HKSAR v. LAU MAN HONG

DCCC 234/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 234 OF 2013

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REASONS FOR VERDICT

1.  Charge

The defendant was charged with an offence of trafficking in dangerous drugs, namely 23.96 grammes of a solid containing 16.99 grammes of cocaine contrary to section 4(1) & (3) of the Dangerous Drugs Ordinance Cap. 374,

2.  The defendant pleaded not guilty to the charge and denied ever being in possession of any drugs.

3.  Overview

The prosecution case was that police officers had intercepted the defendant in Carpenter Road, Kowloon City on 12 November at about 0042 hours after a short observation of him. After a search of the defendant person thereat, the drugs were found in the front right pocket of his jeans.

4.  The defendant’s case was that he had been set him up and framed by the police officers.  Just before he was approached by the police officers, he was standing on Carpenter Road as his car had broken down. He was waiting for a tow truck to come and collect his car and a friend to come to pick him up.  He took out his belongings after being directed by a police officer. After finding nothing suspicious on him or after the search of his car, one of the police officers, a Sergeant, threw a red cigarette box containing drugs at the defendant whilst the defendant was waiting in a police van.  The Sergeant told the defendant the drugs belonged to him.  He was arrested and brought back to the police station.  Upon arrival the police officer told the Duty Officer (DO) that the drugs were found on the defendant however immediately upon hearing this the defendant told the DO that he had been set up.  As a result he made a formal complaint to the DO later that evening about it.

5.  Issues

The main issue in dispute was whether the defendant did possess the dangerous drugs (crystalline solid containing cocaine) in his right jeans pocket?

6.  Then if the defendant was in possession of the dangerous drugs, was he unlawfully trafficking in the drug?

7.  A resolution of the first issue turns principally on the credibility of the police officers.  A resolution of the second issue involves a consideration of the established facts together with a consideration of what inferences might be drawn from those facts.

8.  Witnesses

The prosecution called three witnesses. PW1 – PW3 were police officers. PW1 was the officer that conducted a body search on the defendant. PW2 was his partner who witnessed the search of the defendant and conducted a search of the defendant’s car. PW3 was a police officer who went to the scene after the drugs were found on the defendant.

9.  The defendant elected to give evidence but did not call any defence witnesses.  

10.  Conflicting case between the prosecution and defence

Before referring to the evidence I set out below the main disparity between the prosecution and the defence case.

Prosecution case	Defence case
PW1 intercepted and searched the defendant on Carpenter Road.	The defendant was intercepted on Carpenter Road by PW2 and not PW1.  No body search was conducted on him in the Road. The defendant himself took out the items from his person to hand to PW2.
Drugs were found in defendant’s right jeans pocket during the search.	No drugs were found on the defendant or in the defendant’s jeans pocket.
Found and seized were two mobile phones and cash of $15,859.	The defendant agreed that the two phones and the amount of cash were seized from him.
PW1 handed the drugs and other items seized from the defendant to PW2 the exhibits officer.	PW1 did not hand any exhibits to PW2.  After the defendant took out all the exhibits himself from his person he handed them to PW2.
PW2 searched the defendant’s car.	PW1 searched the defendant’s car.
PW1 and PW2 denied being told by PW3 to take the defendant on board a police van to search him.	PW1 and PW2 were told by PW3 to take the defendant on board a police van to search him.
PW1 and PW2 denied the defendant ever took off his clothes for the police officers in the police van.	On the police van the defendant took off his clothes for the police officers to search him.
PW1, PW2 and PW3 said no such cigarette box with the drugs contained inside was thrown at the defendant and there was no cigarette box with the drugs at all.	While in the police van PW3 threw a cigarette box containing drugs at the defendant which hit his face
No evidence from PW1 and PW2 as no questions were put to PW1 or PW2 on whether the defendant told the DO he had been set up in their presence.	Upon arrival at the police station the defendant told the DO the drugs did not belong to him and that he had been set up in the presence of PW1 and in the presence of the lawyer and PW1 later that morning.

11.  Prosecution case

On 12 December 2012 police officers (including PW1-PW2) conducted an anti-dangerous drug operation in the area of Carpenter Road, Kowloon City.

12.  At about 0042 hours PW1 and PW2 were paired on a dangerous drugs operation.  They saw the defendant standing on the pavement of Carpenter Road.  Another male called Cheuk Yuen Wing was standing on the opposite pavement.  At that time they were both looking around.  When someone walked past them they moved in a way as if they were nervous.  After about three minutes of this observation PW1 and PW2 approached the defendant as they were suspicious of his actions.  Other police officers approached the other male who was a friend of the defendant’s.

13.  PW1 intercepted the defendant and told him his suspicion.  PW1 had suspected the defendant to be trafficking in dangerous drugs.  He asked for the defendant’s identity card, asked him what he was doing there and requested to search him.  The defendant told PW1 that he was taking his friend home (the male standing on the opposite side of the road) however his car broke down there and he was waiting for it to be towed away. 

14.  At the time PW1 noticed the defendant was trying to put his right hand into his right trousers pocket. PW1 then searched him.  As a result of the search, he found a packet of dangerous drugs (DD) in the defendant’s right trouser pocket (Exhibit P1).  He cautioned him for trafficking in DD, and declared arrest on him.  Under caution the defendant said “Ah sir, I have nothing to say.  I would like to have a lawyer”.

15.  PW1 seized the drugs and passed them to PW2 for safekeeping, and continued with the body search, seizing from the defendant two mobile phones and money amounting to HK$15,859 (Exhibits 2 – 8).  He handed each of these objects to PW2.

16.  In the meantime other officers had intercepted the defendant’s friend called Cheuk Yuen Wing,

17.  By 0048 hours, the OC WP Wong Man Yun, PW3 Sgt 2902 and other officers of the team had arrived at the scene.  PW1 reported what he had saw and found from the defendant to the OC.  Following that, while PW1 guarded the defendant, with the defendant’s consent, the defendant’s car was searched by PW2 with no further suspicious matters found. The car was put in the charge of the friend.  At 0115 hours and PW1 with PW2 took the defendant back to the Kowloon City Police Station and arrived there five minutes later.  PW1 conducted a more detailed “level 3” search of the defendant at the station. 

18.  Eventually, at 0215 hours, the defendant’s lawyer arrived at the police station.  They had a private interview.  After that, at 0230 hours, in the lawyer’s presence, PW1 took a post-record of the statement under caution from the defendant which the defendant signed (Exhibit 10) and stated in his own handwriting that the post-record of 2 pages was true and accurate.  The post-record stated that the defendant was searched at the scene, the packet of suspected DD was found in his right trouser pocket, and what the defendant has said under caution.

19.  Later that day from 1836 to 1848 hours, a Video Recorded Interview (VRI) was taken with the defendant with his lawyer present (Transcript and translation at Exhibits P11 and P11A respectively), in which the defendant answered that he did not have a habit of taking DD.  The defendant agreed that the interview was made voluntarily and the content of was correct.

20.  PW2’s evidence supported PW1’s.  He saw PW1 retrieve the drugs from the defendant’s pocket.  PW2 stated that upon search of the car nothing suspicious was found.  PW3 stated that he arrived at the scene after PW1 had found the drugs.  He denied ever having thrown a box of cigarettes containing drugs at the defendant.

21.  Defendant’s evidence

The defendant is 20 years old and was 19 at the date of the alleged offence. He worked in his father’s property agent company, as a real estate agent earning $15,000 per month. Apart from that, he got $10,000 per month pocket money from his father. He was allowed to use his father’s two cars.

22.  His father’s car which he was driving on the evening of 12 December 2012 broke down after midnight on Carpenter/Lung Kong Road.  He was giving his friend a lift home after eating chicken pot at Tsuen Wan.  He had called the towing service and his friend to come and pick them up.  He was looking around to see whether the towing truck and his friend had arrived. The defendant had informed the police about it.

23.  He was intercepted by PW2 who asked him to take out his ID card and his belongings.  The defendant took his belongings out (a wallet, 2 mobile phones, a key and a key holder) and placed them in both hands before PW1 and PW3 arrived.

24.  PW3 asked PW2 whether there was anything.  PW2 said no and PW3 instructed PW2 to take the defendant to the police van (a light goods vehicle) to search him again.

25.  In the police van, the defendant gave PW2 everything in his hand. He took off his jeans and underpants. PW2 reported to PW3, “nothing was found.”

26.  While the defendant was still sitting in the police van, PW3 said to the defendant that he would let the defendant continue to sit so that he could enjoy watching his car being searched like an emperor and further asked whether the defendant had anything illegal in the car.  The defendant let the police search his car. 

27.  The car search was conducted by PW1.  He signed his name in at various places in one go in PC 11687’s notebook with regard to his consent on car search, no loss and damage and handover of his car to Cheuk but he forgot what time he signed those names.

28.  PW1 and other police officers conducted the car search while PW2 guarded him on the van.  

29.  Whilst PW1 and PW2 and the defendant were seated in the van, suddenly PW3 threw a red cigarette box at his face and said “you played a trick!” The cigarette box fell beneath the chair.  PW3 picked it up, opened the flap and asked the defendant what it was. The defendant said it did not belong to him and denied any knowledge of the cigarette box or its contents.

30.  The defendant saw a transparent plastic bag containing a brick-like object inside of the cigarette box.  PW3 told PW1 that it was “Coke” (nickname of cocaine).  That was the time the defendant first came to know that there was a dangerous drug inside the cigarette box.

31.  The defendant kept denying his knowledge about the drug.  PW3 rubbed the red cigarette box against the back of the defendant’s hand and said “I have to set you up, so what?”

32.  PW3 left for a while then came back.  He asked whether the defendant if he wanted his car to be towed to the police station or handed over to his friend Cheuk for custody.  The defendant agreed to hand the car over to Cheuk and he was asked to sign in a notebook.  The defendant was then brought back to the police station.

33.  When PW1 told the duty officer that the drug was found from the defendant’s pocket, the defendant said to the duty officer that the drug did not belong to him and he was set up.

34.  The defendant’s lawyer arrived at the police station.  The defendant told his lawyer that he was set up.  After the post-record was done, the defendant’s lawyer and the defendant told the duty officer that the defendant would like to file a complaint.

35.  The duty officer said that he was busy and asked them to wait. The defendant’s lawyer left.  The defendant then made the complaint to the duty officer on his own at 3. 30 am on 12 December 2012.

36.  A complaint form (exhibit D2) was produced by the defendant.  It was filled out by PC 11897.  At that time, the defendant did not know the name and the number of the police officer (PW3) who threw the red cigarette box and set him up.  He only managed to give a description of him.  About 5-10 minutes after the complaint, the same police officer (PW3) said to the defendant that if he had to file a complaint, complain against him and do not mess around with his team, his name was “La Cha”.  The defendant was given a faxed letter by the duty officer in the afternoon on the same day, which confirmed the receipt of complaint from CAPO.  The defendant identified PW3 being the complainee in an identification exercise conducted on the first day of the trial.

37.  With regard to the cash being seized from the defendant on 12 December 2012, the defendant said it was the amount he was awarded in costs by the court due to an acquittal in a previous case.  He had received a cheque in his name and banked it in on 10 December 2012. He then withdrew cash of $20,000 on 11 December 2012 as he wanted to return the money to his father who had financed the previous court costs and legal fees. The cash of $15,859 was cash left over from the amount he withdrew after spending some of it on dinner with his friends that evening.  He had yet to return the $20,000 cash to his father.

38.  On the day of the offence, he wore tight jeans and the pocket was at an inclined angle. He did not possess any drug or traffick in any drugs on the day of the offence.  He did not take drugs.

39.  Proof

I have borne in mind that it is for the prosecution to prove beyond all reasonable doubt that the defendant was trafficking in dangerous drugs. No onus whatsoever lies on the defendant.

40.  Submissions

I have taken into account Miss Vivian Wong counsel for the defendant’s closing submission questioning the credibility of the police officers. I have also carefully considered all the evidence before me and the submissions by Ms Margaret Ng counsel-on-fiat.

41.  I have referred to a number of Ms Wong’s submissions in my analysis below but the fact that I have not mentioned anyone of them does not mean I have not considered them all.  The fact that I do not mention a particular piece of evidence or submission does not mean that I have not considered it or factored it into my decision-making.

42.  Analysis

PW1, PW2 and PW3 underwent a lengthy and detailed cross-examination by Ms Wong. The following were some of the areas Ms Wong said cast doubt in the prosecution case.

43.  Procedure of conducting a body search

PW1 was questioned on the procedure he followed when conducting the body search of the defendant at the scene. He was asked why, if his suspicion was raised by the movement of the defendant’s hand trying to reach into his pocket, PW1 did not start the search by searching the pocket, why, if PW1 started “from top to bottom”, he did not seize the phone in the defendant’s jacket pocket when his frisking came upon the hard object, why he put the phone back, then searched the trouser pocket, found the DD, then afterwards returned to the phones and cash to seize them.

44.  PW1’s answer was, very properly, that it was only after the suspected DD were found that the phones and money became relevant as potential exhibits. 

45.  Lack of a contemporaneous record in PW1 and PW2’s notebook of the search and seizure of the DD

There was no contemporaneous record from PW1 and PW2 with regard to the seizure of the drugs from the defendant’s jeans pocket.

46.  PW1 made any entry about the arrest at 0047 and looked for the exact address, “Shop 67D Carpenter Road” from the small letters at the top sign of the shop in the dark and recorded it down as shown on pp.116-119 of PW1’s notebook (Exhibit P15A).

47.  A detailed and meticulous record was made later by PW1 at the police station at 0140 hours.  I found PW1’s explanation was entirely reasonable.  At 0047 hours, his immediate concern was to investigate and guard the defendant after arresting him.  He could not spare the time, nor was there need, to make an immediate note of the seizure.  I accept his post-record was made at the first opportunity after the necessary procedures of handing the defendant to the DO at the police station were completed. 

48.  PW2 also did not make a contemporaneous record about the possession and seizure of the DD from the defendant.  It was submitted by Ms Wong that it was strange that both officers did not make a record of such a significant matter. 

49.  I accept the seizure of the DD was a “significant matter” however I reject her submissions that the omission of a contemporaneous record was because no DD was actually found.  The declaration of arrest and record of what an arrested person (the defendant) said under caution was paramount.  PW1 had recorded in his notebook at the scene the defendant was arrested for trafficking in a dangerous drug.  PW2 was the exhibits officer at the scene.  I accept PW2’s explanation that he only made a record of the drugs being given to him by PW1 because that is when he was involved in the matter.  In any event it was not paramount that he or PW1 make a contemporaneous record about the findings of the drug on the defendant at the scene. 

50.  No further enquiries made by PW1 after DD found

Ms Wong submitted that it is unusual and unreasonable that a police officer does not conduct further enquiries when DD are found upon search. Those questions being, e.g. do you know what it is? Do you consume it yourself or do you deliver it to others? As a result it was submitted that it is doubtful as to whether PW1 did search out the packet of dangerous drug from the defendant’s pocket.

51.  According to PW1, when he cautioned the defendant for trafficking in a dangerous drug after searching out the packet of suspected drug, the defendant replied, “I have nothing to say, I need to find a lawyer.”  As this was the reply that the defendant gave which was not disputed, I see nothing unusual or unreasonable in PW1 not making any further enquiries.  On the contrary given the defendant’s reply it was arguably correct that PW1 did not make any further enquiries. 

52.  No fingerprint mark of value was found on the packet of drugs Exhibit P1

The defendant’s fingerprints were not found on the packet of drugs. As demonstrated by PW1, the defendant put his three fingers, three times into his right jeans pocket where the packet of drugs was found. If this was so, Ms Wong submitted it was likely that the defendant’s fingerprints would have been left on the plastic bag.

53.  The evidence born out by PW1 and PW2 was that they both wore gloves when they handled the packet of drugs taken from the defendant’s pocket.

54.  The fact there was no DNA or discernible fingerprints of the defendant’s found on the cigarette box or drugs or plastic packet is not proof they did not belong to him.  Further the putting of the defendant’s fingers into his pocket was not evidence that he ever touched the packet.  In addition the packet was in his jeans pocket any fingerprints which may have been on the packet may have been rubbed off as a result of the packet being in his tight jeans pocket.

55.  No seizure of the defendant’s jeans

It was submitted by Ms Wong that if the drugs were found from the pocket of the defendant’s jeans, it was unusual that the pair of jeans was not seized as an exhibit. PW2 explained that the jeans were not seized as the defendant was wearing them at that time.

56.  I accept Ms Wong’s suggestions that the police could have seized them when the defendant changed his clothes at Pik Uk as the defendant was not granted bail.  Alternatively, the police could have simply taken a photo of the pair of jeans showing the right pocket where the drugs was found.  However no such photo was taken.

57.  Despite the failure of the seizure of the jeans or taking of a photo, I did not accept that those matters casted a strong doubt as to whether the drugs was really found in the defendant’s jeans pocket as was submitted by Ms Wong.  The jeans was not a material exhibit.  So far as PW2 was concerned as the defendant was wearing the jeans he thought no further about seizing it or photographing them.

58.  It was admitted by the defence and the prosecution that the street value of the drugs was $24,966.  This is not an insubstantial amount.  If the police officers had any deliberate intention (which I reject) to set up the defendant why set up the defendant with such a substantial amount when a small amount would suffice?  I found it incredible that if they were to achieve that purpose they would do so with this large and substantial value of drugs. 

59.  There was a suggestion in Ms Wong submissions that as the defendant was acquitted in a previous case this may be a reason why the defendant was set up.  This was never put to the police officers in cross examination.  I have no evidence that the police officers had knowledge of the defendant’s previous case or acquittal or of the defendant prior to his arrest.  I reject any suggestion that this was a settling of scores against the defendant. 

60.  Unreliability and rejection of the defendant’s evidence

I turn now to consider the defendant’s evidence.

61.  I rejected the defendant’s account that he had been set up or framed by PW3 and the other police officers.  What the defendant described as to what happened at the scene was inherently improbable and the defendant’s evidence was full of discrepancies. 

62.  I was unable to find any truth in the defendant’s complaint to the DO and CAPO.  In any event it did not support the defendant’s case that he had been set up by the officers. 

63.  Recent complaint by the defendant of set up

The defendant filed a complaint to CAPO with the DO at the police station at about 3.30 am about one police officer whom the defendant said was PW3, the Sergeant. The complaint (exhibit D2 and D2a) was made within two hours after he was brought to the police station and within four hours from his arrest. On page 4 of the complaint form under the heading “gist of allegation” the defendant complained about being hit by a cigarette box and for arresting him with no evidence.

64.  The defendant’s allegation in his evidence in Court of what happened at the scene contradicted the record made by PW1 in the post-record (Exhibit P10) which recorded the interception, search, seizure of suspected DD, caution and declaration of arrest by PW1 at the scene. 

65.  Significantly the defendant confirmed the truth of the post-record (P10) in the presence of his lawyer and was admitted under s65C of the Criminal Procedure Ordinance.  The same description was repeated in the opening of the VR1 and was likewise not disputed.  It was stated clearly and unequivocally that upon search at Shop 67D outside Carpenter Road the drugs were found and seized from the defendant’s right jeans pocket. 

66.  The defendant explained that he thought in the post record he was signing the correctness of his reply to the officer under caution.  I did not accept his explanation.  Quite clearly it was a confirmation of its contents and those contents included the fact that the drugs were seized from his jeans pocket. 

67.  If however this was not a confirmation by the defendant, glaringly the defendant never challenged or disputed that the drugs were found in his jeans pocket.  I accept that the defendant has a right of silence however given his eagerness and anxiousness to tell the DO immediately upon arrival at the police station that he was set up and the fact that defendant made this fact known to his lawyer who came to see him at the police station and attempted to make a complaint in the presence of his lawyer to the DO, it is incredulous that he did not state that either in the post record or VRI. 

68.  It is incomprehensible that he should have failed to take the opportunity to dispute the record.  When pressed under cross examination why he did not say he was set up on these occasions even though it was important, the defendant claimed that it was his lawyer who told him it was not important to do so.  I reject his explanation. 

69.  Further the allegation of being set up is not supported by the written record of the complaint, which the defendant affirmed to be full and accurate.  No mention was made of any DD being thrown at him or that the officer told him he would be set up.  What was said was simply that the officer threw a cigarette box at him and his cheek was hit, and that he was arrested without evidence.  The defendant was unable to give any reasonable explanation of why he had omitted the most important part of his complaint again that he was “set up.”  It is beyond belief and reason that when the defendant was using the words set up all along that in his written complaint he does not state clearly that he was set up nor that the drugs did not belong to him.

70.  The defendant said in his evidence in Court that upon arriving at the police station, when PW1 produced the DD, the defendant immediately told the DO in PW1’s presence that the DD was not his and PW1 set him up.  The DO told the defendant to repeat what he said.  The defendant repeated it, but the DO did not record anything. Later, after his lawyer arrived and had a private interview with him, his lawyer took him in front of the DO, again in PW1’s presence, and said a complaint was to be made, but as the DO was too busy, his lawyer left because he had no time to wait.  The defendant was taken back to the cell.  After waiting for 15-20 minutes, the defendant was brought out again and he then made the complaint which was recorded (exhibit D2). 

71.  The defendant’s oral evidence was inconsistent with the case Ms Wong put to PW1, PW2 and PW3 in cross-examination which suggested that his complaint was only made at 0330 hours.  There was no mention of his complaint to the DO immediately after PW1 produced the drugs to him when they arrived at the police station.  Nor was there any mention of his lawyer taking him before the DO in the presence of PW1 to make a complaint immediately after signing the post-record. 

72.  I found it difficult to believe that despite being accompanied by a lawyer to make a complaint, the lawyer would eventually leave without making the important complaint and instead leave the defendant to make the complaint himself.  I was satisfied that the complaint was a fabrication.  More so when seen in light of the absence of the defendant’s case being put to PW1 and PW2 about the complaint to the DO in their presence.  It is to be noted that no complaint was ever made in the presence of the lawyer despite the lawyer attending the police station later that day and being present at the VRI.  It is questionable if the lawyer was even aware of the defendant’s complaint that was made at 3.30 am or of the complaint at all.

73.  As to the defendant’s evidence of the search by police officers.  The defendant said that PW3 told PW1 and PW2 to take him to the police van for a search.  However from the defendant’s evidence no search was ever made on him by the officers in the van.  All the defendant did was take off his clothes and the officers had “a look.”  If what the officers were told to do was to search the defendant in the van it made no sense that the officers did not search him but only looked at him whilst the defendant took off his clothes.  Nor does it make sense for the officers to tell PW3 that nothing was found on him since he was not searched at all. 

74.  The defendant originally said he stripped naked for the officers to search him when he was in the police van, however under cross examination, when he was asked whether he took off his shoes to do so since he was wearing tight jeans, he changed his evidence and said that he did not take off his jeans or underpants but just dropped them to his ankles, and he did not take off his shirt.  Stripping naked and just taking down ones jeans to the ankles are material discrepancies in evidence. 

75.  As to the defendant’s allegation of not being searched at all by the police officer on Carpenter Road, I found it most incredulous that a police officer would not search a suspect whom he suspected to be in possession of DD or whom he had requested to search.  It is futile to effectively allow the suspect to search himself by taking out his belongings from his person.  If this was the adopted method of search then the suspect would be in control of the search so to be speak and any suspicious items could remain in the pockets or other areas of his body without the police finding it or them. 

76.  It was the prosecution’s case that the money found on the defendant were proceeds of his trafficking in dangerous drugs.  The defendant’s explanation of how he came to have that sum of money on him was far-fetched and unbelievable. 

77.  The defendant said that the money on his person was the costs awarded to him by the court but originally paid for by his father, and it was in his possession that night as he had withdrawn the money to return to his father that day.  The defendant withdrew the full amount of costs awarded of $20,000 in cash at about 1 pm on 11 December 2012 near to his and his father’s office and home.  He was keen to return the money to his father as soon as possible.  However despite his anxiety to return the sum to his father the defendant made all sorts of excuses for not handing it over to his father that day. 

78.  The defendant had ample opportunity to return the money to his father, I found the defendant’s explanation as to why he did not leave the money at home or in the office for his father to be inadequate.  Despite knowing the father was at the office he claimed he could not go into the office and hand the money to the father because it would not look good for the father if he was handing the money over to him in front of clients.  The defendant allegedly worked for and with the father it would not have been unusual or strange if the defendant handed the money to his father even in the presence of clients.  In any event this was allegedly his father’s money.  Further if he wanted to be discreet the defendant could have placed the money into an envelope then handed it over to the father.  Moreover the defendant and his father lived just one floor above the office, I found his reason of not leaving it at home because the office staff used the toilet at his home to be unreasonable. 

79.  Moreover if the defendant was as keen as he had alleged to hand the money to his father he could have banked it or transferred it into his father’s bank account or even have waited to be sure that the father was available to receive the money.  I had reservations about the need to withdraw cash of $20,000.  

80.  The defendant’s use of the money for his and his friends entertainment was not consistent with the fact that the money was the father’s or the defendant’s eagerness to hand the money over to his father.  Despite the money being destined to be returned to his father, the defendant did not return it but quite extraordinarily used the money as his own.  The defendant freely spent a good part of it that evening entertaining himself and friends at dinner, without any apparent need for permission from his father.  There was a strong inference that the unrestricted spending of the money and lack of return of the money to the father that the money belonged to the defendant and was never destined to be returned to the father. 

81.  I further rejected the defendant’s account that the money was from the costs and that he was earning an alleged salary of $15,000 and receiving pocket money of $10,000 from his father.  There was no other evidence of his income apart from the defendant’s oral evidence.  The defendant was a young 19 year old at the material time.  It was questionable that the defendant had $25,000 a month disposable income.  I found that the defendant was economical with the truth in an attempt to show the court that the defendant had ample resources.

82.  The defendant was found in possession of two mobile phones.  In his VRI he stated that both phones belonged to him however he had lent one of them to his friend whose friends sim card was still in the phone.  His explanation that his friend asked him to keep the phone for him first and had not asked him for it back is far-fetched and unsound.  Firstly the defendant did not know his friends full name but only by the name of Ah Wing.  Secondly why would the defendant have a phone still with his friend’s sim card in it and not know when his friend would ask for it back?  Thirdly there was no evidence to explain why the defendant had possession of the phone and sim card belonging to his friend with him late that night.  I rejected the defendant’s account that his friend was borrowing his phone.  I was satisfied that the two phones belonged to and were used by the defendant.  

83.  Conclusion

I wholly rejected the defendant’s case that he was set up or framed by the police officers. I was satisfied that the prosecution witnesses gave truthful and reliable evidence. The drugs were found in the defendant’s right jeans pocket.

84.  I was satisfied that the defendant was unlawfully trafficking in the drugs by drawing an irresistible inference from the facts. 

85.  There was no evidence that he was in possession of these drugs for his own consumption.  He is not an obvious drug addict nor has a history of drug abuse that he has disclosed.  At the material time the defendant was away from his home with a large amount of drugs in his pocket.  He was out in the streets very late at night and in the company of a friend.  The quantity and the value were relatively large at 23.96 grammes and $24,966 respectively.  I was satisfied that the inferences from the above facts support the supply of drugs to others.  Moreover as I have rejected the defendant’s explanation for the possession of the two mobile phones and money I was satisfied on looking at the totality of the evidence that the possession of the two mobile phones was designed so that one of them would have assisted him in the supply of drugs while the other one would have probably been for his personal use. 

86.  The possession of a significant amount of cash $15,859 late at night for a 19 year old with no evidence of his income coupled with the quantity of drugs was such that no reasonable man could fail to draw the inference that the drugs and cash was for and connected with the trafficking of drugs. 

87.  I was satisfied beyond all reasonable doubt that the defendant is guilty of the charge of unlawful trafficking in a dangerous drug.  The defendant is convicted of the charge accordingly.