HKSAR v. GONZALES MARCO PAULO PALAFOX

DCCC 139/2020

[2022] HKDC 360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 139 OF 2020

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. He denies unlawfully trafficking in dangerous drugs on 9 September 2019 at Room C, 4^th Floor, 310 Queen’s Road West, Hong Kong, namely, 162 grammes of cannabis in herbal form and 99.5 grammes of a solid containing 83.7 grammes of MDMA or ‘Ecstasy’.

The Prosecution’s Case

2.  The prosecution’s case is that they acted on information that there was drugs activity in premises on the 4^th floor at 310 Queen’s Road West.  The Police organised an anti-dangerous drugs operation on 9 September 2019 with officers watching the 4 subdivided units at that location, A to D.  Other team members were nearby.  The prosecution’s case is that after several hours the defendant was seen coming out of Room C and intercepted.  He was shown a search warrant and searched.  No dangerous drugs were found on him.  All that was found on him was a mobile phone, some cigarettes and a lighter.  The door to Room C was locked by an electronic password lock but the defendant said he did not have the password.  He refused to assist the police, so the police broke the door down with tools.

3.  The police found in a very small room, on top of a suitcase neatly laid out, 2 electronic scales and 2 piles of transparent plastic bags of different sizes commonly used for packing drugs.  Next to these items was a plastic bag containing a bag of herbal cannabis and a bag containing crystalline solids (the ‘Ecstasy’).

4.  The photograph album, P36, shows the interior of the room and how the drugs and other paraphernalia were placed in the corner of a room, neatly placed on top of a black suitcase.

5.  The defendant claimed that a Caucasian male called “AB” allowed him to stay in the room rent-free as he was essentially homeless.  He had been there for about 6 weeks.  “AB” had access to the room and the defendant knew that sometimes someone had come into the room whilst he was out because items had been moved around.  He believed the drugs and all the other paraphernalia belonged to “AB”.

6.  The defendant expanded on that explanation in a voluntary video-recorded interview where he provided the Police with a telephone number for “AB”.  He was shown each exhibit and he explained where he said the exhibits were kept, namely the black suitcase which had appeared 2 to 3 weeks before his arrest.  He told the police he could smell the cannabis, had looked inside the suitcase and seen it but not touched it.

7.  The lease was not in the defendant’s name, nor were any of the bills.  P41 to P44 are witness statements of the tenant of the premises and the estate agent who rented the premises to the tenant.  Their statements were admitted into evidence under section 65B of the Criminal Procedure Ordinance.  The tenant, Ms Chu, apparently leased the premises on behalf of a man called Stephen for $6,000 a month and he had paid her a year’s rental up front to pay the agent.  He did not give her any more personal details.  She herself has recently been arrested for drug-related offences and jumping bail.

8.  The prosecution called 2 witnesses, the arresting officer and the exhibits officer.  They both supported each other when they said that the search of the premises in front of the defendant led to a discovery of the drugs and paraphernalia in plain sight, not in a suitcase or in a drawer.

The Defence Case

9.  The defendant elected to give evidence.  The defendant does not dispute that the Police found drugs and other paraphernalia inside the room where he was staying.  However, he does dispute that they were found by the Police so neatly placed on top of a suitcase.  He said the cannabis was kept inside the ‘Digital Genetics’ plastic bag inside the black suitcase.  He had seen it in that ‘Digital Genetics’ bag inside the suitcase when he had a peek.  The very small electronic scale and the very small re-sealable transparent plastic bags he said were from a drawer in the tiny kitchenette.

10.  He was working part-time as a barman, was essentially homeless and staying in low budget hotels when he could afford it. He met “AB” who offered him a room rent-free.  “AB” would sometimes come and check up on him and visit him.  At first he had no expenses, but “AB” had asked him to pay for water and electricity from September.

11.  None of the drugs belonged to him.  He realised that there was a bag of cannabis in the black suitcase because of the strong pungent smell.  However, he did not touch the items as they did not belong to him.  He gave the police as much detail as possible of “AB” after his arrest.

12.  The defendant has a clear record.

13.  After his arrest he did track down who he believed to be “AB”, hoping that he would exonerate him or the Police would investigate him.  That was wishful thinking and, as expected, when the Police did make enquiries the man he says is “AB” denied all knowledge of the defendant or his allegations.

14.  His evidence relating to his arrest differs significantly from that of the police officers.  He said he had in fact left Room C to go out and buy food when he saw PW1 on the landing outside Flat 4 just after 6 pm that day.  He did not think anything of it and went shopping. He returned about 10 minutes later with a bag of rice and saw PW1 again, but this time he stood in front of him and asked him if he lived in Room C.

15.  PW1 asked him to open the door to Room C and the defendant asked him if he had a search warrant.  It was shown to him, flashed in front of him, but he only saw some words and was not given any opportunity to read its contents.  He did not give the men, despite being told they were police officers, the door code.  He said in evidence it was because he told the Police that it was not his place, that they had not let him read the search warrant that PW1 flashed at him, and lastly, he knew there were dangerous drugs inside and he may get into trouble.  That is why the door had to be broken down.

16.  The defence do not suggest the search warrant was invalid or the search itself illegal.  It is pertinent because he raises it in the video-recorded interview, the fact he was not given an opportunity to read it when it was flashed at him.  It is pertinent because it is one of the reasons he did not let the Police into Room C.  His evidence is that he was kept on a stairwell above the 4^th floor and did not witness the door-ramming, the search of the premises, nor the photographer take photographs or anyone lifting fingerprints.  He was taken back to the entrance or doorway of Room C at some stage and an officer showed him the bag of marijuana and told him this could get him 10 years in prison.  In his video-recorded interview he does mention not being able to read the search warrant, he does mention how and why he believed the drugs belonged to “AB”, explains why he was staying in the premises and where he said the drugs were kept, which was not next to the suitcase in plain sight.

The Issue

17.  The only issue is one of credibility.  If I find the prosecution has not proved to the prerequisite standard that the defendant had knowledge of and was dealing in that quantity of dangerous drugs, then he should be acquitted.  If there is any doubt, then the benefit of doubt should be given to the defendant.

The Law

18.  The prosecution has to prove that at the time of the arrest;

a. the defendant possessed the dangerous drugs found inside the premises;

b. he knew they were dangerous drugs; and

c. he possessed them for the purpose of supplying it to others, or dealing in, or with, or was in possession for the purposes of trafficking those dangerous drugs.

19.  Dealing is an ordinary word that bears its ordinary meaning.  If a person knowingly possesses or controls dangerous drugs in order to sell or deliver or supply them to another, or supplies or stores them to supply to another, that person can be said to be dealing in or with dangerous drugs.

20.  The prosecution submits that the evidence and/or the circumstantial evidence when considered together will allow this court to draw an irresistible inference that the elements of the offence have been proved.  The defence submits correctly that, in law, if there is a reasonable alternative inference that can be drawn from the circumstantial evidence then no adverse inference can be drawn against the defendant.

Reasons For My Findings

21.  I have considered the prosecution’s duty to prove all the elements of the charge beyond reasonable doubt.  I have considered the evidence of the prosecution witnesses as well as the evidence of the defendant.  I repeat, the issue is one of credibility.  I need to consider whether the defendant was in possession of the drugs, as in whether he had an intention to exercise custody or control over the drugs.

22.  The defence has submitted that the evidence of the 2 witnesses contain contradictory evidence in a material manner, discrepancies that are serious enough to affect credibility.  Similarly, the prosecution submits that the defendant has contradicted himself in oral evidence when compared to his answers and explanations in the interview.

23.  I have taken into account the final submissions by both parties.  Mr Percy for the defendant has submitted written final submissions marked MFI-1.  I have taken into account the defendant’s clear record, his response after his arrest and his answers and explanations in the video-recorded interview which to me were natural, spontaneous, not evasive and had a ring of truth.

24.  The defence says that the drugs were inside the premises but were in a suitcase and did not belong to him.  When he was arrested he had no drugs on his person.  He was not caught leaving with drugs taken from inside the premises.  It is an admitted fact that he had no drugs in his system when drug tested upon remand after his arrest.

25.  I have taken into account that there are no fingerprints or DNA from the defendant on any of the drugs, bags containing drugs, empty plastic bags or the electronic scales.  This is not fatal for the prosecution, but when I take into account the defendant’s explanation that they did not belong to him it does become relevant.  The defendant from the beginning explained that the drugs belonged to “AB” and he was living in “AB’s” premises.  This defence did not materialise at a later stage, but it was a spontaneous and almost instantaneous explanation to the Police.

26.  He provided as much detail of “AB” as he could, including his mobile phone number.  He told the Police there were mobile phone messages between him and “AB” but the Police did not check the veracity or the contents of those messages despite having confiscated his phone.  PW1, when asked, said he did not see the necessity to follow up and check on their messages.  This is despite the explanation from the defendant that the drugs belonged to “AB”, the Police did nothing to explore or confirm any relationship between them or follow it up.  It was the defendant who later provided information of the man he called “AB” to the Police to try and get his personal particulars in discovery and preparation for his trial.  It was the defendant who told the Police that he had identified “AB” as a man who was in custody and even provided the Police with his prisoner number.  The defendant wanted to try and identify this man and confirm he was “AB”.

27.  The prosecution told me during the course of the trial that that man identified by the defendant is in remand and has been charged with a drug-related offence or offences but it is not an admitted fact.  I know from the discovery proceedings that this man, when interviewed by the Police, denied all knowledge of the defendant, his name being “AB” and the drugs in those premises which is to be expected.  However, not often in cases of a cut-throat defence does a real person emerge from the evidence as a possible offender.  Having heard the defendant’s evidence and considered his immediate response to the Police by way of explanation, I am satisfied this person “AB” does exist.  He may be the man that the defendant has himself located in the prison system, but whether he is or is not is not material to the credibility of the defendant’s evidence.

28.  The defendant is adamant that the drugs were not found as described by the Police.  He does not deny he knew there was cannabis in a bag in the suitcase because the smell was quite potent and distinctive.  In fact, his evidence that he knew it was there, was scared and tried to talk to “AB” about it has a ring of truth.

29.  Moreover, he tried to explain more about the items found in his video-recorded interview but was not really given the opportunity.  I refer to counter 238 of P33, which is the certified translation of the transcript.  He says several times that the drugs were inside the suitcase or bag; counter 500, 522, 527, 533, 608 and 634.  Neither interviewing officers addressed those answers, nor did they specifically specify where they had found each suspicious item.  The police officers were unusually very non-specific as to where each item was found.  They either said “found in the flat” or “found in the area by the bed near the toilet in the flat”.  PW1 agreed in cross-examination that nowhere in the video-recorded interview did they describe where each exhibit was actually found or that the exhibits were found laid neatly on top of or next to a suitcase.

30.  When one reads the video-recorded interview it is not clear where the drugs were found but it is clear where the defendant says the drugs were according to his knowledge.  In fact, I believe he does not disagree with the interviewers as to where the drugs were found because it was not specified in the questions.  If, as he says, he did not witness the search nor know at the time of the interview that the prosecution’s case was that the drugs were visible, then he would have no reason to disagree with the interviewers.  A reading of that interview suggests he did not know at the time of the interview that the Police evidence was that the drugs and all the paraphernalia were laid out next to or on top of the suitcase.

31.  There is a material difference in how the defendant was intercepted.  The Police say he was intercepted as he left Room C after they had watched the door or those doors for 4 hours.  He said he went shopping, walked past PW1 on his way downstairs but was only intercepted by him when he returned some 10 minutes later.  I just don’t see why the defendant would have made this up.  There is no reason or benefit for the defendant to make this up, not that it is important because he had no drugs on him.  I suspect he was not the target, so initially slipped through the net and was not intercepted when he actually left Room C.

32.  Of course his refusal to give the police the digital door code is suspicious.  That is not enough to infer knowledge, intent and dealing with the dangerous drugs.  He knew there was marijuana in AB’s suitcase and knew he could be implicated.

33.  I also found it hard to believe that the room was in a mess, bed unmade and clothes all over it with drawers half shut as seen in photographs 6, 7 and 10 of P36, yet the drugs, electronic scales and two piles of transparent re-sealable plastic bags were very neat and tidy, placed on top of a suitcase and ledge next to the suitcase as seen in photographs 7 and 12.

34.  I am not convinced this was how the drugs were found.  I am not convinced they were visible.  The defence suggest it was staged and I believe they have raised a doubt.  This doubt ought to benefit the defendant.

35.  The prosecution relies on the evidence that the drugs were in plain sight of the defendant in the only room in the premises and therefore the inference must be he was in possession, had control and was dealing in those narcotics.  However, if the reality was that the drugs were in the suitcase, zipped up, the defendant was not the named tenant nor paid any bills or rent and that other people had access to the premises, then the evidence is substantially weaker.  I am not convinced on the evidence that the drugs were in plain sight.

36.  When you add or consider the defendant’s explanation about “AB” and the location of the cannabis which he gave to the Police as soon as he was interviewed, I find there is a doubt whether the elements, including possession and intent, can be proved beyond reasonable doubt. Certainly there is insufficient evidence on what I found proved, essentially what the defendant himself admits as to knowledge, to draw an irresistible inference of guilt.

37.  Accordingly, the defendant is acquitted.