HKSAR v. KANTHIMA MALEEMAO

DCCC 1466/2024

[2026] HKDC 401

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1466 OF 2024

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REASONS FOR VERDICT

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1.  D6 was charged with 6 other defendants (D1 - D5 and D7) one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong.

2.  The particulars of the charge was that D6 with other defendants on 11 March 2024 at Room 1713, the Kimberly Hotel, Tsim Sha Tsui, Kowloon, in Hong Kong unlawfully trafficked 25.893 kg of cannabis in herbal form.

3.  The Prosecution case was that D6 was in a joint enterprise of trafficking whereupon the above quantity of dangerous drugs was found in Room 1713, D6 had arrived the hotel and stayed in Room 1713 for some minutes, D6’s DNA was also found on the interior surface of a suitcase containing cannabis.

4.  Mr Wright for D6 essentially contested that it was unknown how and when D6’s DNA was deposited, the same as to when the drugs were put in, further it also remained possible for secondary transfer and irresistible inference could not be drawn from the overall circumstances, particularly as to the knowledge and intent of trafficking for D6.

Admitted Facts (P1A)

5.  On 10 March 2024, D3, D4 and D5 checked into the Kimberley Hotel into three of five rooms which were booked on 9 March 2024, reserved from 10 to 12 March 2024 by Thai female “Arunwan Tammavong”.

6.  D6 is a Thai National and entered Hong Kong on 11 March 2024 at approximately 1300 hrs via the Hong Kong Zhuhai Macau Bridge.

7.  At about 2100 hrs on 11 March 2024, DSGT 8767 accompanied by other police officers, lawfully entered Room 1713 of the Kimberley Hotel, No. 28 Kimberley Road, Tsim Sha Tsui, Hong Kong (“The Kimberley Hotel”) where they found D1, D2, and three other Thai Nationals in the room.

8.  Between 2105 hrs and 2120 hrs on 11 March 2024, DPC 22149 conducted a search of Room 1713 and D1, D2 and the three other Thai nationals were found in the room.  PW2 found 52 packets of suspected dangerous drugs in Room 1713.

9.  At about 2120 hrs on 11 March 2024 in Room 1713 of the Kimberley Hotel, DSGT 8767 declared arrest on D1, D2 and the three Thai nationals in Room 1713 on suspicion of trafficking in dangerous drugs.

10.  At about 2120 hrs on 11 March 2024, DPC 23845 (“PW2”) arrived at Room 1713 of the Kimberly Hotel and, acting as the exhibits officer, took control of the items seized by PW2 in Room 1713 which are listed below:

(i) Two plastic bags containing 999 grammes of suspected dangerous drugs (Prosecution Exhibit 1).

(ii) One plastic bag containing 495 grammes suspected dangerous drugs (Prosecution Exhibit 2).

(iii) Three plastic bags containing 1.49 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 3).

(iv) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 4).

(v) Four plastic bags containing 1.99 kilogrammes suspected dangerous drugs (Prosecution Exhibit 5).

(vi) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 6).

(vii) Four plastic bags containing 2.0 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 7).

(viii) Four plastic bags containing 2.0 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 8).

(ix) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 9).

(x) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 10).

(xi) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 11).

(xii) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 12).

(xiii) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 13).

(xiv) Four plastic bags containing 1.99 kilogrammes of suspected dangerous drugs (Prosecution Exhibit 14).

(xv) Two plastic bags containing 999 grammes of suspected dangerous drugs (Prosecution Exhibit 15).

(xvi) One brown suitcase (Prosecution Exhibit 16), containing Prosecution Exhibits 4, 5, 6 & 7, found next to the bed in Room 1713.

(xvii) One black Susswein brand suitcase (Prosecution Exhibit 17), containing Prosecution Exhibits 8, 9, 10 & 11, found next to the bed in Room 1713.

(xviii)One black suitcase (Prosecution Exhibit 18), containing Prosecution Exhibits 12,13, 14 & 15, found next to the bed in Room 1713.

11.  D1 and D2 were arrested on 19 June 2023 and 11 August 2023 respectively and they both remained silent under caution.  PW1 positively identified D1 and D2 in the identification parade respectively held on 23 June 2023 and 18 August 2023.

12.  The suspected dangerous drugs listed above were seized from Room 1713 of the Kimberley Hotel and were securely delivered to the Government Chemist for analysis and are the same drugs as detailed in the Government Chemist Certificate, namely 25.893 kilogrammes of cannabis in herbal form (Prosecution Exhibit 29) and specified in the charge sheet of D6.

13.  On 11 March 2024 at about 2120 hrs, DSGT 5650 (“PW1”) accompanied by other police officers, lawfully entered Room 1613 of the Kimberley Hotel, where they found three females and three males (all later determined to be Thai nationals).  Amongst these six individuals was D6.

14.  At approximately 10 pm on 11 March 2024 in Room 1613 of the Kimberley Hotel, PW1 arrested the six Thai Nationals, including D6 on suspicion of conspiracy to traffic in dangerous drugs.

15.  An expert report prepared by Senior Inspector TONG Wai-kwok of the Hong Kong Police narcotics bureau gave the street value of the 25.893 kilogrammes of cannabis in herbal form seized from Room 1713 of the Kimberley Hotel as estimated at HK$4,997,349 in March 2024.

16.  DNA samples taken from D6 were analysed by the Government Forensic Mr HO Siu-hong (“PW3”) (Prosecution Exhibit 30), maintaining the integrity of the evidential chain throughout, and gave the following results, D6’s DNA was found on the interior surface of a suitcase (Prosecution Exhibit 18) found next to the bed inside Room 1713.

17.  At about 2300 hrs on 11 March 2024, a sketch of the interior of Room 1713 was made by PW2 and is representative of the interior of Room 1713 at the time it was made (Prosecution Exhibit 33).

18.  CCTV Footage on a hard drive (hereby produced as Prosecution Exhibit 24) was provided by the security manager of the Kimberley Hotel, Mr. NG Pak-shing, which was taken from the security system of the Kimberley Hotel and has a time stamp five minutes ahead of the actual time.

19.  The CCTV footage showed that D3, 4, 5 and 7 transferred several suitcases into Room 1713 that had been reserved and was occupied by D5.  On 11 March 2024 there were a lot of movements in and around Room 1713, with sixteen individuals entering and leaving Room 1713 at various times and a number of suitcases being brought in and taken out at various times.  D6 was in the room for 3 minutes between 1434 hrs and 1437 hrs.

20.  The Photo Album (Prosecution Exhibit 32) contains 81 photos of the five rooms and also of the ground floor of the Kimberley Hotel (all taken by the police or reproduced by the police from CCTV Footage referenced in Admitted Fact paragraph 12) (Prosecution Exhibit 24).

21.  D6 has a clear criminal record.  On 11 March 2024 she was 54 years old.

Summary of Evidence

22.  Prosecution called upon 2 police officers and the expert to give evidence while D6 elected not to give evidence nor called upon any witness.

PW1 DSGT 5650

23.  PW1 led the arrest team which discovered the dangerous drugs in Room 1713 and he subsequently led searches of the other rooms and discovered D6 with two other females and three males in Room 1613 where he declared arrest on them for conspiracy to traffic in dangerous drugs.

Cross Examination of PW1

24.  PW1 confirmed that female Arunwan Tammavong (who had booked five rooms in the hotel, i.e. Rooms 1613, 1642, 1712, 1713 and 1730) was in Room 1613 at the time of arrest.  There were altogether 14 persons arrested in the operation and there were other suitcases in Room 1613, one yellow suitcase and one black suitcase as shown in photo P32(30) but there were no drugs found in Room 1613 or on the person of any of those arrested in the room.

PW2 DPC 23845

25.  PW2 was assigned as the Exhibit Officer for the case. He had seized the dangerous drugs and suitcases and also drawn a sketch map of the room outlining the location of the drugs and suitcases P33 and as shown in photo P32(7). Fingerprint and DNA swabs were taken and he also kept custody and ensured their safe delivery to the Government Forensic team.

26.  PW2 also took custody of other items seized from the arrested persons. These included the following:

(i) From D5, cash of HK$19,600 and Thai Baht 22,240.

(ii) From D6, cash of HK$15,323.40 and Thai Baht 220.

(iii) From D7, cash of HK$15,067.50 and Thai Baht 207.

Cross Examination of PW2

27.  PW2 confirmed that there was no room key card seized from D6 but two room key cards had been seized from D3.

PW3

28.  PW3 is the Government Forensic Scientist, he is qualified as an Expert Witness on Forensic DNA analysis in the Court of Hong Kong.  He had prepared the reports dated 17 June 2024 (P30) and 20 January 2026 (P30A).

29.  In gist the reports stated that the DNA obtained from the suitcase (24C0649/40) (P18) was a mixture likely to have originated from three individuals. “AB03249A” (from D6) could be included as a possible contributor of the DNA mixture found.  The likelihood ratio “LR” measuring the chances of observing the DNA profile between two possible scenarios was 4.77 x 10⁹ to 1, this LR value provided very strong support for the proposition the “AB03249A” and two unknown individuals were the contributors to the DNA mixture.

30.  The DNA recovered from the inside surfaces of the suitcase (24C0649/40) is presumed to be touch DNA, which is highly likely to be the DNA left behind on a surface when a person comes into contact with an object.  The entire inside surface of the suitcase was sampled for DNA analysis.

Cross Examination of PW3

31.  For the methodology of taking samples from the suitcase, PW3 outlined that he had undertaken this through scientifically accepted methodologies, in using the cotton swabs with water added and rotated it to take samples from various parts within the suitcase to maximise the likelihood of obtaining DNA evidence.

32.  As to the issue of transference of DNA, PW3 confirmed that he had discovered three sets of human DNA mixed in the sample found, one male and two undetermined. He also explained the concept of “touch DNA” which touch effectively meaning someone had come into contact with the surface.  On the question of the possibility that one person’s DNA can be transferred to another person and then subsequently transferred to the surface of the suitcase (“Secondary transfer”), PW3 agreed that studies on this theory had been published and that while this “DNA shedding” not fully understood, it was possible but would be very unusual.  PW3 also confirmed that DNA could not indicate the time that it was secreted on a particular surface.

Defence Case

33.  D6 elected not to give evidence nor called upon any witness.

Prosecution Submissions

Joint Enterprise

34.  The doctrine of joint criminal enterprise is of general application to all offences in Hong Kong and while the defendant’s participation must be proved beyond reasonable doubt although the defendant’s presence and actions may lead to an irresistible inference of joint enterprise interpreted in the light of HKSAR v Chan Kam Shing FAMC 57/2015.

Admissibility and Reliance of DNA Evidence

35.  The guideline for the testing, analysis and conclusions regarding DNA were set out in R v Doheny and Adama [1997] 1 Cr App R 369 CA adopted by the Court of Appeal in HKSAR v Tsang Kai On CACC 177/2015 where challenges were done to the DNA evidence based on possible siblings having the same/similar DNA.

36.  HKSAR v Choi Wai Kwong CACC 137/2006 sets out that sole reliance on DNA evidence is possible if it the jury are sure no contamination of the source DNA occurred (Paragraph 31 - 37).

Primary and Secondary Transfer of DNA

37.  The law on primary and secondary transfer of DNA is developing as is the science behind the possibilities that secondary transfer is possible.  The most influential decision in this area can be found in a High Court of Australia decision in Fitzgerald v The Queen [2014] HCA 28 where the court essentially held that the possibility of secondary transfer could not be ruled out.

38.  However, the prosecution’s case is based on both direct evidence and inference evidence.

39.  The direct evidence concerns the drugs seized in Room 1713 and DNA evidence of D6 on the interior of one of the suitcases containing a large quantity of the drugs found in the room from which she had briefly visited but also apparent to be a part of the tour groups luggage to which she was attached.

40.  The irresistible inference evidence of D6 participation in the offence concerns the following points:

(i) D6 travelled with other defendants to Hong Kong as part of a pre-arranged tour group with rooms booked in advance by Thai female “Arunwan Tammavong”.

(ii) Room 1713, where the drugs were seized, was one of the rooms booked by the group.

(iii) Suspiciously similar amounts of cash in HK$ were seized from D6 and two other defendants (D6: HK$15,323.40; D5: HK$19,600 and D7: HK$15,067.50).

(iv) At 1425 hrs on 11 March 2024, many suitcases were brought to Room 1713 (CCTV footages, Prosecution Exhibit 32A pages 16 and 17) by D3, D4, D5, D7 and others. An irresistible inference can be drawn that these were the luggage of the tour group.

(v) D6 entered Room 1713 at 1434 hrs on the afternoon of 11 March 2024 (Prosecution Exhibit 32A pages 18 and 19), with two other individuals, all without suitcases. All departed at 1437 hrs the two individuals with suitcases and D6 without a suitcase. An irresistible inference can be drawn that the suitcase found in Room 1713 (Prosecution Exhibit 18) containing some of the drugs belonged to D6.

41.  The prosecution therefore submits that all the ingredients of the offence under which D6 is charged have been proved beyond a reasonable doubt and the D6 should be convicted.

D6 Submissions

42.  Mr Wright for D6 states that the prosecution’s case relies on joint enterprise that D6 was part of a common intention to traffic in dangerous drugs.  They must prove that D6 had the requisite knowledge of the existence of the dangerous drugs and intended to traffic in them.

43.  However, 5 rooms in the Kimberley Hotel had been booked on 9 March 2024 by Thai female Arunwan Tammavong.  Some of the group arrived on 10 March 2024 and at 1414 hrs and 5 key cards were handed to D4.

44.  While D6 only arrived on 11 March 2024.  Arunwan was found in Room 1613 with D6 and other Thai nationals at about 2120 hrs on 11 March 2024.  Arunwan was not charged.  All the dangerous drugs, P1 - P15, were found in Room 1713 during the police raid at and after 2100 hrs on 11 March 2024, where 5 persons D1 to D5 were present.  No dangerous drugs were found in the other 4 rooms.

45.  D6 was only inside Room 1713 for 3 minutes from 1434 to 1437 hrs, having arrived in the hotel a short time earlier (photos P32A page 18).

46.  On the CCTV photo album P32 (index P32A) D6 is described as D7.  She is shown on P32A photo 18.  She appeared to be the person wearing a light headscarf, green jacket and dark trousers, carrying a paper bag in the right hand and a greenish handbag in the left.  When she left Room 1713 (photo page 19) she is carrying the same objects.  At no time is she seen on the CCTV with a suitcase.

47.  Between 1439 hrs and the police raid at about 2100 hrs there is a lot of movement by various persons to and from Room 1713.  D6 is not among them.  She was found in Room 1613.

48.  For the DNA evidence, P30 showed the DNA sample was swabbed from an undermined part of the interior of suitcase P18 and it was a mixture likely to have originated from 3 individuals, D6 (“AB03249A”) could be included as a possible contributor of the DNA mixture.  The typing result of the DNA mixture found inside suitcase P18 is described in the schedule on page 2 as “male”. P30A report states the DNA was likely to be “touch” DNA ie from contact.  It is unknown when the DNA was deposited on the inside of P18.  PW3 said it is unlikely to be secondary transfer ie from D6 to another person thence to P18 but it is possible.  There are other possible inferences as to how the DNA was deposited onto P18.  D6 was one of a number of persons travelling in a group.  It is quite possible she had touched the interior of the suitcase when no dangerous drugs were inside it.

49.  Mr Wright therefore submits that the prosecution has not made out a case for joint enterprise nor does the evidence support an inference that she was ad idem in any common purpose.  A large number of people were arrested and detained, it seems 14, by this police team and another police team was involved which may have detained other persons.  There is no evidence that D6 had any knowledge or intention to participate in the joint enterprise.

50.  The prosecution relies solely on guilty inference being found by the court.  Not only is this not a compelling inference, there are many other possible, more compelling inferences to be drawn which are consistent with a verdict of not guilty.  One such inference is that she was innocently drawn into a situation over which she had no control and of which she had no knowledge.  The DNA evidence is equivocal at best.  No guilty inference can safely be drawn from it.

51.  The Supreme Court of Australia decision in Fitzgerald v R supports the defence that a possible transfer of DNA could have occurred in some manner other than alleged by the prosecution.

52.  Therefore it is unclear what the prosecution allegation is concerning the DNA.  Do they allege D6 handled the dangerous drugs? When? How? Do they allege D6 touched the inside of the suitcase when the dangerous drugs were inside it? There is no evidence when the dangerous drugs were actually transferred to the suitcases or how and when the dangerous drugs were placed on the bed in Room 1713 thus not guilty is the only possible reasonable verdict.

Assessment of Evidence and Verdict

53.  The prosecution bears the burden to prove D6 is guilty beyond all reasonable doubt, D6 has no burden to prove anything.  D6 elected not to give evidence, it is her right and no adverse inference could be drawn against her choice.  However, it means that there is no evidence to undermine, contradict, or explain the evidence put by the prosecution.

54.  D6 also has a clear criminal record, she is therefore more credible and is of less propensity to commit crime.

55.  To start with, the CCTV footages did provide a comprehensive background of what had transpired on 10 and 11 March 2024 especially the in and out records for all those 5 rooms reserved together (noted that for CCTV footages, only D1 to D5 as marked in the footages were the same person as charged as D1 to D5 while D6 as marked in the footage is Arunwan Tammavong (not charged); D7 marked in the footages is D6, D10 marked is D7).

56.  On 10 March 2024, in fact only D3, D4 and D5 had been in and out of Rooms 1712 and 1713, also with suitcases in and out apart at about 2042 hrs 2 Indian/Pakistani males had been in and out from Room 1712 (see P32A pages 1 - 11).

57.  However, on 11 March 2024, it is observed as follows:

Time	Event	Reference CCTV Footages
1424 hrs	D3, 4, 5, 6, 8, 9, 10, 12, 13 took lift to 17/F and moved to Room 1713.	P32A (page 15)
1424 hrs - 1425 hrs	D3 (with 2 suitcases UD), D4 (with suitcase F), D5 (with suitcase G), D6, D8 (with suitcases E & UD), D9 (with suitcases D & UD), D10 (with suitcases A & UD), D12 (with 2 suitcases UD), D13 entered Room 1713. Altogether 9 people with 12 suitcases moved in Room 1713 (where all dangerous drugs were later found).	P32A (page 16 - 17)
1434 hrs - 1435 hrs	D7 (D6 in this case), D11 and D14 also entered Room 1713.	P32A (page 18)
1437 hrs - 1439 hrs	D7 (D6), D9, D11, D14 left Room 1713; D11 & D14 left with suitcases D & E.	P32A (page 18 - 19)
-	It is clear by the time when D6 stayed in Room 1713 for about 3 minutes (1434 - 1437), there were already 11 other people and 12 suitcases inside Room 1713.	P32A (page 17 right bottom column)
1439 hrs	D7 (D6) entered Room 1642.	P32A (page 20)
1439 hrs - 2031 hrs	Different defendants were moving out from Room 1713 with different suitcases then moving in different room as reserved, say, Room 1712, 1730, 1613 & 1642. From the right column of different CCTV footages, it could be seen that different defendants were moving in and out to different room with suitcases in and out.	P32A (page 21 - 44)
2032 hrs	D4 left Room 1712 from Room 1713.	-
2033 hrs	D1 & D2 knocked Room 1713 and then entered.	P32A (page 45 - 46)
-	Nobody then leaving Room 1713 until 2100 when police raiding the room where D1 to D5 and 3 suitcases with dangerous drugs were found.	P32A (page 45); P32 (photo 6 - 23)

58.  From the CCTV footages, it could be readily seen that these people acted together as a group, quite unusually all entered Room 1713 first at about 1425 hrs and left there with suitcases, they then later on moving out with different suitcases and entering other rooms, the right column of CCTV footages would show the whereabout of different defendant with suitcases moving around in different rooms.

59.  Mr Wright for D6 essentially submits that D6 only stayed in Room 1713 for only 3 minutes without bringing in and out any suitcases, and she was not found with any dangerous drugs nor any drugs found in the room where she stayed in Room 1613.

60.  However, one must not lose sight of all the above movement records for all these people moving in and out of Room 1713 where eventually very substantial dangerous drugs were found therein, where D6 had been inside though for relatively short period of time, but at that time there were already 11 people and 12 suitcases inside (see P32A page 17).

61.  It is apparent and important to consider against all these background where D6’s DNA was found in the suitcase P18 where dangerous drugs were also found inside the suitcase (see P32 photos 21 - 23).

62.  Mr Wright however submits that there was possibility of secondary transfer and that there was absence of evidence suggesting when and how D6’s DNA was left there.

63.  Nonetheless, firstly on secondary transfer, the case of Fitzgerald stated above could readily be distinguished, where there was actual evidence suggesting secondary transfer in that case, while there was none in the present case.

64.  Mr Wright tried to suggest that all these people were travelling together and it was possible for D6’s DNA be somehow deposited on the suitcase or by means of secondary transfer, however, there was just no evidence at all suggesting any innocent contact by D6 nor was there any evidence concerning secondary transfer, not to mention D6’s DNA was found from the interior surface of the suitcase instead of outer surface which one may argue for any innocent contact.

65.  Further, there is no need to speculate when and how D6’s DNA be deposited there, suffice to say the circumstances were clear that very substantial dangerous drugs were found inside the suitcase P18 where D6’s DNA was also found in interior side of this suitcase, there was just no other possibility than that D6 must have full knowledge of the content of the drugs therein while D6 had been a party of this joint enterprise to traffic all these dangerous drugs to Room 1713 and for further disposal, particularly as there was no other contradictory evidence to suggest otherwise.

66.  Therefore I found the prosecution had proved beyond all reasonable doubt that D6 had committed the charge, D6 is convicted accordingly.