HKSAR v. CHAN KING HEI

DCCC772/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 772 OF 2012

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Reasons for Verdict

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1. The defendant faces one charge alleging that on 4 April this year, outside Shek Hing House in Shek Lei Estate in Kwai Chung, he trafficked in a dangerous drug, namely 37.41 grammes of a powder containing 29.97 grammes of ketamine.

2. There is no dispute that shortly after 3 am on 4 April 2012, the defendant was stopped by the police at the entrance of Shek Hing House. He was in the company of a female, Yuen Sze-wan, and another male.

3. At the time he was stopped, he was holding a small golden-coloured cardboard box (Exhibit P1), wrapped in cellophane which contained not only the sealed packets of health food which it purported to contain but also two packets which contained the ketamine referred to in the charge.

4. The ketamine had a street value of approximately $4,377.

5. The cellophane wrapping of the box had been opened at the bottom to insert the drugs and then resealed using clear adhesive tape.

6. The prosecution case depended on the evidence of the police officer, PC34015, Yung Pak-san (PW1), who had stopped and arrested the defendant.  A colleague, PC2813 (PW2), who was a member of the same team, was tendered for cross-examination. 

7. PC34015’s evidence was that on that night he was on anti-dangerous drugs patrol in Kwai Tsing Estate with three colleagues, including PW2, in plainclothes.  He had first seen the defendant in the company of Yuen Sze-wan and another male, walking together at quick pace from a corner of Shek Hing House towards the location of the doorway.  They were chatting and, as they walked, they were looking around.

8. He noticed that the defendant was holding the box (Exhibit P1) in his right hand as he was walking and had then concealed the box by inserting his right hand holding the box inside the left front of the beige jacket he was wearing, which was then unzipped, and then holding the jacket closed with his left hand.

9. When the three of them had arrived at the doorway to Shek King House, the female unsuccessfully made two or three attempts to press in the door code to the main door.

10. PC34015 and his colleagues had approached them and separated them.  He conducted a body search on the defendant and then went on to open the box which the defendant was carrying.

11. After finding the two packets which he suspected to be dangerous drugs, he had arrested and cautioned the defendant for trafficking, and the defendant had replied that he had nothing to do with the box and he did not know there were dangerous drugs inside; he was simply carrying the box for his girlfriend, Yuen Sze-wan.

12. The defendant and his companions, who had also been arrested, were taken back to Kwai Chung Police Station, where a post-record of what the defendant had said after being cautioned at the scene was made and signed by the defendant (Exhibit P9).

13. Later in the day between 1928 and 1953, PW1 had conducted a video recorded interview (Exhibit P5) with the defendant, in which the defendant had elaborated his account of how he had received the box from Yuen Sze-wan without being aware of its contents.

14. The defendant’s account in that interview was that he was a hawker in Tai Nan Street and that he had known the male, who was arrested with him, for about a month.  He only knew him as “Ah B”.  Ah B operated the neighbouring stall in Tai Nan Street.

15. Yuen Sze-wan, who was also arrested with him, was his girlfriend.  He had only known her for several days and he had first met her as a customer at his stall.

16. At about midnight on the night of 3 to 4 April, Yuen Sze-wan had come to meet him as he was about to close his stall.  He noticed that she was carrying the box (Exhibit P1).

17. There had been a conversation between him, Yuen Sze-wan and Ah B, who was at the next stall, as to where they should go that night. Yuen Sze-wan had suggested that they go and play mah-jong at the home of a young female friend of hers whom the defendant did not know.

18. After tidying up and closing their stalls, they had gone to have a snack at a “dai pai dong” nearby. 

19. They had then taken a taxi.  Yuen Sze-wan had given the taxi driver the destination, but the defendant had not been paying particular attention to where it was.

20. When the taxi reached their destination, Yuen Sze-wan got out of the vehicle.  As, at that time, she was using one hand to talk on the phone and carrying a handbag with her other hand, she had asked the defendant to carry the box (Exhibit P1) out of the car for her.

21. He, therefore, held the box for her and paid the taxi driver his fare.  From its packing, the box appeared to him to be new and not to have been opened, but he did not check it in detail as he was paying the taxi driver.  This was the reason he was holding the box (Exhibit P1) when he was approached by the police.

22. The defendant gave evidence in court and further elaborated his account.

23. He indicated where the taxi had stopped in Shek Lei Estate, not far from the entrance to Shek King House.

24. He said that when the taxi had stopped, Yuen Sze-wan appeared to be in a hurry.  She immediately opened the rear door and started to alight, holding a mobile phone in one hand and her handbag in the other, leaving the gold box (Exhibit P1) lying on the seat next to the defendant.

25. When one of her legs was outside the taxi, she had said to him that after he had paid for the taxi, he should bring the box for her.  She had then walked past the front of the taxi, in the direction of the entrance to Shek King House, leaving him to pay the taxi driver.  Ah B had also alighted from the taxi and followed behind her.

26. By the time he, the defendant, had alighted from the taxi, Yuen Sze-wan was already just entering the lobby outside the doorway of Shek King House.  At no time had the three of them walked together towards Shek King House.

27. He maintained that as he walked towards Shek King House, his jacket was zipped up and he had not tried to conceal anything inside his jacket.

28. On his account, only PC34015 and a WPC had approached them while they were standing at the doorway of the building, but other officers had joined them and separated them for enquiries.

29. Contrary to the evidence of both PC34015 (PW1) and PC2813 (PW2), he said that it was PC2813 who had conducted a search of the box and found the drugs in the box.  Even before PW2 had discovered the drugs in the box, the defendant said that he had told PW1 that he had come to Shek Hing House to play mah-jong.

30. After his arrest and while waiting for a vehicle to arrive to take them to the police station, he had again protested his innocence to the police, including PW1, and asked them to make enquiries with the occupants of the flat to which they were going.

31. When he was asked about it in cross-examination, PW1 (PC34015) denied hearing the defendant say this.

32. The defendant said that at the police station, after signing the post-record, he had asked PW1 to be allowed to speak to Yuen Sze-wan and that PW1 had not replied.

33. When this was put to PW1 in cross-examination, he said that he had no recollection of the defendant making such a request, which in any case would not have been granted at that stage.

34. The defendant said that later in a big room, which I assume to have been the report room at the police station, he had seen Yuen Sze-wan and, in the hearing of PW1, had told her to admit what she had done and not to frame him up and that she had agreed.

35. When this was put to PW1 in cross-examination, he denied that this had occurred.

36. The defendant also gave evidence of a conversation, which was denied by PW1, of having spoken to PW1 after Yuen Sze-wan had been video interviewed, in which PW1 had told him that Yuen Sze-wan had denied being involved and PW1 had said that if no one admitted the offence, then all three of them would be prosecuted.

37. I turn now to my assessment of the evidence.

38. There is no dispute that the defendant had physical custody and control of the box containing the drugs referred to in the charge at the time he was searched by the police on 4 April this year.

39. The issues for this court to decide are whether the prosecution have proved beyond reasonable doubt that at that time:

(1) the defendant was aware that there were drugs in the box he was carrying; and if so,

(2) whether he was in possession of them for the purposes of trafficking in them.

40. I did not find the admitted fact that the defendant’s fingerprints were not found on the cellophane wrapping of Exhibit P1 or on the packets containing the drugs inside the box of any assistance, bearing in mind that there was no dispute that the defendant had been holding the box before he was approached by the police.

41. If the defendant’s account that he was simply carrying the box at the request of Yuen Sze-wan, unaware that there were drugs inside, is or might be true, then the prosecution would have failed to establish either of the issues to which I have referred.

42. I have no doubt whatsoever that the explanation given by the defendant for having the box containing the drugs in his custody was untrue.

43. I found implausible his account that at 3 am, after having worked the previous day collecting goods and then selling them up to around midnight, he should then take a taxi with Yuen Sze-wan and a neighbouring stallholder to a place he did not know in order to start playing mah-jong with a person who lived there who he did not know, when he would have to travel from there back to his home.

44. I disbelieved his explanation, which he never gave to the police and gave the first time in cross-examination, that the purpose of the visit was mainly to introduce Ah B to someone who might become a girlfriend.

45. If that had been the main reason for visiting Shek Lei Estate, I believe he would have said so earlier.

46. On the defendant’s account, Ah B would have been in a position to see the box in Yuen’s possession and to confirm the defendant’s account.

47. According to the defendant, Yuen Sze-wan had been holding the gold box (Exhibit P1) when she arrived at his stall to find him and that Ah B was there as well.

48. She was still carrying the box when the three of them were having a night snack.  Indeed, it was at that time they were having a night snack he had asked her what was in the box and she had given him an explanation.

49. On the defendant’s account, Yuen Sze-wan would have been carrying the box when all three of them entered the taxi.

50. The defendant admitted that although he was not sure if Ah B was clear about it, Ah B did see Yuen Sze-wan hold the box.

51. On the defendant’s account of Yuen Sze-wan hurriedly alighting from the taxi as soon as it arrived at Shek Lei Estate, it is likely or at least very possible that if Yuen Sze-wan had asked the defendant to carry the box for her, Ah B would have heard it.

52. Despite all this, under cross-examination, the defendant said that after he was released on bail, he had been approached by Ah B, but he did not think he had asked B if he could confirm that the box had been in Yuen Sze-wan’s possession until he had helped her after she had got out of the taxi.

53. Bearing in mind that he would have been aware of the gravity of the allegation against him, I have no doubt that if the defendant’s account was true, he would at least have asked Ah B if he could confirm his account.  Even if, as the defendant claimed, Ah B had made the approach to the defendant because he wanted to reassure him that he was no longer with Yuen Sze-wan, I do not believe that this would have deterred him from making such an enquiry from Ah B.

54. It was apparent that the defendant was prepared to change his story to suit the circumstances.

55. When giving evidence in court, the defendant had given evidence as to how had asked Yuen Sze-wan about the box and what it was while they were having a night snack.

56. On his account, she had told him that she had bought it from a hawker, that it was soluble in water to assist a person to sleep, and that she had bought it at 50 per cent of the market price.

57. He gave an unconvincing explanation of how they had spoken about why it was not in a plastic bag, and as a consequence, advising her not to buy from that hawker again.

58. The defendant’s evidence about this conversation with Yuen Sze-wan is inconsistent with what he said in counters 222 to 226 of his video interview, when he said that when he was first approached by the police, he did not know what the box was; indeed, that he had told the police that when they had asked him.

59. The defendant’s account of how Yuen had hurriedly left the taxi and was just entering the lobby outside the doorway of Shek King House when he alighted from the taxi is not reconcilable with the evidence of PW1, who said that he had seen the defendant, Yuen Sze-wan and a man walking and chatting as they walked together towards the doorway of Shek King House and that Yuen was not using a mobile phone.

60. I found PW1 to be an honest and reliable witness.  I accept his evidence of what occurred.  I reject the evidence of the defendant.  I can only conclude that the defendant’s story of Yuen Sze-wan hurrying ahead to the entrance of Shek King House was to provide an explanation of why, on his account, he had not handed the box (Exhibit P1) back to her.

61. Having rejected the defendant’s evidence and accepted the evidence of PC34015 (PW1) and PC2813 (PW2), I am satisfied from all the circumstances, including the location and time of night this occurred, the manner in which the drugs were packaged in two plastic bags and concealed in this packet being carried by the defendant, the defendant’s attempt to conceal the packet as he was walking, and the quantity of the ketamine and its value, that the defendant was not only aware that he was carrying the drugs, but that he had them in his possession for the purpose of unlawful trafficking.

62. I convict the defendant of the offence with which he is charged.