HKSAR v. HO SAI KEONG

HCMA 576/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 576 OF 2014

(ON APPEAL FROM TMCC 1285 OF 2014)

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J U D G M E N T

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A.  INTRODUCTION

1.  The appellant faced one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (“Charge 1”) and another charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the same ordinance (“Charge 2”).

2.  The appellant pleaded not guilty to both Charge 1 and 2 but was convicted of both charges after trial.

3.  The appellant appeals against his conviction.

4.  Charge 1 concerned 1.14 grammes of a crystalline solid containing 1.08 grammes of methamphetamine hydrochloride (commonly known as ICE) found on him on 26 October 2013 in the vicinity of Lam Hau Tsuen, Yuen Long, Hong Kong.

5.  Charge 2 concerned one plastic bottle with a cap connected to two plastic straws (with one plastic straw connected to a tin-foil at one end) containing liquid inside, one tin-foil and one cigarette box containing two plastic segments and three plastic bags, fit and intended for the inhalation of a dangerous drug, namely ICE.  The items were found in the toilet of No 77, Lam Hau Tsuen on 26 October 2013.

B.  FACTS NOT IN DISPUTE AT TRIAL

6.  The following facts were admitted between the prosecution and the defence at trial:

(1)   The appellant was a police constable attached to Tuen Mun District Crime Squad 2 at the material time.

(2)   The appellant resided at No 77, Lam Hau Village, Yuen Long according to the information he provided to Autotoll Limited.

(3)   On 26 October 2013, the appellant was intercepted and arrested by officers of the Independent Commission Against Corruption (“ICAC”).  They found a plastic bag containing ICE, the subject matter of Charge 1 in the right front trousers’ pocket of the appellant.  The ICAC officers also seized from the left hand of the appellant a key to his residence at No 77, Lam Hau Village, Yuen Long.

(4)   The ICAC officers escorted the appellant to his residence and gained access to the premises using the key.  They found a plastic bottle containing some liquid, with a cap connected with two plastic straws, as well as a tin-foil and cigarette box (“the apparatus”, the subject matter of Charge 2) in the toilet.

(5)   The aforesaid items found in the toilet were later examined and found to contain traces of ICE.  The appellant’s DNA was also found on the plastic bottle.

(6)   The appellant remained silent under verbal caution at scene and at the subsequent cautioned interviews.

(7)   The person referred to “A” in the appellant’s testimony was his registered informer of the New Territories Region between 10 July and 7 May 2013.  In other words, “A” was not a registered informer at the time of the offence.  At 0032 hours on 26 October 2013, “A” was arrested by officers of ICAC near No 49 Kay Yuk Road, Yuen Long.

C.  THE PROSECUTION CASE

7.  The supervisor of the appellant, Inspector Hui Chung-hang (“PW1”) gave evidence that the appellant told him on 25 October 2013 that he was going to meet an informer within the next two days, but the appellant did not provide any detail.  PW1 instructed the appellant to contact him and he would then decide whether permission would be given to the appellant to meet the informer.  As the appellant had not contacted PW1 prior to his arrest, he did not have permission to meet the informer.

8.  PW1 also testified that in October 2013, PW1 had not instructed the appellant to investigate any case which concerned dangerous drugs or participate in any undercover operation, PW1 also testified that the appellant had not mentioned that he was handling some dangerous drug related intelligence.

9.  Senior Superintendent Fok Lok Sang (“PW2”), the District Commander of Tuen Mun District gave evidence that he had checked the “Confidential Administration File” which contains information of “registered informers” in the district, but did not find the name of “A” in the file.  He testified that the appellant did not have an informer who was called “A”.

10.  Madam Sarah SM Yeung (“PW3”) was the Government Chemist who had conducted comparison of DNA samples taken from the exhibits in the case.  She had not seen the plastic bottle (Exhibit P5) in question.  The expertise of PW3 was not challenged by the defence at trial.

11.  Mr Lee Tsz Fung (“PW4”) was the ICAC officer who arrested the appellant.  PW4 was tendered mainly for cross-examination by the defence.

D.   THE DEFENCE CASE

12.  The appellant joined the police force in 1993 and was at the time of trial a Senior Police Constable.

13.  The appellant had a clear record and had not been a subject to any disciplinary action.

14.  The appellant was fond of fishing and he rented the residence at No 77, Lam Hau Tsuen for the purpose of keeping relevant equipment.

15.  The appellant’s duties included meeting with informers.  On 25 October 2013, the appellant received a phone call from “A”, who said he could provide information on dangerous drug and counterfeit banknotes.  The two agreed to meet at Lam Hau Tsuen, Yuen Long.

16.  On 25 October 2013, the appellant did not know that “A” was no longer a registered informer of the New Territories North Police Region, the appellant only came to know that when he came to court.  On the material day, ie, 26 October 2013, the appellant still believed that “A” was a registered informer.  In the past, “A” had provided the appellant with information related to dangerous drugs and stun guns.

17.  At around 1810 hours on 25 October 2013, the appellant told PW1 that he would meet an informer within the next two days, PW1 did not require him to notify him before the meeting.  Previously, he had notified PW1 on two to three occasions that he would meet an informer, PW1 on those occasions did not require him to call him shortly before the appellant met an informer.

18.  The appellant was off duty on 26 and 27 October 2013.

19.  At around 2345 hours on 25 October 2013, “A” called the appellant and asked the appellant to wait for him in Lam Hau Tsuen.  “A” said he would come with another person to provide the appellant with information in relation to dangerous drugs and counterfeit banknotes.  Later, “A” drove a 7-seater car and arrived.  The appellant got into the car where he saw a man whom he had never met before (referred to “B” in trial).  “A” introduced “B” to the appellant and said “B” would provide him with information in relation to counterfeit banknotes.  “B” handed a suspected counterfeit $100 banknote to the appellant.  “B” asked the appellant about the calculation of informers’ fees.  The appellant then put the suspected counterfeit banknote into his pocket and answered “B”.

20.  “A” then told the appellant something to the effect that the appellant would understand everything when he saw the couch inside the pedestrian subway.  The appellant then alighted from the car and walked towards the couch.  He found a packet of suspected dangerous drug of ICE at the armrest of the couch.  He then put the packet of suspected ICE in his trousers pocket.

21.  The appellant intended at this point in time to call PW1 to report the matter, but once he walked out of the pedestrian subway, ICAC officers rushed towards him and arrested him.

22.  The appellant believed he was in the execution of his police duty at the time and was in lawful possession of the packet of ICE, the subject matter of Charge 1.

23.  As for the suspected counterfeit banknote which was handed to him by “B”, it was seized by PW4.

24.  At the time of the incident the appellant had on him the keys to the residence.

25.  The inhaling apparatus did not belong to the appellant.  He did not know it was there prior to the incident.

26.  The appellant came to know “A” in 1988 when they were classmates together.  Because of “A”, the appellant came to know “A”’s wife.  In around 2010, “A”’s wife told the appellant that she was beaten by “A” and thus, in the beginning of 2012, the appellant made a copy of the keys to the residence and gave them to “A”’s wife so that she could stay at the residence as a temporary shelter when “A” beat her again.

27.  The appellant had not used the ICE bottle for smoking “ice” and his DNA was not found on the straw of the ICE bottle.  From his experience of investigating dangerous drugs cases, the normal way of inhaling ICE using an ICE bottle was to burn the ICE and inhale the smoke through the straw of the bottle.

28.  The appellant thought that his DNA was found on the bottle cap possibly because:

(a) when ICAC officers talked to him when they seized the ICE bottle, there was a chance that his saliva was spilled onto the bottle cap during the conversation; or

(b) the appellant could freely touch anything inside the residence before his arrest, though he had never seen the ICE bottle and did not know whom it belonged to.

29.  The appellant did not have a habit of inhaling dangerous drugs.  He suspected the ICE bottle belonged to “A”.  Inspector Yip Kim Pang (DW2) is the Officer-in-Charge of the Anti-Triad Squad Division 1 in Tuen Mun District.  He gave evidence he came to know the appellant through diving.  He had lunch with the appellant on a certain day, but he was not sure if it was on 25 October 2013.  DW2 could remember though that the luncheon meeting took place before the appellant’s arrest, but he could not tell how long ago it was.  Because the lunch took place a long time ago, DW2 could not remember the exact content of their conversation but the conversation he had with the appellant was a casual chat.

E.  REASONS FOR VERDICT

30.  The magistrate analysed the evidence of the prosecution witnesses.  She found them all honest and reliable (paragraph 18 of the Statement of Findings, page 22 of the Appeal Bundle).

31.  The appellant had a clear record.  In paragraph 17 of the Statement of Findings (page 22 of the Appeal Bundle), the magistrate directed herself on the appellant’s credibility and propensity to commit crime.

32.  The magistrate rejected the evidence of the appellant for the reasons given in paragraph 19 of the Statement of Findings (page 23 of the Appeal Bundle); namely:

(1)   The magistrate found it was unreasonable for the appellant to tell the officer in charge of another team about the information he received about counterfeit notes, but not to tell his direct supervisor (PW1).  The magistrate found that the appellant offered different explanations as he went along in his evidence to explain why PW1 was not informed of the time and place of his meeting with his informant.

(2)   The magistrate rejected the appellant’s evidence that he had applied to a Station Sergeant of New Territories North Regional Crime Unit to have “A”’s status as a registered informer transferred to Tuen Mun District in May 2013.  The magistrate found that it was unreasonable for the appellant not to take any action to verify or check whether the transfer had been made, given that “A” was the appellant’s only informer during his 20 years’ service with the police.  The magistrate rejected the appellant’s evidence that he had no idea how the station sergeant handled the transfer request.

(3)   The magistrate found as unreasonable that the appellant did not ask “B” more about where the counterfeit notes were manufactured, the information was relevant in ascertaining whether “B” was a credible informer, given the appellant was seeing “B” for the first time.  The magistrate disbelieved the appellant’s evidence he only remembered “B” had mentioned something about the counterfeit notes factory when he was cross-examined by the prosecutor, hence he had not mentioned it during his evidence-in-chief.

(4)   The appellant gave evidence that “A” implicitly suggested to him that there was dangerous drug in a subway, the magistrate found that, given that there were two pedestrian subways at the location, it was unreasonable for the appellant not to clarify with “A” which subway he was referring to.  It was unreasonable for the appellant not to ask “A” about the source of the dangerous drug and the people involved with it.  It was also unreasonable for the appellant not to report the matter to PW1.  The magistrate also found that the appellant’s evidence under cross-examination differed from his evidence-in-chief on the issue whether he had telephoned PW1 after he picked up the dangerous drug.

F.  GROUNDS OF APPEAL

33.  Mr Andrew Bruce SC, leading Ms Vicky Chung argue three grounds of appeal.

Ground 1

34.  The Magistrate erred in holding that the appellant was not acting in the course of his duty when there is insufficient and/or conflicting evidence to prove that this was the case, in particular that:

(1)   it was accepted that the prosecution has proved beyond reasonable doubt that the appellant was not meeting with an informer; and

(2)   possible failure to comply with rules, guidelines or practices established by the police in relation to dealing with informers are not determinative.

Ground 2

35.  In the rejection of the appellant’s testimony, whilst the magistrate decided that the appellant’s version of events was inherently improbable, the magistrate failed to decide whether the appellant’s version of events might be true, thereby depriving the appellant of the possibility of raising a reasonable doubt.

Ground 3

36.  The magistrate erred in rejecting the possibility that the inhaling device in question did not belong to the appellant because:

(1)   persons other than the appellant had access to the apartment where the inhaling device was found;

(2)   the object in question was altered from a regular disposable plastic water bottle into an inhaling device;

(3)   the appellant’s DNA was only found on the cap of the plastic bottle which is consistent with innocent earlier use (which use was not ruled out), but not on the straws or other parts of the bottle; and

(4)   the appellant’s fingerprints were not found on the inhaling device.

G.   THE RESPONDENT’S SUBMISSIONS

Ground 1

37.  The respondent submits that the case of the appellant at trial was that he did not know “A” was no longer a registered informer, in other words, “A” remained a registered informer in the mind of the appellant, it is a red-herring for the appellant to complain that the learned magistrate failed to consider whether the appellant could have been meeting with a non-registered informer at the time.

38.  For the appellant’s submission that PW1 gave evidence that there was no stipulation in the police headquarter orders that the appellant had to notify his superior before he met an informer, the respondent submits that PW l had expressly asked the appellant to seek prior approval before the meeting with the informer, there was nothing to prevent the appellant to seek approval from PW1.  The appellant acknowledged under cross-examination that as far as practicable, he needed to disclose to his superior information such as the time and location of meeting with an informer.  The respondent submits that the appellant, in his evidence, never explained why he did not seek, or what difficulties he faced in seeking, prior approval, once the time and location of the meeting with “A” had been confirmed.  The respondent submits that the failure to seek prior approval is not simply a matter of breaching police internal procedure, it goes to the general credibility and veracity of the appellant’s evidence, which the magistrate was entitled to take into consideration in assessing the evidence.

Ground 2 and 3

39.  The respondent submits that though the learned magistrate did not set it out clearly, by rejecting the appellant’s evidence in the way she did, she could not have failed to decide whether the appellant’s versions might be true.  The magistrate correctly directed herself on the burden and standard of proof in paragraphs 17 and 21 of the Statement of Findings.

40.  In paragraph 22 of the appellant’s skeleton submissions, it is submitted that given that the appellant and DW2 were friends outside of work as well, the fact that the appellant had told DW2 about the counterfeit money need not be in official capacity and there is nothing strange about telling another police friend such information.  The respondent submits that the evidence of DW2 is that he did not recall he had any conversation with the appellant in their official capacity and he had only casual chat with the appellant.

41.  In paragraph 24 of the appellant’s skeleton submissions, it is submitted that the fact that the appellant did not inquire further about the counterfeit note with regards to “B” cannot go to show that the appellant did not obtain the counterfeit note in the way he said he did. It makes perfect sense that “B” would not give any further information but only indicate he can provide the address as he has not obtained any fees for his information yet.

42.  In paragraph 25 of the appellant’s skeleton submissions, it is submitted that the fact that the appellant did not ask “A” which of the two pedestrian tunnels at Lam Hau Tsuen should they meet should not be viewed adversely.  If the appellant had gone to the other tunnel and saw that “A” was not there, he could have easily gone to the other tunnel or called “A” to confirm the meeting place.

43.  The respondent submits that the issues raised by the appellant in paragraphs 34 - 225 had been adequately addressed by the magistrate in paragraph 19 (iii) and (iv) of the Statement of Findings.

44.  In paragraph 26 of the appellant’s skeleton submissions, it is submitted that there was no evidence from the prosecution showing how long the ice bottle had been at the residence.  There is the possibility that the ice bottle had only been materialized in the toilet after the appellant had left the residence that night.  Similarly, there was no evidence that the ice bottle would have been in the toilet the week and the month before the date of the incident.  The fact that the appellant had not noticed the ice bottle might well be because the ice bottle was not there.  The respondent submits that given the state of affairs in the toilet, which can be seen in the photo album (exhibit P4, page 42 - 43 of the Appeal Bundle), it is wholly implausible that the appellant did not notice the existence of the ice bottle during his stay at the residence between 8 pm and 9 pm on the night in question.  It is utterly fanciful that someone other than the appellant had accessed the premises after the appellant had left the premises for the meeting with “A” and the house search after his arrest.

45.  For the appellant’s submission that the Drug Addiction Treatment Centre Suitability report dated 8 September 2014 seems to provide circumstantial support for the appellant’s evidence that the ice bottle did not belong to him as the report states clearly that the appellant was not drug dependent and he did not test positive to any drugs.  The respondent submits that the report, which was commissioned almost 11 months after the date of offence, could not assist the appellant.  No person in his right mind would be in contact with any dangerous drugs under those circumstances.

46.  In paragraph 28 of the appellant’s skeleton submissions, it is submitted that the evidence given by the appellant in re-examination that he had touched the ice bottle and had drunk from it was clearly a misunderstanding.  If the appellant had drunk from the ice bottle, his DNA would be on other parts of the ice bottle and not just on the cap.  The fact that the appellant’s fingerprints were not found on the bottle lends weight to the possibility that someone else other than the appellant made the ice bottle from an ordinary bottle and put it in the toilet of the residence. The respondent submits that the whole purpose of re-examination is to clarify any evidence given in cross-examination that is not clear.  There was clearly a shift in the appellant’s evidence in re-examination.  He first said that he had touched the ice bottle and even drunk from it, then he changed his evidence and said he had never touched it.  The respondent submits that the Admitted Facts says the appellant’s DNA was found on the plastic bottle, it does not say where on the plastic bottle was the DNA found.  The only evidence which suggested the appellant’s DNA was found on the bottle cap came from the appellant, which was rejected by the magistrate.  The magistrate considered the fact that the presence of the appellant’s DNA on the plastic bottle was only a factor that strengthened the prosecution case.  The respondent cites the case of HKSAR v Chau Ping (unreported) CACC 2/2013, the Court of Appeal, at paragraph 33 of the judgment, said:

“…the absence of [DNA or fingerprint evidence] is of neutral probative effect for there can be many explanations why such evidence is not found…”

47.  The respondent submits that the magistrate was entitled to make the findings of facts as she did.  There is nothing to suggest her reasoning was flawed, let alone plainly wrong.  The respondent submits the appeal should be dismissed.

H.   DISCUSSION

Ground 1

48.  The appellant agues, under Ground 1, that in the Statement of Findings, “It was only found that the Appellant must know that he was not meeting with a registered informer, but the Magistrate did not deal with whether he could have been dealing with a non-registered informer.  The Court is invited to judicially notice the existence of unregistered informers…” (paragraph 19 of the appellant’s Skeleton Argument).

49.  The appellant gave evidence at trial that he did not know “A” was no longer a registered informer until the time of his trial.  In other words, it was the appellant’s case that “A” was a registered informer in the appellant’s mind.  There was ample evidence before the magistrate for her to find that “A” was not a registered informer at the material time, and it was never the appellant’s case that he treated “A” as an unregistered informer.  As it was not the appellant’s case that “A” was his unregistered informer, obviously there was no need for the prosecuting counsel to cross-examine the appellant on an issue which did not arise.

50.  I agree with Mr Li that the attempt to distinguish a registered informer and an unregistered informer is a red-herring.

51.  PW1 gave evidence that the appellant told him on 25 October 2013 that he was going to meet an informer within the next two days, but the appellant did not provide any detail.  The appellant submitted that the appellant would not have told PW1 that he was meeting with an informer (registered or unregistered) if that was not the case.  It is unreasonable to suggest the appellant told PW1 so to cover up his crime as he did not have to tell PW1 anything at all if it was his intention to take the “ice” for himself.  The appellant submits that the requirement to seek approval is at most a matter of police procedure and there was in the police headquarter orders that the appellant had to notify his superior before he met an informer.  It is also submitted that it cannot be the case as PW1 stated that approval must be given before a police officer can meet with an informer since meetings of this nature may change in time, place and purpose.

52.  I agree with the respondent’s submissions that the failure to seek prior approval from PW1 is not simply a matter of breaching police internal procedure, it goes to the credibility of the appellant’s evidence, which the magistrate was entitled to take into consideration.  The appellant gave evidence on one hand that he knew that as far as practicable, he needed to disclose to his superior (PW1) information such as the time and location of meeting with an informer.  The meeting with “A” according to the appellant’s evidence, was pre-arranged, although the time and location was yet to be confirmed.  There was nothing to prevent the appellant to seek prior approval from PW1 as PW1 had asked him to do so.  The appellant did not explain in his evidence why he did not seek prior approval from PW1 once the time and place of the meeting had been confirmed.

53.  The magistrate in paragraph 19(1) of the Statement of Findings (pages 95 - 96 of the Appeal Bundle) found that the appellant offered different explanations as he went along in his evidence to explain why PW1 was not informed of the time and place of his meeting with his informant. The magistrate found that the appellant was not telling the truth.  The magistrate had the advantage of receiving the evidence first hand from the appellant and PW1, an advantage that I do not have.  The aforesaid finding that the magistrate made is one that the magistrate was entitled to make from the evidence.  In my judgment, it cannot be said the aforesaid magistrate’s findings on PW1 and the appellant’s credibility is plainly wrong, in the sense that no reasonable tribunal of facts could have reached the same conclusion.

54.  Ground 1 fails.

Ground 2 and 3

55.  The magistrate found DW2 an honest and truth witness. A salient feature of PW2’s evidence is that during the lunch meeting he had with the appellant, the conversation they had was casual in nature and had nothing to do with their work.  DW2’s evidence did not support the appellant’s case that the appellant had told DW2 about the counterfeit money when the two had lunch before the appellant’s arrest.

56.  The appellant contends that the fact that the appellant did not inquire further with regards to “B” cannot go to show that the appellant did not obtain the counterfeit note the way he did.  The appellant argues that it makes perfect sense that “B” would not give the appellant any further information as he had not been paid any fees for his information.

57.  In my judgment, the magistrate had considered the evidence of the appellant on this issue with great care.  The magistrate was entitled to find, as he did in paragraph 19 (iii) of the Statement of Findings (pages 98 - 99 of the Appeal Bundle) that there was no reason for the appellant not to ask for other information, especially when it was the first time he met “B”.  The magistrate was right to make the observation that if the appellant could have more information, as he would agree, he could have the chance to confirm the truthfulness of “B”’s information and whether “B” was a dependable informer, even though “B” was not sure of the address of the counterfeit money manufacturing workshop at the time.  In my judgment, the magistrate was also entitled to disbelieve the appellant’s evidence that it only occurred to him while he was under cross-examination that “B” had mentioned the counterfeit money manufactory workshop, given that he had failed to mention this key point during his examination-in-chief.

58.  The appellant gave evidence that at the meeting, “A” told the appellant that the appellant would understand everything when he saw the couch inside the pedestrian subway.  The magistrate found it unreasonable for the appellant not to clarify from “A” which pedestrian subway it was given the fact that there were two pedestrian subways at Lam Hau Tsuen near the location he met “A”.

59.  The appellant submits that the magistrate erred to hold it against the appellant’s choosing of the subway closest to Lam Hau Tsuen in the circumstances when “A” had not told the appellant which one the appellant should go to take a look and the appellant had not clarified from “A” which pedestrian subway “A” was talking about.  The appellant submits there is no police guideline set in stone that one must obtain all information and intelligence possible before any action by the police can be taken.  Mr Bruce SC submits at paragraph 25 of the appellant’s Written Argument that “… If the Appellant really had gone to the other tunnel and saw that Mr. A was not there, he could have easily gone to another tunnel or called Mr. A to confirm his location.”

60.  It was not the appellant’s case that he met “A” at the pedestrian subway where he found the dangerous drug.  It was the appellant’s case that he met “A” in Lam Hau Tsuen Road in Yuen Long, it was during the meeting that “A” said something to the appellant to the effect that the appellant would understand everything when he saw the couch inside the pedestrian subway.  The appellant then walked to the couch and found a packet of suspected “ICE”.  He was arrested by some ICAC officers as soon as he walked out from the pedestrian subway.

61.  In my judgment, the magistrate had considered the evidence of the appellant on this issue with great care in paragraph 19 (iv) of the Statement of Findings (pages 99 - 101 of the Appeal Bundle).  The failure for the appellant to clarify with “A” is a matter which goes to the credibility of the appellant that the magistrate was entitled to take into account in assessing the appellant’s evidence.  In my judgment, the following observations made by the magistrate cannot be faulted:

(1) there was no reason for the appellant not to clarify from “A” which pedestrian subway “A” was talking about;

(2) there was no reason for “A” to provide the appellant with information in relation to dangerous drugs in such an obscure way;

(3) there was no reason for the appellant not to ask “A” further questions as to the source and the people involved, it would serve little purpose for the appellant to find a small quantity of “ICE” with the information provided;

(4) it was unreasonable for the appellant to pick up the packet of suspected “ICE” with his bare hands;

(5) the appellant testified during examination-in-chief that he was about to call PW1, but once he was out of the pedestrian subway, some ICAC officers rushed towards him and arrested him; he said under cross-examination, however, that he had called PW1 after picking up the packet of suspected “ICE”.

62.  The appellant submits that there was no evidence how long the ICE bottle had been at the residence.  There is the possibility that the ICE bottle had only been materialized in the toilet after the appellant had left the residence that evening (paragraph 26 of the appellant’s Written Argument).

63.  The magistrate considered the issue of the presence or otherwise of the ICE bottle at paragraph 19 (v) of the Statement of Findings (pages 101 - 103), I can do no better job than to set out what she said in its entirety.

“He said that he did not know that the inhaling apparatus was inside the residence. I note that he said that night he arrived at the residence at around 20:00 to 21:00. At around 23:45, he received a phone call from Mr. A, asking him to meet him at Lam Hau Road. As he said, at that time, he had already stayed in the residence for more than two hours, but he had not gone to the washroom during the period. The last time he went to the residence was about a week from that night, and similarly he had not gone to the washroom. And the time before last time was about one month before that night, he did not notice that the ice bottle in the washroom, that meant he had not noticed that the ice bottle was inside the washroom as shown in the photographs. Considering that he had stayed in the residence for more than two hours, and on two previous occasions before that night, he had not stayed there ‘overnight’, as suggested by his evidence that he would stay in the residence overnight once roughly every one week or ten days, I find it difficult to believe that he coincidentally did not go to the washroom during his not too short stay in the residence on those three occasions, or that he did not notice anything inside the washroom. That was particularly so on the last two occasions when he stayed there ‘overnight’, he supposedly had stayed in the residence for a rather long period of time, and yet did not enter the washroom. It is difficult to imagine that he did not need to go to the washroom for biological needs or hygiene reasons. Also in such as small and camped washroom, how he could have uncertain observations such as that the ice bottle ‘was probably not there’ or that he ‘did not notice’ the existence of it there. Further, as shown in photographs (Exhibit P4 – photographs 2, 4 and 6), the two mobile phones that were on a white ramp on the floor of the doorframe to the washroom belonged to MR. Ho. And the washroom did not have a door but a shower curtain, which was opened more than half of the width of the entrance. There were two plastic straws inserted into the ice bottle which was found on the toilet bowl. The distance between the toilet bowl and the door was short and the doorframe was not thick. The area inside the washroom was small and narrow. There was a black electric cable coming from outside the door via the white ramp, extending all the way into an area inside the washroom. This electric cable was relatively close to the mobile phones. I find that even as he said, he had not gone to the washroom at night, but looking at the opened shower curtain and its range, the location of the toilet bowl and the black electric cable, and that Mr. Ho put the two mobile phones he had brought with him on top of the white ramp for charging, it would be natural for him to see from where he was the situation inside the washroom, including the toilet bowl. Moreover, a rather long section of the black electric cable was connected to something like a plug which was lying on the floor inside the washroom, it should have caused Mr. Ho to pay attention to the situation inside the washroom and the toilet bowl for electricity safety reasons. I do not believe that Mr. Ho could not see the ice bottle from where he was when he charged his phones using the ‘plug board’, as the two mobile phones were placed on the base of the doorframe of the washroom, that is the white ramp.”

64.  In my judgment, the magistrate had given careful and proper consideration to the issue whether the appellant was aware of the existence of the ICE bottle.  I agree with Mr Li that given the state of affairs in the toilet as shown in the photo album (Exhibit P4, pages 42 - 43 of the Appeal Bundle) and given the evidence of the appellant that he arrived at his residence between 8 pm and 9 pm on the night in question, it was wholly implausible that he did not notice the existence of the ICE bottle.  The appellant gave evidence that he was asked to meet “A” at about 11:45 pm on the night in question, it is fanciful that someone other than the appellant had gone into the residence in that short period of time and left the bottle in the toilet or assembled the ICE bottle and left it in the toilet after the appellant had left the residence for the meeting.

65.  The appellant submits that the Drug Addiction Treatment Report dated 8 September 2014, called by the magistrate before sentence, stated that the appellant was not drug dependent and he did not test positive to any drugs.  The report seems to provide circumstantial support for the appellant’s evidence that the ICE bottle did not belong to him.

66.  The Drug Addiction Treatment Report was not evidence in the trial, it was called after the magistrate had convicted the appellant. In any event the report was prepared almost 11 months after the date of offence, I do not see how the report could assist the appellant.

67.  On the evidence, the magistrate was entitled to find that “A” and/or his wife had no reason to leave an ICE bottle in the residence, given the fact they knew the appellant was a police officer.  The magistrate had good reasons to reject the evidence of the appellant and found the appellant’s evidence about the part about the wife of “A”, including the part that the wife of “A” had the keys to the residence, was a fabrication by the appellant.

68.  In paragraph 28 of the appellant’s Written Argument, it is submitted that “Though the Appellant seemed to have stated in re-examination that he had touched the ice bottle and had drunk from it, this is clearly a misunderstanding.  If he had really drunk from the ice bottle, his DNA evidence would be on other parts of the ice bottle and not just on the cap.”

69.  When the appellant gave evidence under re-examination, he first said he had touched the ICE bottle and even drunk form it.  He then changed his evidence and said he had never touched it.  In my judgment, there is no basis for the appellant to suggest that he did not change his evidence, it was only a misunderstanding on his part.  I agree with Mr Li’s submissions that the appellant shifted his evidence to accommodate his assertion that he had never seen the ICE bottle.

70.  For the argument that if the appellant had drunk from the ICE bottle, his DNA evidence would be on other parts of the ICE bottle and not just on the cap.  The Admitted Facts says that the appellant’s DNA was found on the plastic bottle.  The only evidence which suggested the appellant’s DNA was only found on the bottle cap came from the appellant.  It is clear from the Statement of Findings that the magistrate did not believe the evidence of the appellant on this issue.  For the appellant’s suggestion that his saliva was spilled over to the ICE bottle when he had conversation with the ICAC officers, the magistrate noted that when PW4, the Investigation Officer, seized the ICE bottle, the appellant was outside the washroom to witness the whole process.  The ICE bottle was on the toilet bowl, which was at some distance from the washroom door, as shown in the photographs.  The magistrate dismissed the possibility that the appellant’s saliva could have spilled over the ICE bottle when he talked.

71.  For the appellant’s claim that he could have come into contact with the bottle under some innocent circumstances.  The magistrate noted that the appellant’s evidence had been inconsistent on the issue whether he had touched the ICE bottle.  The appellant gave evidence under re-examination that on that day, he had also touched a similar plastic bottle of drink which was unopened in the refrigerator.  The magistrate observed that if the appellant had touched a similar plastic bottle of drink in the manner he described, he should have said it during his evidence-in-chief.  The magistrate found that the appellant’s evidence about similar plastic bottle drink was a fabrication that he made up to explain the inconsistency of his evidence.  In my judgment, there is no basis for the appellant to suggest that the appellant’s DNA evidence was only found on the bottle cap.

72.  I agree with the respondent’s submissions that:

“The presence of the Appellant’s DNA on the plastic bottle was only a factor that she considered as strengthening the prosecution case [112, para. 26]. In HKSAR v Chau Ping (unreported) CACC 2/2013, 8 January 2014 at para. 33, the Court of Appeal had this to say:

‘… the absence of [DNA or fingerprint evidence] is of neutral probative effect for there can be many explanations why such evidence is not found...’”

73.  In my judgment, the magistrate had considered and dealt with the submissions that if the appellant had used the ICE bottle, the straw in the ICE bottle or other related straws should have contained his DNA. The magistrate came to the conclusion that the absence of DNA on the straw or other apparatus would not affect the key issue in this case.  The magistrate accepted the evidence of PW3 that a person’s DNA could be left on an object by different ways, for example, epidemic cells could be left on an object through contact, or saliva and blood.  PW3 did not mention in her evidence the required quality and quantity.  The magistrate also noted the evidence of PW3 that she had never seen the exhibits, she had only compared the DNA results on the exhibits.  The magistrate noted that there was no evidence to explain why there was no evidence to show that the relevant straws or the relevant apparatus had the appellant’s DNA.  In my judgment, the magistrate had given adequate and proper consideration to the presence of the appellant’s DNA on the bottle and the absence of evidence that the appellant’s DNA was on the straw or other parts.

74.  Ground 2 and 3 fail.

I.   THE DISPOSAL OF THE APPEAL

75.  In my judgment, the magistrate has provided sufficient and cogent reasons for her findings.  She had taken into consideration all the evidence placed before her.  On the evidence before the magistrate, she was entitled to make the findings as she did.

76.  There is nothing to suggest her reasoning was flawed, let alone plainly wrong.

77.  I conduct a re-hearing on the evidence.  I am satisfied beyond reasonable doubt that the appellant possessed the dangerous drug, the subject matter of Charge 1, not in the execution of his duty.  The appellant possessed the dangerous drug in question knowing the same was dangerous drug. I am satisfied from the evidence that the only reasonable and irresistible inference I can draw is that the appellant knowingly possessed the plastic bottle, the subject matter of Charge 2, which was an apparatus fit and intended for the inhalation of ICE.

78.  For the above reasons, I dismiss the appellant’s appeal against conviction.

J.  COSTS OF THE INTERLOCUTORY APPLICATION FOR DISCLOSURE

79.  At the disposal of this appeal, the respondent applies for costs of the interlocutory application for disclosure of the Source File of the appellant, pursuant to section 17 of the Costs in Criminal Cases Ordinance, Cap 492.

80.  The respondent submits that this court in dismissing the application, agreed with the respondent the Source File was not relevant to any issue in appeal and the application was, in substance, a fishing expedition, the costs in resisting the application was unnecessarily incurred by the respondent.

81.  The appellant opposes the application.  The appellant submits that the notice of motion for an order of disclosure was not an unnecessary act as the legal representatives of the appellant on appeal are the ones to judge the relevance or otherwise of the Source File.

82.  Section 17 of Cap 492 provides that:

“Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or the omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first mentioned-party to the proceedings by the other party to the proceedings.”

83.  In HKSAR v Wai Sau Cheong [2003] 1 HKC 640 at 644, the court held that:

“[F]or costs unnecessarily or improperly incurred, the relevant considerations are:

(1) costs have been incurred by a party;

(2) as a result of an unnecessary or improper act or omission by or on behalf of the other party;

(3) all parties shall be heard;

(4)     the court may order all or part of the costs so incurred to be paid by the other party.”

84.  The means of the defendant should be taken into account in awarding costs.

85.  In paragraph 53 of my decision dated 20 December 2016, I agreed with the respondent that the defence that the appellant was acting in the course of his duty when he met “A” on 25 October 2013 was squarely before the magistrate.  The appellant was aware of the existence of the Source File as it was issued to him for the purpose of recording any communication between the appellant and his informers.  He knew how entries were recorded in the Source File.  The appellant, in his evidence, had the opportunity to tell the court all he knew about the dates of meeting “A”, the nature of the informer (registered or otherwise), the mode of contact and the attempt to contact “A”.  All these matters were plainly within the appellant’s knowledge.  The appellant had access to his police notebooks and if need be, he could use his notebooks to refresh his memories on matters relating to “A”.

86.  According to the notebook of the appellant (D1) produced at trial, the last entries made in relation to “A” were made in July 2012, almost 15 months before the incident in question.  The appellant never suggested in his evidence that he had other notebook entries made of his meetings with “A” after the entries in July 2012, nor did he suggest in his evidence that he had recorded any meeting with “A” after July 2012 in his Source File.  It is difficult to see how the materials in the Source File could advance the appellant’s case.

87.  The Source File sought to be disclosed was compiled by the appellant, hence he should have recollection of its contents, the submission that without sight of the Source File, the legal representatives of the appellant cannot make unqualified assertions as to the value of the material in the Source File must fail.  If the mode of recording contact was in issue, as the appellant suggests in his affirmation, trial counsel who then represented the appellant could have cross-examined PW1 and/or PW2 with instructions from the appellant on this issue, and if need be, discovery of the Source File could have been sought and submissions heard.

88.  Whether “A” was registered or might have been registered was an issue explored fully at trial.  The prosecution dealt with the issue by the admitted facts and the evidence of PW2.  On the part of the defence, the issue was covered by the evidence of the appellant, his notebook was produced as a defence exhibit.  The issue had been fully explored at the trial.

89.  The fact that the current legal representatives of the appellant, with the benefit of hindsight, knowing the reasons given by the magistrate as to why she rejected the defence of the appellant, consider that some criticisms might possibly be made against the former legal representatives of the appellant is not a reason for ordering disclosure.  The appellant’s case that he was acting in the course of his duty when he met “A” on 25 October 2013 was squarely placed before the magistrate.  It cannot not reasonably be argued that the way the former legal representatives of the appellant handled the case deprived the appellant of a fair trial or the absence of the Source File would deprive the appellant of a fair appeal by way of re-hearing.

90.  For the above reasons, I ruled that the Source File sought by the appellant is not relevant to any issue on appeal and is therefore not disclosable.  I dismissed the notice of motion for an order of disclosure.

91.  Costs have been incurred by the respondent in resisting the disclosure of the Source File.  I agree that the costs in resisting that application was unnecessarily incurred.

92.  I make a costs order of the interlocutory application for disclosure in favour of the respondent, pursuant to section 17 of the costs in Criminal Cases Ordinance, Cap 492.  The amount to be taxed if not agreed.