HKSAR v. CHAN CHUN KIT

DCCC 80A/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 80A OF 2014

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to a charge of trafficking in 0.24 grammes of cocaine.

2.  The only prosecution witness was an undercover police officer, PW1. He told the court that he got to know a female called Cha Ka Hei, DW1,  a drug dealer, who was a waitress in the Jazz pub in Yuen Long. On 11 September 2013 she told PW1 over the telephone that she was able to obtain cocaine for HKD250. A meeting was arranged for about 9.00pm in Yuen Long and later a vehicle arrived in the vicinity driven by the defendant.  DW1 boarded the vehicle and later PW1 got on board the vehicle.  PW1 said that drugs were given to DW1 who gave them to him and he handed the driver $250.

3.  The defendant was later arrested on 25 October 2013 and at an identification parade held on 5 November 2013 identified by PW1 as being the person who drove the car on the night in question and handed over the drugs.

4.  The defence case is that the drug transaction in the defendant’s car was with a front passenger seat in the car know as Au Bing rather than with the defendant.

Evidence

Prosecution

5.  PW1 told the  court that during August and September of 2013 he was engaged in an undercover anti dangerous drugs police operation in the Yuen Long area.

6.  During the course of  his work he got to know DW1 who worked as a waitress in the Jazz pub in Yuen Long. PW1 came to know that she was able to obtain cocaine.

7.  On 11 September 2013 at about 6.00pm, PW1 left his safe house in Tuen Mun and just before 7.00pm he rang DW1 and during their conversation she told him that drugs were available at HKD250 per piece. They arranged to meet at an amusement games centre on Fau Tsoi Street in Yuen Long later that night.  PW1 arrived at 7.30 and DW1 rang him to say the drugs would be available at 9.00pm and they met at the amusement games centre at 9.00pm.

8.  At 9.35pm a car driven by the defendant arrived at the Centre. After the car arrived the phone of DW1 rang and she later boarded the car and sat at the rear of the vehicle behind the male front seat passenger. There was another female in the rear of the car. DW1 then put her head outside the rear passenger window and told DW1 to board the car next to her.

9.  PW1 said that when he boarded the car a packet containing  a white substance in a transparent bag was handed to DW1 by the driver using his left hand. PW1 said he did not see where the driver got the packet from. PW1 said that DW1 took the packet and handed it to PW1. PW1 said he then handed HKD250 to the driver using his right hand and the driver put the drugs in his right trouser pocket. PW1 said he later left the car. PW1 said that whilst in the car he spoke with the driver. PW1 said that that the driver said he was nickname “Parrot” but PW1 could not recall the rest of the conversation. PW1 said that whilst they were talking he was looking at the driver.

10.  PW1 said that the lighting inside the car was dim but there was street lighting on the street outside. PW1 said he could see the defendant properly and he was clear that the defendant whom he identified at an identification parade on 5 November 2013 was the driver of  the car.

11.  In cross-examination PW1 agreed that the defendant was a stranger to him and it was dim inside the car.

12.  PW1 disagreed that is was the front male passenger in the car who handed the drugs to him. PW1 said he was in the car for about 5 minutes.

13.  PW1 said he was aware that DW1 was prosecuted for 8 offences of trafficking in cocaine including the transaction the subject of the current charge.

14.  PW1 said he did record the nickname of the defendant in the occurrence book in which later recorded what had happened.

Admitted Facts

15.  It was not disputed that the substance given to the defendant was the drugs the subject of the charge.

Case for the defence

16.  The defendant elected not to give evidence. DW1 was called to give evidence for the defence.

17.  DW1 was arrested on 13 October 2013 for 8 counts of trafficking in cocaine. She pleaded guilty to all the offences in February 2014 and on 21 March 2014 she was ordered to be detained in a Training Centre. One of the charges to which she pleaded guilty was the current charge.

18.  DW1 said that on the night in question, after the car arrived she boarded the vehicle. DW1 said there was another female sat at the rear of the vehicle. DW1 said that she traded with the male in the front passenger seat called Au Bing. DW1 said she gave him HK250 and he gave her one droplet of coke inside the vehicle.

19.  In cross-examination she said that on the night in question she rang Au Bing  to arrange for the purchase of the drugs. She agreed the car was driven by the defendant.

20.  DW1 agreed that the PW1 also boarded the vehicle. DW1 said that PW1 was passed the drugs in the car and paid HKD250.

21.  DW1 said she could not recall telling the police that in respect of  this incident the price of the drugs was HKD500.

22.  DW1 said she could not recall how long she has know the defendant. She said that she had met him one or two times, maybe in a pub, she could not recall.

23.  DW1 said she did not know the name of Au Bing or where he lived. DW1 said that she did not know the other girl in the car and had only seen her once or twice.

Directions

24.  I reminded myself that the prosecution bring this case and are required to prove the guilt of the defendant beyond reasonable doubt, the defendant has nothing to prove. I reminded myself that the defendant has the right to remain silent and no inference can be drawn in relation to his remaining silent when arrested and cautioned nor from his election not to give evidence.

25.  I reminded myself that if I were to reject the evidence of DW1 that does not mean the defendant is guilty of the offence. I am required to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.

Evaluation of the Evidence

26.  It was not disputed that on the evening of 11 September 2013 the defendant was the driver of a car in which a drug transaction took place involving the trafficking of 0.24 grammes of cocaine.

27.  PW1 gave evidence that he boarded the vehicle driven by the defendant. He said the drugs were handed by the defendant to DW1 who handed them to him and that he then handed HKD250 directly to the defendant. PW1 said that the defendant said his nickname was “Parrot” and they had a conversation in the vehicle although he could not recall what was said. PW1 was adamant that the drugs transaction did not involve the male in the front passenger seat of the vehicle. PW1 said he later made a note of the matter in the police occurrence book which he kept including the nickname of the driver.

28.  DW1 said that inside the car driven by the defendant the drugs were handed to her by a man called Au Bing who was sat in the front passenger seat of the vehicle. DW1 said that she had contacted Au Bing  about this transaction. In her evidence in chief she made no mention of PW1 being in the car. She agreed in cross-examination that the drugs were passed to PW1 and he paid HKD250.

29.  DW1 was vague about how long ago and in what circumstances she met the defendant.  She said maybe it was in a pub but she could not recall.

30.  I found PW1 to be a reliable and credible witness and I was sure he was telling the truth about what happened inside the vehicle driven by the defendant. I accepted his evidence that the dangerous drugs the subject of the charge were handed over by the defendant and that PW1 handed HKD250 to the defendant inside the car.

31.  I did not find DW1 to be a reliable or credible witness. She failed to mention in her evidence in chief that PW1 was also in the car during the drug transaction. Her answers were vague and in my view evasive.  She could not recall how long ago and in what circumstances he met the defendant.  She said maybe it was in a pub she could not recall. I was sure she was not telling the truth as to what took place on the night in question.

32.  I am satisfied that the prosecution have proved each and every ingredient of the offence beyond reasonable doubt and I therefore convict the defendant.