HKSAR v. CHEUNG KWOK PO AND OTHERS

DCCC 471/2015

REASONS FOR VERDICT

1.  The defendants are jointly charged with one count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance[1]and sections 159A and 159C of the Crimes Ordinance[2].

2.  D2 has not attended court for trial.  The prosecution did not ask the court to proceed against D2 in his absence therefore the trial has proceeded against D1, D3 and D4 only.   

3.  Mr Allan made an application that the name of D2 be deleted from the charge sheet.  I refused the application and gave my reasons at the time.  The charge is a joint charge of conspiracy and notwithstanding D2’s absence at trial the charge remains a joint charge.  The fact that D2 has absconded has no bearing on my decision in the trial of D1, D3 and D4.

4.  D1, D3 and D4 all plead not guilty to the charge. 

Introduction

5.  The conspiracy alleged is an agreement to smuggle drugs into Lai Chi Kok Reception Centre by posting them to a prisoner.  On 20 November 2014 an officer from the Correctional Services intercepted a red envelope containing a 3D card addressed to prisoner Wong Chi Chiu.  Inside the card was hidden a packet of ketamine.

6.  The prosecution case in summary is that on 15 November 2014 when D3 and D4 visited D1, a prisoner at Lai Chi Kok Reception Centre, D3 and D4 conspired with D1 to post drugs to Wong Chi Chiu.  Instructions for posting the drugs were written on a piece of paper D1 placed on the window of the visit point and which instructions were copied by D3.  D2 agreed to join in the conspiracy as acknowledged by him when, together with D3, he visited D1 the following day. 

7.  The defence submit that the prosecution have failed to prove the charge.    

Evidence

8.  The prosecution called five of twenty six witnesses on the list of prosecution witnesses attached to the prosecution opening.[3] The defence did not require any of the remaining witnesses to be tendered for cross-examination.

9.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance [4] (exhibits P25, P25A & P25B).  I will refer to the admitted facts together with the exhibits as I review the evidence[5].

10.  The defendants elected to remain silent.  No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt.  On the other hand this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution. 

11.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately. 

12.  I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendants as well as one in their favour the adverse inference cannot be drawn.  

Conspiracy

13.  Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means with the intention of carrying it out.  A party may join a conspiracy at any stage provided the conspiracy is a single, ongoing one. The agreement may be proved by direct evidence, or by proving circumstances from which the court may presume it.  Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused.

14.  The unlawful act alleged is to traffic in a dangerous drug.  The issue in the case is whether during the prison visit on 15 November D3 and D4 conspired with D1 to post drugs to Wong Chi Chiu, which conspiracy D2 later joined.  The determination of this issue depends largely on the interpretation of the instructions written on the piece of paper placed by D1 on the window of the visit point together with what was said by D1, D3 and D4 during the visit and by D1, D2 and D3 during a visit the next day, 16 November 2014.  

15.  I have carefully considered all the evidence and the submission made by Mr Allan.  The defendants having elected not to give evidence Mr Tracy has not made any closing submission.  At the request of the court Mr Tracy has provided the corresponding counter numbers of the transcript for the visit on 15 November when D1 took out the piece of paper; put the paper against the glass window; put the paper back in his pocket; when D3 was seen copying what was written on the paper and later when looking at what she had copied.    

Prosecution evidence

16.  There has been no challenge to the prosecution evidence of the prison visits and the finding of the drugs in a red envelope addressed to Wong Chi Chiu, part of which evidence has been admitted. 

Prison visits

17.  Both Senior Officer Leung Ho Kei[6]and AO II Jesse Baath[7] gave evidence about the procedure for visiting prisoners at Lai Chi Kok Reception Centre.  A visitor must first complete a Visit Application Form stating the particulars of the person in custody; the name of the visitor; the relationship with the prisoner; the visitor’s identity card number and when first visiting the prisoner the visitor shall provide their residential address. 

18.  Mr Baath produced the visit application forms[8]for visiting Cheung Kwok Po on 15, 16, 18 & 20 November 2014.  Computer records of visits to Cheung Kwok Po for the period 18 October to 20 November 2014 have also been admitted in evidence[9].

19.  The identification of D1 as the prisoner Cheung Kwok Po is admitted as is the identification of his visitors Wong Wai Him; D3 Lo Yee Ting and D4 Mok Kin Keung[10]. D3 and D4 visited D1 on 15 November; Wong Wai Him and D3 visited D1 on 16 November and D3 visited D1 on 18 and 20 November.  The name of D2 is Wong Wai Him.  I am satisfied that D2 visited D1 on 16 November 2014.

20.  The prosecution rely only on the first two visits on 15 and 16 November.  I will have more to say about the visits on the 18 and 20 November at the end of my verdict.

21.  All visits are recorded on CCTV and audio.  There are two cameras for each visit point, one from behind the prisoner and one from behind the visitor.  The CCTV and audio for the visits on 15, 16, 18 and 20 November are contained in one disc[11], the accuracy of which has been admitted[12]. Accuracy of the transcripts[13] of the audio recordings of the four visits has also been admitted together with identification as to who is the speaker as this was omitted from the transcripts[14]. 

22.  In cross-examination Senior Officer Leung Ho Kei, AO II Jesse Baath; and AO II 630 Chan Man Wai all stated that there were notices for both the prisoners and visitors informing them that the visits were monitored by CCTV and that their conversations were recorded.

Prison visit on 15 November 2014

23.  On 15 November D3 and D4 visited D1.  AO II 630 Chan Man Wai[15]was responsible to monitor the CCTV and audio of prison visits and to collect intelligence, which he did from the monitoring room.  The CCTV recording of the visit (camera 7 and camera 35) was played in court.  The transcript of the audio has been admitted in evidence[16] and to which I will refer to later. 

24.  The visit took place at visit point 7 and commenced at 09:55:45.  AO II 630 saw D1 take out a piece of paper and hold it against the transparent glass window. In answer to the court AO II 630 said he thought it was an illegal message. 

25.  From the CCTV[17] D1 is seen taking out a piece of paper at 09:56:03.  Photographs 1 & 2, album 1[18]show D1 holding a piece of paper against the glass window at 09:56:20 and 09:56:52.  Photograph 3 is a close up of what is written on the piece of paper and photograph 1, album 6[19] is an enlargement of this photograph. 

26.  At 09:57:46 D1 is seen removing the piece of paper from the window. A few seconds later at 09:58:03 D1 placed the piece of paper back against the window.  D3 is then seen taking a pen out of a plastic bag and copying down what is written on the piece of paper.  D3 finished copying at 10:00:52 after which D1 put the piece of paper back in his pocket.

27.  At 10:08:10 D3 is seen picking up the paper on which she copied the contents of the piece of paper placed on the window by D1.  Photographs 4 & 5, album 1[20] show D3 looking at the paper at 10:08:24 and 10:08:31.   Photographs 2 & 3, album 6[21] are enlargements of these photographs.   

28.  After the visit was finished AO II 630 immediately reported what had happened to Senior Officer Leung Ho Kei[22], who was off duty at the time. Senior Officer Leung Ho Kei later gave instructions to monitor further visits to D1.

The piece of paper

29.  D. Sgt 51680[23] was instructed to transcribe what was written on the piece of paper and what D3 copied down.  D. Sgt 51680 did this by reference to the enlargements, photographs 1 & 3, album 6.  The transcript of the piece of paper and what was copied down by D3 are marked together with their certified translations as exhibits P23 (1)(A) & (B) and P23 (3)(A) & (B) respectively.  D. Sgt 51680 used the letter X to signify characters he could not read. 

30.  The first part of the piece of paper sets out various instructions:

(i) to buy a 3D card;

(ii) make a X stroke in the hidden part of the card;

(iii) mail the card to Ah Bei (13947-13) Wong Chi Chiu;

(iv) handle by putting on gloves throughout the process;

(v) ask X chai to get the stuff and wear a cap while buying the card and mailing stuff;

(vi) clean all the stuff first with bleach solution before mailing;

(vii) seek the address of Lan Tau and write down his address for return; and

(viii) fix it as soon as possible as we are getting short of time.

31.  In cross-examination Mr Allan asked D. Sgt 51680 whether it was true to say he did not know what the words mean.  I disallowed the question as this invited the police officer to express his opinion. 

32.  What the words written on the piece of paper mean were for the court to determine having heard all the evidence.  I am satisfied so I am sure that D1 was giving instructions to D3 and D4 to buy a 3D card and mail the card with a stroke in the hidden part of the card to prisoner 13947-13 Wong Chi Chiu. 

33.  I am satisfied so I am sure the only inference to draw from the instructions to use gloves, wear a cap and clean all the stuff first with bleach before mailing the stuff, is that something which a prisoner was not permitted to have in prison, was to be hidden in the card.  If the stuff was something the prisoner was permitted to have there would be no need to use gloves, wear a cap and clean all the stuff first with bleach before mailing the stuff. 

Were the instructions on the piece of paper to hide a packet of drugs in the 3D card?

34.  Admitted in evidence is that on 17 November Senior OfficerLeung Ho Kei instructed clerical officers of the Correctional Services Department to notify him of any incoming mail addressed to prisoner number 13947-13 Wong Chi Chiu[24].  Senior OfficerLeung Ho Kei testified that all mail addressed to prisoners would be inspected.

35.  Also admitted in evidence is that on 20 November correctional services officers intercepted a red envelope[25] addressed to Wong Chi Chiu 13947-13.  On the reverseside of the envelope the name and address of Yim Man Ho was stated as the sender[26].  The criminal records of Wong Chi Chiu and Yim Man Ho have been admitted in evidence[27].

36.  A/AOI 10412 Chan Chun Sing[28] gave evidence that he examined the red envelope.  A/AOI 10412 found a 3D card[29]and a packet of suspected drugs[30]inside the red envelope.  Photograph album 5[31] shows photographs of the red envelope; 3D card and packet of suspected drugs with enlargements in album 7[32].  A/AOI 10412 found the packet of suspected drugs in the middle of the 3D card as shown in photograph 9, albums 5 & 7.

37.  A/AOI 10412 then put the red envelope; 3D card and packet of suspected drugs in a tamper proof envelope as seen in photographs 1 & 2 albums 5 & 7, which he later handed to DPC 3710.[33] Admitted in evidence is that on analysis by the Government Chemist the suspected drugs were found to be ketamine[34].

38.  After the drugs were found Senior OfficerLeung Ho Kei instructed officers to search D1 and his cell.  Nothing was found connected to the case.  In cross-examination Senior OfficerLeung Ho Kei said he did not give instructions to look for any connection between D1 and Yim Man Ho.  

39.  The red envelope[35] contained a 3D card as shown in photographs 1, 3, 6, 7, 9 & 10 of albums 5 & 7.  The envelope was addressed to Wong Chi Chiu, 13947-13 with the address of the sender Yim Man Ho on the reverse of the envelope[36].  Inside the card the packet of ketamine was hidden as shown in photograph 9, albums 5 & 7. 

40.  The piece of paper giving instruction to buy a 3D card; put some stuff in the hidden part of the card and mail to Ah Bei (13947-13) Wong Chi Chiu with the address of the sender on the reverse of the envelope, I am satisfied so I am sure that it was no coincidence the red envelope contained a 3D card; was addressed to Wong Chi Chiu, 13947-13; the name and address of the sender was on the reverse of the envelope and hidden inside the card was a packet of ketamine.  I am satisfied so I am sure the only inference to draw is that reference in the piece of paper to stroke and the stuff to be mailed was to dangerous drugs and that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.

41.  In drawing this inference I have carefully considered the submissions of Mr Allan. Mr Allan submits that it would have been incredible for D1 to ask D3 and D4 to post drugs knowing that the prison visits were monitored by CCTV; their conversations were recorded by audio and prison officers patrolled both the prisoner’s side and visitor’s side during the visits[37].   

42.  If the piece of paper stated to post drugs to the prison I would agree with Mr Allan that it would be incredible to do this in full view of prison officers.  The piece of paper does not explicitly state that a dangerous drug was to be posted to the prisoner Wong Chi Chiu.  Both the piece of paper and that copied by D3 refer to one stroke and the piece of paper to the stuff to be mailed.  The submission of Mr Allan does not cause me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.

43.  Mr Allan also relies on the fact that the prison officers took no action at the time to stop the visit; did not at the time or subsequently seize the piece of paper from D1 or that copied by D3 and did not stop further visits by D3 to D1[38].  This Mr Allan submits indicates that the prison officers had no clear idea as to the meaning of the piece of paper.  If they did know the meaning or suspected the meaning Mr Allan submits they would not have allowed D3 to continue visiting D1.

44.  The fact that the piece of paper was not seized at any time and further visits were not stopped does not cause me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.  As can be seen from the CCTV for the visit on 15 November the visitor at visit point 6 also placed a piece of paper on the window, which paper he took away with him at the end of the visit.  If the placing of a piece of paper on the window was a breach of the rules and regulations of the prison it is clear this rule was not strictly enforced.

45.  Further I accept the explanation given in cross-examination byAO II 630 that he did not stop D1 from placing the piece of paper on the window because he was responsible only to monitor the visit and collect intelligence and that if anything happened during the visit he would report this to his superior.  Further AO II 630 explained that he focused on what was happening and listening to the audio to see if anything else happened. 

46.  As noted earlier, immediately after the visit AO II 630 did report what had happened to his superior Senior OfficerLeung Ho Kei.  I also accept the explanation given in cross-examination by Senior OfficerLeung Ho Kei, who was off duty at that time, that he did not immediately instruct AO II 630 to seize the piece of paper because he first needed to analyse and investigate; the prisoner was entitled to his own paper and to write; and at the time he did not think this was a very serious infringement. 

47.  In these circumstances it is not at all surprising that the instructions were to monitor future visits and not stop further visits by D3.  Senior OfficerLeung Ho Kei also explained that in the subsequent visits no warning was given to D1 because this was not an offence and D1 did not do this anymore.  I accept this explanation for not giving D1 a warning.

48.  Even if by 17 November Senior OfficerLeung Ho Kei suspected something leading to him instructing clerical officers to notify him of any incoming mail addressed to prisoner number 13947-13 Wong Chi Chiu[39], there was no reason to stop the prison visits.  In my view instructing colleagues to monitor the visits was sufficient.  

49.  Mr Allan further submits that the address on the reverse of the envelope stating the card is from Yim Man Ho is contradictory to that on the piece of paper which states, “to seek the address of Lan Tau”.  This Mr Allan submits creates a doubt, especially considering that neither Wong Chi Chiu nor Yim Man Ho have been called to give evidence to say they know nothing about the card; that Yim was not the sender of the card or that the address of Yim is false[40]. 

50.  Common sense dictates that whoever sent the card containing the ketamine would not put their name and address on the reverse of the envelope.  The fact that the prosecution have called neither Wong Chi Chiu nor Yim Man Ho to give evidence does not cause me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.    

51.  I have also taken into account the submission of Mr Allan that incoming mail addressed to prisoners will be inspected[41]; D1 did not share the same cell as Wong Chi Chiu[42]; after the drugs were discovered nothing was found in D1’s cell or on his person related to the case[43]; there was no controlled delivery of the drugs to Wong Chi Chiu[44]and both Wong Chi Chiu and Yim Man Ho have criminal records with the record of Wong Chi Chiu being mostly related to drugs.  Nothing said by Mr Allan causes me to doubt the only inference to draw is that D1 was instructing D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre.   

Conspiracy to traffic in a dangerous drug

52.  The unlawful act alleged is to traffic in a dangerous drug.  Trafficking in relation to dangerous drugs includes, “…procuring, supplying or otherwise dealing in or with the dangerous drug…”[45]  I am satisfied that the posting of drugs into Lai Chi Kok Reception Centre is an act of trafficking. 

Did D1, D3, D4 and Wong Wai Him (D2) conspire to traffic in a dangerous drug?

D1

53.  By recruiting D3 and D4 to arrange for dangerous drugs to be posted to Wong Chi Chiu, 13947-13, a prisoner in Lai Chi Kok Reception Centre, I am satisfied so I am sure D1 conspired to traffic in a dangerous drug intending that dangerous drugs be posted to Wong Chi Chiu, a prisoner in Lai Chi Kok Reception Centre.

D3 & D4

54.  From the CCTV it is clear that D3 was copying what was written on the piece of paper.  Transcript of the audio of the visit has been admitted in evidence[46].  In the transcript A is D4; B is D1 and C is D3[47].

55.  As noted earlier[48] D1 is seen removing the piece of paper from the window at 09:57:46.  This is followed by D4 asking to look at the paper again (see counter 47).  At 09:58:03 D1 placed the piece of paper back against the window at which time D4 is heard telling D3 to copy down the upper part of the paper (see counters 47-49). 

56.  This is when D3 is seen taking a pen out of a plastic bag and start copying what was written on the piece of paper.  Shortly after D4 is heard saying he had already got (it); don’t talk about this now; I’ll handle those (things) (see counters 54-58).  

57.  D3 finishes copying at 10:00:52 after which D1 put the piece of paper back in his pocket.  As noted earlier[49] at 10:08:10 D3 is seen picking up the paper on which she copied the contents of the piece of paper placed on the window by D1.  Photographs 4 & 5, album 1[50] show D3 looking at the paper at 10:08:24 and 10:08:31.  Photographs 2 & 3, album 6[51] are enlargements of these photographs.  The transcript of photograph 3, album 6[52] showsthat D3 had copied from the piece of paper, inter alia,  “… one stroke in the hidden part; mail to 13947-13; handle by putting on gloves.” 

58.  At 10:08:55 D4 is heard asking D3 if she had studied shorthand.  D3 said that she was wondering if she could read her own handwriting.  D4 then said make sure those names are all here and discard it.  D1 replied alright.  This is followed by D4 saying hurry up, discard it.  D3 then says tear it up, flush down the toilet and dissolve it by rubbing with water (see counters 159-165).    

D3

59.  By copying what was written on the piece of paper and saying to tear it up, flush down the toilet and dissolve it by rubbing with water,I am satisfied so I am sure the only inference to draw is that D3 conspired to traffic in a dangerous drug intending that dangerous drugs be posted to Wong Chi Chiu, a prisoner in Lai Chi Kok Reception Centre.

D4

60.  By asking to look at the paper again; telling D3 to copy down the upper part of the paper; saying he had already got (it); don’t talk about this now; I’ll handle those (things); saying to make sure the names are all there and to discard the paper, I am satisfied so I am sure the only inference to draw is that D4 conspired to traffic in a dangerous drug intending that dangerous drugs be posted to Wong Chi Chiu, a prisoner in Lai Chi Kok Reception Centre.

61.  In addition in relation to D3, the next day, 16 November, D3 visited D1 together with Wong Wai Him (D2).  Transcript of the audio of the visit has been admitted in evidence[53]. In the transcript A is D1; B is Wong Wai Him (D2) and C is D3[54]. 

62.  At the beginning of the visit D2 is heard saying that he was already informed of that.  When asked by D1 what was said D3 replied those written down yesterday. Asked by D1 whether that has already been done D2 replied that he was only told that morning.  D1 then says to be quick to which D2 responded that it will be handled a while later (see counters 1-15).

63.  I am satisfied by saying what was written yesterday D3 was referring to the piece of paper placed on the glass window by D1 and is further evidence that D3 conspired to traffic in a dangerous drug.

64.  I am satisfied by saying he will handle the matter a while later the only inference to draw is that D2 conspired to traffic in a dangerous drug intending that dangerous drugs be posted to Wong Chi Chiu, a prisoner in Lai Chi Kok Reception Centre.     

65.  Shortly after D2 is heard saying that he would ask someone to find the address and that he would handle other matters.  D1 told D2 he has to put on a hat when buying card and a pair of gloves.  When D2 said that he will put on those gloves used by doctors D1 told him surgical gloves are not good (see counters 70-77).  I am satisfied mentioning putting on a hat when buying a card and using a pair of gloves is further evidence that D2 conspired to traffic in a dangerous drug.

66.  I am satisfied so I am sure D1, D3, D4 and Wong Wai Him (D2) conspired together to unlawfully traffic in a dangerous drug intending that dangerous drugs be posted to Wong Chi Chiu, a prisoner in Lai Chi Kok Reception Centre. 

67.  In reaching this finding I have carefully considered the submission of Mr Allan that there is nothing heard during the prison visits which relate to any agreement to conspire to traffic in drugs[55]. For the reasons already given I have no hesitation in rejecting this submission.

68.  In reaching my verdict I have carefully considered everything said on behalf of the defendants by Mr Allan both individually and collectively.  Nothing said by Mr Allan causes me to doubt the findings I have made. 

69.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt as against D1, D3 and D4, the case of each defendant having been considered separately. 

70.  D1, D3 and D4 are convicted as charged. 

71.  I wish to address one further matter.  In reaching my verdict I have not relied upon the prison visits made by D3 to D1 on 18 and 20 November.  In the prosecution opening reference is made to these visits without specifying in what way the prosecution seek to rely on these visits[56].

72.  When asked by the court whether reliance was placed on these visits Mr Tracy was unable to positively answer in respect of the visit on 18 November.  As regards the visit on 20 November Mr Tracy said this was admitted for cross-examination if any of the defendants gave evidence.   

73.  With regard to the visit on 18 November Mr Tracy explained that some apparent incriminating conversation was heard but could not be found in the transcript. Reliance therefore depended on the oral testimony of the prison officer, who apparently heard the incriminating conversation.  Ultimately Mr Tracy did not call that evidence.  I have disregarded any reference to incriminating conversation apparently heard, which has not been adduced in evidence. 

74.  Further as expressed during closing submission I was surprised that no one apparently realised that D4 was also present at this visit.  At the end of the visit the transcript[57] shows a third person C speaking.  I thought the parties had admitted this was a male however checking the admitted facts again no admission is made as to who C is[58].  

75.  Mr Allan, very fairly, accepts photograph 2, album 3[59] shows D4 present as does the CCTV recording of the visit.  From the CCTV D4 is the one who spoke at the end of the visit (see counters 193-204).  At counter 193 D4 says that he will have the arrangement made these two or three days.  Arguably this refers to the agreement to post the drugs to a prisoner in Lai Chi Kok Reception Centre.

76.  Although again, very fairly, Mr Allan accepts the court can rely on this evidence, having given careful consideration to the matter, in particular the prosecution case proceeding on the basis only D3 was present at this visit and ultimately no reliance being placed by the prosecution on the conversation during that visit, I decided that it would not be fair to rely on this evidence.