HKSAR v. WONG WAI WAH

DCCC 872/2022

[2024] HKDC 687

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 872 OF 2022

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Reasons for Verdict

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I.  Background

1.  The defendant faced 3 counts of drug-related offences, and he pleaded guilty to Charges 2 and 3. He was convicted of these 2 charges accordingly.  As regards Charge 1, the defendant pleaded not guilty to trafficking in the dangerous drugs, but guilty to simple possession thereof. Originally, the verdict was to be delivered on 1 March but on the day, the court was informed that the defendant was being hospitalised in the Prince of Wales Hospital (PWH)  because of a stroke. Defence counsel said he was informed of this fact at about 9:30 am on the day. In the circumstances, the proceedings have to be adjourned and I refixed it for 2 April. 

2.  I also revoked the defendant’s bail. On 20 March, I was informed that the defendant was admitted to PWH on 1 March 2024 for acute coronary syndrome and was discharged on 8 March and since then remanded in Lai Chi Kok Reception Centre. 

II. Brief Facts of the Case

3.  The facts of the case are straightforward.  The defendant was intercepted when he went to a private car that was parked near his residence.  Upon body search, the police found 2 handrolled cigarettes containing cannabis in herbal form. The police then proceeded to search the defendant’s residence in a unit at Pok Tai House, Shatin.  There more drugs, including ICE and cannabis in herbal form, were found.  In addition, more contraband were found, including 3 glass bottles for consuming drugs, 2 electric scales and a tin box containing 78 empty small re-sealable plastic bags. 

4.  The defendant claimed that all the drugs and the apparatus were for his own consumption. 

III. The 1^st and 2^nd Admitted Facts (Exhibits P38 and P44)

(1)  The list of exhibits is marked as P39.

(2)  On 7 January 2022, Lau Ka-shun purchased a vehicle with the registration number XE 1997, and lent it to the defendant shortly.

(3)  At about 8:30 pm on 13 April 2022, DPC 25627 Chau Ho-yin, intercepted the defendant when the defendant was in the driver seat of the said vehicle. The vehicle was parked in Shui Chuen Au Street outside Pok Tai House.

(4)  A search on the defendant was conducted. From the defendant’s blue cross-body bag (P1), the police found one Marlboro cigarette pack with 4 cigarettes (P2), 2 of which were rolls of cannabis, sometimes known as cannabis joint, which are produced as P3.

(5)  At 8:35 pm on 13 April 2022, the defendant was arrested and under caution, the defendant said, “the two rolls of cannabis are for my own consumption.”

(6)  A house search was conducted at the defendant’s residence of Room 1514, Pok Tai House, Pok Hong Estate, Sha Kok Street, Shatin. Exhibit P4 to P26 were found and seized (see list of exhibits P39).

(7)  At about 11 pm on 13 April 2022, the defendant was arrested for trafficking in dangerous drugs. Under caution, the defendant said, “The dangerous drugs are for my own consumption. I did not sell dangerous drug.”

(8)  Photos were taken with 30 photos depicting the defendant’s residence (P33), 32 photos depicting some exhibits (P34), and 11 photos depicting the vicinity of Shui Chuen Au Street (P35).

(9)  The chain of evidence relating to the exhibits is not challenged.

(10)  Subsequent to the defendant’s arrest and caution, the defendant voluntarily answered questions and the answers are accurately recorded in the following documents:

(a)  DPC 25627’s notebook (with redaction)  and the certified English translation, marked as P30A and P30B;

(b)  Pol 857 as recorded by DPC 25627 on 13 April 2022 with certified English translation, marked as P31A and P31B;

(c)  A VRI was conducted with the certified English translation of the transcript, marked as P32A and P32B.

(11)  Part of the seized exhibits were delivered to the Government Laboratory for DNA examination. The DNA report is produced and marked as P36.

(12)  The Chemist certificate dated 16 January 2023 is marked as P37.

(13)  The witness statements of DPC 24048 (P40), DPC 25627 (P41), DPC 14919 (P42), and SIP Ng Ka-lun (P43, subsequent to the ruling on the admissibility of this statement)  were produced under s.65B of the Criminal Procedure Ordinance.

(14)  Amongst the items seized from the defendant’s residence was a tin box containing 78 clear plastic bags as exhibited as P22 to P24. P22 was a large transparent re-sealable plastic bag containing 23 small re-sealable plastic bags; P23 was a large transparent re-sealable plastic bag containing 19 small transparent re-sealable plastic bags, and P24 was a large transparent re-sealable plastic bag containing 33 small transparent re-sealable plastic bags.

(15)  The list of exhibits (P39)  accurately records the descriptions of the exhibits, DNA examination results and the relevant counter number under the digital media number AB24080 transcript. The content thereof under P39 is admitted to be accurate.

(16)  Between 8:30 pm and 8:34 pm on 13 April 2022, DPC 25627 conducted a search on the defendant and found the following items on the defendant:

(a)  5 keys (P27A);

(b)  one Octopus card (P27B);

(c)  2 mobile phones (P28A and P28B);

(d)  cash of HK$6,500, $4,400 and $670 (P29A, P29B and P29C respectively).

IV. The Ruling on the admissibility of the police expert on drugs valuation

5.  Defence counsel objected the prosecution to produce the statement of SIP Ng on the valuation of the drugs seized, and tendered a bundle of written submissions with 5 authorities.  Defence counsel submitted that the Hong Kong Court of Appeal decision in HKSAR v Lo Yan Kan [1997] 3 HKC 430 was decided per incuriam and no weight should be attached to it. 

6.  I ruled against the application, relying on the English cases R v Bryan (8 November 1984, CA)  and R v Hodges [2003] 2 Cr App R 15, and the abovementioned Hong Kong case, HKSAR v Lo Yan Kan. In my view, the estimation of the street value of the drugs by police experts offered a kind of reference or yardstick for the court to have some ideas about the value of the dangerous drugs seized at a particular time in Hong Kong.  This piece of evidence alone cannot implicate the culpability of the arrested person as to whether he did traffic in a dangerous drug. 

7.  Consequent upon my ruling, the statement of SIP Ng was tendered under s.65B of the Criminal Procedure Ordinance and marked as P43. 

8.  In SIP Ng’s opinion, the drug ICE in relation to the 1^st charge has a street value of $5,160, and the cocaine has the value of $818 (powder)  or $1,490 (crack). 

V. The issue of calling PW1 DPC 25627 Chau Ho-yin

9.  The witness statement of PW1 has been admitted as P41 under s.65B of the Criminal Procedure Ordinance.  The statement does not mention anything about those cash and mobile phones found on the defendant at the time when he was intercepted.  Mr Laskey, counsel on fiat, intended to rely on the 2^nd Admitted Facts.  Upon the urge of this court, PW1 was called to give evidence in court. Prior to the calling of PW1, Mr Grounds, Defence Counsel, challenged the court’s authority to ask the prosecutor to call a witness to testify, saying that the court can only invite, but cannot direct, the prosecution to do so.  Mr Grounds further submitted that he would also consider to make an application for recusal depending upon the result of my ruling.  When asked, Mr Grounds said that he had no intention to threaten this court. 

10.  Mr Grounds relied on an Australian case in 1984, R v Apostilides [1984] 154 CLR at 563.  It was a jury trial, and the Australian court said:

“Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.”

11.  In gist, Defence Counsel said the judge has no power to call a witness of his own volition.  In that case, the witnesses concerned are 2 civilian witnesses.  In the present case, we are talking about the arresting officer whose statement has been admitted under s.65B of the CPO.  This court has certain issues to clarify from this police witness.  The purpose was to clarify what did the officer seize from the defendant when the latter was intercepted. For some unknown reasons, the prosecutor was reluctant to call this police witness, but to rely on the production of the 2^nd Admitted Facts. 

12.  On the other hand, Mr Grounds said that the basis of recusal was that the judge has no role to play in an adversary system as “the judge’s role in that system is to hold the balance between parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side” (page 576 of that judgment). 

13.  At the end of the day, Defence Counsel said that now it was the prosecutor who acceded to the “request” of the court, not directed by the court, hence, he would not take issue of the calling of this police officer.  Consequently, he also formally withdrew the application for recusal of the trial judge. 

PW1 DPC 25627 Chau Ho-yin

14.  He adopted his witness statement dated 19 April 2022, which has been produced as P41.  The defence has no objection for PW1 to identify the defendant in the dock.  PW1 said he intercepted the defendant when he approached the private car which is a Mercedes Benz with the registration number XE 1997 (photos 68 to 73 of the photo album). The defendant was taken to the police car for body search. 

15.  PW1 said he found a bunch of keys from the defendant and one of which can access to the private car.  He also found a Marlboro cigarette pack in which there were four cigarettes and 2 handrolled cannabis.  The defendant also has a mobile phone with him but he forgot whether the defendant had one or 2 phones with him.  PW1 also found the defendant’s wallet and a stack of cash of over $10,000 in the cross-body bag.  The cash was not inside the wallet.  He cannot recall the denomination of the cash. 

16.  Under a brief cross-examination, PW1 admitted that he made no reference of the defendant’s wallet in his statement but was sure that there was a wallet. 

VI.  Cautioned statement and VRI

(1)  The notebook entry (P30A with the English translation P30B):

The defendant said, “For the car, I had some argument with my friend. The two rolls of cannabis are for my own consumption.”

(2)  The statement of Pol 857 (P31A with the English translation P31B):

The defendant said, inter alia, that “the dangerous drugs are for my own consumption. I did not sell dangerous drugs.”

(3)  The VRI (P32 with the Chinese transcript P32A and English transcript P32B):

Entry 29 – (referring to the cannabis joints)  these items are mine. I take them for my own consumption.

Entry 41 – I bought it from a friend at Tsim Sha Tsui.

Entry 49 and 51 – $1,000 for 7 grammes

Entry 53 and 57 – (referring to the content of a transparent re-sealable plastic bag)  not drug, but a kind of baking soda, presumably.

Entry 59 and 61 – I always pack it in these small bags, for eating, for cooking and marinating.

Entry 69 – (referring to the content of the transparent re-sealable plastic bag with an orange opening)  baking soda too, presumably.

Entry 79, 83, and 85 – (referring to the content of a transparent re-sealable plastic bag with a blue opening)  Not drug either, they are a kind of medicinal powder for athlete’s feet.

Entry 89, 91 and 95 – his friend gave him over half a year ago. No means of contact.

Entry 99 – (referring to the content of the re-sealable plastic bag)  This should be the leftover ice that I took.

Entry 109 – I take about one gram per day.

Entry 113 and 119 – I get a glass mouthpiece then pour some ice into the mouthpiece, then place it on the bong and burn it for inhalation. You burn that glass pipe, smoke will come out, then inhale it.

Entry 125 – (how long did he take Ice)  10 odd years.

Entry 131 – used a lighter to burn the aluminium foil on which there was ice, and when the smoke came out, he would get a glass bowl to inhale the smoke.

Entry 139 – he used a straw and the ice bong to inhale the smoke.

Entry 143 – (the tools shown to the defendant)  they are for taking cannabis and ice.

Entry 145 and 147 – for the glass bong, sometimes he take some coke, that is cocaine, with it as well.

Entry 155 – for cannabis, he rolled it with some rolling paper.

Entry 184 – these are cannabis buds he bought for consumption.

Entry 191, 196 – he bought it from “Ah Cha”, Indian and Pakistani nationals.

Entry 206 – he spent $1,100 on buying cannabis buds.

Entry 208 – he used tobacco pipe to take cannabis buds.

Entry 218 – (referring to the grinder)  it was used for grinding ice, no, for grinding cannabis buds.

Entry 222 and 253 – (re electronic scales)  he was afraid to be cheated with short weight. He measured it (the drug)  when returned.

Entry 226 and 228 – that applies to ice and cannabis buds.

Entry 236 – (referring to the re-sealable plastic bags with a bat pattern)  The ice is for his own consumption.

Entry 241 – the drugs was from “ON”, the Indian and Pakistani nationals.

Entry 245 and 247 – he bought one packet, much cheaper. Then it was divided into a portion, enough for him to take half a month.

Entry 249 and 257 – 7 grammes for a packet, and divide it into portions for consumption.

Entry 265 – (for those re-sealable plastic bags found in the metal box)  he bought them for taking separately, so that he would not take too much.

Entry 277 and 279 – this packet of ice was bought from the Indian and Pakistani nationals for self-consumption. It cost $2,000.

Entry 283 – He bought it not long ago, last week.

Entry 307 and 311 – he has been living there for over 10 to 20 years. The rent is $2,000 odd.

VII.  Half-time

17.  Consequent upon the close of the prosecution case, there was no half-time submission.  Defence Counsel confirmed that the defendant elected not to give evidence, nor would he call any defence witness. 

VIII. Analysis of evidence

18.  All along, the prosecution has the duty to prove the charge against the defendant beyond reasonable doubt.  The defendant has no duty to prove anything.  The fact that the defendant indicated his guilty plea to a lesser charge of possession, and that he pleaded guilty to Charges 2 and 3, will not cause any bias by this court when determining his culpability in the offence of trafficking in dangerous drugs. 

19.  On the other hand, the fact that the defendant chose not to give evidence is his right.  The court cannot draw any adverse inference therefrom.  However, that also means the defendant cannot attack or shatter the evidence of the prosecution by himself as the first person.  What the defendant said or admitted in the cautioned statements and the VRI cannot be treated with the same weight as if he testified in court. 

20.  In the closing submission, defence counsel relied heavily on those explanations given by the defendant to show that all the dangerous drugs seized were for the defendant’s own consumption.  He concluded that the defendant should be acquitted of Charge 1 but convicted of the lesser charge of possession of the dangerous drug, in addition to the other 2 charges that the defendant had already pleaded guilty to. 

21.  It was submitted that “if the defendant’s case or the defendant’s statements in the VRI were true or might have been true, then such benefit of a doubt must be given to him.  Even if the defendant’s case was entirely rejected, the prosecution still bears the burden to prove its case beyond a reasonable doubt.” (paragraph 2 of the submission). 

22.  The Defence argued that the prosecution’s case is entirely relying on circumstantial evidence but it is flimsy.  The prosecution has no evidence to prove that the defendant was selling the drugs.  When intercepted, the defendant had no ‘ice and cocaine found on him, but just 2 cannabis joints.  There were no drugs found in the private car XE 1997.  As for the DNA evidence, it was argued that those DNA traces which did not belong to D could well be his wife’s or it could be originated from people who sold the drugs or bottles to the defendant. 

23.  It was said that the defendant, being a renovation worker, could afford to pay for the drugs habits.  He only had to pay $2,000 rent per month.  The Defence said, “the cash of $11,570 found on the defendant was not an excessive amount of money.  The only evidence is that the defendant was in possession of a reasonable sum of money from which he would be able to pay rent, utilities, food bills and have enough money to support his addiction.” (paragraph 12.3 of the closing submission).

24.  It was further argued that it was reasonable for the defendant to have 2 scales to weigh the drugs he bought in order to ensure that he was not cheated.  The quantity of drugs seized by the police are low and it was about 2 weeks’ supply of ice.  It was said there were no series of plastic bags found already filled with specific small quantities of ice in exact saleable amounts, eg 1 gramme or 2 grammes.  In any event, the Defence argued that the total amount of ice does not suggest trafficking, let alone the irresistible inference (paragraph 22 of the submission).  The defendant’s rate of consumption of ice is well within norms, submitted by the Defence who also urged the court not to place any weight on SIP Ng’s statement on the valuation of the drugs. 

25.  I have considered all the points raised by the defence counsel.  I do not accept what was said by the defendant in his cautioned statement and VRI trustworthy.

26.  He mentioned that he bought the ice from the Indian or Pakistani national and yet he could not have any means to contact him.  He does not quite remember them (entry 200)  but said it was easy to bump into him (entry 202).  He remembered he paid $2,000 for the latest purchase as it was bought “last week” (entry 281 and 285). There are 2 small plastic bags containing non-drug stuff.  The defendant recognised them right away and said they were baking soda for cooking and medicinal powder respectively.  These 2 bags have orange and blue opening respectively.

27.  The police found 3 glass tubes with a bulb shape at one end (see album P33 at photos no. 21, 22 and 23), and each tube contained traces of ice (see the chemist certificate P37).  There were 3 glass bottles with glass tube and metal gauze or plastic straws.  One of the glass bottles was found to contain traces of ice.  There was a piece of folded aluminium foil which had been used for inhaling drugs. Inside a tin box, there were 3 large plastic bags, each of which contain 23, 19, and 33 small plastic bags respectively (paragraph 15 of the Admitted Facts P38). There were 2 electronic scales and the defendant said the scales were used to weigh the drugs he bought so that he would not be cheated.  There was a grinder. The defendant at first mentioned that it was for grinding ice but immediately corrected that and said it was to grind cannabis buds (entry 218 of the transcript of the VRI, P32B).  The chemist did find 0.1 gramme of cannabis in herbal form on the grinder. 

28.  Dr Lam Tse-tsun, forensic scientist of the government laboratory, in his report (P36)  stated that “the DNA obtained from the pair of the cotton bud swabs (GPG 35153)  was a mixture likely to have originated from three individuals, and such findings were indicative of ‘AA 970569’ being a possible source of the DNA mixture.” (paragraph 6 of the report).  The cotton bud swabs come from “J on glass bottle (item 12)  and J1 on glass bottle (item 12)”.  Of course, the DNA findings cannot be used to implicate the defendant that he was trafficking in a dangerous drug but it shows the DNA did not originate from only one individual (see the list of exhibits P39, item 12). 

29.  A drug user can be a drug trafficker.  The defendant left home with cash in the sum of over $10,000.  The stack of cash was not found inside the defendant’s wallet but in his cross-body bag.  The defendant said he had a dispute with his friend and hence he was able to “borrow” the Mercedes-Benz C‑Class car from his friend with the licence expiry date of 28 January 2023 (photo 73 of the album).  The defendant claimed in the VRI that he bought a packet of 7 grammes for $2,000 about one week before his arrest. And yet, the police seized one plastic bag which contained 7.94 grammes of a solid containing 7.8 grammes of methamphetamine, not to mention there was another smaller bag of 1.08 grammes of a solid with 1.06 grammes of methamphetamine (see the chemist report P37). If what the defendant said about the scales was true, then he got more Ice (that is 7.94 grammes of a solid instead of 7 grammes)  that he had bought. There were also a total of 78 small plastic bags which were contained in 3 larger plastic bags. 

30.  From all the available evidence and when they are considered in totality, I rule that in relation to Charge 1, the only irresistible and reasonable inference is that the defendant possessed the dangerous drug for the purpose of trafficking. Accordingly, I convict the defendant of Charge 1.