HKSAR v. LAM CHIU YIN

DCCC 634/2017

[2018] HKDC 291

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 634 OF 2017

---------------------

---------------------

--------------------------------------

REASONS FOR VERDICT

--------------------------------------

1.  The defendant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Prosecution case

2.  On 28 April 2017 police entered the defendant’s residence with search warrant after intercepted the defendant outside the premises.  Upon entry, the defendant’s wife, 2 minor children and 3 adult relatives of the couples were inside the living room

3.  During the search, a paper box was found on top of a plastic cabinet inside the storage room of the premises.  Inside the said paper box were:-

(a) 6 plastic bags containing a total of 36.6 grammes of white crystalline solids containing 16.6 grammes of ketamine;

(b) 1 plastic bag containing 12.1 grammes of a white powder containing 2.47 grammes of ketamine;

(c) 1 plastic bag containing 1 plastic bag containing 2.78 grammes of cannabis, in herbal form;

(d) 1 plastic bag containing 1 hand-rolled cigarette containing 0.19 grammes of cannabis, in herbal form;

(e) 1 electronic scale;

(f) 1 plastic bag containing 381 nos. of transparent re-sealable plastic bags;

(g) 1 cigarette rolling machine;

(h) 3 boxes of cigarette papers; and

(i) Cash HK$12,000

4.  Further, 5 mobile phones were found beside the said paper on the top of the plastic cabinet.  The total market value of the ketamine and cannabis seized is estimated to be HK$11,342.

5.  Under caution, the defendant stated that the suspected dangerous drugs seized were ketamine and cannabis for his self-consumption, his wife knew nothing about it.

Defence case

6.  The drugs and other trafficking related exhibits alleged found inside the storeroom were not belonged to the defendant and he had no knowledge of such.  The defendant’s sister-in-law and brother-in-law who had drug related conviction had exclusive use of that room.    

7.  The defendant did not make any confession at the scene, he was pressurized to sign on the post record cautioned statement by threat and inducement. 

Alternative procedure

8.  The burden is on the prosecution to prove the special issue beyond all reasonable doubt, the defendant has no burden whatsoever.  The defendant has a clear record; it is more likely that he was telling the truth.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  Where there is any reasonable doubt, the benefit should go to the defendant.  It should be noted that when considering the special issue, I only had the defence evidence for the special issue.

9.  PC 7792 gave evidence that on 28 April 2017 between 5 pm and 5:30 pm his team attended a briefing given by woman inspector Tai for a plain clothes anti-narcotic operation with a view to execute a search warrant of a target premises at Choi Uk Tsuen.  He was provided with information of the suspected narcotic activities and the description of a named target person.  He was instructed to lay an ambush at location outside the public toilet of Choi Uk Tsuen and conduct a surveillance there together with PC 9169.  It was not disputed that the target person was the defendant.

10.  PC 7792 gave evidence that at 7:38 pm he saw a male matched the description of the target person moving towards him from the car park area and about 20 meters behind him were another two males.  Believing the male at the front was the target person, he went up calling the name of the target person and stopped that man by holding his arm, once he came in contact with the man, the man reacted irrationally with agitated behaviour.  PC 9169 gave similar evidence.  

11.  PC 7792 gave evidence that outside the public toilet he suspected the defendant was involved in drug activities, he stopped the defendant, revealed his police identity and informed the defendant he was suspected of involving in dangerous drug activities.  Time being two males (later known to be the defendant’s brother-in-law Ho and Lo) rushed forward and asked them what had happened.  He also produced his warrant card and revealed his police identity to the two males. Very soon reinforcement came and put the other two males under control.

12.  PC 7792 gave evidence that further down the alleyway of the public toilet, he asked the defendant for his identity card, the defendant gave his name and said he left it at home.  And he took out the search warrant and explained it briefly to the defendant at time he requested to conduct a body search on him.  PC 9169 said the reinforcement arrived after the search, but he did not mention the search warrant at this stage.  Before the reinforcement arrived, PC 9169 was required to guard against the two brothers-in-law, the officer did not notice PC 7792 has taken out the search warrant under such circumstances is understandable.

13.  The defendant said during the course both PC 7792 and PC  9169 raised a baton while his brother-in-law Lo first said two officers then very quickly rectified and said only one officer raised a rod.  The officers disagreed that they ever raised a baton against the defendant.  The officers were to conduct a house search nearby, there was no reason for them to cause a commotion there to alert any person inside the premises, I considered and accept the officers’ evidence that they revealed their police identities at the earliest opportunity and were only using corresponding force to calm down the defendant and did not produce their batons. 

14.  According to PC 7792’s evidence, initially the defendant put up a very fierce struggle, after they revealed their police identities he calmed down a bit, and upon further producing the search warrant, the defendant co-operated with him in the body search.   I consider and find the defence has exaggeratedly the magnitude of the officers’ actions outside the public toilet.

15.  There was no dispute that PC 7792 searched and found certain items on the defendant.  From the defendant’s left front trousers pocket, the officer found cash $2,200, a chain of 7 keys, a door key hold with a car key, while in his right front trousers pocket he found a white Samsung mobile phone and a black Sony mobile phone.  The officer said after he found the said items he kept them temporarily during the investigation.  

16.  PC 7792 gave evidence that the defendant agreed to take the officers back home to get his identity card.  Thus he accompanied the defendant all the way to the 122A Choi Uk Tsuen.  The search warrant was produced and explained to the defendant again outside the ground floor metal gate.  The party gained entry to the building by using one of the seven keys found on the defendant, and proceeded to the first floor.  On the way up, the defendant said the wooden door of the first floor was unlocked and PC 9169 opened the wooden door for entry.

17.  Section 54(2) of the Police Force Ordinance Cap 232 provides that if a police officer finds any person in any street whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer:-

(a) to stop the person for the purpose of demanding that he produces proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time;

(c) to search the person for anything that is likely to be of value to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and

(d) to detain the person during such period as is reasonably required for the purpose of such a search.

18.  PC 7792 was briefed for the operation and was in the belief that the defendant was involved in activities related to dangerous drugs, the officer had reasonable grounds to detain the defendant for search and enquiry.  But I have borne in mind that the fact that the officer had reasonable grounds to detain the defendant for investigation and search does not mean that the defendant had committed the crime suspected nor has any negative bearing on the defendant’s credibility.

19.  Although the defendant had told the officer his name outside the public toilet, the defendant did not have his identity card with him, the identity card was placed at home which was a short distance from the public toilet, the officer was in possession of a search warrant to the defendant’s home, the officer was entitled to check his identity card, before he formally released and returned the items taken from the defendant.  Further, the officer was to carry a house search to a premises which was believed in connection with dangerous drugs, the officer was entitled to try the keys taken from the defendant to gain entry into the premises. 

20.  The interception/investigation downstairs and the house search were part and partial the same operation, once entered the premises, the items taken from the defendant downstairs became items covered by the search warrant whether they were with the defendant or with PC 7792.

21.  Sister Ying gave evidence that Ho entered the premises before the arrival of the police, the evidence of the officers suggested otherwise.  The officers were there to execute a search warrant, they did not know who was inside the premises, and did not want to alert any person to dispose of any illicit items therein.  They have taken the particulars of Ho downstairs and Ho has learnt their police identity why would the police let Ho to get in before them. 

22.  It is noted that when Ying gave her statement at 20:05 pm inside the premises, she said “around 7:30 pm Ho shouting loudly at the balcony that the defendant was being stopped by a few males near the toilet and asked us went to the balcony to take a look.”  However, she testified that Ho returned a few minutes before the arrival of the police and told them the defendant being hit by someone downstairs, and the wife went out to the balcony to take a look.  It is noted that Ho was also stopped and had his personal particulars taken downstairs, he should have learnt the people downstairs were police officers by the time he returned to the premises. 

23.  Around 7:30 pm Ho was downstairs shouting, Ying might have heard Ho shouting down the balcony but I considered and reject her evidence that Ho returned before the arrival of the police.  I considered and find Ying had attempted to tailor her evidence to fit in the defence case and was not a credible witness.

24.  Ying gave evidence that the police entered the premises with the defendant.  The defendant was taken to his bedroom and she asked the police what had happened to the defendant, she was told the defendant was trafficking in dangerous drug, police started to search the house and enquire their identity.  She asked for the search warrant and was told the defendant was showed the search warrant downstairs.  Upon her request, an officer showed her the search warrant and she passed it to the wife. 

25.  PC 7792, on the other hand, gave evidence that the search warrant was explained to the defendant when they were at the main entrance of the building concerned because it was only briefly showed to him inside the alleyway of the public toilet.  Upon entry of the premises, he showed the search warrant to all inside and told them it was suspected that the premises were involved in dangerous drug activities and they would carry out a house search.  I considered and accept the officer’s evidence that the search warrant was showed and explained to the defendant and all inside the premises as he testified. 

26.  According to the defence case, all the relatives were inside the living room when the search commenced, and the defendant was told once dangerous drug was found; this suggested that the police was not worried that those inside the premises oversaw the search and the police wanted the defendant to know the result of the search.  There was simply no reason for the police to keep the defendant inside storeroom 2 as alleged in the defence case.

27.  It was the evidence of the officers that the couples were together during the search, the couples were arrested in the middle of the search upon discovery of the suspected dangerous drugs, the paraphernalia and the cash and upon caution they made a response respectively.  Whereas the defence case put to the officers was that the defendant was kept inside the storeroom 2 and the wife was breastfeeding her baby inside the bedroom during the search, the alleged admission of the defendant was partially written down and partially dictated by the officer; the defendant was subject to threat and inducement, and he signed under influence of threat and inducement.

28.  The defendant testified that when certain items of dangerous drugs and money were found he was informed by a police officer while he was kept inside storeroom 2.  When he was first told dangerous drug(s) was found in storeroom 1, he told PC 7792 right the way that the dangerous drug(s) was not his, storeroom 1 was not used by them but by the wife’s sister and her husband.  However, his clarification was ignored.  He was further notified later that cannabis and cash were found.  When he was told all insider of the premises would be arrested for the dangerous drugs found unless he admitted it, he reiterated that the dangerous drugs were not his. 

29.  The defendant further testified that when the notebook was showed to him for him to complete his admission and for his signature, he was told that his family would not be arrested, his wife would be released after a couple of bail and his likely sentence was 9 months to a year.  It took him some time to consider before he wrote down the admission and signed on the notebook under influence of threat and inducement. 

30.  According to the defendant’s evidence, it was the PC 7792 who put down “the dangerous drug was “K Chai” and cannabis” on the notebook and asked him to write down it was for his own consumption etc.  The officers were there to investigation a case of trafficking in dangerous drugs, suspected paraphernalia and drug proceeds were found but according to the defendant’s evidence he was not told to admit any of those items.  Further, apart from what allegedly had been written on the notebook, it was also the defendant’s evidence that the officers did not mention suspected “K Chai” was found, the white crystalline solids and the white powder were along referred as suspected dangerous drug by the officers inside the premises.

31.  According to the defendant’s evidence, the encounter with the police downstairs did not prevent him from putting his explanation to the officers, however, he admitted the dangerous drugs were for his own consumption, without even seeing and learning the quantity involved.  I considered and find the defendant’s evidence unbelievable.

32.  The defendant further gave evidence that after he signed the notebook, PC 7792 and PC 9169 took turns to guard him inside the storeroom 2.  While inside the room with him, PC 9169 chatted with him, showed his baby’s photo to him and told him his baby had eczema.  PC  9169 agreed that his baby was suffering eczema but disagreed that he shared this information with the defendant.  All of the officers had their respective duties that night, PC 9169 would not be free to chat with the defendant.  I consider and refused the defendant’s evidence.  The defendant might have learnt the information in some other circumstances but I do not consider this would affect the credibility of PC 9169.

33.  The defendant gave evidence that having waited for long inside the storeroom 2, he asked PC 9169 if his elder sisters could be allowed to leave, PC 9169 went out to ask the inspector and returned to tell him to ask his elder sisters to leave.  The defendant said he then went outside to ask his elder sisters to leave, there and then he saw Ng Choi Ha, his wife’s sister who also known as “Van”, cradling his baby.  The defendant said initially Ying refused to leave, after he ensured her that he would be safe, his sister Ying then left and he returned to storeroom 2 with PC 9169.

34.  The defendant said he kept on waiting inside the room with PC 9169 and Van entered the room and gave his baby to him and his wife also came in to have a few words with me.  His wife asked why he signed on the notebook and made an admission; he told his wife “if I did not sign, all of you would then be arrested.  I have no choice but to sign it”.  Then PC 9169 said the air inside the room was not good and told him to take the baby out to the living room and waited for the police Dog Unit.  The defendant also supplemented and said while he was inside the room, his wife did bring a meal box to him but took it out after he indicated he did not want to eat.  If the wife only learnt the defendant’s admission at a later stage, it would be natural for her to ask the defendant for the reason at her first opportunity as the defendant’s evidence suggested, however, this was not the wife’s evidence.

35.  According to Lo Tsz Hei’s evidence, sometime after 8 pm Uncle Ho requested some meal boxes, he therefore bought 2 to 3 meal boxes back and passed them to 2 officers downstairs.  Later around 9:30  pm Uncle Ho phoned and requested him to get medicine for Aunt Ying and reminded him to come back before 10:30 pm.  Thus he drove over to Tin Yat Estate to get the medicine back for Aunt Ying.  The request from Ho suggested that the time was tight but Lo Tsz Hei did not tell what time he returned with the medicine.  Lo Tsz Hei said on his return he saw the wife at the balcony with an officer and when he went up and passed the medicine to an officer, Van was inside the premises.

36.  According to the wife after breastfeeding the baby for about an hour, she went out and saw a meal box on the table, she then took it to the defendant while the other relatives were eating at the living room.  The defendant refused to eat and she took the meal box out and walked out to the balcony.  An officer followed her to the balcony, she asked and the officer offered her a menthol cigarette.  The officer told her dangerous drugs were found inside her premises and the defendant had made an admission, she and the officer had a brief conversation at the balcony before she returned to the living room.  Yet the wife could not recall who that officer was.

37.  The wife said she first learnt the discovery of dangerous drugs when she was at the balcony with an officer.  According to the wife she asked Van came up to look after her children because she knew all would be taken to police station.  Van gave evidence that she called the wife at 21:14:36 and 21:15:24 both calls lasted for 1 minute or less.  In the first call the wife already informed her that dangerous drugs were found inside the storeroom used by her and her husband.  That would be impossible to reconcile with Mr Lo Tsz Hei’s observation that the wife was outside the balcony on his return with the medicine and there was no mention that the wife at the balcony before he left around 9:30 pm for the medicine.  I considered and reject the wife’s evidence as to how she learnt the discovery of the dangerous drugs and the alleged conversation she had with an officer at the balcony.

38.  Further, it was not clear from the wife’s evidence when she was made to sign on the notebook to confirm her arrest and response upon caution.  But the wife confirmed during her evidence in chief that she did not have any conversation with the defendant when she brought the meal box to the defendant.  And when being asked by Mr Khosa whether she entered the storeroom 2 again, she took a long pause and said it seemed that she did not, and she said “no” when she was further asked by Mr Khosa did she at any time asked the defendant about his admission.  The wife’s evidence was in direct conflict with the defendant in this material respect.  SGT 160 confirmed he smoked menthol cigarette but the sergeant disagreed that he offered the wife a cigarette at the balcony and had no recollection that he told the wife dangerous drug(s) was found from storeroom 1. 

39.  The house search completed at around 9:30 pm, time being the defendant and the wife had been arrested.  Van might have called the wife around 9:14 pm but the wife could not have answered the calls, these calls probably picked up by other relatives inside the premises.  According to WIP Tai’s evidence because the defendant and the wife would be taken back to the police station, for the welfare of the child and baby at the premises, the wife was asked to arrange a relative to take care the children and Van was allowed to enter the premises to take care the children.

40.  Van gave evidence that she had 2 calls with the wife at 9:14 pm and 9:15 pm before she went inside the premises around 9:15 pm to 9:20 pm.  The wife gave similar evidence.  However, the call records showed that the wife’s phone was used to make a call to Van at 10:04 pm, this suggested that Van was not inside the premises before 10:04 pm and casted doubt on their evidence about the 2 calls around 9:15 pm and I have reservation that the wife had direct phone conversation with Van over the children arrangement.  Further, Mr Lo Tsz Hei did not mention seeing Van upon his first arrival at the scene nor when he returned with the meal boxes, his first mention of Van was when he went up to the premises after he left the scene again and returned with Ying’s medicine.  I consider and rejected the evidence of wife and Van that they had any direct telephone conversation.  I do not consider the call records produced by the defence cast any doubt on the prosecution case.  I shall refer to this part of the evidence when I deal with the general issue later. 

41.  Both the defendant and the wife said they told the officers at the premises that storeroom 1 was used by the wife’s sister Van and her husband for storage and they had no knowledge of the dangerous drug(s) found inside storeroom 1.  Further Van also gave evidence that while she was inside the premises she told an officer coming out from storeroom 1 that the room was used by her and her husband and that her husband had dangerous drugs conviction and she even attempted to call her husband to check if the dangerous drugs belonged to him.  All the three said the officers ignored them when they tried to explain the usage of storeroom 1.  All the officers disagreed they were ever told the storeroom 1 was used by Van and her husband at the scene.  I consider and accept the officers’ evidence that they were never told the storeroom 1 was used by Van and her husband.

42.  Everyone inside the premises had given a witness statement upon request.  SGT 160 gave evidence that Van refused to give a statement upon request, saying that she needed to take care the baby and the child.  According to Van’s evidence she knew her sister and brother-in-law (the defendant) had nothing to do with the items found and she even offered to call her husband to clarify the situation, but there was no mention that the items inside storeroom 1 was belonged to her or her husband in her first statement given on 14 June 2017.  Van tried to explain she did not mention it because she was worried and scared.  If things did happen as Van said, she could have simply repeated what she had said inside the premises.  I considered and find Van to be an incredible witness and reject her evidence that she had told an officer that storeroom 1 was used exclusively by her and her husband at the scene.

43.  There was no dispute about the identity of the persons inside the premises and that the police had confirmed the defendant and his wife were the occupants while the relatives were visitors.  Further, there was no dispute that the police had asked which one was the defendant’s bedroom.  PC 6780 was assigned to be the exhibit officer and he was required to draw a sketch of the premises upon the completion of the search.  PC 6780 gave evidence that he did ask the defendant about the usage of the storeroom 1 and was told it was for placing miscellaneous items before he started to search the room, but he did not make a record of that on his notebook, because it was only for his memory.  The officer referred both storerooms as storeroom on his sketch (Exhibit P54(1)).  I considered and accept the officer’s explanation.

44.  There is no dispute that $12,000 cash was found, but the defence said it was not discovered in the way the officers testified by referring to the discrepancies of the officer’s evidence.  The evidence of WIP Tai suggested that she did not check her watch when she made the 2033 notebook entry at the scene but took the time provided by the PC 6780 of the discovery of the seized exhibits as the real time when she started making the record.  The real time that she learnt the discovery at 2033 from the officer must be sometime after 2033.  

45.  WIP Tai further gave evidence that after she learnt the discovery of the exhibits, she instructed SGT 58722 to ask PC 6780 to count the amount of the cash after the search.  According to the WIP Tai’s evidence the amount of cash was confirmed sometime after the arrest of the defendant and his wife.

46.  According to SGT 58722’s evidence when he made his notebook entry at 2035, he did enter and take a look of the items found and learnt the arrest of the defendant inside storeroom 1.  Further, SGT 58722 gave evidence that he did return to the doorway of storeroom 1 and reminded PC 6780 to count the money found, he then returned to the living room.  After the entire search on the premises had completed, he left the premises with WIP Tai and SGT 160 to discuss the further investigation and they returned the premises after the discussion.

47.  According to WIP Tai’s evidence, as far as she recalled, the figure of $12,000 cash was given and written down by her after completion of the room search and the handling of the exhibits seized but she did not remember when she was told the figure.  WIP Tai gave evidence that this happened when she was a bit inside the corridor and PC 6780 was by the side of the doorway of storeroom 1.  PC 6780 on the other hand gave evidence that he only counted the cash when he dealt with the exhibits at the living room upon completion of the house search, but he did move from room to room to draw the sketch of the premises. 

48.  Many things had happened that night, but WIP Tai only made very brief entry on her notebook, she mainly relied on her memory as to what had happened.  PC 6780 was the one who was responsible to handle the exhibits, I considered and find PC 6780 had a better memory of things related to the exhibits, and that the WIP has mistaken the stage of which she was told the amount of the cash found did not cast any doubt on the evidence of PC 6780.

49.  WIP Tai gave evidence that she instructed PC 7792 and PC 9169 to arrest the defendant and his wife when she was at the doorway that shown on Photo 6 of the photo album Exhibit P64 while the officers were at the entrance of storeroom 1 (the first room on the left) depicted on Photo 10.  Time being the two officers were focusing on the items discovered by PC 6780 and their duties as arresting officers.  Three pack of cigarette paper were found, two of which were of the brand name “ZIG-ZAG” but they all looked similar, and the officer mistook all were of the same brand name.  I considered and accept the officers’ explanation and do not consider this would affect their credibility.

50.  PC 7792 gave evidence that he made simultaneous record of the arrest at storeroom 1, he held the notebook in his hand to do the writing, he recorded down what he said to the defendant while he did the talking and he wrote down what the defendant said under caution immediately and got the defendant to sign to confirm.  PC 9169 and PC 6780 gave similar evidence except PC 6780 said PC 7792 did the notebook record at the position of the table, referring to the table corner in Photo 11 of Exhibit P64.  PC 6780 went on to say PC 7792 wrote on that table when being asked if PC 7792 used the table to write.  Photo 13 give a better view of the table, there were a number of odd items on top of the table, further it was a table for young child. While PC 7792 was doing the recording of the arrest, PC 6780 was seizing the exhibits, both officers were focusing on their own work, I considered and find PC 6780 has mistaken how PC 7792 made the notebook record at the material time.

51.  It is noted that all the exhibits discovered by PC 6780 were seized by the officer inside storeroom 1, all were within the sight of the PC  7792, and it would not be difficult for him to relate the exhibits one by one during the arrest of the defendant at storeroom 1. 

52.  PC 9169 gave evidence that he arrested the wife at the same time but the wife appeared to be weak after giving birth to a baby in less than 2 weeks, and he gave a chair for her to rest during the course of the arrest.  The officer admitted he had mistakenly put down the time of the discovery as the time of the arrest on his notebook but he had clarified the mistake in the post record cautioned statement with the wife (MFI 3).  I considered and accept the evidence of the officer.  Giving the condition of the wife, PC 9169 only made a brief record of the arrest and her exculpatory statement at storeroom 1, and did not get the wife to sign right after the record is understandable, and I do not consider this would cast any doubt on PC 7792’s evidence.

53.  Further, the defence case put to PC 7792 was that after he exerted threat and inducement on the defendant, he showed his notebook, with the alleged admission written on it, to the defendant for his signature, the officer disagreed and reiterated that the defendant volunteered the admission under caution and he made a record of it.  However, when the defendant gave evidence, he said the admission, after the word(s) cannabis, was dictated to him by the officer and the subsequent declaration was also copied as directed under the influence of the threat and inducement (the defendant had highlighted the part of the admission written by him on Exhibit D3). 

54.  According to the defendant he was not showed the dangerous drugs, he was not read the preceding entry, he was prepared to admit the unknown quantity of dangerous drugs when he signed on the notebook to confirm the admission.  I considered and find the defendant’s evidence unbelievable.  I considered and accept the evidence of PC 7792 and find the incident happened as he testified and shown in the officer’s notebook Exhibit P35 and the Pol 153 (Exhibit P34), and acknowledgement Exhibit P34(a). 

55.  I have carefully considered the evidence and the submissions that have been made and I am satisfied beyond all reasonable doubt that the statement was made voluntarily.  I did not consider that this is a case where I should exercise any general discretion to exclude the statement on the grounds of unfairness.  The exhibits were admitted into evidence accordingly.

Findings

56.  I have reminded myself of the burden and standard of proof.  It is for the prosecution to prove the defendant’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendant has no burden of proof whatsoever.  The defendant has a clear record, it was less likely that he would commit a crime and more likely that he was telling the truth.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  Where there is any reasonable doubt, the benefit should go to the defendant.

57.  The information received by the police that the defendant trafficked drugs in the vicinity of the public toilet at around 8 pm every night was only admitted to complete the story and to show why the police took action that evening, and not to prove the truth of it.  There was no direct evidence of trafficking in the present case.   

(a) Trafficking?

58.  The dangerous drug, paraphernalia and the money were found inside a storeroom, and were placed inside a paper box containing miscellaneous items.  There was no evidence as to the condition of the electronic scale at time of the seizure, but the electronic scale was found not in working condition on the day of final submission.  The chain of evidence from seizure was admitted, i.e. at all material times the exhibits were under the control of the police.  Favourable inference must be drawn for the defendant; it can only be presumed that the scale was not working at the time of the seizure.

59.  Further, there was no evidence that what exactly were inside the said paper box, it was the evidence of PC 6780 that the miscellaneous items inside the paper box were not relevant without elaboration.  Again favourable inference must be drawn for the defendant; it can only be presumed that the miscellaneous items inside the paper box were not belonged to the defendant.

60.  It was the prosecution case that the premises were occupied by the defendant and his wife therefore they were arranged to witness the house search.  At time of the arrest, the defendant was referred to all the exhibits found at 20:33 hours, namely the suspected dangerous drugs, large amount of re-sealable transparent plastic bags (of various size), electronic scale, cigarette rolling machine, cigarette paper and a pile of cash; but the defendant’s admission was only that “the dangerous drugs “K Chai” and cannabis are for my own consumption”.  The defendant made no admission as to the rest of the items seized.  The items were not packed together but at different places inside the paper box.  And there was evidence from the defence that the in-law would have access to the storeroom 1.  That the other items seized from the box were also belonged to the defendant is not the only inference in the present case.

61.  The 5 old mobile phones found inside storeroom 1 did not go with any sim cards, this was consistent with the defendant’s explanation that all were in working condition and he kept them as spare phones.

62.  For the reason mentioned above, I agreed with Mr Khosa that there was only evidence of possession in the present case.  That the urine test conducted upon admission to Lai Chi Kok Reception Centre on 2 May 2017 was negative, was only evidence that 3 days after his arrest there was no drug found in his urine, and a possible indication that the defendant was not a heavy taker.  Even full weight is to be given to the defendant’s admission, without further evidence, simply base on the quantity of the Ketamine and herbal cannabis, evidence in the present case does not support a case of trafficking beyond all reasonable doubt.

(b) Possession

63.  It was the defence case that the admission of the defendant was unreliable and reiterated that it was made under threat and inducement from the police.  According to the defendant’s evidence he had no knowledge of the items seized from the paper box and he never took dangerous drug.  He only admitted possession of the dangerous drug to get his wife and sisters out of the matter.  

64.  In his final submission, Mr Khosa reiterated his comment on the credibility of the officers and said PC 7792 could not even remember whether he had a baton with him when he stopped the defendant outside the public toilet.  The officer gave evidence that he helped to get the batons ready for the operation but he could not remember how many of them got the baton.  Later it was put to him that “when you first saw the defendant both you and PC 9169 each got a baton” and it was against this statement that the officer said he could not remember.  It was the defence case that both PC 7792 and PC 9169 raised their baton when they tried to subdue the defendant.  The officers disagreed, the defendant gave evidence that both raised their baton while Lo said only one raised a baton.  I considered and accepted the officers’ evidence.

65.  Mr Khosa also submitted that the drugs were allegedly found by PC 6780 at 8:33 pm, and it did not make sense that the police team commenced taking witness statements from Ying and Ho at 8:05 pm and 8:15 pm respectively.  According to the officers, the search was expected to take some time, people inside were yet to have their dinner, the officers made use of the waiting time to take witness statements from the relatives shortly after the commencement of the search was understandable.  I considered and accept the officers’ explanation and the decision to take witness statements from the relatives before the discovery of the dangerous drugs did not cast any doubt on the prosecution case. 

66.  Mr Khosa also made comment as to the lack of record of the arrival time of Van.  The defence tried to prove Van’s arrival time with reference to her mobile calls record.  The wife clarified in her evidence for the general issue that her outgoing phone calls record at 10:04 pm was an inadvertent one, as far as she was aware Van did not answer that call.  Van also gave evidence that she did not answer the incoming call at 9:56 pm and 10:04 pm.  It is noted that the duration of the calls at 9:14 pm, 9:15 pm, 9:56 pm and 10:04 pm were all recorded as 1 minute.  Thus according to the evidence of the wife and Van, phone calls that last for 1 minute might not have been answered at all.  I considered and reject the evidence of the wife and Van that they had any direct telephone conversation as alleged.  I do not consider the call records produced by the defence casted any doubt on the prosecution case.

67.  Mr. Lo Tsz Hei clarified when he gave evidence for the general issue that the time he first noticed the presence of Auntie Van was about 15 minutes after he passed the meal boxes to the officers, Auntie Van was on the ramp outside the public toilet at that time.  And about 5 minutes later he saw Auntie Van went up to the premises.  The premises concerned was on the first floor of the house, as Lo Tsz Hei was outside on the ground, the best he could tell would be Van had entered the house. 

68.  Lo Tsz Hei’s evidence was not challenged.  According to Lo Tsz Hei’s evidence, when he went up to the flat with the medicine, he saw his mother had the baby in her arms and people inside were holding their clothes.  After he passed the medicine to an officer, he went down and left with his father after waiting for about 15 minutes.  However, Lo Tsz Hei was not asked whether his mother also left with him at the same time, I do not consider his evidence casted any doubt on the prosecution case.

69.  Ying was not a suspect at that time, after the completion of the house search and her witness statement, her presence was not required.   Ying knew she needed to take medicine, it would take her less than 30 minutes’ drive to home, she could have left and took her medicine home.  Ho did not request for Ying’s medicine at the time he asked the in-law to get them meal boxes, this suggested Ying’s medicine was not an issue at that stage and Ying only decided to stay further at a later stage.  

70.  All of the relatives inside the flat were not required to stay behind and they did leave at the end.  Van was allowed to enter the premises to take care the children because the defendant and the wife were to be arrested and be taken back to police station.  I do not consider that the officers failed to recall the actual arrival time of Van would cast any doubt on the prosecution case.

71.  PC 9169 gave evidence that the post record of the wife’s cautioned statement commenced at 21:32 hours at the scene.  The legal representative of the defendant and wife was already waiting at the police station upon their arrival, and both of them exercised their right of silence since then.  The wife made an exculpatory statement under caution at the scene, there was simply no reason for the officer to forge the time of the post record.  Further, the officer explained that if the post record was done at the police station he would have obtained a file number for the matter by then.  I considered and accept the evidence of the officer.

72.  PC 9169 also gave evidence that after the completion of the post record, the wife was allowed to move around to check her baby.    WPC 18754 accompanied the wife to breastfeed the baby inside the bedroom, and they stayed inside the room for about half an hour while he was waiting outside.  He did not make record of the breastfeeding and every movement of the wife but he kept looking on her.  I considered and accept the evidence of the officer.

73.  Lo Tsz Hei gave evidence that he saw the wife at the balcony when he returned with the medicine.  The request from Ho for Ying’s medicine was made some time after Lo Tsz Hei passed the meal boxes to the officers. The fact that Ho emphasised to Lo Tsz Hei that the medicine was required by 10:30 pm suggested the time was tight.  Lo Tsz Hei said it took 30 to 45 minutes for a round trip returning with the medicine.  However, there was no evidence as to the actual time of Lo Tsz Hei returned with the medicine.  I do not consider the evidence of Lo Tsz Hei casted any doubt on the prosecution case. 

74.  For the reason mentioned above I considered and accept the officers’ evidence as to the search, arrest and caution of the defendant. I considered and find the defendant was not subject to any threat, inducement or pressure from the police as he alleged and the admission was given by him voluntarily under caution.

75.  In considering the appropriate weight to be attached to the admission, I have to consider the evidence as a whole.  The defendant in his early 40s had a clear record, considered by the village head to be a man of positive good character, working at a restaurant which he had a share, married with two young children.  On the day in question, the defendant’s wife had just given birth to their new born baby twelve days ago and observed by PC 9169 to be in a weak condition.

76.  The defendant knew the police came with a search warrant to search for dangerous drug at his home.  Apart from his wife, his sisters were also inside the premises upon entry, however, only the occupants, namely the defendant and his wife were arranged to witness the search.  It was simply clear to the defendant that they being the occupants were taken as the persons in charge and responsible for the premises. 

77.  The wife gave evidence that the door of storeroom 1 was never locked.  During the 12 days after the baby was born, her sister Van had come to the flat every day to look after her and the baby.  Van visited the flat more often than her husband.  Van gave evidence that storeroom 1 was reserved for her family exclusive use after they moved out in 2014.  She knew about the paper box in question, but she had no knowledge about the items seized from the box.  She and her husband had keys to the flat.  She believed the items were belonged to her husband yet her husband never admitted those items belonged to him.  Van might think her family had exclusive use of the storeroom but there was nothing to stop the defendant to have access into the storeroom 1.  I do not consider the evidence of the wife and Van casted any doubt on the prosecution case.

78.  Packets of ‘Pampers’ for the new born baby were placed at various places inside Storeroom 1, further the 5 mobile phones belonged to the defendant were found inside Storeroom 1.  I considered and reject any evidence that Storeroom 1 was being used exclusively by Van and her family. 

79.  The defence at one stage suggested that the officers were entering the premises for a case of possession of dangerous drugs.  However according to the wife and Ying, inside the premises an officer told them the defendant was suspected of trafficking in dangerous drug and the police was there to carry out a house search with a search warrant.  

80.  In the presence of the defendant and his wife, dangerous drugs were found, the first one being six resealable transparent plastic bags which contained white powders as per admitted facts Exhibit P62 (while PC 7792, PC 9169, and PC 6780 described it to be white crystalline solids in their evidence, this exhibit is depicted in Photo 18 of Exhibit P64), the next one being one resealable transparent plastic bag containing some white powder. These two items were described as suspected dangerous drugs by the officers at the scene.  It is clear from the officers’ evidence that they have never referred the white crystalline solids or the white powder as “K Chai” at the scene, the drug was only examined and confirmed to be Ketamine at a later stage.  

81.  Likewise, according to the officer’s evidence the other suspected dangerous drug found was described at the scene as brown herbal lump-like object or brown grass-like substance or brown substance in herbal form, the item was examined and confirmed to be cannabis in herbal form at a later stage.

82.  According to the defendant’s evidence when he was kept inside storeroom 2, he was told by PC 9169 that dangerous drug (without specifying what type of drug) was found next door and then told by another officer that cannabis was found next door.  And he was induced and pressurized to admit the dangerous drugs found.  However, it is noted that the defendant said under caution “the dangerous drugs “K Chai” and cannabis are for my own consumption.”  If the drugs were not belonged to the defendant how was he able to tell they were “K Chai” and cannabis at the material time? 

83.  When the defendant was asked specifically by his counsel whether PC 9169 showed him any drug or just orally told him that drugs were found while he was with PC 7792 inside storeroom 2, the defendant only replied he was told by the officer.  When being asked by his counsel whether at the time he was told to write down the passage (later clarified by the defendant being the admission highlighted by him as per Exhibit D3) whether he was read the preceding entry, the defendant only said PC 7792 told him “now write down it is for your own consumption”, the drugs were “K Chai” and cannabis were written down by the officer.  But how was it possible for the police to be certain at the material time that both of the white crystalline solids and the white powder were ketamine?  According to PC 7792 the statement as a whole was an accurate record made by him of what the defendant said under caution. 

84.  After the house search, the cautioned statement was read to the defendant, then he was allowed to read and make alteration to the statement. The defendant signed to confirm his admission was accurately recorded.  I considered and find the admission was given by the defendant orally and recorded down by the officer accurately.  

85.  The defendant and his wife were arrested at the same time after the dangerous drugs were found.  It was simply clear to the defendant that he and his wife were both suspected for trafficking in dangerous drugs.  It was not disputed that the wife did not have knowledge of the dangerous drugs.  I considered and find the defendant made the admission under caution voluntarily at the scene because he was the owner of the dangerous drugs and he wanted to tell the police that his wife had nothing to do with the drugs.  I considered and give full weight to the defendant’s admission.

Conclusion

86.  It is observed that not all matters were recorded in the officers’ notebooks.  I agreed with Mr Stephenson that the records complained of are generally in the nature of memory aides and are not for the purpose of being a chronicle of every last event that happened during a particular operation.  I considered and accept the evidence and explanation of the respective officers as to their inadvertent mistakes or lack of record in their respective notebooks, I do not consider this would affect their creditability.

87.  The focus of the officers was on their respective duties during and related to the house search, the officers invariably resorted to their memory for matters beyond this.  Discrepancies in the officers’ evidence concerned matters not directly related to the house search, for example, the sitting arrangement of the defendant’s sisters upon entry, the arrival of Ho Sik, the arrangement of dinner, the request and arrival of medicine of Lam Suet Ying, the arrangement and arrival of Ng Choi Ha, and details of individual officers’ action or movement etc. is understandable.  I do not consider this would affect the creditability and reliability of the officers’ evidence related to the house search and the admission of the defendant.  

88.  For the reasons mentioned above, I considered and find the prosecution has proved the defendant was in possession of the dangerous drugs seized beyond all reasonable doubt but failed to prove the defendant was trafficking in the said drugs.  Hence, I convict the defendant of possession of the dangerous drugs accordingly.