HKSAR v. CHAN CHUN HEI

DCCC 267/2021

[2022] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 267 OF 2021

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REASONS FOR VERDICT

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1.  In these proceedings, the defendant, Chan Chun Hei, faces two counts: No 1, trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134; No 2, dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374. He pleaded guilty to possession in respect of the 1^st count, careless driving in respect of the 2^nd. His pleas were not accepted by the prosecution, so the trial proceeded as scheduled.

2.  Most of the facts, in fact all of the facts are not really in dispute. Some of them have been admitted under section 65C of the Criminal Procedure Ordinance.  The others, that of the police witnesses, were produced in the form of section 65B of the Criminal Procedure Ordinance and read in open court by the prosecutor.

3.  Briefly put, the prosecution contested that the defendant had a quantity of dangerous drugs, and the prosecution asked the court to draw inference from the facts of the case to the effect that he was trafficking.

4.  In respect of the 2^nd count, the prosecution says that his driving was way below that of a competent and reasonable driver.

The facts

5.  Before that, I need to remind myself that the defendant is a person of clear record.  The court would, when considering the evidence, bear in mind that a person of clear record is less likely to commit a crime, and if he does choose to give evidence, his words are more reliable than those who are not prepared to put this fact before this court.

6.  Anyway, the prosecution’s case, briefly put, is this.  On 26 September 2020, at about 5 in the morning, it was a Saturday, the police set up a roadblock in Tsing Sha Highway, Kwai Chung, for the purpose of conducting random breath tests.  At the point, there were two lanes, both facing the direction of Shatin.  The second left lane was blocked by two police vehicles, and there were other vehicles parked on the other side in order to stop any drivers attempting to reverse and flee. 

7.  It was at about 5.41 am that the defendant drove his vehicle WK6099 on the left first lane, approaching the roadblock.  He did not have his headlights on and slowed down when it approached the roadblock.  When it was about 20 to 30 metres away, the defendant threw out a Marlboro cigarette packet from the front passenger seat window onto the hard shoulder of the Tsing Sha Highway and then stopped and reversed, going against the traffic direction towards Lai Po Road.

8.  The police officers immediately drove the police vehicle and gave chase.  The defendant’s car travelled for about 20 metres and stopped when there was a light goods vehicle travelling on the same lane, appearing from behind.  There was no collision but the police then manoeuvred forward and stopped the defendant.

9.  It turned out that the Marlboro cigarette packet thrown out by the defendant contained 20 transparent resealable plastic bags, each of which contained a quantity of cocaine.  In all, there were about 2.7 grammes of cocaine extracted from the 20 transparent plastic bags.  There was also in the car cash in the total sum of $60,782.60 found in the defendant’s vehicle.

10.  The relevant laws, they are not really complicated, and the facts are pretty simple.  But for the sake of brevity, I would only set out the most relevant points.  The facts I have not alluded to are the result of conscientious editing.  It is not what I have not considered.

11.  The defendant elected to give evidence.  I noted that most of his evidence was in relation to his financial situation and also how he came by the 20 packets of dangerous drugs.  I would consider them later.  He did not give much evidence as to the driving offence.

12.  As to dangerous driving, the text has been set out in section  37(4)  of the Road Traffic Ordinance in that:-

“A person is to be regarded as driving dangerously if -

(a)  the way he drives falls far below what would be expected of a competent and careful driver; and

(b)  it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

13.  In construing the facts of this case, as it was pointed out by the prosecutor, it was an open highway, a two-way lane, a two-lane, one-way direction.  At the sight of the police, the defendant reversed, that is, going against the flow of the traffic.  Now, that was a blatant disregard of the traffic condition there.  Any user of the highway would not have expected anyone going on the reverse.  The fact that there was no collision was just sheer luck, but it is nothing to abrogate from his obligation to drive carefully and competently.  In my view, a competent and careful driver would look at the signs and watch out for the traffic condition. 

14.  From the video recording, I could see that although it was 5 in the morning, traffic was sparse but there were cars travelling on that stretch of the road.  And granted that the defendant probably was in a panic, he tried to avoid the police, it does not excuse him from complying with the traffic signs and directions. 

15.  I agree that it was not a case where he failed to notice the direction from the traffic sign or he failed to comply with the speed limit.  It is a case far worse than that.  From the matrix of the facts available, it was obvious that the defendant was trying to flee from the police apprehension.  I would say that it was obvious that a competent and careful driver that driving in that way would be dangerous.

16.  In the circumstances, I found the prosecution had proved the case beyond all reasonable doubt that the manner of driving at the time was far below what would be expected of a competent and careful driver, and then it would be obvious to any competent and careful driver that driving in that way would be dangerous.  I found the defendant guilty of the 2^nd count.

17.  In respect of the trafficking in dangerous drugs, the prosecution subtly rely on (1)  the quantity, (2)  the amount of packages found, (3)  the attempt to dispose of the dangerous drugs, and (4)  his flight immediately before arrest.

18.  The defendant sought to give evidence to explain his financial situation.  He said that he was running a garage with a friend, and that night he was given that amount of money, and because of two invoices, he even attempted to produce two invoices.  However, the defence decided for one reason or another not to further proceed in order to allow this court to take into consideration the content of these invoices. 

19.  The defendant also explained that the drugs taken was sold to him by a person whom he knew only by the moniker of Ming Chai.  He has no way of contacting him.  It was him who contacted the defendant.

20.  Without trying to be too cynical, it seems that the usual defence, it was someone, someone he has no means of contacting, no means of identifying, something he could hardly give any details to support that it was a real person.  Plus prior to the incident, prior to his being arrested, he happened to have collected cash in the sum of somewhat $54,000, and he had gone to a roundabout to see this Ming Chai, a usual place where he would meet up with him.  And he told this court that he would, at his addiction at its highest, sometimes necessitate taking the cocaine twice a day, each time a small packet.  And then for more than 10 days, it just happened that that addiction went away because he had no way of contacting Ming Chai.

21.  Without having to go into too much details, my conclusion was the defendant’s account was a half-baked attempt to explain, trying to explain away how he came by those drugs, how he would use it for his self-consumption.  I found him a liar.  Probably, in the course of his evidence, only what he said about his name or where he lived were the truth.  I do not know why the defence lawyer would not scrutinise the evidence first before laying it down on this bench so that this court could pick and choose whatever it finds credible.

22.  But to put it simply, I do not believe the defendant.  And his financial condition, position was something he probably made up.  However, what I can do in a case of this kind is to disregard his evidence.  I cannot use his lies, which I found he gave in the course of his evidence, as evidence for the prosecution to prove its case.  So what I have been left with are the most -- the most salient part of the prosecution’s evidence was that he was found to be in possession of a packet in which there are secret packets in which there were 20 small packets of dangerous drugs, and he attempted to dispose of the same and took flight when intercepted by the police.  

23.  This, I would say, is not sufficient as has been pointed out by the Court of Final Appeal.  The quantity of the dangerous drugs and the number of packages involved, they are not determining factors.  The fact that he attempted to flee and to dispose of the same before the police found out, they are as consistent with his possession of the dangerous drug as well as possession for the purpose of trafficking.  So rather reluctantly in this case, I did not find that the prosecution has proved the case beyond all reasonable doubt for the count of trafficking.  I found him guilty of possession.