HKSAR v. SZE WAI LAAM

DCCC 534/2022

[2023] HKDC 1476

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 534 OF 2022

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REASONS FOR VERDICT

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1.  D2 Mr Sze (hereinafter “D2”)  pleaded not guilty before me to one joint charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  Particulars are that he, together with Chung Ki Fung (previously D1 and now PW1), on 8 December 2021, on a private car bearing registration mark WL1930, outside No 304 Reclamation Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 10.81 grammes of a solid containing 10.02 grammes of cocaine and 29.1 grammes of a solid containing 24.6 grammes of ketamine.

3.  As a result of D2’s plea, a trial became necessary.  Before the trial of D2, PW1 had already pleaded guilty to the joint charge.

Prosecution case

4.  At almost 8 pm on a December Wednesday, a car (V)  stopped at a traffic light on Reclamation Street, Yau Ma Tei.  Chung (PW1)  was in driver’s seat.  D2 was in front passenger seat.  Passing police found them suspicious and requested them to alight for enquiry.  Thereafter, police conducted a search of the car.

5.  On the carpet at the front passenger seat, the police found one black pouch (P7)  containing, among other things:-

(a)  6 transparent plastic bags of 0.89 gramme of cocaine;

(b)  18 transparent plastic bags of 10.5 grammes of ketamine;

(c)  24 transparent plastic bags of 14.1 grammes of ketamine; and

(d)  60 transparent plastic bags of 9.13 grammes of cocaine.

6.  D2 and PW1 were arrested.

7.  PW1 testified against D2 as an accomplice witness.  PW1 used to be an Uber driver and came to know D2 in early 2021.  He was recruited by D2 to drive whenever D2 was to distribute dangerous drugs.  D2 was the one responsible for contacting customers, delivering the drugs and collecting payments.

8.  On the offence date, PW1 was driving for D2 for the purpose of delivering drugs.  It was D2 who put the black pouch containing drugs on the carpet.

Defence case

9.  D2 gave evidence to the following effect.  That day, PW1 drove to pick him up from Sau Mau Ping, where D2 lived, to Tai Kok Tsui to have dinner. After dinner, PW1 offered to drive him back home.  While on the home journey, D2 talked on the phone with his girlfriend until he and PW1 were stopped by the police.  Search of the car unearthed the black pouch containing dangerous drugs.  He knew nothing about the black pouch or the dangerous drugs.

Procedural history

10.  Prosecution called 3 witnesses, namely PW1 Chung Ki Fung, PW2 PC14328 (arresting officer of PW1), and PW3 PC9583 (arresting officer of D2).  Upon close of the prosecution case, defence did not make any half-time submissions. I ruled there was a prima-facie case.  D2 elected to give evidence but called no other witnesses.  I shall treat D2’s evidence in the same objective way as I treat all other evidence, bearing in mind the burden of proof rested on prosecution throughout.

11.  After defence closed its case, parties made oral closing submissions.

Summary of prosecution evidence

12.  The finding of dangerous drugs and the arrests of the two involved persons namely PW1 and D2 were all agreed.

PW1 Chung (previously D1)

13.  PW1 was an Uber driver earning $25,000 to $30,000 a month, single, and lived with his family.

14.  On day of arrest, PW1 drove V to pick up D2 at Sau Mau Ping by prior arrangement made between them on the previous day.  They were to have meal and then deliver dangerous drugs.  He knew what the mission was for because an acquaintance Ah Ho who introduced D2 to him had previously instructed him to drive D2 from location to location for the purpose of delivering dangerous drugs. PW1’s responsibility was only to drive.  D2 was responsible for delivering dangerous drugs and for receipt of money.

15.  At Sau Mau Ping, D2 holding the black pouch P7 got on board V and sat on the front passenger seat.  After boarding, D2 placed P7 next to his left leg (on the carpet)  close to the passenger door.  The two then travelled to Tai Kok Tsui for dinner.  Meanwhile, P7 remained at the same place inside V.  PW1 kept watch of V while having dinner.  After dinner, at about 6 pm, the two got on board again, seated at the same positions.  Then, D2 got a message on his iPhone Exhibit P45.  D2 then made a phone call on P45.  PW1 could not remember if D2 used the speaker phone function.  D2 instructed PW1 to drive to Langham Place.  There a customer got on board seated at the rear passenger seat.  A dangerous drug transaction took place between the customer and D2.  The customer uttered a code for a type of dangerous drug.  D2 picked out a transparent plastic bag containing pellets from P7.  Customer gave D2 money which D2 counted.  From the plastic bag, D2 took out something (pellets)  which he handed to the customer.  Customer left V.  D2 put the money received into the compartment between the two front seats.  D2 placed P7 back to its previous position.  PW1 drove off wandering without a destination.  PW1 eventually stopped at a traffic light at the arrest location.

16.  As regards the HK$51,090 cash found in V, part of it ie HK$35,000 was given to PW1 by his family and was placed inside a brown envelope located at the gap between the driver’s seat and the compartment (between the two front seats).  However, when reminded he had admitted upon plea that all the cash seized including the HK$51,090 was related to drug trafficking, PW1 withdrew this part of the evidence.

17.  As regards the 4 mobile phones found in V, 3 of them (respectively exhibits P43, P50 & P47)  belonged to PW1, ie the three on the left hand side in photo exhibits P53(19)  & (20).  The iPhone (exhibit P45)  shown on the rightmost position in the two photos was used by D2 to receive message and make phone calls relating to dangerous drug transactions.  This iPhone was placed by D2 on a sticker stuck near to the gear stick (position as circled in red by PW1 on photo exhibit P53(5A))  whenever not in use.

18.  PW1’s remuneration for driving D2 to deliver dangerous drugs was HK$2,000 or above per day.  This was an agreement made with Ah Ho, and not with D2.

19.  Under cross-examination, PW1 agreed the contents of the non-prejudicial statement (NPS)  were correct and true.  PW1 was not too familiar with D2.  It was not the case that at the time of police interception, PW1 was simply driving D2 home without any drug transaction ever taking place.  A few days before the day of arrest, it was Ah Ho, not D2, who told PW1 to drive (for drug delivery)  on the day of arrest.

20.  In NPS, PW1 stated D2 had turned on loudspeaker of the phone.  The reason he did not say so in chief was that nobody had asked him (sic). PW1 did not remember if the customer was male or female.  It was not the case that when D2 first boarded his car, the black pouch was already inside the car.  PW1 had an OPPO phone (exhibit D1)  in his left trousers’ pocket on arrest.  He also had cash HK$1,200 in his wallet at the same time.  The iPhone (exhibit P45)  did not belong to him.  However, the other three phones on photo exhibit P53(20)  belonged to him (ie P43, P50 & P47).  The OPPO phone was used for communicating with Uber customers.

21.  About the cash of HK$35,000 which constituted part of the HK$51,090, PW1 initially told the police it was given to him by his family.  However, he was told not to fuss about it because all would be regarded as crime proceeds so PW1 did not persist.  The truth is that HK$35,000 was given by his family for paying the deposit of a new car he had ordered.  It was not the case the whole sum of HK$51,090 was all his money and had nothing to do with D2.  PW1 could not remember what the RMB400 (also found at the same place)  was for.

22.  In his NPS, PW1 stated it was D2 (ie not Ah Ho)  who in early December 2021 asked PW1 to have a “deal”; that it was D2 (ie not Ah Ho)  who asked PW1 to be the driver for D2 for the latter to deliver drugs.  PW1 explained these discrepancies by saying that at the time of statement taking, he had just contracted flu.  It was what PW1 said in court which was accurate.

23.  In his NPS, PW1 stated that D2 agreed to give half of his drug selling income to PW1.  PW1 explained the absence of this information when giving evidence in court by saying that he was sick at the time of statement taking. Although the statement taker read back the NPS to him, PW1 would not have heard everything clearly because of his sickness.

24.  PW1 let D2 place the iPhone (P45)  into the position marked by a red circle on photo exhibit P53(5A)  (ie a place near and behind the gear stick).

25.  With reference to photo exhibit P53(20), phones L1 & L2 were found at the dashboard area.  Only one phone L3 was found in the driver’s door compartment.  L4 was at the place already indicated (by a red circle)  on photo exhibit P53(5A).  Police had mixed up the positions of these 4 phones.

26.  PW1 agreed that he could get some discount in sentence by testifying against D2.  However, PW1 denied framing up D2.

27.  PW1 agreed that the other iPhone shown in photo exhibits P53(21)  & (22)  belonged to D2.

28.  On re-examination, PW1 said that with reference to photo exhibit P53(20), the phone L1 (P43)  was at a clip above the aircon outlet to the right of the steering wheel, marked by a red circle on photo exhibit P53(6A); the phone L2 (P50)  was at a clip at the aircon shutter to the left of the steering wheel, marked by a red square on photo exhibit P53(5A); the phone L3 (P47)  was at the compartment at the driver’s door, marked by a red triangle on photo exhibit P53(6A); the phone L4 (P45)  was at the central console near the gear stick, marked by a red circle on photo exhibit P53(5A)  and a red circle on photo exhibit P53(7A).  The police took away the 4 phones L1 to L4 and showed them while they were in exhibit bags to PW1 and D2 (implying that the police made a mistake in describing the positions of L2 and L4).

PW2 PC14328

29.  On the night in question, at Reclamation Street, PW2 in uniform spotted V.  His eyes met with those of D2.  D2 immediately lowered his head.  D2 then lifted up his head, looked around.  PW2 found it very suspicious.  He later searched the car.  He found P7.  It was zipped up.

30.  PW2 described the phone L4 (ie P45 the iPhone related to the case)  was to the left of the steering wheel, and of the driver’s seat (cf the position as per the admitted facts P54: at the driver’s seat (dashboard area)).  With reference to photo exhibit P53(7), PW2 described the position of L4 more specifically as at the red stand with a black platform at the top.  The whole thing was circled by rubber bands and was near the gear stick.  It was on the central console of the car.

31.  The two persons on board initially refused to alight, twice.  PC 9583 (PW3)  opened the driver’s door and requested again.  In the end, they alighted from the car.

PW3 PC9583

32.  PW3’s evidence is insignificant.

Summary of defence evidence

DW1 ie D2

33.  DW1 is aged 21, was a full time chef earning about $10,000 a month.  A common friend Ah Pang introduced PW1 to him in early 2021.  Since then, he met with PW1 once or twice a month for meal, massage and wine.  He and PW1 were ordinary friends.

34.  On night before the day of arrest, PW1 phoned DW1 to make an appointment for meal the next day.  At around 5 to 6 pm on the day of arrest, PW1 drove to Sau Mau Ping, where DW1 lived, to pick him up.  They went to Tai Kok Tsui, to a small restaurant for meal.  The dinner lasted 30-45 minutes.  They chit-chatted.  After dinner, they went out together and PW1 offered to drive him home.  After DW1 got into the front passenger seat, he talked on his iPhone (exhibit P41, shown in photo exhibit P53(21)  & (22))  with his girlfriend. During the phone conversation, some police officers in front of the duo requested search of the car.  Next to DW1 was a female police officer gesturing him to put on his mask and alight.  He then opened the door and alighted. Police conducted a search of the car.  One of the officers said some dangerous drugs were found.  DW1 was arrested.

35.  Before DW1 boarded the car, he had not seen the black pouch (exhibit P7).  It did not belong to him.  He only found out its existence when the police searched the car.  He did not notice the black pouch when he boarded the car.  He did not think the car had ever gone to Langham Place.  Nobody else got on the car.  The money found inside the car did not belong to him.  He did not know about the existence of the money before he was arrested.  None of the 4 phones shown in photo exhibits P53(19)  & (20)  belonged to him.  He did not notice their existence either.

36.  Under cross-examination, DW1 said it was PW1 who suggested to have meal in Tai Kok Tsui.  DW1 thought that it took about 20-25 minutes to go from Sau Mau Ping to Tai Kok Tsui.  DW1 was 19 at the time and he knew PW1 was in his 30s.  He knew PW1 was an Uber driver and that he lived in Tuen Mun.  DW1 thought he had already finished the meal and left the restaurant by 7:15 to 7:30 pm.  At around 8 pm, he was stopped and searched.  He did not notice they were in Reclamation Street before the police stopped them.

37.  That night, DW1 had spent at least one hour in the car.  He denied knowing the black pouch was on the carpet at the front passenger seat.  He denied he placed it on the carpet near his feet.  He denied intending to sell the dangerous drugs in the black pouch.  He kept talking to his girlfriend on the phone right after meal until he was stopped by the police.

38.  With reference to the photo exhibit P53(7), when asked about the paper bag and the pack of tissues on the carpet at the front passenger seat, DW1 said he did not notice them.  He also said they were not there when he got on the car.  There was nothing on the carpet, from what he could remember.  When he was asked how the black pouch got on the carpet, DW1 said he did not know. When he was asked if the black pouch was not there when the police stopped them, he agreed.

My consideration

39.  I reminded myself the burden of proof rested on the prosecution, the standard being beyond reasonable doubt.  D2 has to prove nothing, least so his innocence.

40.  I noted PW1 was an accomplice witness so I took extra care to assess and examine his evidence.

41.  I say at the outset, without the evidence of PW1, there will be insufficient evidence to prove the case against D2 beyond a reasonable doubt. The reason is that there is insufficient evidence to prove knowledge and control, which are the necessary ingredients of possession.  The proximity of the black pouch (which contained dangerous drugs)  to D2 inside the car raised suspicion.  On the other hand, the fact that the black pouch was zipped and that it was not transparent raised doubt about the knowledge factor.  The car did not belong to D2: even assuming D2 had knowledge, there would not have been sufficient evidence of control.  Afterall, D2 was simply a temporary passenger.  I have taken into account the reaction of D2 when he first saw PW2: as per the evidence of PW2[1].

42.  Now the evidence of PW1.  He was an accomplice witness.  I examined his evidence with care.  I do not think the discrepancy regarding the position of phone L2 (P50)  between his evidence and the admitted fact proved anything: it was a minor matter.  As regards the position of L4 (P45, the iPhone relating to trafficking), his evidence actually coincides with that of PW2.  I think the discrepancy between that evidence and the admitted fact (dashboard area)  is more apparent than real.  The description of “dashboard area” is simply not precise enough.  When one looks at the photo exhibit P53(7), the central console at which phone L4 was found may be described an extension of the dashboard.

43.  The crucial difficulty with PW1’s evidence was that he was watering down D2’s role in the trafficking activity from what he stated in the NPS to what he said in court.  I simply don’t know why PW1 did that.  But by doing so, he was casting doubt on his own evidence and credibility.  I simply do not believe the reason for the discrepancy was due to his being taken ill at the time of the statement taking.

44.  This self-inflicted assault on his credibility renders his testimony useless.

45.  As regards the evidence of D2, it was certainly exculpatory in nature. In the event, save and except the point I already made in footnote 1, I need not deal with which of the other evidence of D2 that I accepted as possibly true.

Conclusion

46.  For the above reasons, I found D2 not guilty of the offence charged.