting. 

48.  A moment later, D2 received a call and D1 heard him saying “Ok, I will ask my friend to take it up.”  D1 said D2 mentioned a room number but he had forgotten.

49.  D2 asked D1 if he could help him to take the bag upstairs to give it to the friend (ie Tang) D1 just met and that man was going to meet D1 at the lobby on the 7/F.  Since it was not the time to pick up his girlfriend, D1 agreed to do it for D2.  The bag was the sling bag D1 was carrying at the time of his arrest.

50.  D1 said once he stepped out from the lift on the 7/F, he saw PW1 and PW2.  They approached him and said “Police, follow me”.  D1 was brought to the rear staircase behind the smoke door.  Upon being questioned, D1 told them that he went there to look for a friend.  Then PW1 and PW2 searched the bag D1 was carrying and found the substance of pallets and small bags.  There were also the keys inside the bag. D1 however denied that the mobile phones were found inside the bag.  He said he was holding one of them and the other one was inside his trousers’ pocket.

51.  After the search was done, D1 was cautioned and arrested.  D1 was very shocked.  He said he had never opened the bag given to him by D2.  He had not looked into the bag.

52.  What happened next is transpired in the notebook Exh P10 which contains the conversations he had had with PW1 under caution.  D1 confirmed that he once agreed to take the police to Location 2.  He changed his mind later because he came to realise that D2 might be a drug trafficker.  He believed that if he took the police to Location 2 and got being seen by D2, D2 might take revenge on him.  D1 also believed that since he had already provided the address to the police, they would be able to go there by themselves to catch D2.

53.  D1 explained the DNA found on the inside of a glove seized inside Location 2.  D1 said when he moved into Location 2, he did buy similar kind of gloves and use them for cleaning. He might have just thrown them around after use and did not pay attention to its whereabouts anymore.

54.  D1 denied knowledge of the existence of dangerous drugs and other tools or items seized inside Location 2.  He also did not know that D2 was dealing with or in dangerous drugs inside Location 2.

55.  Under cross-examination, D1 denied using the glove which bore his DNA for packing drugs.  He denied using Location 2 for packing or preparation for drugs trafficking.  D1 also denied delivering dangerous drugs on 29 December 2017.

56.  D1 said he did not know that the keys inside the bag included a key for Location 2.

57.  D1 also said all he knew about D2’s release from the prison was, based on what D2 had told him, that D2 was involved in a fighting case.  He did not ask D2 more about it than D2 was willing to tell. 

58.  D1 agreed that he knew that there was a clause against sub-letting in the tenancy agreement and therefore the arrangement was that D2 did not pay rent directly to the landlady.

59.  Regarding the complaints made on his behalf by his lawyer concerning the conducts of the police in this case, D1 said the complaints were made as a result of legal advice.

Evaluation of evidence and analysis

60.  Put simply, the prosecution case in Charge 1 against D1 was based on the physical possession of the drugs and the circumstances as a whole.  Regarding Charge 2 (or 3), the prosecution relied on the fact that D1 was the tenant of the room inside which the drugs and other relevant items were found and in particular, the evidence of the DNA of D1 and the possession of the key.

61.  The prosecution have the burden of proof throughout and the standard of proof is one of beyond reasonable doubt.  The defendant has no duty to prove anything.  I also remind myself the notion of “true or maybe true” in assessing the evidence or the case of the defendant.  It is also trite that reasonable doubt does not have to come from the defence case and any inference drawn against an accused has to be the only irresistible inference. 

62.  Since the defence does not dispute physical possession of the sling bag which contained the dangerous drugs in Charge 1, the prosecution can rely on the presumption under section 47 of DDO.  The prosecution submitted that the only irresistible inference against D1 is that he knew the existence of the dangerous drugs regarding both charges and he knew that Location 2 was used as a packing centre. 

63.  The prosecution further submitted that the dangerous drugs were packed in such a way that D1 was not merely in possession of them for self-consumption but clearly for the purpose of trafficking.  Despite that the old presumption arising from the possession of key to a premises where drugs were found is no longer applicable in law, the possession of a key for Location 2 does form part of the circumstantial evidence.  The prosecution place strong emphasis on 2 more peculiar features in this case: (a) the tenancy connecting D1 with Location 2 and (b) the DNA evidence.  The prosecution invited this court to accept the evidence of PW1 and PW2 and reject in full the evidence of D1.

64.  Counsel for the defence, Mr Lau and Ms Shek, have made a number of points which can be summarized as follows:-

(i) PW1 and PW2 are not credible and reliable witness;

(ii) D1’s evidence is true or possibly true;

(iii) Even though Location 2 was a packing centre, D1 has offered sufficient explanation for the finding of his DNA on one of the gloves and, by way of contrast, many seized items were found to bear the DNA of D2, it was only D2 who was dealing with the dangerous drugs;

(iv) The physical possession of the keys one of which being a key to Location 2 of which D1 was a tenant does not necessarily mean that D1 knew about the nature of the contents in the bag and D1 had discharged his evidential burden under s.47 DDO;

(v) The house search for Room 711, which was only 400 sq ft, was unusually lengthy and this should have undermined the credibility and reliability of both PWs;

(vi) Letting Tang to stay in the premises during the house search is inexplicably strange and this undermines the credibility of both PWs;

(vii) D1 could not have appeared behind the smoke doors when the police were departing from Room 711 because if D1 knew that police were inside Room 711, someone in his position, who, for argument sake, knew, as suggested by the prosecution, that he was carrying dangerous drugs in his bag, would have left before the police came out; had he not been aware of the presence of police officers, he would have knocked the door of Room 711 in order to deliver the dangerous drugs to someone inside that flat;

(viii) There was such a big bag of crystalline substance (Exh P11) found inside the sling bag. This bag of substance was confirmed not to be dangerous drugs. This feature is consistent with the defence case, that is, D1 was the subject of a setup and he was the scapegoat that the police officer were waiting at the material time;

(ix) In any event, the evidence of D1 had sufficiently created a reasonable doubt.

65.  Having carefully considered, I do not accept PW1 and PW2 as truthful and reliable witness.

66.  For PW1, I find that PW1 had exaggerated his evidence regarding his observation of D1’s demeanor when D1 was still, as PW1 claimed, behind the smoke doors.  I find no reason why PW1 could have expected or foreseen someone to be appearing at that time behind the doors.  Photo 5 in Exh P5 shows that there was only a narrow window on each of the smoke doors.  It was too much a coincidence for PW1 to be able to see that D1 was looking into PW1’s direction and that it was upon seeing PW1, D1 became evasive. 

67.  The notebook entries of PW1 had also missed out a number of important details of the case pertaining to the finding of D1, his arrest and the findings of the body search.  When PW1 had chosen to make a contemporary record in his notebook there and then, I do not see any reason for such an officer to have failed to make it clear in his notebook about what had led to the arrest of D1 and the details of the search when it is obvious that whatever findings he had achieved would have become important evidence in a case like the present one. 

68.  There was also the mysterious person, Tang.  For inexplicable reason, this man was allowed to enter into a premises that the police were still carrying out a search inside.

69.  There is also conflict between PW1 and PW2.  PW1 said it was unusual for a person like Tang to be permitted to stay during the search of the premises.  PW2, on the other hand, told this court that it was not unusual.  The prosecutor did not see it necessary to re-examine his witnesses anything about this mysterious man or the decision to detain this man in Room 711.  The word “detain” is used because this man was “guarded” by an officer inside the bedroom he was staying during the search. But the point is, the conflict remained unresolved in the absence of re-examination.  There is no evidence to support the assertion of PW2. Furthermore, it remains unknown if what PW2 regarded as “usual” is actually proper or not. 

70.  When D1 was found, if true, looking to the direction of Room 711 at the time the police were walking out of Room 711, with, as a common ground, physical possession of dangerous drugs, I fail to see why no enquiry was made at all as to whether one of these three civilians was the “friend” for whom D1 claimed under caution to be looking.  Should the police find it right to apply for a search warrant for Room 711, any suspicious person such as D1 appearing at the material time at the smoke door which was closest to Room 711 would definitely become a matter that caused the other police officers to detain and question all the civilian(s) who was/were still inside the flat in order to ascertain any connection between this man (D1) who just happened to be there acting suspiciously.  This suspect was not unrelated to the subject of the search warrant; both matters were drugs-related and the team of officers were carrying out an anti-drugs operation.

71.  I also fail to see how plausible it could be for any police officer not to have stopped Tang at the doorway, and at any rate, prevented him from entering a premises under investigation or search knowing that the operation was a drug-related one.  Tang said he was looking for the owner and obviously, the owner was at that time detained or at least kept inside the flat.  Any communication, even in the form of body gesture, between the owner and Tang could have irreversible impact on the investigation.  In this regard, I do not find PW2’s assertion that the handling of Tang was usual credible at all.  It is very unusual indeed.  I also do not find PW1 and PW2 credible as to what had happened inside Room 711 during the unduly lengthy house search which lasted for approximately 3 hours.

72.  The house search for such a small place (400 sq ft) would not last for such a long time, especially when, according to the evidence of PW1 and PW2, there was nothing eventful during the carrying out of such a task.  This long duration of search is on the contrary consistent with the defence case ie the officers were exerting pressure on the 3 civilians with the hope that someone would be turned in during the house search.  I cannot rule out that in fact the officers were waiting for the scapegoat to show up during the period and therefore D1 was not first found at the smoke door but being received at the lift lobby when he came out of the lift by officers who were waiting for him there. 

73.  Regarding PW2, I do not accept that he is a truthful witness for an additional reason.  He first claimed that the space in the first notebook did not allow him to continue with the recording and therefore he did not put down in details about the arrest and search on D1.  He then changed his explanation.  The first impression he gave was that it was quite normal for him to resort to using the new notebook.  But further cross examination revealed that he had continued with the other aspects of the present case in the same notebook.  There was also no credible reason for not asking for the issue of a new notebook when it was used up.  5-day is too long a period of delay regardless whether PW2 had some other cases to do or not.  He simply could not afford not to have a usable notebook with him during his duty for that 5 days.  More so, when he had the new notebook, one would have expected him to continue with the recording from where he stopped ie to complete his record in the beginning of the new notebook for the present case.

74.  The fact that PW2 had made similar record in his witness statement is not as important as it looks. Should PW2 find it already sufficient by making a record in his witness statement, there was no need for him to make another record at page 4 in the new notebook subsequently. 

75.  Having also the benefit of seeing PW2 testifying in court, I have no reservation in rejecting his evidence.  He gave me a strong impression that he was making up excuses as he went along in the witness box.

76.  In summary, I reject the evidence of PW1 and PW2.  They are not credible nor reliable witnesses.

77.  This is not the end of the analysis however.  The prosecution rely on circumstantial evidence.  Proven physical possession would also support the operation of the statutory presumption under section 47 DDO.  The defendant then has an evidential burden to rebut this presumption.  By saying “rebut”, the legal burden remains on the prosecution.

78.  D1 elected to give evidence and that would discharge the evidential burden.

79.  In the present case, the DNA evidence against D1 could be a strong piece of evidence.  One can note that there was no trace of dangerous drugs on the glove; but on the other hand, the dangerous drugs found inside Location 2 were all packed in various transparent bags.  The fact that there was no drug, however small amount it was, found on the glove is neither here nor there.  Nevertheless, I accept D1’s explanation. Somehow Location 2 was connected with him in the past.  Having left a glove inside Location 2 that he had used before as described by D1 is not impossible. 

80.  I was also impressed by D1 when he took the initiative to correct the understanding of the prosecution as to when had he left similar glove in Location 2 when the prosecution had mistaken that it was four months before his arrest whereas the correct answer was that it was more than nine months, seemingly a more damaging answer against his interest.  I am of the view that D1 was telling the truth when he volunteered that clarification in the witness box.

81.  At any rate, the DNA evidence is non-conclusive.  

82.  More importantly, under caution, D1 was asked “where can YIM Chun be found” in the context that, according to D1’s previous answers, YIM Chun was clearly connected with the dangerous drugs found inside the bag carried by D1.  Against this background, I wonder why D1 would have provided the address of Location 2 when he was speaking to PW1 under caution.  Had he known that there were dangerous drugs inside Location 2, it would be quite inconceivable for him to mention such an address.  More so, had he been connected with, or aware that he was, any of the items inside Location 2 indicative to drugs dealing.  In other words, had he used a glove inside Location 2 to handle dangerous drugs, he would not have mentioned about Location 2 which would inevitably bring upon him further trouble.  It goes to the root of his knowledge of the existence of drugs in Location 2.  In my judgment, the intention of D1 at that time was to genuinely reveal the possible whereabouts of D2 and assist the police in catching D2.

83.  There are other points to note.  Firstly, even if D1 was forced by the police to tell them an address where D2 could or might be found, it does not necessarily mean D1 would mention about an address which might implicate himself.  Secondly, according to Exh P10, D1 gave two addresses to the police: one is a full address ie that of Location 2 and the other is Tai Kei Leng Tsuen without further details.  D1 could just mention Tai Kei Leng Tsuen and mislead the police so as to avoid or minimize his own risk.  Offering the name of the place Tai Kei Leng Tsuen with the promise to bring the police to that place would sufficiently serve the purpose.  Furthermore, I accept the evidence of D1 regarding his change of mind and refusal to lead the police all the way to Location 2. 

84.  I note that the prosecution did attempt to show that D1 had made a complaint against the police officers and the complaints refer to (1) D1 was forced to confess and (2) the police had fabricated case evidence against D1.  The prosecution wanted to show that D1 was not credible in the witness box when he had chosen not to dispute the admissibility of the notebook Exh P10 or simply that D1 was untruth when he was making those complaints. 

85.  This subject is not as straight forward as it appears.

86.  To my understanding, an accused is entitled not to raise objection to the admissibility of a piece of evidence against him even if his version of the incident does support such a course, as long as he does not mislead the court in the witness box or otherwise.  For example, an accused who had told the truth under caution and he can testify accordingly without revealing to the court that a police officer had threatened him during the time when he was in police’s custody before he made that remark under caution.  Another example is when an accused intends to rely on what he said under caution and he elects not to give evidence in court, it would not be relevant for him to reveal to the court that a police officer had slapped his face before he spoke under caution. 

87.  The complication is compounded by the fact that very often the decision could well be made as a result of legal advice which is covered by Legal Professional Privilege (LPP).

88.  In my judgment, all the prosecution can rely on is the factual discrepancies that might exist between the accused’s evidence and what pertains to factually supporting the complaints or making the decision to object or otherwise the production of that evidence, saved that there is no infringement of the principles under LPP or the rule against self-incrimination and the rules governing collateral issues.  The prosecution can also rely on the complaints to show that the accused is not to be believed by showing that the complaints were simply false.  I ruled in favour of the prosecution and allowed the cross examinations along these lines. 

89.  Nevertheless, on multiple occasions, D1 said that the complaints were made as a result of legal advice and did not further elaborate. 

90.  Having carefully considered, I do not think that the fact that the lawyer of D1 had made the first complaint to the police undermines the credibility of D1.  Nor do I find it inconsistent for D1 to have made such a complaint to the police on the one hand, but raised no objection to the admissibility of Exh P10 on the other.  To say the least, the latter decision could well be made as a result of legal advice of D1’s present team of lawyers. 

91.  Regarding the second complaint, the prosecution relied on the record they had to cross examine D1. The written record of this second complaint in full is: “Police fabricated some dangerous drugs as case evidence”.  Quite apart from the true and accurate meaning that the English word “fabricated” used in this complaint was as it could mean that the police had planted dangerous drugs or that the police had ignored the true identity of the owner of them by attributing a connection with an accused or so, there is no evidence as to whose words were they.  It could therefore be the choice of words of a police officer or that of the lawyer for D1 at the police station.  As to which dangerous drug(s) did it refer to or which charge was it related to, there is simply no evidence.  In light of these ambiguities, I do not find it safe to hold against D1 in any way it might be relevant.  I also do not find it helpful to the assessment of D1’s credibility. 

92.  The prosecution put it to D1 that both complaints were untrue.  D1 did not confirm or deny but said these were made on his behalf after he had seen his lawyer.  I find his answer reasonable in light of how the cross-examination developed and in my judgment, the whole cross examination on the complaints did not undermine his credibility.

93.  Although I find it quite a coincidence for D1 to have sublet Location 2 to D2, I cannot rule out the possibility that it just happened in the way described by D1.  It would then be reasonable for him not to leave the paying of rent to D2 as that would, as submitted by defence, unnecessarily exposed the subletting to the landlady. In other words, it is quite reasonable for the girlfriend of D1 to handle the matter. 

94.  The key for Location 2 was found together with other keys.  There is no evidence to say that the other keys belonged to D1.  The finding of the key constitutes only an indirect circumstantial evidence and at any rate, it is not a conclusive evidence.  I also accept that D1 might not be aware of the existence of the keys or that key inside the bag at all the material times.

95.  I do not find it odd for D1 not to have discussed with D2 regarding his previous conviction and reasons for being jailed.   

96.  Lastly, the fact that a huge bag of suspected dangerous drugs, Exh P11, which turned out to be something other than dangerous drugs, was inside the sling bag bears certain consistency with the possibility that D1 was turned in by someone who had asked him to bring the bag to 7/F of Location 1.

97.  D1 was not shaken at all under cross-examination.  Taking into account the evidence of D1 as a whole, I am prepared to accept his evidence. 

98.  The core and fundamental issue in this case is the knowledge of D1.  In my judgment, D1 is likely to be telling the truth that he had no knowledge of the existence of dangerous drugs inside the bag when he was carrying it at the time when he was stopped by the police outside Room 711.  I find that as a matter of fact, D1 was stopped by the police at the lift lobby of 7/F at Location 1 and not at the staircase. 

99.  Regarding Charge 2, I find it likely to be the truth that D1 had no idea about the dangerous drugs and related items seized in Location 2 at all material times.  

100.  In conclusion, the prosecution have failed to prove beyond reasonable doubt that D1 knew about the contents in the sling bag at the time he was intercepted by the police.  The prosecution also failed to prove that D1 knew that there were at all material times dangerous drugs in Location 2 nor did he, as a result, being a tenant permit or otherwise such use by anyone in Location 2.

101.  I further consider if D1 is guilty of the offence of Possession of Dangerous Drugs by virtue of the operation of the notion of legal alternative.  In light of the above conclusion, I do not find it proper to do so, nor is there any basis to convict D1 with any other offence.  

102.  D1 is acquitted for all the charges accordingly.