HKSAR v. SANYANG YAHYA

DCCC 25/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 25 OF 2017

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REASONS FOR VERDICT

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1.  The defendant is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. (Charge 2)

2.  The defendant pleaded not guilty.  After due consideration of the evidence and submissions, I find the prosecution has proved the charge beyond all reasonable doubt and the defendant is convicted accordingly.  Following are the reasons.

The prosecution case

3.  The police launched an undercover operation named “Jade Goblet” between 13 March and 17 August 2016 to collect intelligence and combat narcotic activities in Wan Chai and Lan Kwai Fong area.  An undercover agent was deployed to accept dangerous drug offered by drugs traffickers.  The undercover agent carried out his duty under the protection of two supporting officers nearby.  Upon completion of a control-buy transaction, the supporting officers would intercept the traffickers and recorded down their particulars.  

4.  At about 2328 hours on 4 May 2016, outside 41 Wyndham Street, D1 approached the undercover agent (PW3) and offered to sell one gram of cocaine to him for $1,000.  PW3 pretended to give positive reply.  D2 standing next to D1 then took out a transparent re-sealable plastic bag containing dangerous drug (in power form) hidden in his right sock and gave it to PW3.  PW3 then gave HK$1,000 to D1 and clapped hands with D1 and D2 respectively.  PW3 had 15 encounters with D2 during the operation.

The defence case

5.  On 4 May 2016 the defendant was nowhere near 41 Wyndham Street, he had no knowledge of the crime alleged and had no idea why the supporting officer (PW4) would have his Form 8 particulars.

6.  The defendant did not know Wyndham Street, and he only met PW3 for the first time in his previous Kowloon City Magistracy trial. 

Issues in dispute

7.  PW3 said he was first approached by “Kelly” on 14 April 2016, then again on 4 May 2016, and he met “Kelly” again on 24 May 2016 and thereafter 12 further encounters until the operation turned overt on 17 August 2016.  PW3 identified D2 as “Kelly” in court.  The prosecution presented her case as one of recognition but the defence challenged the quality of the identification evidence.  

8.  Although the defence did not object dock identification, identity was in dispute.  Honest and convincing witness may be mistaken:-

● was the “Kelly” referred by PW3 the same person all along?

● was D2 the one who handed over the cocaine to PW3 on 4 May 2016?

● Was D2 the one who handed over the Form 8 to PW4 on 4 May 2016?

9.  Further, the defence had reservation that the incident on 4 May 2016 happened as the officers described.  Thus the creditability of the officers was also in issue.  Did the officers exaggerate their evidence?

10.  PW3 was the decoy in the operation, he gave his evidence under immunity.  Was he a tinted witness as suggested by the defence?  Did he have any motive to cover up any mistake he made at time of the operation or discovered subsequently?

Matters agreed

11.  Legal aid was granted to the defendant well before the trial, yet his trial on 5 July 2017 was postponed once and again due to his own legal representation issue.  His legal aid was discharged on 10 July 2017 following leave to discharge from representing the defendant was granted to his third counsel (by then 3 counsels had been assigned to him by legal aid).  The case was adjourned for two weeks for the unrepresented defendant’s benefit to have the translation of the Occurrence Book, which was recorded in Chinese by PW3 (Copy of the Occurrence Book has been provided to his then legal representative).

12.  Finally, his trial resumed on 24 July 2017 without legal representation.  As the defendant complained of toothache, he was provided medical treatment in the morning.  His trial commenced in the afternoon, in response to the defendant’s request, the prosecution began her case with the evidence on calls record between the undercover agent and the supporting officer.  Despite the defendant’s late application for legal aid, he was assigned with his fourth counsel on the second day of the resumed trial. 

13.  Time was allowed for counsel to take full instruction from the defendant and to listen the audio recording of the evidence called.  The trial continued in the afternoon on the second day.  No re-calling of PW1 and PW2 was required and certain facts were admitted by the defendant (Exhibit P8).

14.  The chain of evidence related to the dangerous drug (Exhibit P3 and P4) was not in dispute.  The packet of substance PW1 handed to DPC7289 at 2359 hours on 4 May 2016 was a transparent re-sealable plastic bag containing dangerous drug (as depicted in Exhibit P6), namely 0.37g of a powder containing 0.20g of cocaine.  The chemist certificate was marked as Exhibit P5.

15.  The defendant was a holder of recognizance numbered A0324051.  He was in Hong Kong on 4 May 2016.  He was arrested on 17 August 2016 at 1718 hours by DPC3406 for the offence charged.

16.  The average retail price of cocaine powder in May 2016 was HK$1,061 per gram (thus 0.37 gram × HK$1.061 per gram = HK$393).

Background

17.  During the operation “Jade Gobelt”, PW3 DPC3903 was deployed as an undercover agent to hang around the bars or pubs in the area of Lan Kwai Fong, Central, Hong Kong to collect narcotic intelligence, which would include entering transactions with drug peddler(s). 

18.  A dangerous drug “controlled-buy transaction” was conducted under surveillance.  Two supporting officers were nearby to protect him and to make interception and enquiry.  The officers were equipped with mobile phone during the operation.

19.  The operation turned overt on 17 August 2016 and the defendant was arrested on 17 August 2016.  The defendant attended a cautioned interview (Exhibit P11, P11(A)), in which he denied knowledge of 41 Wyndham Street and Jassey Francis Ja (D1) [entries 193 to 198 of the transcript].

Findings

20.  It is for the prosecution to prove the defendant’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendant has no burden of proof whatsoever.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  Where there is any reasonable doubt, the benefit should go to the defendant.

21.  When the defence counsel referred to the flow of people one would be expected during weekdays of Lan Kwai Fong and the google map for that area in her final submission, I have indicated that I would not take judicial notice to the extent of flow of people in Lan Kwai Fong as I have no knowledge of such, but I would take judicial notice of the physical location of the Theater Lane MTR exit and Wyndham Street as I know the whereabouts of these two places.  No further submission on this matter was received from the parties.

22.  In cross-examining the inconsistent testimony of the fraud control clerk of China Mobile (PW2) in another trial, the defendant first revealed his previous trial in Kowloon City Magistracy.  Whatever the result of that trial, this would not cause any adverse inference in the present case.  Likewise, the evidence about the narcotic deal with “Kelly” on 14 April 2016 that revealed under cross-examination of PW3 was only related to the issue of identification and would not cause any adverse inference against the defendant.

23.  At one stage the defendant was concerned of the non-availability of the call records between PW3 and PW4.  The officer in charge of the operation, PW1, gave evidence that in pursuant to a court order made on the PTR on 22 June 2017, he requested for the call records between PW3 and PW4 for the relevant period via the Police’s ESTAR system.  PW2 gave evidence that in responding to that request she made a search but there was no call record for the period requested.  PW2 further explained that the China Mobile only kept the latest 90 days’ call records for any currently pre-paid card in use, thus the company no longer had the record requested. 

24.  According to PW2’s evidence, China Mobile did not have the record related to PW3’s phone number because it was outside the 90 days’ period and for PW4’s phone number, the sim card has been re-sold, thus all the call records before the re-activation would have been discarded. 

25.  In cross-examination, the defendant (while he was unrepresented) put to PW2 that she gave different answer to the same question in his previous Kowloon City Magistracy trial, in that trial she said there was a way to locate records over 6 months.  PW2 said she had no recollection she had said so, the back-up system of China Mobile was only for the post-paid clients, ie for those made payment on monthly basis, these clients were required to provide personal particulars and address proof upon subscription and they were provided with more supporting services.  She explained that the back-up system was not applicable to pre-paid card users, as the mobility was very high.  I considered and accept PW2’s evidence.

26.  After the defence counsel had ascertained with PW3 and PW4 why they were equipped with mobile phone and the reason for the use of pre-paid sim card, it was put to the officers that they needed to communicate with each other via mobile phone at the material time because they were not sure of the identity of the traffickers.  The officers disagreed and PW3 said that was a security measure designed to ensure accuracy of identity of the traffickers. 

Jade Goblet

27.  At the material time, the duty of PW3 was to collect narcotic intelligence in the area of Lan Kwai Fong (LKF)and to accept dangerous drug offered by drug peddlers.  PW3 gave evidence that he would make records of the transactions in his Occurrence Book with more detail descriptions (including height and age) of the traffickers and assigned a “M number” to them in the first entry, thereafter for those who were assigned with M number, his record would only refer to their M number, and their clothing which he had related to the supporting officer via mobile phone during the operation to complete his record. The M number was assigned in accordance to the sequence of their appearance. 

28.  PW3 gave evidence that he was instructed to give signal to nearby supporting officer(s) after a transaction is completed by doing a “high five”, ie clapping hand(s) with the drug trafficker(s) before he walked away with the dangerous drug and then made a call to the supporting officer informing him the clothing of the traffickers. The supporting officers would then go forwards after 5 to 6 minutes.  He would remain around until he saw the supporting officers intercepted and conducted enquiry with the trafficker(s) concerned. PW4 gave similar evidence about his briefing on his role as a supporting officer.

29.  Evidence shown that PW3 and the supporting officers were briefed again for the steps of their tasks, their duty and responsibility every time before they went out for the operation.  I noted and consider that the setting of the operation and the steps designed allowed PW3 sufficient time to have good observation of the overall appearance of the traffickers, enabled the supporting officer(s) to obtain accurate personal particulars of the traffickers and provided measures to ensure safety of PW3 and accuracy of the information gathered by the supporting officer(s).

30.  PW3 gave evidence that the operation commenced on 13 March 2016 and lasted for 5 months.  14 March 2016 was the first day he went to LKF as a decoy to collect intelligence.  Since then he went to LKF almost every night sometime after 8:00 pm, to walk around and stay in bars.  There would be a group of black males gathered on the street, the black males approached and chatted with him, he was known to the group as “Smiley”.  During the operation, he mingled with the group of black males almost every night to get their trust, and they would greet each other even there was no drug deal. 

31.  PW3 gave evidence that on 4 May 2016 outside 41 Wyndham Street, he was approached by “Jacob” (M14), who offered him 1 gram of cocaine in HK$1,000, there was no dispute that “Jacob” was D1, who has pleaded guilty to the charge.  PW3 said he nodded his head and asked for one gram.  “Jacob” then spoke to the black male next to him “Kelly, give him one-gram cocaine.”. “Kelly” then took out the packet of cocaine power (Exhibit P3 and P4) from the right sock he was wearing, and passed the cocaine to him, he then put the cocaine inside his pocket.  “Jacob” then asked him for the money, and he gave two $500 note to Jacob.  He then did a “high five” clapping with “Jacob” and “Kelly” respectively. 

Recognition/Identification

32.  PW3 said he had a total of 15 encounters with “Kelly” during the operation and he recognized the look of “Kelly”, he was invited to do a dock identification, the defence raised no objection.  PW3 identified D2 as the “Kelly” he mentioned in his evidence.  The defence put to PW3 that he had mistaken D2 to be the “Kelly” he met on and before 4 May 2016.  PW3 disagreed.

33.  PW3 was confident of his recognition of “Kelly”, in considering his identification evidence I reminded myself that an honest and convincing witness could be a mistaken witness.  I reminded myself of the risk that PW3 could be influenced by the other subsequent encounters with “Kelly” and should examine closely the circumstances in which the identification came to be made in particular that on the 4 May 2016 before I accept his evidence.  I would refer to this again later.

34.  PW3 gave evidence that one odd week after the commencement of the operation, the black males started to approach him with drug.  “Kelly” first approached him on 14 April 2016 and “Jacob” first approached him on 3 May 2016.  “Kelly” gave his name to him and was assigned with M8, D1 called himself “Jacob” and was assigned with M14.  The defendant gave evidence that he was never known as Kelly.  The officer simply had no control as to the name the individual black male provided to him. 

35.  The defence had queried PW3 why he did not make a record of D2’s distinctive facial feature, namely his moustache and beard, the officer said that was not a distinctive feature for the group of black males, rather it would be uncommon if they were well shaved.  The officer had the group of black males with him since 14 March 2016 in LKF, he had close interaction with them. I considered and with the view that the officer was in a position to observe and identify their distinctive features during the operation.

36.  Following the PW3’s comment that the style of the moustache and beard might change.  The defence counsel put to the officer that clothing might change also, of which the officer agreed but in explaining why he put down the clothing the officer said that was how he confirmed the subject persons with the supporting officer therefore he put that down to complete his record.  PW4 gave similar evidence and said he believed PW3 referred the persons by clothing just for the shake of convenience.

37.  PW3 gave evidence that he had a previous drug transaction with “Kelly” on 14 April 2016.  On that occasion he had “Kelly” within his sight for 8 to 10 minutes, because of the nature of the encounter, he had paid attention on the facial features of “Kelly” and made record of the transaction.  When he met “Kelly” again on 4 May, he recognized him, during that transaction they were close to each other (within half a meter), the area was bright with lighting, the flow of pedestrian was low, with unobstructed view, and on this second occasion he had “Kelly” within his sight for about 8 minutes.  He had clear view of “Kelly” on the first two occasions.  He met “Kelly” again on 24 May and he had him within his sight for about 5 minutes.  All together he had met Kelly 15 times since 14 April 2016 during the operation, which turned overt on 17 August 2016.

38.  During the prosecution case it was only put to PW3 that he has mistaken the identity of “Kelly” in the 14 April and 4 May incidents.  After the ruling of case to answer, the defence counsel submitted new instruction was received and PW3 was re-called for the defence to put to the officer that he had never seen the defendant during the operation.  The time record of the officer’s Occurrence Book (OB) and the Octopus Card/MTR record of the Octopus card seized from the defendant on 17 August 2016 was cross checked during the re-call.

39.  According to PW3 the 15 encounters in which he had interacted with “Kelly” during the operation, happened on the following dates outside 41 Wyndham Street, except the one on 24 June 2016 happened in the D´Aguliar Street:

April	14
May	4, 24, 31
June	1, 7, 20, 24, 28, 29
July	12, 15, 21
August	3, 12

Mistaken identification?

40.  Five out of the 15 encounters in which PW3 had interacted with “Kelly” were put to the officers by the defence attempting to show that it was impossible for the officer to have seen the defendant at the location he alleged, and suggested to the officer that he lied to secure his protection under the immunity (Exhibit P7):-

(1) According to the OB record, PW3 met “Kelly” for the first time on 14 April 2016 at around 2258 hours outside 41 Wyndham Street while the MTR record shown the user of the Octopus card exited the Central station at 2256 hours. PW3 said from the nearest exit at Theater Lane, with the defendant’s physique the defendant could have made it to the location where he met “Kelly” in 2 minutes if he walked fast.

(2) According to the OB record, PW3 met “Kelly” for the fifth time on 1 June 2016 at around 2345 hours outside 41 Wyndham street and chatted with him for a few minutes. The MTR record shown the user of the Octopus card exited the Tsuen Wan West station at 21:49:50 hours with no further travel via MTR that day. The defendant gave evidence that he had returned his home at Tsuen Wan West that night and did not go to Central. PW3 said he was unaware that the defendant lived in Tsuen Wan West, but he saw the defendant on 1 June as recorded and that there were other means of transport, eg bus and taxi, between Tsuen Wan West and Central, and there would be sufficient time for someone to go to the location where he met “Kelly” between 21:49:50 hours and 2345 hours.

(3) According to the OB record, PW3 met “Kelly” for the seventh time on 20 June 2016 at 2315 hours outside 41 Wyndham street and chatted with him for several minutes. The MTR record shown the user of the Octopus card exited the Admiralty station at 2305 hours, and the user could not have been at Central by 11:15 pm. The officer disagreed and said he saw the defendant as recorded. The officer said one could have travelled by taxi from Admiralty to Central in 3 minutes in that hours. Counsel submitted in the closing submission it would take up to 9 minutes by taxi.

(4) According to the OB record, PW3 met “Kelly” for the tenth time on 29 June 2016 at 2345 hours outside 41 Wyndham street. The MTR record shown the user of the Octopus card exited the Mong Kok station at 21:39:46 hours. The officer said he saw the defendant as recorded and that there were other means of transport between Mong Kok and Central, eg bus, public light bus and taxi, and there would be sufficient time for someone to go to the location where he met “Kelly” between 21:39:46 hours and 2345 hours.

(5) According to the OB record, PW3 met “Kelly” for the thirteenth time on 21 July 2016 at 2300 hours outside 41 Wyndham street and chatted with him. The MTR record shown the user of the Octopus card exited the Central station at 2301 hours. The defence put to the officer that he could not have seen the defendant on 21 July 2016 as he alleged. The officer disagreed and said he saw the defendant as recorded and it could have taken two to three minutes for the defendant to where they met from the nearest exit of the Central station.

41.  PW3 gave evidence that he was wearing the same watch all along.  On occasions he would adjust the time of his watch with reference to the real time, thus he considered the time shown on his watch was the real time.  In court the defence counsel asked PW3 for the time on his watch, the officer read the time and said it was 11:25 am, whereas the time of the counsel’s iPhone was 11:30 am, the officer said time has lapsed when the counsel checked the time of her iPhone and said his watch has turned to 11:28 am.  The cross-examination was conducted with the assistance of interpreter, time being the time shown on the clock in court and the counsel’s watch were also checked.  All gave different time. 

42.  Upon clarification in re-examination, PW3 said when he made his daily record on the OB he used the word “around” to describe the time because according to commonsense the time shown on the watch might be one to two minutes different.  The officer agreed the time on his watch might not be 100% accurate.  With the little test done in court as mentioned above, it was suffice to say the time shown on the officer’s watch might be different from that of the MTR system.  I considered and do not find this casted any doubt on the officer’s evidence.

43.  The defendant gave evidence that he was an asylum claimant in Hong Kong, financially he relied on ISS assistance and his female friends’ support.  He used to live in Tsuen Wan West and moved to Mong Kok in June/July 2016, there was no partition within the rental flats.  He shared the flat in Tsuen Wan West with another two Gambian.  The Octopus card seized from him was the only one he had been using since 2014.  He had never lost or lent his Octopus card to anyone. 

44.  The defendant gave evidence that he used this Octopus card to make all his travel in Hong Kong.  He mainly travelled by MTR, he never used taxi but could not recall if he had ever used buses.  He submitted the Octopus card/MTR record (Exhibit D1, D2 and D2(A) to show the travelling he made within the timeframe of the period(s) shown.  The defence witnesses gave evidence to the effect that the Octopus Card/MTR record was a complete record for the period(s) shown for the use of the Octopus Card.

45.  There was no evidence to the contrary that the Octopus card was not possessed and used by the defendant exclusively.  Based on his evidence, the prosecution drew the defendant’s attention that there were many occasions the record showed that he left Central MTR station and later entered a Kowloon MTR station without any travelling record in between.  One must take transport of some sort to cross the harbour, even the defendant knew he could not deny this.  The defendant was not able to explain the prosecution’s observation. The prosecution put to him that he could have travelled around without causing entry on this Octopus Card, the defendant disagreed, and then went on to question the completeness of the Octopus card/MTR record he sought to rely on.

46.  Finally, in re-examination, the defendant said there were occasions he was offered free ride on taxi but only on short trips (might be $30 to $50 but not more than that) because he did not want his friends to spend too much on him.  The taxi trip suggested by PW3 from Admiralty to Central was a short trip in term of taxi fare according to the defendant’s evidence.  In order to rely on certain transactions on the record to distance himself from the 15 encounters described by PW3, the defendant gave evidence to the effect that he only used this Octopus Card to pay for his transport however, this simply could not be the case.  I considered and reject the defendant’s evidence.  The record shown that from time to time there were value added transactions to this Octopus card, and HK$691.20 was seized from the defendant’s person upon his arrest.  The evidence suggested that the defendant did have cash for his disposal.

47.  The record shown that 10 out of the 15 occasions mentioned by PW3, the defendant had exited Central MTR station sometime before the time PW3 said he met “Kelly”, while on 2 other occasions (20 June and 12 July) he left Admiralty MTR station sometime before the time PW3 said he met “Kelly”.  The defendant explained when his female friends (a French nurse and a Russian model) were in Hong Kong, they would call him out for meeting, social gathering and entertainment in Central and Admiralty.

48.  The defendant said on all those 12 occasions he went to join his female friend upon her calls, and he did not know where Wyndham Street was and had never seen PW3 or PW4 in Central.  The friends knew his means, they would pay for him and on occasions gave him a few hundred dollars to spend.  Yet when being asked for more specific details of the friends, the defendant said he could not recall but he had it in his phone memory or notebook.  He could remember the name of the pubs he patronized with his friends but he could not remember which NGO his French girlfriend worked for, which hotel he went to see the French lady during her stay in Hong Kong, and which model agency the Russian model worked at, all particulars that help to trace the person he could not remember.  I consider and find the defendant was not an honest witness, and I reject his evidence that he had never seen PW3 and PW4 between 14 April 2016 and 12 August 2016.

49.  For the remaining three occasions (4 May, 1 June, 29 June), the defendant said after he left the MTR station on the Kowloon and New Territories side he did not go to Central.  I would refer to paragraphs 40(2), 40(4) above for the evidence concerning the occasions on 1 June and 29 June 2016.  As to the occasion on 4 May 2016, The defendant said he left Austin Station at 10:21:20 hours as shown on the MTR record.  PW3 said there were other means of transport between Austin MTR station and Central, eg bus, star ferry, public light bus and taxi, and there would be sufficient time for someone to go to the location where he met “Kelly” between 10:21 am and 11:28 pm.  I considered and do not find the defendant’s evidence casted any doubt on the prosecution case.

Recognition

50.  According to PW3’s evidence, he acted in accordance to his briefing after each transaction.  He did the “high five” with the trafficker(s) before he walked away, and made a call to the nearby supporting officer to relate the clothing of the traffickers to ensure the colleague got the right person(s), in this case PW4.  “Kelly” was wearing white polo shirt, Khaki long pant and black shoes.  PW3 remained nearby until he saw PW4 intercepted the right persons and made enquiry with them.  At that time PW4 went up with DPC6349.  He was 100% sure PW4 intercepted the right persons.

51.  According to PW4’s evidence, he and DPC6349 were the supporting officers on 4 May 2016; his responsibility was to protect PW3, followed him, watched out for the “high five” signal and acted in accordance to the briefing.  PW4 gave evidence that on that day he saw PW3 with 2 black males outside 41 Wyndham Street, the area was bright with light from nearby convenience store and lamp post.  He was 3 to 5 meter from them, he saw the three had some hand movement before the “high five” signal, his view was not obstructed.  He kept the two black males under observation and went forward to them after about 4 minutes.

52.  PW4 gave evidence that he intercepted and asked the two black males for their identification document, the one wearing Khaki long pant produced him a piece of Form 8 bearing the personal particulars of D2 (copy of which is marked Exhibit P9).  He checked the appearance of the one in Khaki long pant against the photo on the Form 8 and the man gave him the same name as recorded on the Form 8 upon request.  He jotted down the necessary identity information from the Form 8 on his notebook.

53.  PW4 gave evidence that all persons intercepted in this operation were black males, and he would also have interaction with black people outside the operation though not very frequent.  It was suggested to PW4 that all the black males looked alike to him.  PW4 did not agree and said they also had their own features and easy to identify.  I considered and accept PW4 evidence and find that he was able to identify and compare features of the man in Khaki long pant with the features of the man depicted in the photo.

54.  The defendant gave evidence that he knew the Form 8 was his proof of identity in Hong Kong and an important document.  He was required to have the Form 8 with him whenever he went out, there was one occasion he found he forgot to take it with him upon interception by Police and he returned home first for the document.  According to the defendant he shared accommodation with other Gambian but all of them had their Form 8.  It had never occurred to him that anyone had taken his Form 8.  There was no evidence that the defendant had ever parted with his Form 8, the last one required replacement because of wear and tear.  That the defendant might have mixed up his Form 8 with others was not supported by any evidence, and I do not consider the defendant’s evidence casted any doubt on PW4’s evidence. 

55.  It was not disputed that Exhibit P9 is a copy of D2’s Form 8.  If the man in Khaki long pant was not D2, then the question being why that man had D2’s Form 8 in his possession at the material time.  The defendant said he was puzzled why someone would have given his Form 8 to PW4.  The defence suggested to PW4 that the black males in their gathering tended to mix up their Form 8 and taken others as own.  PW4 said if that was the case, he would have arrested that person.  PW4 said he honestly believed they were the person shown on the Form 8 respectively, referring to D1 and the man in Khaki long pant.  I considered and accept PW4’s evidence.

56.  PW4 was asked by the defence if he had ever seen the two males before 4 May 2016, he said he remembered he had seen the man in Khaki long pant before but he could not remember when was that.  He was further asked for the circumstances, PW4 said it was during the operation, he saw the man being intercepted by his colleague.  The defence then put to the officer that he was lying as he was not on duty on 14 April 2016, on which PW3 said he saw this man for the first time.  PW4 reiterated he had such an impression but he was not sure of the date. 

57.  It was clarified in re-examination that PW4 was on duty for the operation on 14 April 2016, he was pairing with DPC8133, who was responsible for the interception on that day (the edited notebook entry without details of the males intercepted was marked as Exhibit P10).  In re-examination of PW4, the prosecution produced the Form 8 and the edited notebook entry.  The defence only seek leave to further cross-examine on the Form 8 but not the edited notebook entry. 

58.  It was not the prosecution’s intention to call evidence of the 14 April incident from PW4, and she did not go further to verify with PW4 the identity of the subject intercepted on 14 April 2016.  At no time did the prosecution request PW4 to make a dock identification.  All these were transpired under cross-examination and the re-examination.  I considered and find PW4 to be an honest witness.  I considered and accept PW4’s evidence as to what happened on 4 May 2016.

59.  According to PW3’s evidence, he met D2 on 14 April 2016 at around 2258 hours, after a drug transaction, he made a “high five” with D2 and the supporting officers went up to D2 after some 6 to 7 minutes.  As the relevance of that occasion was limited to identification of D2, both parties have been cautious not go into details of that occasion.  In that occasion PW3 said he had D2 within his sight for about 8 to 10 minutes.  According to PW4’s evidence he and DPC8133 went up to make interception on that day at 2307 hours, the interception and enquiry was conducted by DPC8133, it was in that occasion that he saw the black male in Khaki long pant (ie D2).  I considered and find that PW3 and PW4 were referring the same incident on 14 April 2016 in this part of their evidence.

60.  In the present case, PW3 started to mingle with the group of black males gathered around in LKF since 14 March 2016.  It was his task to distinguish and recognize them where they were involved in any drug transaction.  He had direct inter-action with “Kelly” during the drug transactions and he remained in the vicinity to have “Kelly” under observation after each transaction on 14 April 2016 and 4 May 2016.  These were not fleeting glances.  He recognized “Kelly” when he met him again on 4 May 2016, and next on 24 May 2016, he said he further met “Kelly” for another 12 times, a total of 15 times up to 12 August 2016. After due consideration of all the circumstances I find that this was a true case of recognition.

Immunity

61.  The purpose of the operation was to collect narcotic intelligence, to accept dangerous drug offered was part and partial of the collection of intelligence.  PW3 was the only decoy but the two supporting officers would change during the operation.  PW3 was followed by two supporting officers assigned by his superior, any drug transaction was under Police control and surveillance. 

62.  PW3 gave evidence that every time before he went out for the operation, the operation supervisor would give him a briefing, and reminded him again on:-

● The purpose of the operation;

● Not to lay false accusation;

● Not to induce anyone to commit a crime;

● Not to participate in illegal activities; and

● Should he violated any law, he would also be dealt with in accordance to the law and liable to criminal prosecution.

63.  PW3 gave evidence that there was no target subject and there was no target on the number of drug deal.  This was a long term operation no immediate arrest would be made; 15 drug transactions were completed by 4 May 2016. Ultimately 31 drug transactions were completed during the operation and 29 black males were arrested.

64.  PW3 gave evidence that he was not told when the operation would come to an end beforehand, the operation turned overt on 17 August 2016 and he last acted as a decoy on 16 August 2016.  His role in the operation was to act as a decoy, to make OB record every night after work, to handover all the dangerous drug sold to him to the Police after the transaction.  He had no idea about the arrest, the administration and the prosecution matter.  He learnt from the news that it took several days to arrest all the 29 black males. 

65.  The defence in cross-examination challenged the effectiveness of the operation in attracting traffickers to approach and offer dangerous drug to PW3, PW3 said the group of black males that gathered in LKF was always subjected to interception and enquiry by Police, he believed they had already got used to it.  Further, the supporting officers would only go forwards to intercept and conduct enquiry 5 to 6 minutes after his “high five” signal. PW3 said he believed with so many drug transactions completed with him without being arrested, he had gained trust from that group of black males and it would be natural for them to approach him to sell him dangerous drug. 

66.  The operation was designed by the superior, PW3 was only acted as instructed.  The officer simply was not in a position to tell what considerations had actually been taken by the individual black male before he made his decision to approach him.  The officer answered the defence counsel’s question by what he believed according to what he had observed during the operation.

67.  It was suggested to PW3 in cross-examination that he had his own interests to serve in the present case, by dealing with dangerous drug he was involved in illegal activities thus he required the protection of immunity and to secure this protection, the officer would have maintained any mistake he made during the operation or discovered subsequently.  The officer strongly against the suggestion that he was involved in any illegal activities. 

68.  It was further submitted in the closing submission that PW3 would do anything to advance his case because he was granted immunity on the condition that he was to tell the truth i.e. the information he gave to the Police therefore he needed to stick to it even he found out he had mistaken.  The defence submitted that the officer failed to provide a viable explanation for the defendant able to reach the location where he said they met, in particular the 14 April encounter and the 21 July encounter.

69.  When the Octopus Card/MTR record was shown to the PW3, he had already indicated his reservation to accept the defendant was the card holder, this was understandable because this was not submitted by him nor did the prosecution invite him to take it as the defendant’s.  The owner of the card was described by the prosecution as the user of the card instead of the defendant during re-examination.  The officer obviously took his OB record represented the “real time”, however, as mentioned above, the little test done in court and the meaning attributed to “real time” by the officer explained the matter and reconciled any discrepancies on the face.  I considered and do not find the “timing issue” raised any doubt on the officer’s evidence.

70.  To PW3’s understanding he was selected to be the undercover agent in this operation, to complete the drug transactions was to collect valuable narcotic intelligence, he did not have any target to meet, all the activities during the operation were under Police monitor and he was acting in accordance to his superior’s instruction in the capacity of a police officer.  I considered and find PW3 to be an honest and reliable witness. 

Conclusion

71.  I considered and find the defendant was not an honest witness.  I considered and reject his evidence that he was not the “Kelly” mentioned in PW3’s evidence.  I considered and reject his evidence that he was not the person who together with D1 sold cocaine to PW3 as the officer described.

72.  At all times I have reminded myself of the burden and standard of proof.  That I have rejected the defendant’s evidence did not relieve the burden of the prosecution.  After due consideration of the whole circumstances, I find this was a true recognition case.  I considered and find all the prosecution witnesses and the two defence witnesses to be honest and reliable witnesses.  I considered and find the defendant’s evidence or the defence case did not cast any doubt upon the prosecution case. 

73.  I considered and accept the evidence of PW3 and PW4 and find the 4 May incident happened as they described.  I considered and accept PW3’s identification evidence that the defendant D2 was the “Kelly” referred in his evidence.

74.  I find the prosecution has proved the charge beyond all reasonable doubt, that the defendant D2 sold cocaine (Exhibit P3 & P4) together with D1 on 4 May 2016 to PW3 in the manner described by the officer outside 41 Wyndham Street.  The defendant is convicted accordingly.