HKSAR v. CHOW CHO TIK

DCCC 1080/2018

[2019] HKDC 1584

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1080 OF 2018

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REASONS FOR VERDICT

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1.  At 1540 hours on 16 August 2018, Mr Lin Ching-him (hereinafter referred to as D1) was intercepted on the ground floor outside his home at Tower 1A, Park Yoho Sicilia, 18 Castle Park Road (Location 1). Upon search, the police found on his person (amongst other items) two bags of dangerous drugs at a total weight of 1.5 grammes containing 1.3 grammes of ketamine. Under caution, D1 admitted that he had the ketamine for his own consumption.

2.  At 1544 hours police officer PC14803 (PW1) at Location 1 saw a woman (later confirmed to be D1’s de facto wife) Chow Cho-tik (D2) throw some objects out of the master bedroom of Room B, Tower 1A, Park Yoho Sicilia (Location 2). The objects landed on a balcony of Room B, 1st floor of the same building (Location 3).  They were subsequently confirmed to be three bags of dangerous drugs with a total weight of 14.09 grammes containing 12.22 grammes of ketamine (P9 to 11) and one resealable transparent plastic bag containing a quantity of similar bags. 

3.  At 1548, the police gained entrance to Location 2 with the key found on D1 and carried out a house search.  D2, a baby and another woman were found to inside the master’s bedroom.  In the presence of the both defendants, the police officers searched and found on top of a chest of drawers the following items, namely, HK$100,000 in cash inside a plastic bag, an electronic scale and two transparent plastic bags containing some other similar plastic bags hereinafter referred to collectively as P4 to 7.  Police officers also found a utility bill under D2’s name for Location 2.

4.  Under caution, D1 admitted that P9 to 11 found on Location 3 and the plastic bags were his and that he had instructed D2, his girlfriend, to throw them out of location 2.  He also claimed that D2 had no knowledge of what the three bags contained.

5.  On the facts stated above the prosecution charged D1 for trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) for the drugs found on his person in location 1 (Charge 1).  In addition, the two defendants were charged jointly for the same offence in respect of the drugs found in location 3 (Charge 2).

6.  D1 pleaded guilty to both charges and was convicted upon his plea and admission of facts.  D2 pleaded not guilty to the 2nd charge.  The trial, therefore, concerned D2 alone.  Since the facts are inextricably entwined, it is convenient to deal with all the relevant facts in one go.

7.  Much of the prosecution’s evidence had not been in dispute.  They could be found in the Admitted Facts (MF1) under section 65C of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong.  The followings are the most relevant to the present case:-

(i) D2 was a resident of Location 2 and the electricity bill was under her name.

(ii) She did at 1544 hours throw out something from the master bedroom of Location 2.

(iii) At 1555 hours, during the course of a lawful house search, the police did find the money, the utility bill under D’s name and the plastic bags inside the master bedroom.

(iv) The police did find three bags of dangerous drugs (P9 - 11, subject matter of the charge 2), and the plastic bags on the balcony of location 3.

(v) Under caution, D2 denied knowledge of the contents of P9 - 11 and stated that she threw them out upon instructions of her husband, meaning D1.

(vi) Subsequently, a video-recorded interview was conducted. The voluntariness and the admissibility of the recording and its transcript had not been challenged.

(vii) The estimated street value of the dangerous drug, P9 to 11, was $6,932.28.

8.  This is a criminal trial.  The burden of proving that D2 had the dangerous drugs for the purpose of trafficking rested fairly and squarely on the prosecution.  The facts admitted by D1 is not evidence against D2. However, as D1 had stated that D2 had no knowledge of the dangerous drugs, this is a relevant consideration by the court in deciding on D2’s culpability, if any.

9.  After ruling that there was a case to answer, D2 chose to give evidence.  Not to mince words, D2 was a poor witness.  She gave contradictory accounts of what she voluntarily told the police and stated matters that simply fly in the face of common sense and reality.  Yet if what she said could not be completely discarded or what she said raised a reasonable doubt in the prosecution’s case, the benefit of the doubt would have to go to her.  Even if the court considered her evidence unbelievable or even if I found her a liar, it could only have the result of having her evidence disregarded.  It would not be used to construe that she was guilty.

10.  The prosecution’s case was based on the fact that D2 lived in the location where the packing paraphernalia was found in the apartment and that D2 threw out the dangerous drugs in question.  The prosecution contended D2 was aware of what she threw out and what she threw out landed at Location 3.  Her act of disposing of the dangerous drugs in the plastic bags were indicative of her knowledge of the nature of the substance therein and the act of disposal amount to trafficking in dangerous drugs.

11.  The prosecution called four witnesses.  PW1 (PC14803) was on the ground floor, Location 1.  He saw a woman throw something out of the master bedroom’s window at Location 2 and landed on Location 3.  At the time, he was about 30 metres away.  Under cross-examination, he admitted that he only saw something transparent with something white inside.  He was not sure how many bags had been thrown out.

12.  PW2 (PC10337) was on the balcony of Location 2 and upon PW1’s indication, he saw the four bags on the Location 3.  He kept them under observation to make sure nobody would tamper with the items until the other police officers came to seize them.  Their evidence were not disputed in any material particular.

13.  PW3 (PC12850) did a search of Location 2 at 1548 hours.  He found the items P4 to 7 on top of a chest of drawers as shown in P15(33) and (34). The drawers contained clothings but he did not remember whether they belonged to women or men.  Under cross-examination, PW3 stated that D2 was bodily searched in the master’s bedroom by a woman police officer before he carried out the search of the apartment, location 2.  He did not remember who opened the drawers as shown in the pictures.

14.  PW4 (PC13033) did not personally carry out the search.  He was the arresting officer of D2.  He was present in the master’s bedroom together with D1 and D2 when the search was carried out by PW3.  He confirmed that P4 to P7 were found on top of the chest of drawers as shown in P15(33).  Under cross-examination, he confirmed that he first saw D2, a woman and a baby in the master bedroom.  His description of what happened in the master bedroom was consistent with that of PW4.  Likewise, he was unshaken under cross-examination.

15.  Upon being asked by the defence, PW4 stated that PW3 did not count the money although he did take it out of the bag.  He did not remember if PW3 asked the defendants any questions concerning the items seized.  PW3 and PW4’s evidence, when considered together left me with a lurking doubt as to their veracity: police officers would normally ask the suspects what the items found were.  There was a bag of money and an electronic scale.  I imagine that any competent police officer would have questioned the suspects what they were for.  I do not find myself convinced beyond all reasonable doubt what happened was exactly described by PW3 and 4.

16.  D2, on the other hand, was not exactly the most convincing witness. There is no need to go to details.  She gave evidence to the effect that what she said in court was different from what she told the police, in particular, concerning how many times did D1 leave the apartment.  She had no knowledge of the money, scale and the plastic bag found in the master bedroom. 

17.  The room appeared to be a small one.  If they were placed casually, as was shown in the pictures, they would have been easily noticeable.  However, as I have indicated, PW3 and 4 did not give convincing evidence as to the exact locations the money, the plastic bag and the electronic scale were found.  On this point, even though I did not believe in D2’s evidence, I found that from the prosecution’s point what they said cannot be taken in its face value.

18.  D2 also stated that she threw out a small plastic bag, the content of which she had absolutely no idea.  That, again, flies in the face of common sense since anyone touching a plastic bag would have felt whether it was simply a plastic bag or whether there was something inside.  On that point, I think D2 had been lying and she had brought suspicion upon herself by throwing out the items.  However, as I have indicated earlier, the fact that I found D2 a liar does not derogate from the prosecution’s duty to prove the case beyond all reasonable doubt. 

19.  On the basis of these evidence, I found that D2 must have some knowledge of what was inside the bag.  It ended up in Location 3 and it is highly suspicious that she wanted to dispose of the things inside the bag and she must have some idea that it was illegal to do so. 

20.  In respect of the packing paraphernalia found in the master’s bedroom, I could not find with any degree of certainty of how they were placed and where exactly they were found.  PW3 and 4 gave rather unconvincing evidence as to the exact circumstances were when they were carrying out the search of location 2. Therefore, the benefit of doubt must go to the defence D2 might not have knowledge of the scale, the plastic bag and the money.  Even if she did, there was not enough evidence to infer that she had their exclusive custody and control.  That, in my view, means that the prosecution has failed to prove that D2 was well aware of the presence and the usage of the paraphernalia.  That also last doubt as to her knowledge of the content of the items she threw out of the window.  I found that D2 could have some knowledge of what was inside. However, that itself is not sufficient to prove possession of the drugs inside.

The Law of Knowledge

21.  As has been pointed out in the judgment of HKSAR v Mohammed Saleem [2009] 1 HKLRD 319, one’s knowledge is subjective.  The prosecution must prove that the defendant knew that there were drugs inside the bag.  Constructive knowledge is rarely relevant (see the comment by the editors of Archbold Hong Kong 2019 at paragraph 29, 27 and 27A).

The Law on Trafficking

22.  Section 2 of the Dangerous Drugs Ordinance defines trafficking in dangerous drugs as “importing to Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drugs or possession of the dangerous drug for the purpose of trafficking”.  The question now is, does the fact that D2 threw out the items amount to “otherwise dealing in or with the dangerous drug”?

23.  The prosecution sought to rely on R v Yan Kwok Kwong, CACC 511/1993, 25 August 1994.  The facts are different: the police found a large quantity of dangerous drugs, a chopper and cellophane parcels in a flat in which the appellant was found.  The appellant’s thumbprint was found on the sheath of the chopper.  There were traces of dangerous drugs on the fingernails of the appellant. 

24.  The Court of Appeal found that there had been overwhelming evidence to show that the appellant had been in possession of the dangerous drug.  In that the Court of Appeal relied on a passage from the judgment in The Queen v Diu Lap Nin, CACC 1439/1983, and I quote:-

“As a matter of interpretation, the phrase ‘dealing with dangerous drugs’ is sufficient” “to cover any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal.”

25.  The prosecution’s case, at its highest, could only prove that D2 had some knowledge of the contents of the stuff she threw out of the master’s bedroom.  This could lead the court to infer that the 2nd defendant had attempted to get rid of the incriminating evidence by throwing it out of the window.  The term “disposal” is equivalent to “getting rid of” in its ordinary sense.  It obviously is different from the citation I have just quoted earlier where the term “disposal” was for the purpose of passing on to some other party.

26.  The defence also relied on a more recent case of HKSAR v Yan Suk Yin, CACC 151/2001, [2004] 1 HKLRD 677, where the facts are similar to the present case.  The appellant was seen to have thrown out a quantity of dangerous drugs and a scale out of the room she was in.  The Court of Appeal set aside the conviction and in the course of the judgment stated thus:-

“As explained in HKSAR v Ng Hung Chi, (unreported) CACC 186/2000, [2002] HKEC 309, 12 March 2002, mere storage without more is not in itself trafficking. If that were so, every addict keeping drugs in his premises intended entirely for his own consumption would also thereby be constituted a trafficker. Nor is the mere fact of throwing drugs to avoid detection trafficking. If that were so, it would be to attribute to the word ‘dealing’ a sense that every time a drug is moved or hidden by a consumer, who is no more than a consumer, that movement or that act of hiding the substances renders him a dealer; and that that is not the sense in which the word is used in the section.”

(See the judgment of Stock JA at paragraph 5).

27.  After making my factual findings and after considering the relevant law, I conclude that D2 was at the time aware there was something wrong.  There was not sufficient evidence that she knew that it was dangerous drugs inside, but she did throw out the items in order to get rid of it and to avoid detection. That is not by law and by fact, an act of trafficking, nor do I find her in possession of those dangerous drugs. 

28.  Therefore, in respect of the charge against D2, I find that there is a reasonable doubt and the charge against her is dismissed.