HKSAR v. OWUSU DANIEL

DCCC 615/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 615 OF 2015

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REASONS FOR VERDICT

1.  The defendant faces 1 charge of "Trafficking in dangerous drugs" (Charge 1) and 1 charge of "Trafficking in a dangerous drug" (Charge 2).

2.  He pleaded not guilty to Charge 1.  In respect of Charge 2, he pleaded not guilty to "trafficking" but guilty to "possession".  The prosecution proceeded with both charges against him.

The Prosecution Case

Charge 1

3.  About 12:20 a.m. on 5 March 2015, at the alleyway at Nos.21-23 Luard Road, Wanchai, DPC 3376 (PW1) and DPC 3385 (PW2) saw the defendant standing on a concrete block[1] reaching his hand into a metal canopy erected above the alleyway.

4.  PW1 walked towards the defendant and produced his warrant card.  At that time, the defendant had already come down from the concrete block standing on the ground.  The moment when PW1 said "Police", the defendant threw a packet onto the ground[2] with his right hand.

5.  PW1 immediately placed his hand on the defendant's shoulder to put him under control.  At the same time, PW2 climbed up the same concrete block which the defendant was standing on.  He discovered 2 bags of dangerous drugs (Exhibits P2 and P3) on the canopy[3]. PW2 also recovered from the ground the packet thrown away by the defendant (Exhibit P1).  Exhibits P1 to P3 were recovered or found in the presence of the defendant.  They are the dangerous drugs particularized in the Charge.

6.  At the scene, PW1 informed the defendant in English that he was under arrest for "Trafficking in dangerous drugs".  The defendant remained silent.

Charge 2

7.  About 2:50 a.m. on the same day, in the presence of the defendant and other police officers, PW2 searched the defendant's home (its address is particularized in the Charge).  It is not in dispute that, inter alia, 1 plastic bag of cocaine (Exhibit P10), 2 electronic scales (Exhibits P11 and P12) and 102 empty transparent resealable plastic bags (collectively Exhibit P13) were found at the premises.  Exhibit P10 is the dangerous drug particularized in the Charge.

Video Recorded Interviews

8.  In the evening on 5 March 2015, with the assistance of a Ghanaian interpreter, the police conducted 2 video recorded interviews with the defendant.  The respective discs and transcripts of the interviews were produced as Exhibits P25 to P25C and Exhibits P32 to P32C.

The Defence Case

9. The defendantelected to give evidence and called his girlfriend Indayah (DW2) as his defence witness. I will analyze the defence evidence in due course and need not repeat it in full here.

10. Regarding Charge 1, the defendant claimed that he was standing on another concrete block[4] to look for a "men spray" which he had left on the canopy some time ago (to cure his erectile dysfunction shortly before sexual intercourse). He did not know the existence of Exhibits P2 and P3 found by PW2 on the canopy above the other concrete block nor did he throw Exhibit P1 onto the ground. He also explained the sources of the cash found on him (both Hong Kong currency and Euros).

11. Regarding Charge 2, although he disputed the locations of where certain items were found, the defendant admitted possession of all the relevant items found at his home. He explained how he came into possession of the cash, cocaine, electronic scales and empty plastic bags. He admitted having consumed some of the cocaine in Exhibit P10 twice.

12. DW2 gave evidence as to her relationship with the defendant and explained why she gave most of her salary in cash to the defendant for safekeeping. She also explained how she would use the empty plastic bags.

Assessment and Analysis of Evidence

13. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt. The defendant has a clear record. I have directed myself on both limbs of his good character.

14. The evidence against the defendant came from PWs 1 and 2. I have carefully considered their evidence and observed their demeanour in the witness box. They remained unshaken after cross-examination by defence counsel. I find them honest and reliable. I believe their evidence.

Charge 1

15. Defence did not allege "planting" to the fullest extent but claimed that before Exhibits P2 and P3 were discovered by PW2, the defendant had no knowledge of their existence on the edge of the canopy. He also denied having thrown Exhibit P1 onto the ground. On this issue, I simply see no reason why PWs 1 and 2 needed to frame up the defendant. And if they were to do so, why not plant all the drugs on the defendant instead? Accusing the defendant throwing Exhibit P1 onto the ground and claiming Exhibits P2 and P3 were found on the canopy is far more indirect and less convincing.

16. I have also evaluated the defendant's evidence. I reject his ridiculous claim that he stood on a different concrete block to retrieve a tube of "men spray" hidden in the canopy. I see nothing unusual (in terms of size or shape) about the sample of "men spray" (Exhibit D3) produced by the defendant. It is complete nonsense that he preferred to hide it in the canopy instead of keeping it in his pocket because he did not want people to ask him what was in his pocket.

17. Based on the evidence of PWs 1 and 2, I find the defendant having stood on the specific concrete block and reaching out his hand towards the edge of the canopy. When PW1 produced his warrant card, the defendant threw Exhibit P1 onto the ground. On this factual basis, I further find that the defendant had physical possession of Exhibit P1. Since he threw it onto the ground upon PW1's production of his warrant card, I draw the irresistible inference that the defendant knew its nature being a dangerous drug and thus wanted to get rid of it (in order to avoid getting into trouble with the Police).

18. Regarding Exhibits P2 and P3, Exhibit P2 contained 4 resealable plastic bags of ICE; their individual quantity and packaging appeared to be strikingly similar to Exhibit P1[5]. All 5 packets of ICE contained in Exhibits P1 and P2 added up to approximately 2.5 grammes; weighing approximately 0.5 gramme each. As a juror, I find that Exhibit P1 was part of Exhibit P2. Similarly, Exhibit P3 contained 8 resealable plastic bags of cocaine[6]. They added up to approximately 4 grammes; weighing approximately 2 grammes each. Plainly, the ICE and cocaine contained in Exhibits P2 and P3 were uniformly packaged in individual packets.

19. The defendant was seen reaching his hand towards the edge of the canopy, the location at which Exhibits P2 and P3 were found. I draw the irresistible inference that he had physical control over Exhibits P2 and P3 as well as knowledge of their nature. In other words, he had possession of Exhibits P2 and P3 as well.

20. On the other hand, the defendant's act of reaching out his hand for Exhibits P2 and P3 could give rise to at least 2 possibilities: he was placing them on the canopy or retrieving them therefrom. Either way, I am unable to conclude that "possession for the purpose of trafficking" is the only reasonable inference to be drawn. One reasonable possibility being he had just purchased the drugs (which were packaged in the manner they were found) for self-consumption[7] and intended to hide them in the canopy (temporarily or otherwise). Similarly, there are many reasons as to why he took out Exhibit P1 from Exhibit P2[8].

21. It is trite law that I must draw the inference which is favourable to the defendant. Hence, I find the defendant not guilty of trafficking in Exhibits P1 to P3, but guilty of possession of them.

Charge 2

22. The defendant admitted possession of the cocaine (Exhibit P10) and other items found at his home, but denied any intention of "trafficking".

23. As a juror, I have no hesitation in rejecting the defendant's claim that Exhibit P10 was given to him by a Pakistani friend. I accept that some drug dealers may give out free "tester" portions of drugs to new "friends" for the purpose of inducing them to drug habits, but most definitely not in the quantity of Exhibit P10. Setting aside the issue of "retail street value", common sense tells us that dangerous drugs (of any type) are not cheap; they are as valuable as cash and drug dealers sell them for a living. I agree with prosecuting counsel Mr. Richmond that "drug traffickers are not philanthropists". It is complete nonsense that Exhibit P10 was a gift for the defendant (for the purpose of easing the sadness of the rejection of his torture claim or otherwise).

24. I also find it absurd that an Indian from the Netherlands – a man whose name the defendant does not even know – would for none but philanthropic reason seek out the defendant simply to give him 150 Euros during his visit to Hong Kong. According to the defendant, between the 1^st time they met and 4 March 2015, they had no contact whatsoever. As a juror, I have not the slightest doubt that the defendant is lying.

25. The defendant claimed that the 2 electronic scales (Exhibits P11 and P12) and the 102 resealable plastic bags (Exhibit P13) were left behind in his room by someone; he found them and some other items hidden above the ceiling panels. I do not believe him. Regarding the intended use of Exhibit P13, DW2 claimed that she uses them to contain her Indonesian sauce when she takes her meals outside her employer's home. Even if it is true, it does not mean they cannot be used for other purposes.

26. Exhibits P11 to P13 are clearly common packaging paraphernalia used by drug traffickers. It is way too much of a coincidence that they were left behind by someone and hidden above the ceiling panels. As a juror, I find that the defendant possessed them for one and only one purpose – packaging dangerous drugs. On this basis, I draw the irresistible inference that the defendant possessed the cocaine found at his home as well as the packaging paraphernalia for the purpose of drug trafficking.

27. Based on the reasons stated above, I find the defendant guilty of Charge 2.