HKSAR v. EZENWANKWO STANLEY NZUBECHUKWU

DCCC 48/2024

[2026] HKDC 59

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 48 OF 2024

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REASONS FOR VERDICT

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1.  Before me the defendant faces a Charge Sheet consisting of 3 charges as follows.

2.  Charge 1 is Misleading a police officer by the giving of false information, contrary to section 63 of the Police Force Ordinance, Cap 232. Particulars are that the defendant, on 16 August 2023, at 2^nd Floor, Kam Wah Building, No 831D Canton Road, Yau Ma Tei, Kowloon, in Hong Kong, willfully misled Detective Police Constable 5844, a police officer of the Hong Kong Police Force, by the giving of false information, namely, the defendant held himself out as Izebhor Festus Osakwe, with intent to defeat or delay the ends of justice.

3.  Charge 2 is Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that the defendant, on the same date, at Room A, Flat B6, 2^nd Floor, Kam Wah Building aforesaid, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 53.16 grammes of a solid containing 25.91 grammes of cocaine.

4.  Charge 3 is Assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232.  Particulars are that the defendant, on the same date, at Room A, Flat B6, 2^nd Floor, Kam Wah Building aforesaid, in Hong Kong, assaulted Detective Sergeant 2965, a police officer of the Hong Kong Police Force acting in the execution of his duty.

5.  The defendant pleaded not guilty to the charges resulting in the necessity of a trial.

PROSECUTION CASE

6.  Police officers intercepted defendant outside his residence.  Upon enquiry of his identity, defendant produced a colour copy Form 8.  When asked if it was his and if the document bore his name, defendant said yes.  It was subsequently discovered that he was not the person named on the Form 8.

7.  Defendant was brought inside his residence (Room A within Flat B6).  A search was conducted in which 3 packets of cocaine together with an electronic scale were found.  Upon arrest for trafficking in dangerous drug, defendant denied and kept saying the drug was brought from outside.  He struggled.  Police officers eventually managed to handcuff him at his back.  He continued to struggle with his jaw landing on PW2’s forehead causing injuries.

DEFENCE CASE

8.  Defence case is a general denial of the prosecution case requiring almost strict proof of the same.  Defendant gave evidence and adopted what he said under cautioned VRI.  Defence relied heavily on a piece of prosecution exhibit Exh P40 which was a CCTV footage (with audio) with audio recordings of what defendant was saying to the police when he was under police custody.  The defence case was that the dangerous drug was found not in Room A but outside Room A within the confines of Flat B6.

PROCEDURAL HISTORY

9.  Prosecution called a total of 17 witnesses who were PW1 DPC5844 (Arresting officer), PW2 DSgt2965 (Injured officer), PW3 DPC9696 (Searching and Exhibits officer at scene), PW4 PC14340 (Photographer), PW5 DPC23532 (Exhibits and Interviewing officer and minor photographer), PW6 Xiong Mei (Landlady), PW7 DPC8505 (Interviewing and 2^nd arresting officer), PW8 Dr Chan Wing Lun (Medical Officer), PW11 Leung Shuk Mei (Govt Chemist), PW14 SSgt KK Lam (Duty Officer), PW15 SSgt KK Chung (Duty Officer), PW16 SSgt CH Lo (Duty Officer), PW17 SSgt PL Yip (Duty Officer), PW18 SSgt KC Leung (Duty Officer), PW19 PC51637 (RDDPC), PW23 DPC21307 (Produces CCTV), PW27 SSgt DM Chung (Duty Officer) (not necessarily in this order).

10.  After the close of the prosecution case, defence made no half-time submissions.  Upon consideration of the relevant evidence, I ruled there was a case to answer on all charges.

11.  Defendant elected to give evidence himself but did not call any other witnesses.  I will give his evidence due consideration in the same objective way I have treated other witnesses’ evidence.  Parties made written submissions supplemented by oral submissions.  I duly considered them but will not summarize them here.

MY CONSIDERATION

12.  I reminded myself the prosecution bears the burden of proof throughout, the standard of proof being beyond a reasonable doubt.  Where there is a doubt in the prosecution case, the defendant enjoys the benefit of that doubt.

13.  I will consider the charges and the evidence relating to them separately although I bear in mind some of the evidence may be common to more than one charge.  I will be alert to the possible occurrences of inconsistent verdicts but will strive to avoid them.

Summary of salient prosecution evidence and my assessment of the witnesses

PW1 DPC5844 (Arresting officer)

14.  At about 1540 hours, defendant opened the iron gate of Flat B6 and left.  He turned right towards the direction of the lift lobby.  DPC9758 and PW3 and PW1 went forward from their ambush position to intercept and search.

15.  PW1 intercepted defendant and showed him the warrant card and revealed his police identity in English.  PW1 asked in English for defendant’s identity document.  Defendant showed PW1 a Form 8 document (Exh P4) issued by Immigration (no dispute that it was not the defendant’s own Form 8). 

16.  PW1 did a body search on defendant with the following discoveries:-

(a) From his left (later changed to right) front pants pocket, a key (Exh P6) was found;

(b) He was holding a foldable phone (Exh P10) in his left hand; and

(c) His wallet contained cash of $300 (Exh P7).

17.  When PW1 checked the Form 8 document, he found it was a colour copy. Form 8 document showed a Nigerian male and his portrait.  After reading the Form 8 document, PW1 asked, “Is it yours? Your name?”  Defendant said, “Yes.”

18.  PW1 asked, “Where’s the original Form 8?”  Defendant did not answer.

19.  PW1 asked, “Where is your address?”  Defendant answered, “B6 Room A.”

20.  At 1545 hrs, PW2 arrived at the scene (outside Flat B6).  PW1 reported the incident of interception to PW2.  PW2 showed and explained search warrant (Exh P17) to the defendant and told him a search needed to be conducted on the unit.  After the defendant heard it, he became emotional and said “No.” Defendant flung out his right hand while his left hand was holding his foldable phone (Exh P10).

21.  PW2 gave defendant a warning “Calm down.”  Defendant calmed down.  Officers took defendant into Flat B6 for search.

22.  Officers asked defendant to open the door of Room A.  He ignored them. PW1 then tried to open the door with the defendant’s key.  The door opened. There was no one inside.  At 1550 hours, PW3 started to search Room A in the presence of PW1 and defendant at the doorway.

23.  Then, PW3 told PW1 he had found another colour copy Form 8 (Exh P5) inside a wardrobe/drawer under the bed.  This Form 8 was same as or similar to the previous one (Exh P4).  PW1 asked defendant why there was another copy. Defendant did not answer.

24.  At 1650 hours, PW3 started to search the in-suite toilet.  PW3 told PW1 that there were 3 transparent plastic packets of suspected dangerous drug on top of the water heater.  PW3 held them up to show PW1.

25.  PW1 declared arrest on defendant for trafficking in dangerous drug. Defendant’s emotion went out of control and said, “No. No.”  Defendant attempted to dash forward.  PW1 said, “Calm down.”  But defendant was still out of control.

26.  PW1 and PW2 managed to handcuff the defendant at the back after about 30 seconds.  However, defendant was still emotional and moved left and right, struggling.  PW1 and PW2 were trying to put him under control.  During this time, defendant’s jaw hit the left forehead of PW2.  DPC9758 came in to assist to control defendant.

27.  At 1655 hours, PW1 knew PW2’s head was injured and bled.  At the doorway of Room A, PW1 declared arrest on defendant for assaulting a police officer. Defendant’s emotion was still out of control and said a lot of English including “No. No, it’s not me”, “Not from here”, “You take it outside”.

28.  PW1 believed the defendant was the person shown on the Form 8 (Exh P4) because “this is the identity document shown to me”.

29.  Under cross-examination, PW1 recalled that it seemed that PW3 showed him only one pack of dangerous drug.  On the matter of assault, PW1 said defendant’s head rotated left and right and the defendant’s left bottom jaw hit the left forehead of PW2 only once.

Assessment of PW1 as a witness

30.  PW1 did not impress me as a reliable witness.  In the beginning of cross-examination, he was not able to tell how he entered the subject building or how he reached the ambush position on the 2/F.  It is almost as if he had no memory at all of that experience 2 years and 2 months after the event.

31.  PW1’s version of how PW3 showed him the dangerous drug, and how the defendant’s jaw landed on PW2’s forehead also differed from those witnesses’ versions respectively in a significant way.

PW2 DSgt2965 (Injured officer)

32.  At about 1545 hours, PW2 was informed by PW1 (by remote means) of something.  PW2 then went to 2/F of the subject building to join 3 other officers including PW1 and PW3 outside Flat B6.  PW2 heard PW1’s report about earlier interception of defendant.

33.  PW1 showed him a colour copy Form 8 (Exh P4) found on (or under cross-examination: “shown by”) defendant.  PW2 compared the photo on it against defendant.  He believed it was the defendant’s photo (no dispute that in fact it was not defendant in the photo).

34.  PW2 showed and explained search warrant (covering Flat B6 without specific reference to Room A) (Exh P17) to defendant.  Defendant said no and became emotional and threw both arms above his head.

35.  PW1 told PW2 a key had been found on defendant during earlier body search and that defendant had told PW1 that he lived in Room A of Flat B6.

36.  PW1-3 entered Flat B6 with defendant.  PW2 asked if defendant was willing to let police search his house.  Defendant refused.  PW2 instructed PW1 to try open door of Room A with key.  It was successful.

37.  PW2 instructed PW3 to conduct house search.  He instructed PW1 to guard defendant.  PW3 conducted search for about one hour.  PW3 found 3 packets of dangerous drug on top of water heater inside toilet, another colour copy Form 8 (Exh P5) (similar to or same as Exh P4) near the bed, an electronic scale (Exh P16) and some toothbrushes (Exh P8 and P9).

38.  PW3 did show the 3 packets of dangerous drug (Exh P1-3) to him.

39.  PW2 instructed PW1 to declare arrest on defendant for trafficking in dangerous drug.  PW1 did so.  Defendant became emotional again.  Both his arms kept moving and expressed in simple English a denial.  PW1 and PW2 handcuffed defendant at the back.

40.  Still, defendant was emotional and moved forward and pressed his body against PW1 and PW2.  PW2 bent down and held defendant’s waist.  Defendant assaulted PW2 by using his jaw to hit PW2’s left forehead.  Defendant did so by nodding action twice: both of which resulted in defendant’s jaw hitting PW2’s forehead.  PW2 warned defendant to control his emotion.  Eventually defendant became stable.  PW2 found his left forehead red and swollen and bled a little.

41.  PW2 instructed PW1 to declare arrest on defendant for assaulting police officer.  PW1 did so.  Defendant did not reply.

42.  PW2 went to Kwong Wah Hospital for treatment later the same day.

43.  Under cross-examination, a CCTV (with audio) (Exh P40) (transcript at MFI-1) was played mainly for PW2’s listening.  [The CCTV camera and microphone were located at the door in the residential unit opposite to and not far from Flat B6.  The footage could not capture the door of Flat B6 because of the angle.  However, some background noise could be heard.]

44.  Despite the loud banging sound that could be heard in the background from P40, PW2 testified that on the day in question, he could not hear the iron gate closed; PW3 did not throw things on the floor while doing the house search; the passageway outside Room A (but within Flat B6) was not searched.

45.  Although PW2 agreed defendant at some stage said, “It’s not me”, “Not from my house”, and “You take it outside” (generally in line with the CCTV audio), he denied defendant ever said (which is also present in the audio), “I see you take out from this sock, show your brother, you bring inside my house”.

Assessment of PW2 as a witness

46.  Standing on its own, PW2’s evidence is mostly reasonable.  Although there are some discrepancies with PW1’s evidence such as what defendant’s reaction was after he was arrested for assaulting police officer; and whether the assault on PW2 was caused by a rotating action or a nodding action on the part of defendant, these could be explicable on the basis of lapse of memory or heat of the action.

47.  However, when PW2’s testimony is measured against the CCTV audio (Exh P40), there arose an irreparable doubt as to how the dangerous drug came to be found: whether the 3 packets were found on top of the water heater as alleged or whether they were found in a sock found in the passageway outside Room A and then placed on top of the water heater as put by the defence.

PW3 DPC9696 (Searching and Exhibits officer at scene)

48.  At about 1540 hours, PW1, PW3 and DPC9758 went out from their ambush position on 2/F of the subject building to the corridor to intercept defendant. PW1 started to make enquiries and conducted body search against defendant.  PW3 and DPC9758 were on guard next to them.  Defendant showed a Form 8 (Exh P4) to PW1.  Defendant told PW1 he lived in Room A of Flat B6.

49.  At 1550 hours, PW3 conducted search of Room A in the presence of defendant.  Another copy of Form 8 (Exh P5) was found in one of the drawers under the bed.

50.  PW3 searched the toilet.  He stood on toilet seat and reached out his hand to touch the top of the water heater and found 3 packets of things.  He held them up one by one.  They were 3 transparent plastic bags of white powder suspected to be dangerous drug (Exh P1-3).

51.  He told PW1 his find and held up the 3 packets one by one (held up one, put it back in its original position, and held up another etc).

52.  PW1 declared arrest on defendant for trafficking in dangerous drug.

53.  Before or after searching Room A, PW3 did not search the passageway.  To his knowledge, no other officers found drug in the passageway.

54.  PW3 also seized an electronic scale (Exh P16) from inside a drawer of a dressing table inside Room A.

55.  Under cross-examination, PW3 said he did not pass his O-level English and his ability to understand English is below standard; however, he could understand simple English.  PW3 saw defendant show a Form 8 (Exh P4) after PW1 finished talking, so he thought/believed PW1 asked for his identity.

56.  PW3 did not hear the utterances of defendant captured by the CCTV audio.

Assessment of PW3 as a witness

57.  No offence to PW3, but because of his English competence level, he would not have been able to understand the conversation between PW1 and defendant at the initial interception stage.  Indeed, PW3 in his testimony never mentioned PW1 ask defendant if the first Form 8 (Exh P4) was the defendant’s and what his reply was, despite his evidence that he (PW3) was beside them.

58.  However, the real difficulty with PW3’s evidence is that he did not hear the utterances of the defendant captured by CCTV audio.  Maybe it was a case of his failure to understand what the defendant was saying and therefore he had less memory of that happening.  In any event, it did not give PW3 any benefit in taking the prosecution case any higher.

General assessment of the prosecution evidence

59.  Because of the doubt created by the CCTV audio as described, I cannot be sure of the prosecution case under Charge 2 (trafficking in dangerous drug). Because of this, there is also a derivative doubt in the prosecution case under Charge 3 (Assaulting police officer) because I cannot be sure that the assault (assuming there was one) on PW2 arose in the due execution of his duty. A corollary of that would be the assault, if there was one, would be an act of the defendant acting in reasonable self-defence.

60.  Regarding Charge 1, PW1 was the only realistic witness who could testify as to the prosecution case as alleged.  As I said, I was not particularly impressed with the reliability of PW1 as a witness.  Also, as is apparent from the way in which defendant gave evidence in the witness box, there was a real possibility that defendant could only speak pidgin English and understand English only at a superficial level.  Because of this, assuming the alleged conversation did take place, there exists a real doubt if defendant would have been able to understand PW1 to a sufficient degree for the offence under Charge 1 to be made out. This is not to mention that PW1, who also testified as to the finding of the dangerous drug as alleged, his credibility would necessarily have been diluted by the loud banging sound and the defendant’s utterances as recorded by the CCTV audio.

61.  Besides, with the element of “with intent to defeat or delay the ends of justice” squarely within the offence, and in light of my views on Charge 2 above-mentioned, the prosecution will have some difficulty in proving the offence to the requisite standard.

62.  All in all, I am not satisfied beyond reasonable doubt that Charge 1 has been proved.  I have considered whether a lesser offence under section 64(b) of the Police Force Ordinance, Cap 232, could be made out[1]. For reasons relating to the credibility and reliability of PW1 as a witness, I decided that this is not possible.

DEFENCE EVIDENCE

63.  Defendant gave exculpatory evidence generally in line with what was put to prosecution witnesses.  Defendant also adopted in the witness box the contents of his (mostly) exculpatory Video Record of Interview.  The latter was mostly consistent with defendant’s in-court testimony.

64.  Given my views on the prosecution evidence, there is no need to lay out a detailed assessment of the defendant’s evidence.

CONCLUSION

65.  For the above reasons, I rule that the defendant is not guilty of any of the charges.