HKSAR v. SO YIU FAI

DCCC411/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 411 OF 2012

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Reasons for Verdict

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1.  This defendant is the 2nd defendant in this case and faces two charges. The first being trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars are that he and the 1st defendant trafficked an amount of ketamine, the purity being 114.42 grammes, on 25 February 2012 outside 106 Tai Yuen Shopping Centre, Tai Yuen Estate, Tai Po. The 2nd charge is assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Persons Ordinance, Cap. 212. The particulars are that at the same time he assaulted, in the same vicinity, PW1, a police officer.

The Prosecution’s Case

2.  The prosecution’s evidence is that PW1 and his colleagues were on anti-drug patrol in Tai Yuen Estate, Tai Po.  The area was near the Ming Yuen Restaurant located in Tai Yuen Shopping Centre.  All prosecution witnesses were police officers. 

3.  PW1 posted himself at a vantage point, one floor above the pedestrianised street.  He could look over a balustrade at the street below.  He said at about 8.17 pm on 25 February whilst he had the area under observation, he saw two men, the two defendants, walking towards him.  When he first saw them, they were approximately 20 metres away.

4.  He described the lighting conditions at that time and in that area as adequate and he could see their features and faces. They aroused his attention and he put them under observation.  As they walked towards him and when they were nearly directly below him, he saw the 2nd defendant put his hand into his jacket pocket and take something out.  He described it as white in colour and soft, not a hard item.   He estimated it to have been about 6 by 4 inches. 

5.  At the same time, the 2nd defendant was looking around him.  PW1 described the 2nd defendant slipping this object to the 1st defendant walking beside him.  The 1st defendant took it in his hand quickly and thrust it into his trouser pocket.  From his description, this exchange was one swift, continuous movement.  PW1 suspected that it was a drug exchange or transaction.

6.  He watched them pass below him and proceed up the staircase towards his observation post.  As they passed below him, he moved to a better vantage point to watch them come up the stairs.  He then moved to the top of the stairs to intercept the two men. 

7.  When the two men arrived at the top of the stairs, PW1 revealed his warrant card and identity.  He said the 2nd defendant spoke to him and swore at him, whilst the 1st defendant tried to run back downstairs.  PW1 grabbed the 1st defendant, only to be assaulted by the 2nd defendant.  He described being punched and then kneed in the groin area by the 2nd defendant.  He heard the 2nd defendant tell the 1st defendant to run away. The 1st defendant slipped out of his jacket over his head and ran downstairs. The 2nd defendant pushed PW1 over and ran upstairs.

8.  At this stage other police officers nearby heard PW1 confronting someone and rushed to help.  The 1st defendant was quickly intercepted as he ran downstairs and was only arrested after a violent struggle.  He was holding in his hand something white which subsequently burst or was torn open during the struggle.  It was later confirmed to be ketamine which spilled out of a plastic bag onto the ground. 

9.  When PW1 saw that the 1st defendant had been intercepted by colleagues, he changed directions and went upstairs to look for the 2nd defendant but without success.

10.  The 1st defendant has pleaded guilty to trafficking dangerous drugs.  The drugs being the bag of dangerous drugs recovered from the ground, where a portion of it had spilled out.   He also pleaded guilty to resisting arrest, resisting the police officer who tried to intercept him.

11.  Exhibit P14 is the Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  Amongst the Admitted Facts, it is not challenged that it was the 2nd defendant whom PW1 intercepted on the stairs before he escaped from PW1.  It was not challenged that the 2nd defendant was arrested the next day and under caution admitted he was at that scene on 25 February.

12.  It is an admitted fact that PW1 identified the 2nd defendant at an identification parade.   In evidence, he said he identified the 2nd defendant as the man who swore at him and because he recognized his facial features; he was close to the 2nd defendant when he intercepted both men at the landing of the staircase.  This was not challenged. 

13.  Photographs taken at the scene, the chain of evidence and the value of the drugs were also not challenged.  The drugs were exhibited as Exhibit P1 and 2.

14.  The prosecution agreed that the bag held, torn and squeezed by the 1st defendant was tested and neither the 2nd defendant’s DNA nor a fingerprint were found on it.

15.  Exhibit P6 and P6A were the post-recorded statement of the 2nd defendant and its translation.  Under caution, he said he did not know there were drugs there at that place.  He denied hitting any police officer.  He ran because he saw his friend “So Ho” run; he ran because he was afraid. 

16.  Photographs taken, Exhibit P3, P11 and P12, were relied on by the prosecution to show the position of PW1’s observation post, the available lighting in the surrounding area and the immediate vicinity of PW1 and the route taken by the two defendants. 

17.  As for Exhibit P3, these photographs were taken that very night and show where PW1 intercepted the 1st and 2nd defendant and at which landing of which staircase, clearly seen in photographs 2 and 4. Photographs 5, 7, 8 to 13 show where the 1st defendant ran down to and where he tore open and spilled the dangerous drugs from the bag.  A smattering of white powder, dangerous drugs, can be seen on the ground. 

18.  Exhibit P12, these two photographs taken in daylight show where PW1 stood at a balcony one floor above the ground level. The photographs show where the two defendants came from walking towards PW1 and how they passed below him to turn up the staircase seen in the photographs. These stairs led to PW1 where he waited to intercept them. 

19.  Photographs P11 show more of the area.  Photograph 1 shows the path the two men took towards PW1’s observation post.  There is a lamppost in this garden area.  A supermarket can be seen under where PW1 stood.

20.  Photograph 2 shows this supermarket, PW1’s observation post and street lamps fixed on the exterior walls of the buildings.  Looking through the photograph album, many fluorescent tube lights can be seen on the ceilings providing light to the area according to PW1.

21.  PW1 used photograph 4 to demonstrate where the exchange of the white package took place between the 1st and 2nd defendant.  He pointed to the right of the first manhole cover in the centre of the photograph.  He stood above this area overlooking this area, clearly seen in the same photograph.

22.  Photographs 26 and 27 show his view from the observation post of the route the two defendants took towards him.  Photograph 27 shows the manhole cover seen in photograph 4 from above, as does photograph 29.

23.  His evidence was that at this point, they were both 5 to 6 metres away from him and it is at this distance he saw the exchange take place.  PW1’s evidence was that the lighting condition was good enough to see their faces, features and actions. 

24.  Photograph 5 is a close-up photograph looking up towards his observation post and the staircase that the defendants walked up.  He only lost sight of them for a very short period of time as they passed under him and turned up the staircase.  When they got to the first flight of stairs, he moved to the stairwell to intercept them.  At the landing which was between his observation post and the street level, he confronted the two men.  He tried to hold onto the 1st defendant when he was assaulted by the 2nd defendant. 

25.  PW2 gave evidence about how he came to catch, struggle with and ultimately subdue the 1st defendant.  He described how the 1st defendant tore open the bag he held with his hands during the course of the struggle and how the powder came to scatter all over the floor. 

26.  PW4 came after PW2 to assist him.  He was later designated the exhibits officer and seized cash of different currencies as well as two mobile phones found on the 1st defendant by an officer.  PW4 swept up all the dangerous drugs carefully off the ground. 

27.  PW5 also assisted PW2 to subdue and control the 1st defendant.  He questioned the 1st defendant, and the 1st defendant told him that the male he was with previously was So-something Fai, nicknamed “Sai Gua”.  It was PW5 who searched the 1st defendant and seized the mobiles and his wallet but found nothing else on him, nothing suspicious.  Under cross-examination, he could not recall if the 1st defendant had any keys, cigarettes, tissues on his person and nor did he make a list of items he found on the 1st defendant. 

28.  PW3 was on patrol the following day in Fu Hang Estate, Tai Po, with other colleagues.  A male subsequently known as the 2nd defendant walked towards him, acted suspiciously which lead PW3 to intercept him.  He asked this male a few routine questions.  The male told him he was called “Sai Gua”, nicknamed “Sai Gua”.  PW3 remembered this name was connected to a trafficking drugs case from the day before, so he asked the 2nd defendant where he had been the night before.  The 2nd defendant admitted that he and “So Ho” had been intercepted by the police outside a restaurant in Tai Yuen Estate the night before, but because “So Ho” ran, he ran too because he was afraid. 

29.  PW3, knowing that a male called “Sai Gua” was a wanted person, arrested the 2nd defendant.

The defence case

30.  The defence case is that although the 2nd defendant was walking with or beside the 1st defendant at the material time, there was no exchange of any object between the 1st and the 2nd defendant, as described by PW1.  The 2nd defendant was unaware of any drugs in the 1st defendant’s possession.

31.  The defence case was that PW1 did not reveal his police identity when he stopped the two defendants.  After this, the 2nd defendant did not swear profanities at PW1.  The 2nd defendant did not punch, knee or push PW1.  There was no assault by him on PW1 before he ran away.  PW1 was asked if the 2nd defendant was wearing gloves and he said, according to his recollection, he was not.

32.  Essentially, much of the prosecution’s evidence was not challenged, except for PW1’s evidence of what he saw as an exchange between the defendants and an assault by the 2nd defendant. 

The law

33.  The prosecution have the burden of proof to prove beyond reasonable doubt all elements of both charges, not the defendant. The 1st defendant’s admission and plea is of no consequence to the 2nd defendant.  The 2nd defendant is jointly charged with trafficking the same packet and amount of dangerous drugs. 

34.  The prosecution say the 2nd defendant was in possession of the dangerous drugs first and then passed it to the 1st defendant.  He dealt with the dangerous drugs by his action.  The definition of trafficking includes dealing in or with dangerous drugs, or possessing the dangerous drugs for the purpose of trafficking, section 2 of the Dangerous Drugs Ordinance, Cap. 134.

35.  To prove or draw an inference that the 2nd defendant dealt with this quantity of dangerous drugs, the court must look at the circumstances at that time and the 2nd defendant’s actions, if any, independent to the 1st defendant.  The issues in this case are factual and dependent on the credibility of the prosecution witnesses’ evidence. 

36.  The defendant is a man of clear record.  I have warned myself of this fact and considered the likelihood and propensity of a man with a clear record committing these serious offences. 

37.  The defendant elected not to give evidence as is his right.  Failure of a defendant to give or call evidence is no evidence of his guilt.  It proves nothing one way or the other.  The fact that the defendant does not give evidence could strengthen any adverse inference to be drawn against him on the prosecution’s evidence.  I refer myself to the judgment of Lord Hoffmann, NPJ, in the authority of Li Defan and Fan Ying Chao v HKSAR, FACC No. 5, 2001, at paragraph 32.

My findings

38.  I am sure after considering the evidence of PW1, other prosecution witnesses and the photographic evidence, there would have been sufficient light to see the defendants from the observation post of PW1 and see them clearly.  The 2nd defendant does not dispute he was with the 1st defendant and took the route or path as described by PW1 until they were intercepted by PW1.  Not only were there street lamps, but also the light from supermarket, surrounding residential buildings and numerous fluorescent tube lights on the ceilings of the corridors around this vicinity.  I am sure PW1 could see the faces and features of both defendants, and obviously the closer they came, the clearer a view PW1 had of the two men. 

39.  As I have said, in any event the identity and presence of the 2nd defendant is not in dispute.  The 1st question is: was there an exchange of a white packet between the defendants from the 2nd defendant to the 1st defendant?  And if there was, was it the dangerous drugs of Charge 1?  The other question was: did the 2nd defendant assault PW1 before he ran away? 

40.  The defence suggest that PW1 is framing the 2nd defendant.  The defence submit the only evidence against the 2nd defendant is PW1’s allegation of an exchange of a packet between them.  If PW1 could not clearly see the defendants, maybe the action he thinks he saw is not reliable or a fabrication. 

41.  In submissions, defence also point out discrepancies, some discrepancies, in PW1’s evidence such as the colour of the 1st defendant’s shoes as described by PW1 being different to the actual shoes, Exhibit P18, or omissions in his notebook or statement such as not mentioning the defendants’ distance from him when the actual exchange took place. 

42.  The defence also suggest that because PW1 lost sight of the defendants under the observation post, it is possible the packet, if from the 2nd defendant, is not the packet the 1st defendant burst in the ensuing struggle.  Also, the jacket belonging to the 1st defendant which must have been discarded, when he escaped, was not seized as far as any prosecution witness was concerned.

43.  Even if there was a package passed, the prosecution cannot prove the dangerous drugs of Charge 1 was what passed between the 2nd defendant and the 1st defendant.  There is no fingerprint of the 2nd defendant nor any trace of DNA of the 2nd defendant found on the plastic of the bag.  Defence say that PW1 is not a reliable or credible witness and cannot be relied upon to prove both charges to the requisite standard of proof.

44.  I have considered the prosecution’s evidence as well as submissions made by defence counsel.  I believe that PW1 did see the defendants walk towards him side by side and I am sure in adequate lighting conditions he saw a package exchanged between the defendants at a close distance from above.  I find the evidence of his view of the exchange credible and reliable.  I find he did see a white soft package passed from D2 to D1 in one swift, continuous movement without either man breaking stride. 

45.  The only soft white package found on the 1st defendant, moments later, was the bag of ketamine he was holding and subsequently torn open.

46.  The evidence of PW2 was that after the 1st defendant had been arrested, another officer swept the area for suspicious items.  I do not believe the 1st defendant threw away a different white package between running from PW1 to being arrested at the bottom of the stairs.  In addition, if there had been a different or another soft white package on the 1st defendant other than the bag of dangerous drugs he tore open, I am sure it would have been seized.  The evidence was that there was nothing else suspicious on his person or found nearby. 

47.  In accepting PW1’s evidence, I am sure the dangerous drugs of Charge 1 is from the package passed by the 2nd defendant to the 1st defendant.  I accept that PW1 did lose sight of both men very briefly, but I am sure that if the package had been of an innocent nature, it would have been found on the 1st defendant.  The only soft white package was the dangerous drugs that the 1st defendant tried to spill to thwart the seizure of it.  This bag was seen in the 1st defendant’s hand within a very short period of time from when the 2nd defendant was seen to pass it to him.  The sequence of events did not take long.  

48.  I am sure beyond reasonable doubt that despite 2nd defendant’s clear record, he trafficked this bag of dangerous drugs of Charge 1 by dealing with it, passing it to the 1st defendant.  The discrepancies described by the defence are not material, not so material or serious that it leads me to doubt PW1’s reliability.  The fact that no DNA or fingerprints of the 2nd defendant were found on the plastic bag containing the dangerous drugs does not mean the 2nd defendant did not come into contact with them.  It does not mean that the 2nd defendant did not pass it to the 1st defendant.  The lack of evidence of this nature is not fatal to the prosecution’s allegations.

49.  There could be explanations as to why despite PW1 seeing 2nd defendant hand it to the 1st defendant, there is no such evidence on it.  The bag was handled by the 1st defendant’s hand, both hands, it was squeezed and manhandled during the struggle to apprehend the 1st defendant, he must have had his hands all over this small bag, and to tear it open, he must have had a good grip on it. 

50.  In regard to Charge 2, I am sure the evidence of PW1 is reliable and he was assaulted, as he described, by the 2nd defendant. There was only the three men on, including the officer, on this landing; there was no other person.  Moreover, PW1 did get a good look at the 2nd defendant when he intercepted them and when he was assaulted.  I do not believe he fabricated this assault or framed the 2nd defendant for this.  The fact that he did not sustain visible or serious injury does not support the submission that he made this up. 

51.  I am sure beyond reasonable doubt that the 2nd defendant assaulted PW1 whilst he was trying to apprehend the 1st defendant acting in the due execution of his duty.  Accordingly, the 2nd defendant is convicted of Charge 2 as well as Charge 1.