HKSAR v. FU CHUN KIT AND ANOTHER

DCCC 1127/2024

[2025] HKDC 1152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1127 OF 2024

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REASONS FOR VERDICT

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1.  The defendants (D1 & D2) were jointly charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  D1 was also charged with dangerous driving, drink and drug driving, contrary to sections 37(1), 39A(1) and 39K(1) of the Road Traffic Ordinance, Cap.374 (Charge 1 to 3), of which he has pleaded guilty and convicted accordingly.  

2.  The defendants pleaded not guilty to the drug trafficking charge. After due consideration of the evidence and submissions, I find the prosecution has failed to prove the charge beyond all reasonable doubt and the defendants are acquitted accordingly.  Following are the reasons.

Background

3.  On 30^th December 2023, at around 0533 hours Police Constable 25872 observed a private car registration number XE3047 (the Vehicle) being driven by D1 erratically in the vicinity of Thompson Road and Johnston Road in Wanchai (the officer has marked the route taken by the defendant on Exhibit P8):

· taking a sharp turn in contravention of a traffic sign marked “Give Way”,

· crossing a double white line, then driving westbound against the traffic on Johnston Road, and then

· taking a sharp right turn into Mallory Street in contravention of the “No Entry” sign on that street.

4.  D1 stopped the Vehicle at Mallory Street, got out from the driver seat and got back into the Vehicle via the rear offside passenger door. At the same time, D2 got in the Vehicle briefly and got out when the Police went up for an investigation.  Apart from the defendants, there were another 3 female passengers on board of the Vehicle.

5.  All passengers including D2 were directed to stay near the Vehicle.  D1 was observed to have red eyes and strong smell of alcohol. During the initial enquiry, D1 suddenly fled, two of the three officers gave chase and leaving a woman constable to keep guard over D2 and the 3 passengers. 

6.  Soon afterwards, the officers subdued D1 at No.14 Burrows Street and escorted him back to the Vehicle.  The vehicle was search and the following items were discovered and seized:

(1) A transparent resealable plastic bag containing 13 smaller transparent resealable plastic bags containing a total of 3.67 grammes of a solid containing 3.36 grammes of cocaine found in the lower storage compartment of the driver’s side door ;

(2) Cash of HK$121,700 found inside the storage compartment between the driver’s seat and left front passenger seat.

7.  D1, D2 and the 3 passengers all denied ownership of the cocaine, and all of them were arrested for possession of dangerous drugs, i.e. the cocaine seized.   When the Cash HK$121,700 was found in a later search, the Police has already escorted D1 back to the Wanchai Police Station.  D2 claimed the Cash HK$121,700 found belonged to him.

8.  The subsequent breath and blood tests conducted on D1 found him to have 35 micrograms of alcohol in 100 millilitres of breath, exceeding the prescribed limit of 22 micrograms and had 0.02 micrograms of 3,4 methylenedioxymethamphetamine (MDMA) per millilitre of blood in his system.

9.  The street value of the seized cocaine as in December 2023 is estimated at HK$3,354.38.

10.  The registered owner of the Vehicle is Ms Lee Wai-ling who has a child together with D2.

Issues in dispute

1) Did the defendants have knowledge and possession of the dangerous drugs?

2) If so, did the defendants have the dangerous drugs for trafficking?

Findings

11.  I have reminded myself of the burden and standard of proof. It is for the prosecution to prove the defendants’ guilt on each and every element of the charge beyond all reasonable doubt.  The defendants have no burden of proof whatsoever and their cases should be considered separately.

12.  The parties have prepared detail summary of the evidence and made thorough analysis of the issues in their written submissions.  I have considered all the evidence in light of the defence case and the defence submission.   I have reminded myself the relevant principles in relation to the drawing of irresistible inference.  No adverse inference is to be drawn unless it is “the only irresistible inference”.  Where there is any reasonable doubt, the benefit should go to the defendant(s). 

13.  D1 fled away during the initial enquiry for his traffic offences.  The bag of cocaine was later found in the lower storage compartment of the driver’s side door, which is an open compartment (Exhibit P7 photo no. 29).   D1 gave a straight denial of ownership upon arrest and caution for possession of dangerous drugs, i.e. the cocaine found and seized.  D1 was the driver but not the owner of the Vehicle and there were other passengers in the Vehicle.  There is no evidence when the drug was placed there and by whom.    

14.  The Vehicle belonged to the common law wife of D2, and D2 did not have control of the Vehicle before the Police discovered the cocaine.  D1 told the officer he borrowed the Vehicle from D2’s wife and D2 told the officer he gave the key of the Vehicle to D1 earlier.  CCTV camera captured D1 together with 3 females got in the Vehicle, drove away and returned to the same spot about half hour later.  When the Vehicle returned, D2 was there waiting already.  D2 got in and stayed inside the Vehicle briefly while D1 got out and got in via the right rear door before the Police went up to conduct an enquiry.  Though D2 has got out of the Vehicle before the Police intercepted the Vehicle, he made no attempt to escape and co-operated with the Police.

15.  The prosecution considers that since the drugs were found in the driver’s side door storage compartment next to the D1, D1 must have knowledge and ownership of the drugs.  The drugs were packaged in such a way in which they would be easy to facilitate dealing. D1 and D2 had clearly made a prior arrangement for D1 to pick up D2.  It is more probable that D2 left the HK$121,700 of his in the Vehicle after he entered the Vehicle and got out from the Vehicle.  In addition to the HK$121,700 and the Drugs found in the Vehicle, D1 also had a substantial amount of cash on his person (HK$15,730) which is consistent with D1 and D2 being in the business of trafficking in drugs.  The only inference is that D1 and D2 were working together to traffic in the cocaine seized.

16.  However, the prosecution accepts that at the time D1 arrived to collect D2, the flashing lights of the Police Vehicle would have been obvious to both D1 and D2.  D1 did not attempt to escape by driving away from the scene; while D2 was yet to enter the Vehicle, should he knew there was cocaine inside the Vehicle and Police Vehicle was coming up why would he want to get in the Vehicle with proceeds from trafficking in dangerous drugs.        

17.  There is no direct evidence as to when and by whom the dangerous drugs were put inside the lower storage compartment of the driver’s side door.  There is also no direct evidence that D1 was aware the existence of the drugs and the Cash $121,700 therein.  D1 borrowed the vehicle from D2’s wife, he denied ownership of the bag of cocaine found upon caution.  There were other passengers on board of the Vehicle prior to the discovery of the cocaine.  There is also no direct evidence that the cash in D1’s possession related to drug trafficking.

18.  Counsel for D1 submits that the mere fact that drug was found close to the driver seat and D1 was the driver shortly before he was intercepted does not assist the Prosecution case; and no adverse inference should be drawn against D1. 

19.  Similarly, D2 had no control of the Vehicle prior to the discovery of the cocaine.  Though he admitted ownership of the cash found inside the Vehicle, he denied ownership of the bag of cocaine at the scene.  There is no direct evidence when the Cash found inside the Vehicle related to drug trafficking. 

20.  There is no evidence when the Cash $121,700 was put inside the Vehicle.  In reply to the prosecution’s submission, counsel for D2 submits that if D2’s plan was to disassociate himself from the large amount of cash, he could simply pass over the cash through the window instead of getting into the car.  Moreover, if that was his intention, he would not have allegedly admitted to its ownership.

21.  Counsel for D2 also submits that there were no other items found in the Vehicle which would indicate that the occupants of the Vehicle were involved in drug trafficking. Nor were there any phone records showing that the defendants were involved in trafficking.  Further, no reasonable person knowing that there are dangerous drugs in the car would bring trouble upon himself and board the Vehicle in front of a Police Vehicle that was obviously tailing the Vehicle.  There are numerous possibilities as to the ownership of the dangerous drugs, no irresistible inference can be drawn for D2’s knowledge and possession of the drugs.

Conclusion

22.  Although the circumstance was very suspicious, I consider and agree with the defence that there were numerous possibilities as to the ownership of the cocaine seized.  The evidence as a whole does not support an irresistible inference that D1 and or D2 had knowledge and possession of the cocaine seized.

23.  I consider and find the Prosecution has failed to prove beyond all reasonable doubt that D1 or D2 has committed trafficking in a dangerous drug as charged.  They are acquitted accordingly.