HKSAR v. MAK CHEUK KIT

DCCC 1008/2017

[2018] HKDC 1273

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1008 OF 2017

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REASONS FOR VERDICT

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1.  The defendant faces 1 count of Trafficking in a Dangerous Drug, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The Particulars of the Offence alleged that he, on the 9^th day of November, 2016, on a private car bearing registration mark UD9633 outside No 18 Tai Lee Street, Yuen Long, unlawfully trafficked 21.85 grammes of a solid containing 17.70 grammes of cocaine.

2.  The defendant pleaded not guilty to the Charge.

Prosecution case

3.  At around 4:13 a.m. on 9November 2016 a team of uniform police officers (PW1 Sgt51799, PW2 SPC33995 and PW3 PC20249) were on mobile patrol onboard a police vehicle in Yuen Long area.  When they reached Tai Lee Street, they saw 2 private cars parked at outside No 18 of the Street.  The car at the front was a Mercedes Benz registration number RM984 while the car behind it was a silver-coloured Toyota Camry registration number UD9633.  There was a man standing in between the cars.  This aroused the suspicion of the officers.  PW1 stopped the police vehicle next to RM984.  At this juncture, PW1 noticed a person in white upper garment (hereinafter referred to as “X”) alighted from UD9633 and ran away towards the back of the car.  Upon learning of this matter from PWl, PW2 proceeded to try to look for this person but in vain.

4.  The police found a female passenger in RM984 but no other person in UD9633.  Enquiries with the man standing between the cars and the female passenger and a search of RM984 revealed nothing suspicious.  They were allowed to leave.  An initial search of UD9633 was then conducted by PW2.  He found the dangerous drugs in question in the accessory compartment under the Armrest next to the driver’s seat.  A substantial amount of cash, a black-coloured shoulder bag containing, inter alia, the HKID Card and other personal documents of the defendant, and other items were also found inside this car.  The area was then sealed off pending the arrival of CID officers.

5.  PW2 was crossed-examined mainly concerning the manner in which he conducted the initial search of UD9633.  He was not able to recall in detail where he discovered the various suspicious items.  He had made 2 witness statements (D1 and D2) on this case which were purportedly made on the same day but with different signatures and layouts.  There were no English translations of these exhibits made available at trial.  According to PW2, since the paragraphs in his initial statement were not numbered, he was told by another officer to make out a new one.  Both statements were signed by him and the contents were basically the same.  He was asked to produce his police notebook which recorded his actions on the day.  He was not able to do so as he had lost it the day before he testified in court.  A report of Theft had been made to Wanchai Police Station. The defence was not privy to the contents of this notebook and there is no copy of it available now.  No further issue was taken by the defence on this matter.

6.  PW4 DPC15007 was the CID officer who took over the case at the scene as Exhibit Officer.  He conducted a thorough search of UD9633 at the scene.  He also took photographs of the various exhibits seized as they were found inside the car (P78A photos (1) to (27)).

7.  The dangerous drugs (P1 to P3) were found in 3 separate transparent plastic bags in the accessory compartment under the Armrest on the left of the driver’s seat.  The first bag contained 4 small plastic bags, the second bag contained 17 while the third bag contained 90 small plastic bags, each of which contained cocaine (P78A photos 10, 28 to 30).

8.  5 stacks of cash were also found inside the car as follows:-

(i) $13,507.05 in a compartment at the front right door (P12, P78A photo 8);

(ii) $25,650 and RMB100 in a compartment of the front Console (P7, P8 & P18, P78A photo 11);

(iii) $14,305.60 in an accessory compartment on the left of the driver’s seat (P9, P10 and P78A photo 9);

(iv) $15,500 in an accessory compartment under the Armrest on the left of the driver’s seat, next to the dangerous drugs (P11 and P78A photo 10); and

(v) $95,157.60 in a black-coloured shoulder bag (P42) found on the front passenger seat (P13 to P16 and P78A photos 12 and 13).

9.  The black-coloured shoulder bag P42 was also found to contain the following documents in the name of the defendant:-

(i) HKID Card (P21);

(ii) HK Driving Licence (P22);

(iii) China Re-Entry Card (P23);

(iv) HSBC ATM Card (P26);

(v) Student Card (Sea-dynamics Course) (P29); and

(vi) 3 photographs (P 31).

Other items of interest found together with these documents inside P42 include an Octopus-Stored Value Card (P24), a Carpark Card (P25), 2 Membership Cards (P 27 and P 30), an ESSO Smile Card (P28) and 3 paper amulets (P32).

10.  A set of vehicle number plate HE4765 (P48) was found on the floor of the front passenger seat (P78A photos 22 to 24).  3 mobile phones (P37, P39 and P70) were also found at different locations inside the car.

11.  PW4 also drew a sketch of the car setting out where some of the exhibits mentioned above were found (P49 and 49A).  He also witnessed PW5 WSPC56822 taking DNA buccal swab samples from the steering wheel and front Console of the car.

12.  PW4 was cross-examined mainly on the manner in which he seized the relevant exhibits at the scene.  It was found that he had used a private notebook to record what he had done in relation to the seizure of these exhibits but he could no longer locate this notebook.  He confirmed that he had worn gloves when he handled the various exhibits in this case.

13.  PW5 described how she obtained 2 sets of buccal swabs for DNA analysis from the steering wheel and the front Console of UD9633 at the scene.

14.  Apparently the defendant was then put on the wanted list by the police but there is no clear evidence as to when this was done.  It is an admitted fact that the registered owner of UD9633 was the defendant’s mother (exhibit P80A).

15.  PW6 PC16236 was the officer who arrested the defendant on 20August 2017.  He stated that at around 4:45 a.m. on that day while on anti-crime patrol with 3 other colleagues in the streets in Yuen Long area he encountered a person, later identified to be the defendant.  He requested the defendant to produce his identification document.  The defendant immediately turned and ran away.  PW6 chased after the defendant.  After a pursuit through the streets in the area, the defendant was found hiding behind a fire-door on the 5^th floor of a building.  No identification document was found on him.  When asked to produce his identity card, the defendant said he had lost it.  PW6 then arrested the defendant for failing to produce his identity card on demand.

16.  At Yuen Long Police Station where the defendant was taken to, PW7 PC21221 confirmed the status of the defendant as a wanted person in connection with the present case and declared arrest on him.  It is an admitted fact that buccal swabs were then taken from the defendant for DNA analysis.

17.  PW8 Mr Chiu Chi Tat was the government chemist who analyzed the buccal swabs obtained from the defendant and conducted the DNA profiling, which was then passed on to PW9 for further actions.

18.  PW9 Dr Luk Duen Yee was called by the prosecution as an expert witness who conducted Random Match Probability Calculation (RMPC) between the DNA samples found in UD9633 and those obtained from the defendant.  Mr Plowman SC indicated that the defence does not challenge her expertise so far as DNA profiling is concerned, but there is reservation on her expertise on RMPC.

19.  PW9 testified that she had been employed as a government chemist since 2002 and had worked in various sections in the government laboratory over the years.  Since 2012 she has been working in the Biochemical Science Section which deals with RMPC.  She received in-house training in DNA interpretation and comparison, in the form of guidance from her superior and more experienced colleagues, and on-hand experience in handling actual cases.  She had handled about 200 to 300 cases involving RMPC over the past 6 years.  She had testified and been accepted as an expert in the Courts of Hong Kong on many occasions in this field.  She agreed that in March 2012 in the case of HKSAR v Ng Chun-fai (DCCC 362/2011), a case of Burglary tried in the District Court, she testified (at paragraph 8 of the Reasons for Verdict of Deputy District Judge Chainrai) that “she was not an expert in the statistical area, her role was to conduct the DNA profile testing of the samples of the defendant” in that case.  However, she stressed that that was before she was transferred to her present Section and that she has since acquired the expertise required to conduct RMPC.  Having heard the evidence relating to her experience and expertise in the field of RMPC, I accepted that PW9 is an expert in this field and allowed the prosecution to lead evidence from her in this area as an expert.

20.  It is PW9’s evidence that the donor of the DNA sample obtained from the steering wheel of UD9633 was probably the defendant.  The odds of the donor of that DNA sample not being the defendant is 1 in 674 trillion.

21.  A set of Admitted Facts (P80A) was produced during the trial.  Apart from those facts already mentioned above, the contents of this document also confirmed, inter alia, that the defendant was in Hong Kong at the time of the offence, and that the estimated street retail value of the subject dangerous drugs at that time was HK$24,101.  It also covered the chain of the prosecution exhibits and the authenticity of the various photographs and their descriptions submitted by the prosecution.

22.  It is the prosecution’s case that the person X was in possession of the dangerous drugs found inside UD9633 for trafficking and that the defendant was that person X.

23.  After the completion of the prosecution evidence, there was no halfway submission by the defence.  I ruled that there is a case for the defendant to answer as the prosecution had established a prima facie case against him.

Defence case

24.  The defendant elected not to give evidence, however, he called 1 defence witness, one Madam Wong Yee Ki.  She is 23 years old and married to one Mr Bo in July 2016.  She gave birth to their son on 7December 2016. Bo was a drug addict and had previous conviction for Trafficking in Dangerous Drugs.  On 14November 2017 he committed suicide by hanging himself at home.  Ms Wong testified that she and Bo knew the defendant and had spent times with him together.  She remembered that while she was pregnant Bo had on several occasions drove her around in a silver-coloured Toyota Camry private car.  She could no longer remember the registration number of this vehicle, but it looked similar to the one shown in P78B photo 36.  She did not know the owner of this car and had no memory of what it was like inside the car.  She stated that she had seen large amounts of banknotes inside that car.

25.  In essence, the defence case is that there is no or no sufficient evidence to prove that the defendant was X, and there is a possibility that at the time of the offence Bo had borrowed UD9633 from the defendant for use in his illicit conduct of trafficking in dangerous drugs.

The issues

26.  The issues in the case are:-

(i) Whether the person X was in possession of the dangerous drugs in question for trafficking; and

(ii) Whether the defendant was this person X.

Analysis and Findings

27.  I direct myself that the burden of proof is on the prosecution.  It is for the prosecution to prove each element of the offence against the defendant beyond reasonable doubt.  The defendant bears no burden of proof.  He is not required to prove his innocence.

28.  The defendant elected not to give evidence.  It is his right and no adverse inference would be drawn against him.

29.  It is obvious that the prosecution relies mainly, if not exclusively, on circumstantial evidence, and ask the court to draw the necessary adverse inference against the defendant from the primary facts proven in the present case.  I direct myself that no adverse inference should be drawn against the defendant unless it is the only reasonable inference to draw from the proved facts.  It must be compelling, one (and the only one) that no reasonable man could fail to draw from the direct facts proved.

30.  There was very little challenge by the defence on the prosecution witnesses.  Cross-examination of the police witnesses centered mainly on the manner in which they handled the exhibits seized.  There were some unsatisfactory features revealed, eg, the making of 2 witness statements on the same matter with different layouts and signatures by PW2 and the use of private notebook to record the way the exhibits were seized at scene by PW4.  However, those were minor matters and there was no suggestion that any of the witnesses had lied in their testimonies.

31.  I am satisfied that all witnesses called in the trial, including Madam Wong who was called by the defence, were honest and reliable witnesses.

Flight as evidence of guilt

32.  At the end of the final submissions I confirmed with Mr Polson that the prosecution would rely on the evidence of “flight” by the defendant at the time of his arrest as evidence of admission of guilt.

33.  In The Queen v Chan Kwok-keung and Another [1990] 1 HKLR 359, the Privy Council stated:-

“[in] order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question.”

(per Lord Ackner at page 363A).

34.  The appellants in that case were convicted of murder on the evidence of an accomplice.  The appellants were found stowing away in a boat from Hong Kong to Macau nearly 10 months after the commission of the crime.  The prosecution led no evidence to suggest that they had been in hiding for all or any part of this period and there was no evidence as to whether any and if so what effort has been made by the police to find them and with what result.  The Privy Council allowed the appeal on the basis that the evidence of “flight” by the appellants under such circumstances was not evidence corroborative of the direct evidence given by the accomplice.

35.  The evidence of “flight” by the defendant in the present case was very similar to that in Chan Kwok-keung.  It was some 10 months after the commission of the offence when he was stopped by the police in the streets.  There was no suggestion that he had been in hiding for all or any part of this period and there was no evidence as to whether any and if so what effort has been made by the police to find him and with what result.  I therefore ruled that the fact that the defendant tried to run away when being stopped and arrested by the police on 20August 2017 could not be relied upon by the prosecution as admission of guilt by the defendant.  I will draw no adverse inference against the defendant on this issue.

Circumstantial evidence

36.  As I have pointed out above, in the present case the prosecution relies mainly, if not exclusively, on circumstantial evidence in proving its case against the defendant.

37.  In The Queen v Exall (1866) 4 F & F 922, Chief Baron Pollock made the following comments on circumstantial evidence:-

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence — there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.” (at page 929)

38.  These comments were cited with approval in Hong Kong by the CFA in Kissel v HKSAR (2010) 13 HKCFAR 27 (at 107-108) and the CA in HKSAR v Lai Kwok Hung [2016] 1 HKLRD 1230 (at 1244).

39.  In R v Taylor (1930) 21 Cr App R 20, Lord Chief Justice Hewart said:-

“It has been said that the evidence against the applicants is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence or surrounding circumstances which, by undesigned coincidence, is capable of proving proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
(at page 21, Emphasis added)

40.  Direction 21.2 of the Specimen Directions in Jury Trial contains the following phrase: “Circumstantial evidence can be powerful evidence, indeed, it can be as powerful as, or even more powerful than, direct evidence….”

41.  I bear the above comments in mind when assessing the evidence and arriving at my verdict in the present case.

Issue I: Whether X was trafficking in the dangerous drugs in question

42.  The offence occurred at around 4:13 a.m. in a quiet street in Yuen Long. When the police vehicle appeared and stopped near UD9633, X immediately alighted and ran away without returning.  There were dangerous drugs and a substantial amount of cash inside the car.  The dangerous drugs were packed in 111 small plastic bags.  There were 5 separate stacks of cash in various amounts and denominations placed at various locations in the car, one such stack being found next to the dangerous drugs.  Another pair of vehicle number plate, and no less than 3 mobile phones, were also found in this car.

43.  To have acted in this way, abandoning all these items found inside the car, X must have been aware of the presence of the dangerous drugs and ran away to avoid being arrested by the police.  On the strength of such evidence, I am satisfied so that I am sure that X was knowingly in possession of the dangerous drugs found in UD9633.  This person was using this vehicle as a platform for trafficking in those dangerous drugs.

Issue Il: Whether the defendant was the person X

44.  I have noted that in relation to DNA evidence the prosecution opened its case on the basis that the DNA samples from the seized drugs could have been originated from the defendant (see paragraph 13(a) of the Prosecution's Opening dated 14September 2018 signed by Mr Polson), however, there is no admissible evidence in relation to this assertion.  I enquired with Mr Polson if the only DNA evidence linking the defendant to the scene was the buccal swab sample obtained from the steering wheel of UD9633, to which Mr Polson confirmed that was the situation.

45.   The registered owner of UD9633 was the defendant’s mother, therefore, it is nothing surprising to find that DNA of the defendant was found on the steering wheel of the car.

46.  The finding of the personal identification documents of the defendant in the car under the circumstances is a totally different matter.  The documents found in the black-coloured shoulder bag were personal documents, his: HKID Card, Driving Licence, China Re-entry Card, bank ATM Card, Student Card, even personal photographs, which one would normally expect to be carrying on his person.  There was no explanation why these important documents belonging to him were inside this car at the time.  When the defendant was arrested in the small hours in Yuen Long some 10 months later, he was not in possession of any identification document.  There is no suggestion that he had ever tried to obtain a replacement of any such identification documents that were left inside this car.

47.  The evidence of Madam Wong did not cause me any concern on this issue.  Her evidence, taken to its highest, is that her late husband had taken her around on several occasions in a private car similar to UD9633 at around the time when the offence occurred.  Her evidence cannot be taken to have established that UD9633 might have been used by her late husband at around the time material to this case.

48.  Taking into consideration all the evidence available, I am satisfied so that I am sure that the defendant was the person X who alighted from UD9633 and ran away at the relevant time.

Conclusion

49.  Having considered all the evidence and the submissions by the parties carefully, I am satisfied so that I am sure, that the defendant was knowingly in possessing of the dangerous drugs for trafficking at the time and location as particularized in the charge.  The prosecution has proved all the elements of the charge against the defendant beyond reasonable doubt.  The defendant is convicted as charged.